MEMORANDUM DECISION
                                                                    Dec 31 2015, 10:24 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
JESSE EADS                                               Nicholas C. Deets
Jeffrey R. Mitchell                                      Hovde Dassow & Deets LLC
American Family Insurance                                Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR AMICUS
TOTAL IMAGE EXTERIORS, LLC                               CURIAE INDIANA TRIAL
Grover B. Davis
                                                         LAWYERS ASSOCIATION
James T. Flanigan                                        David L. Farnbauch
McClure McClure & Davis                                  Sweeney Law Firm
Indianapolis, Indiana                                    Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jesse Eads and                                           December 31, 2015
Total Image Exteriors, LLC                               Court of Appeals Case No.
d/b/a TIE Tree Services,                                 73A05-1505-CT-422
Appellants-Defendants,                                   Appeal from the Shelby Superior
                                                         Court
        v.
                                                         The Honorable R. Kent Apsley,
                                                         Judge
Patrick Turner,
                                                         Trial Court Cause Nos.
Appellee-Plaintiff                                       73D01-1503-CT-10
                                                         34D04-1501-CT-21



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015     Page 1 of 6
                                              Case Summary
[1]   Appellants-Defendants Jesse Eads (“Eads”) and Total Image Exteriors, LLC

      d/b/a TIE Tree Services (“TIE”) bring an interlocutory appeal as of right,1

      challenging the order of the Shelby County Superior Court, upon a motion to

      correct error made by Appellee-Plaintiff Patrick Turner (“Turner”), to return a

      case to its origin, Howard County, as a county of preferred venue. We are

      presented with the sole issue of whether Howard County is a county of

      preferred venue because it is the county where TIE’s principal office is located.2

      We affirm.




      1
        Indiana Trial Rule 75(E) provides in relevant part: “An order transferring or refusing to transfer a case
      under this rule shall be an interlocutory order appealable pursuant to Appellate Rule 14(A)(8). Indiana
      Appellate Rule 14(A)(8) provides that “transferring or refusing to transfer a case under Trial Rule 75” is
      appealable as of right by filing a Notice of Appeal with the Clerk within thirty days after the notation of the
      interlocutory order in the Chronological Case Summary.
      2
        Eads and TIE articulate an additional issue as to waiver, contending that Turner knowingly relinquished a
      known right to challenge the transfer to Shelby County by failing to timely file an objection to the motion of
      Eads and TIE to transfer to a county of preferred venue. The chronological case summary (“CCS”) indicates
      that, on February 2, 2015, the trial court “gave Plaintiff 20 days to respond” to the motion. (App. at 2.) The
      Appendix includes an order, dated February 24, 2015, providing that the motion for transfer was granted and
      the case transferred to Shelby County. However, the Howard County CCS indicates that, on February 25,
      2015, the cause was set for a case management conference on May 14, 2015 in Howard County. On
      February 26, 2015, counsel for Turner contacted the Howard County Superior Court, purportedly to advise
      that he had just received notice of the motion and that a response would be forthcoming. The response was
      filed on the same day. At the subsequent hearing on Turner’s motion to correct error, conducted in Shelby
      County, counsel for TIE stated TIE’s position that Turner had waived his right to oppose the venue transfer.
      However, no factual record was developed as to the circumstances surrounding the late filing. We will not
      speculate in this regard.
      Moreover, the order on appeal is silent with respect to the claimed waiver. The order of the court states in
      relevant part: “The sole issue presented for the Court’s consideration is Plaintiff’s averment that the Howard
      Superior Court No. 4 improperly venued this case to Shelby County, Indiana.” (App. at 8.) Given the
      brevity of the record, the bald allegation of waiver made by Eads and TIE does not provide independent
      grounds for the reversal of the interlocutory order of the trial court.

      Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015               Page 2 of 6
                            Facts and Procedural History
[2]   In a complaint filed in the Howard County Superior Court on January 12,

      2015, Turner alleged that he was bitten by a dog owned by Eads or TIE. The

      incident was alleged to have occurred in Shelby County, where Turner and

      Eads reside, and where TIE is headquartered.


[3]   On February 2, 2015, Eads and TIE filed a Motion for Transfer to County of

      Preferred Venue. On February 24, 2015, the motion was granted and the case

      was ordered to be transferred to Shelby County. On March 2, 2015, Turner

      filed a motion to correct error. He subsequently filed a motion to remand to

      Howard County. On April 20, 2015, a hearing was conducted in Shelby

      Superior Court No. 1. On April 22, 2015, the trial court issued an order

      returning the case to Howard County. This appeal ensued.



                                Discussion and Decision
[4]   Trial Rule 75 governs venue requirements in Indiana. Each of its ten

      subsections sets forth criteria establishing “preferred venue.” American Family

      Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973-74 (Ind. 2006). A case or

      complaint may be filed in any Indiana county; however, if the complaint is not

      filed in a preferred venue, the court is required to transfer the case to a preferred

      venue upon the proper request from a party. Id. at 974 (citing T.R. 75(A)). The

      rule does not create a priority among the subsections establishing preferred

      venue; thus, if the complaint is filed in a preferred venue, the trial court has no


      Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015   Page 3 of 6
      authority to transfer the case based solely on preferred venue in one or more

      other counties. Id.


[5]   Subsection (4) of the rule establishes preferred venue in the county where the

      principal office of a defendant organization is located. Id. Accordingly, if a

      case is filed in the county where the principal office of a defendant organization

      is located, transfer to another county on grounds of preferred venue would be

      inappropriate. Id.


[6]   Here, there is no factual dispute; rather, the parties disagree as to what

      constitutes a principal office of a defendant domestic corporation. Rulings of

      law are reviewed de novo. Id. at 973. Turner filed his complaint in Howard

      County on the basis that the registered agent for TIE is in Howard County and

      thus the principal office of TIE is in Howard County. Eads and TIE moved to

      transfer to a county of preferred venue on the basis that TIE’s principal office is

      in Shelby County, because that is where TIE has a physical presence.


[7]   In ruling upon Turner’s motion to correct error, the trial court observed that:

      “American Family … speaks directly to this issue.” (App. at 12.) American

      Family involved an automobile insurer bringing a subrogation action against a

      vehicle manufacturer, Ford Motor Company (“Ford”), to recover damages

      from a vehicle fire. 875 N.E.2d at 972. The insured resided in Spencer County,

      where the fire occurred. Ford had no offices in Indiana but maintained its

      registered agent in Marion County pursuant to Indiana Code Section 23-1-24-1.

      American Family sued Ford in Marion County and Ford filed a motion to


      Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015   Page 4 of 6
      transfer venue to Spencer County. Ford’s motion was granted and American

      Family appealed. The Court of Appeals reversed, concluding that Marion

      County was a preferred venue under Trial Rule 75(A)(10). On transfer, the

      Indiana Supreme Court also concluded that Marion County was a preferred

      venue, but reached its conclusion on a different basis. Specifically, because

      Ford maintained a registered agent in Marion County, Ford’s principal office in

      the State was in Marion County. Id. at 973.


[8]   Eads and TIE argue that the rationale of American Family must be limited to

      foreign corporations and is not applicable to a domestic corporation such as

      TIE. We must disagree. Our Indiana Supreme Court explicitly identified the

      scope of its decision: “We hold that the term ‘principal office’ as used in

      subsections (4) and (10) of Trial Rule 75(A) refers to a domestic or foreign

      corporation’s registered office in Indiana.” Id. at 972. Thus, the Court

      succinctly included both foreign and domestic corporations in its holding.


[9]   Nonetheless, Eads and TIE argue for our modification of the bright line rule.

      They argue that physical presence more accurately establishes a principal office

      of a corporation domiciled in Indiana than does the registered agent’s address.

      They warn that litigation may frequently proceed in a forum that has no nexus

      to the case. We observe that it is the corporation who makes the election

      regarding its registered agent. Moreover, we will not disregard binding

      precedent for the sake of claimed convenience. See Patton v. State, 507 N.E.2d

      624, 626 (Ind. Ct. App. 1987) (“We are obliged to follow precedents established

      by the Indiana Supreme Court”), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015   Page 5 of 6
                                               Conclusion
[10]   Howard County, where Turner initially filed his complaint, is a preferred venue

       for the complaint. The Shelby County Superior Court did not err in ordering

       that the case proceed in Howard County.


[11]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A05-1505-CT-422 | December 31, 2015   Page 6 of 6
