MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Apr 27 2020, 6:01 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Crystal G. Rowe                                           David E. Gray
New Albany, Indiana                                       David L. Jones
                                                          Craig R. Emig
Brent R. Weil                                             Evansville, Indiana
William G. Hussmann, Jr.
Evansville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Elpers Bros. Construction &                               April 27, 2020
Supply, Inc. and Elpers                                   Court of Appeals Case No.
Development, Inc.,                                        19A-PL-1327
Appellants-Defendants,                                    Appeal from the
                                                          Vanderburgh Circuit Court
        v.                                                The Honorable
                                                          David D. Kiely, Judge
Deane L. Smith, II, MD and                                Trial Court Cause No.
Lori A. Smith,                                            82C01-1712-PL-6198
Appellees-Plaintiffs.



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020                 Page 1 of 19
                                                 Case Summary
[1]   In 2007, Deane L. Smith II, MD and Lori Smith (Homeowners) purchased a

      residential lot from Elpers Bros. Construction & Supply, Inc. and Elpers

      Development, Inc. (Builders) and built their home on it. In 2017, Homeowners

      filed suit in the Vanderburgh Circuit Court against Builders alleging that the

      geothermal system used to heat and cool their home was damaged due to

      problems with drainage in the subdivision and the retention pond on their

      property. Homeowners asserted negligence claims as well as a request for a

      declaratory judgment that Builders failed to comply with the subdivision plat

      and ordinances. After Vanderburgh County was added as a third-party

      defendant, Builders filed a motion for change of venue from the county.

      Builders also filed a motion to disqualify Homeowners’ counsel, who during the

      course of the litigation had been appointed the Vanderburgh County Attorney.

      The trial court denied both motions, and Builders filed this interlocutory appeal

      asserting that the denials were an abuse of discretion and/or an erroneous

      interpretation of the law.


[2]   We affirm.


                                      Facts & Procedural History 1
[3]   Around 2006, Builders purchased property in Vanderburgh County that they

      developed into a residential subdivision known as Stonegate Estates (the



      1
          We deny Builders’ request for oral argument by separate order.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 2 of 19
      Subdivision). In June 2007, Homeowners purchased Lot 1 in the Subdivision

      from Builders and hired Builders to construct their home on the lot. Lot 1,

      located on Skipping Stone Drive, includes a private lake for Homeowners’

      exclusive use and enjoyment. The lake also serves as the retention pond for the

      Subdivision and is subject to an easement for drainage of surface and storm

      water from other lots. Homeowners installed the coils and component parts for

      their geothermal heating and cooling system in the lake.


[4]   During development of the Subdivision, Builders hired engineer Keith Poff and

      Sitecon, Inc. (collectively, the Engineers) to design the Subdivision’s drainage

      system and to install the lake on Lot 1. The drainage and erosion control plans

      were submitted to Vanderburgh County, and the county’s Drainage Board

      approved them on December 5, 2006. Pursuant to county ordinance,

      Vanderburgh County may dedicate roads for public use and, thus, assume

      responsibility for the maintenance of those roads and drainage structures. In

      this case, Vanderburgh County identified two streets in the Subdivision,

      including Skipping Stone Drive, as public roadways. On May 13, 2008,

      Vanderburgh County “Accepted for Maintenance” Skipping Stone Drive and

      the associated drainage structures within the Subdivision. Appellants’ Appendix

      Vol. 2 at 110, 126. Later, in May 2011, the county’s Area Plan Commission

      released Builders’ letter of credit (or performance bond) after having found “the

      satisfactory completion of the remaining work on the drainage facilities and

      other public improvements in the [Subdivision].” Id. at 111, 128-29.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 3 of 19
[5]   From 2009 to 2015, Homeowners used the geothermal system to heat and cool

      their home. In mid-2015, they noticed excessive silt in the lake, and in

      December 2015 they determined that their geothermal system was not working

      properly, believing this was due to drainage issues in the Subdivision and

      deteriorating lake conditions. Homeowners hired attorneys David L. Jones and

      Craig R. Emig of the law firm Jones Wallace, LLC to investigate and pursue

      any claims associated with the geothermal system’s failure. In December 2017,

      Homeowners filed a lawsuit in the Vanderburgh Circuit Court against Builders

      and the Subdivision’s HOA.


[6]   The complaint alleged that the lake/retention pond was no longer usable due to

      sediment from upstream runoff, that Homeowners’ geothermal system was

      damaged “and will have to be reconstructed with dredging of the lake in

      association with remedial measures to prevent the lake from then refilling with

      dirt and silt and/or relocation of the coils followed by dredging of the lake,”

      and that “all Defendants have failed to act as required under the various

      agreements or to remediate the continuing damage to Plaintiffs’ property, or

      undertake proper reconstruction and maintenance of the drainage facilities.”

      Id. at 29-30. Homeowners asserted two claims: (1) a request for a declaratory

      judgment declaring Builders and the HOA in breach and violation of the

      requirements of the subdivision plat, and all applicable local and ordinances,

      regulations, and statutes and ordering them to immediately comply with the

      provisions of the subdivision plat and its conditions and to perform such

      corrective and remedial work as necessary to be in full compliance; and (2) a


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 4 of 19
      claim that Builders negligently designed, constructed, and maintained the

      drainage and erosion control facilities of the Subdivision.


[7]   Builders filed their answer on February 22, 2018, raising affirmative defenses,

      including that “the amount to be awarded, if any, should be diminished in

      proportion to the amount of contributory fault of the Plaintiffs and/or the

      contributory fault of other non-parties or Defendants whose conduct

      proximately contributed to the incident complained of in Plaintiffs’

      Complaint.” Id. at 73. In July 2018, Homeowners replaced their geothermal

      system at a cost of approximately $26,000, and buried the new system’s pipes in

      the ground, not the lake.


[8]   In January or February 2019, the Vanderburgh County Commissioners

      appointed Jones as the Vanderburgh County Attorney, and Emig became

      Assistant County Attorney. On March 22, 2019, the parties participated in a

      mediation, which was not successful. On March 25, Builders filed a motion for

      leave to amend the pleadings to file a third-party complaint against

      Vanderburgh County and the Engineers. The same day, Builders also filed a

      motion to disqualify Homeowners’ counsel, Jones and Emig and their law firm,

      under the Ind. Rules of Professional Conduct, asserting that they, as the

      Vanderburgh County Attorney and Assistant County Attorney, had an

      unwaivable conflict of interest by representing clients with adverse interests in

      the same litigation.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 5 of 19
[9]    On March 28, 2019, the trial court granted Builders’ motion for leave to amend

       the pleadings, and, the next day, Builders filed their third-party complaint

       against Vanderburgh County and the Engineers. Builders alleged, as is relevant

       here, that in the course of developing the Subdivision, (1) they provided

       drainage and erosion control plans to Vanderburgh County and that the

       county’s Drainage Board approved the plans on December 5, 2006, (2) on May

       13, 2008, the county “Accepted for Maintenance” Skipping Stone Drive in the

       Subdivision, and (3) on May 5, 2011, the County inspected the Subdivision and

       determined that all work required by the county had been completed, releasing

       a letter of credit that had been held pending completion of the drainage work.

       Builders asserted that since Homeowners’ lawsuit contended that there are

       defects in the drainage system, including negligent maintenance of the drainage

       facilities, Vanderburgh County “will be a necessary party to effectuate any relief

       that is necessary for the correction of said defects and may be responsible for

       paying a portion of the costs for any such corrective action.” Id. at 159. On

       April 1, Homeowners filed a written objection, asserting that Builders’ motion

       was without factual or legal basis and asked the court to set the matter for

       hearing.


[10]   On April 2, 2019, Builders filed a verified motion for change of venue from

       Vanderburgh County based on Ind. Trial Rule 76(A), which provides that a

       party’s motion shall be granted upon a showing that the county where the suit is

       pending is a party. Builders acknowledged that, under T.R. 76(C), a motion for

       change of venue must be made within ten days of when the issues first closed


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 6 of 19
       on the merits, which in this case was on February 22, 2018 when Builders filed

       their Answer, but argued that, pursuant to case law, the addition of third-party

       defendant Vanderburgh County on March 29, 2019 “effect[ed] a change in

       venue” such that the original parties obtained renewed venue rights. Id. at 184.

       On April 3, Homeowners filed a written objection, asserting that Builders were

       not entitled to a change of venue and that Builders had misstated the law. On

       April 4, attorney Joseph Harrison Jr. of Massey Law Offices filed an

       appearance on behalf of Vanderburgh County.


[11]   The trial court held a hearing on various pending motions on April 23, 2019,

       with the court first addressing Builders’ motion to disqualify Jones and Emig

       and their law firm. Builders argued that Jones and Emig had a conflict of

       interest, namely, concurrent representation of clients with adverse interests

       (plaintiff Homeowners and third-party defendant Vanderburgh County), and

       that Ind. Rule of Professional Conduct 1.7 required their disqualification.


[12]   Jones responded that when he became aware in November 2018 of the

       possibility that he might be appointed County Attorney, he spoke with the

       County Commissioners to advise them that he was already representing

       Homeowners in the lawsuit, that there was a possibility that various county

       employees would be deposed in the lawsuit or otherwise need to testify/be

       involved, and he would be representing Homeowners, not the county.

       Transcript at 9. He spoke with the County Engineer and County Surveyor and

       told them the same. Jones advised the trial court that the position of

       Vanderburgh County Attorney was not full-time and that his contract with

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 7 of 19
       Vanderburgh County provides for potential conflicts of interest and, in that

       circumstance, “[t]here are several attorneys that are under contract with

       Vanderburgh County for just those situations,” one of whom is Harrison, who

       entered his appearance in the present case for Vanderburgh County. Id.


[13]   Jones told the trial court that Homeowners had consulted with several

       engineering experts concerning the drainage issues and, based on what the

       experts reported, Jones did not anticipate Homeowners making any direct

       claims against the county. He reiterated that he was not representing

       Vanderburgh County in this case, and even if he was, it would be permissible

       because he had obtained a signed consent and waiver from Homeowners and,

       at a public meeting, from the three County Commissioners. Jones presented

       the consent and waiver to the trial court at the hearing.


[14]   Builders objected to the consent and waiver form, having no prior knowledge of

       it and noting that they did not know the extent of any disclosure that was made

       by Jones to Homeowners or to the county. Builders further maintained that the

       conflict in this case was not waivable because of direct claims that Homeowners

       have, or should have, against the county. Jones responded:


               If at any time this were to arise, that I think there’s a claim
               against the County, I would immediately withdraw and advise,
               advise the Smith[s] that they need to get other counsel. . . . If at
               any time the County thinks that there’s a claim there against the
               Smith’s, they’ve got independent counsel to bring the case.


       Id. at 25.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 8 of 19
[15]   The trial court asked Harrison, who had filed an appearance for Vanderburgh

       County in this case and preceded Jones as the Vanderburgh County Attorney,

       for his opinion as to the extent of Jones’s representation of the county.

       Harrison stated that he was the Vanderburgh County Attorney from 2012 to

       2018, and while “the County was a lot of [his] work,” he represented “many

       other clients obviously.” Id. at 28. He told the court, “with regard to this case,

       [Jones] is not representing the County, I am.” Id. at 27.


[16]   Concerning the motion for change of venue, Builders argued that Indiana

       caselaw provides that, when a party that has been added to the litigation effects

       a change of venue, the original parties obtain renewed venue rights so long as

       they have not previously exercised those rights, “[a]nd so the issue is going to

       be for this Court . . . what does effect a change of venue mean.” Id. at 31.

       Builders urged that the addition of Vanderburgh County created a new

       situation, or “effectuated a change in venue,” entitling them to renewed venue

       rights because having the county as a party “puts [the trial court] in an

       untenable position, to have to rule for or against the County[.]” Id.

       Homeowners maintained that only if the newly-added, a/k/a “second

       generation,” defendant (here, Vanderburgh County) had filed for a change of

       venue would Builders, as an original party, have had renewed venue rights

       allowing them to seek a change of venue, and here the county did not seek a

       change of venue.


[17]   The trial court took the matters under advisement and then issued orders the

       same day summarily denying Builders’ two motions. On May 16, the trial

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 9 of 19
court granted Builders’ request to certify the orders for interlocutory appeal,

finding that the following presented substantial questions of law, the early

determination of which will serve the interests of justice and judicial economy:


        [W]hether under Indiana Trial Rule 76, which provides that the
        “motion (for change of venue) shall be granted only upon a
        showing that the county where the suit is pending is a party”
        applies when a Third Party complaint is filed in a case first
        naming the county in which the case is pending as a Third Party
        Defendant.


        [W]hether Attorneys who are the Appointed County Attorney
        and Assistant County Attorney for Vanderburgh County have a
        conflict of interest which requires their disqualification under
        Indiana Rule of Professional Conduct 1.7 when they bring a case
        under Indiana Comparative Fault law on behalf of plaintiffs who
        may have a claim against Vanderburgh County for negligent
        maintenance of drainage facilities; and further when they
        represent plaintiffs who are requesting that the Court issue a
        declaratory Judgment that remedial action be taken to change a
        drainage plan which Vanderburgh County has previously
        approved and which may involve change to drainage structures
        which Vanderburgh County has by contract and ordinance
        agreed to maintain.


Appellant’s Appendix Vol. 2 at 19, 22. This court accepted jurisdiction, and

Builders now appeal.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 10 of 19
                                        Discussion & Decision
                                        I. Attorney Disqualification

[18]   Builders argue that the trial court should have granted their motion to disqualify

       Homeowners’ counsel and law firm due to a conflict of interest. Our supreme

       court has described a trial court’s authority to disqualify an attorney “as

       necessary to prevent ‘insult and gross violations of decorum.’” Gerald v. Turnock

       Plumbing, Heating & Cooling, LLC., 768 N.E.2d 498, 501 (Ind. Ct. App. 2002)

       (quoting Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 154 (Ind. 1999) (citations

       omitted)). A trial court may disqualify an attorney for a violation of the Rules

       of Professional Conduct that arises from the attorney’s representation before the

       court. Id. We will review a trial court’s decision under an abuse of discretion

       standard. Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 411 (Ind. 2005);

       Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind. Ct. App. 2000).


[19]   The parties agree that the applicable Rule of Professional Conduct is Rule 1.7,

       which provides in relevant part:


               (a) Except as provided in paragraph (b) a lawyer should not
               represent a client if the representation involves a concurrent
               conflict of interest. A concurrent conflict of interest exists if:


                        (1) The representation of one client will be directly adverse
                        to another client; or


                        (2) There is a significant risk that the representation of one
                        or more clients will be materially limited by the lawyer’s



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 11 of 19
                        responsibilities to another client, a former client, or a third
                        person[.]


               (b) Notwithstanding the existence of a concurrent conflict of interest
               under paragraph (a) a lawyer may represent a client if:


                        (1) the lawyer reasonably believes that the lawyer will be
                        able to provide competent and diligent representation to
                        each affected client;


                        (2) the representation is not prohibited by law;


                        (3) the representation does not involve the assertion of a
                        claim by one client against another client represented by
                        the lawyer in the same litigation or other proceeding
                        before a tribunal; and


                        (4) each affected client gives informed consent, confirmed
                        in writing.


       (Emphases added).


[20]   Builders suggest that “this action involves the issue of whether an attorney . . .

       may represent two clients (i.e., the Smiths and Vanderburgh County) with

       adverse interests, in the same litigation.” Appellant’s Brief at 20. That manner of

       framing of the issue, however, presupposes that Jones in fact does represent

       Vanderburgh County in this action; we believe that whether Jones represents

       Vanderburgh County in the present lawsuit, by virtue of his appointment as

       County Attorney, is the threshold issue that needs to be decided. Based on the

       record before us, we conclude that he does not.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 12 of 19
[21]   The record indicates that the Vanderburgh County Attorney is a part-time

       position, thus likely requiring the County Attorney to maintain a practice

       representing other individuals or entities besides the county. Jones stated at the

       hearing that his contract with Vanderburgh County,2 as did the contract of his

       predecessors, expressly addresses the potential for conflicts of interest and that,

       to that end, several other local attorneys have a contract with Vanderburgh

       County allowing them to file an appearance in this type of situation. Here,

       Harrison filed an appearance for Vanderburgh County days after Builders filed

       a third-party complaint against it, and at no time did Jones or Emig enter an

       appearance for Vanderburgh County. Jones expressly stated at hearing that (1)

       he did not represent Vanderburgh County in this action, (2) he told the County

       Commissioners as early as November 2018 that he would not be representing

       Vanderburgh County in this action, and (3) he told various county employees

       that if there came a time that they needed to be deposed or testify, that he

       would not be representing them and that another attorney would be in that role.


[22]   Harrison, who preceded Jones as the County Attorney, stated at the hearing

       that, even though Jones is the “main” County Attorney, “with regard to this

       case, [Jones] is not representing the County, I am.” Transcript at 27; see also id.

       (“[H]e’s not representing the County in this case.”). Harrison said that he




       2
           Jones’s contract is not in the record before us.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 13 of 19
       agreed with and supported Jones’s assertion that it was not a conflict of interest

       for Jones to stay in the case.


[23]   Based on this record, we conclude that Jones was not representing Vanderburgh

       County in this action. However, even if he was, thus resulting in a concurrent

       conflict of interest under Subsection (a) of Rule 1.7, the record establishes that

       the conditions of Subsection (b) were met to permit such representation.

       Specifically, Jones’s answers to the trial court’s questions at the hearing

       indicated he represented only Homeowners and not the County in this action,

       and he provided a written consent and waiver to the court, signed by

       Homeowners 3 and by the County Commissioners. With regard to the matter of

       direct claims between Homeowners and the county, which is precluded by

       Subsection (b)(3), Jones assured the trial court that, after consulting with

       experts early in the case, he did not believe that Homeowners had a direct claim

       against the county, but if one should arise, he would withdraw.


[24]   Given the facts and circumstances of this case, we find that the trial court’s

       decision to deny Builders’ motion to disqualify Jones, as well as Emig and their

       firm, was not an abuse of discretion.




       3
         We note that Mrs. Smith, one of the Homeowners, was present at the hearing and Jones was prepared to
       present her testimony as to the extent of his disclosure to her about the situation and her consent thereto, but
       the trial court determined that such testimony was not necessary.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020                     Page 14 of 19
                                             II. Change of Venue

[25]   Builders argue that the trial court erred when it denied their motion for change

       of venue from the county. T.R. 76 provides in pertinent part:


               (A) In civil actions where the venue may be changed from the
               county, such change of venue from the county may be had only
               upon the filing of a verified motion specifically stating the
               grounds therefor by the party requesting the change. The motion
               shall be granted only upon a showing that the county where suit is
               pending is a party or that the party seeking the change will be
               unlikely to receive a fair trial on account of local prejudice or bias
               regarding a party or the claim or defense presented by a party. A
               party shall be entitled to only one change of venue from the
               county. . . .


                                                       ***


               (C) In any action except criminal no . . . change of venue from the
               county shall be granted except within the time herein provided. Any such
               application for change of judge (or change of venue) shall be filed not later
               than ten [10] days after the issues are first closed on the merits. Except:


                        (6) if the moving party first obtains knowledge of the
                        grounds for change of venue from the county or judge after
                        the time above limited, he may file said application, which
                        must be verified personally by the party himself,
                        specifically alleging when the cause was first discovered,
                        how discovered, the facts showing the grounds for a
                        change, and why such cause could not have been
                        discovered before by the exercise of due diligence. Any
                        opposing party shall have the right to file counter-affidavits
                        on such issue within ten [10] days[.]



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020    Page 15 of 19
       (Emphases added). T.R. 76 “is intended to guarantee a fair and impartial trial”

       and “is also designed to avoid protracted litigation by imposing time limits after

       which a change of venue shall be denied.” State ex rel. Prosser v. Lake Circuit

       Court, 565 N.E.2d 751, 754 (Ind. 1991).


[26]   A denial of a motion for change of venue is reviewed for an abuse of discretion.

       T.R. 76(A); Scott v. Consol. City of Indianapolis, 833 N.E.2d 1094, 1098-99 (Ind.

       Ct. App. 2005), trans. denied. An abuse of discretion occurs when the trial

       court’s decision is against the logic and circumstances before it. Weinberger v.

       Boyer, 956 N.E.2d 1095, 1103 (Ind. Ct. App. 2011), trans. denied.


[27]   Builders contend that their motion should have been granted because

       Vanderburgh County is a party to the lawsuit that is pending in Vanderburgh

       Circuit Court and that, under such circumstances, T.R. 76(A) mandates a

       change in venue. Homeowners maintain that Builders’ motion is untimely and

       that the trial court properly denied it. We agree with Homeowners.


[28]   T.R. 76(C) says that “no . . . change of venue from the county shall be granted

       except within the time herein provided” and any motion for change of venue

       “shall be filed not later than ten days after the issues are first closed on the

       merits” with six listed exceptions. In this case, the issues were first closed on

       the merits when Builders filed their Answer on February 22, 2018. See Mann v.

       Russell’s Trailer Repair, Inc., 787 N.E.2d 922, 925 (Ind. Ct. App. 2003) (issues are

       first closed on the merits when the defendant files an answer), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 16 of 19
[29]   The only one of the six exceptions that is potentially applicable allows a party

       who “first obtains knowledge of the grounds for change of venue from the

       county . . . after the time above” to file a motion for change of venue “which

       must be verified personally by the party” and “specifically alleg[e] when the

       cause was first discovered, how discovered, the facts showing the grounds for a

       change, and why such cause could not have been discovered before by the

       exercise of due diligence.” T.R. 76(C)(6). Although Builders represented to the

       trial court that they learned during discovery of the necessity of bringing in

       Vanderburgh County as a third-party defendant, they did not specify when that

       discovery occurred or otherwise comply with the specific requirements of T.R.

       76(C)(6), making that exception inapplicable to this case. Accordingly,

       Builders’ motion for change of venue was filed outside of the prescribed time

       limitations of T.R. 76.


[30]   Builders urge us to find that they nevertheless are entitled to a change of venue

       based upon caselaw. Specifically, Builders refer us to cases holding that a later-

       added or second-generation defendant is entitled to an automatic change of

       venue under T.R. 76(A), and “when a party who has been added to the

       litigation after the original filings effects a change of venue, the original parties

       obtain renewed venue rights if they have not previously exercised their rights.”

       See Prosser, 565 N.E.2d at 754 (citing State ex rel. York v. Newton Circuit Court, 531

       N.E.2d 198 (Ind. 1988) (emphasis added)); see also Am. Fed’n of State, Cty. &

       Mun. Employees, AFL-CIO v. City of Gary, 578 N.E.2d 365, 367 (Ind. Ct. App.

       1991).


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 17 of 19
[31]   Builders argue that Vanderburgh County “effected (or effectuated) a change of

       venue” by its mere addition to the case, and, therefore, they (Builders) as

       original parties received renewed venue rights. Appellants’ Brief at 18. We

       disagree with this interpretation. The context and language of the caselaw

       reflects that the addition of a party does not alone effect a change of venue;

       rather, a change is effected when the newly-added party requests and receives a

       change of venue. In that instance, the original parties would then obtain

       renewed venue rights. See Prosser, 565 N.E.2d at 754 (where newly-added party

       “chose[] not to seek a change of venue”, the original plaintiff, IDEM, was

       “entitled only to the forum it chose” and, therefore, trial court properly denied

       IDEM’s motion for change of venue because it was untimely and IDEM was

       not a second generation defendant). Here, Vanderburgh County, a new or

       second-generation defendant, did not request or receive – that is did not effect –

       a change of venue. Thus, the original parties, including Builders, did not obtain

       renewed venue rights. Consequently, the trial court properly denied Builders’

       motion for change of venue.


[32]   To the extent that Builders argue that the circumstances resulting in their need

       or desire for a change in venue did not surface until well past the ten-day time

       limit, our courts have recognized that “[t]he opportunity to file a motion for

       change of judge outside the ten day time limit is provided for in [Subsection

       (C)(6).]” Weinberger, 956 N.E.2d at 1103 (rejecting defendants’ claim that it was

       impossible for them to change venue within the rule’s time limit because

       circumstances resulting in the motion for change of judge did not emerge until


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 18 of 19
       five days prior to trial); see also Lake Cty. Juvenile Det. Ctr. v. J.M.D., 704 N.E.2d

       149, 151 (Ind. Ct. App. 1999) (J. Staton’s dissent observing that the time limits

       of T.R. 76(C) are unambiguous and “[t]o the extent that T.R. 76(C) is

       inequitable as applied to the facts of this case, only the [S]upreme [C]ourt may

       address this inequity by amending the rule.”). As discussed above, Builders did

       not comply with the requirements of Subsection (C)(6). Accordingly, we find

       that the trial court did not abuse its discretion when it denied Builders’ motion

       to change venue from the county.


[33]   Judgment affirmed.


       Bradford, C.J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1327 | April 27, 2020   Page 19 of 19
