MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 22 2016, 6:44 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Recker Keith E. Rounder
Indianapolis, Indiana Terrell, Baugh, Salmon & Born,
LLP
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Genahol, LLC, April 22, 2016
Genahol-Powers 1, LLC, Court of Appeals Case No.
Appellants, 49A02-1508-PL-1187
Appeal from the Marion Superior
v. Court
The Honorable Gary L. Miller,
Earl Powers, Judge
Powers Energy One of Indiana, Trial Court Cause No.
LLC, 49D03-1412-PL-40483
Worldnet Capital 1, LLC,
Appellees.
Pyle, Judge.
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Statement of the Case
[1] Genahol, LLC and Genahol-Powers 1, LLC (collectively, “Genahol”) appeal
the trial court’s order denying its motion to correct error, which was filed after
the trial court granted a motion to dismiss without prejudice filed, pursuant to
Trial Rule 75(B)(3), by Earl Powers (“Powers”), Powers Energy One of
Indiana, LLC (“Powers Energy”), and Worldnet Capital 1, LLC (“Worldnet”)
(collectively, “the Defendants”). Genahol argues that the trial court’s dismissal
order was erroneous and that the trial court should have ordered a change of
venue rather than a dismissal. Because the trial court had already transferred
venue of the case and Genahol failed to pay the venue transfer costs within the
time required under Trial Rule 75(B)(2), the trial court did not err by dismissing
the case without prejudice pursuant to Trial Rule 75(B)(3), which required such
action by the trial court. Accordingly, we affirm the trial court’s order
dismissing the case without prejudice.
[2] We affirm.
Issue
Whether the trial court abused its discretion by granting the
Defendants’ motion to dismiss without prejudice pursuant to
Indiana Trial Rule 75(B)(3).
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Facts1
[3] On December 5, 2014, Genahol filed, in Marion County, a “Complaint for
Monetary and Exemplary Damages” against the Defendants.2 (App. 6). The
complaint contained claims for breach of contract and fraud, among others.
After receiving an enlargement of time, the Defendants filed their answer and
affirmative defenses on February 18, 2015.
[4] Shortly thereafter, on February 27, 2015, the Defendants filed a motion for
change of venue pursuant to Indiana Trial Rule 75. The Defendants argued
that Vanderburgh County was the proper venue under Trial Rules 75(A)(1) and
75(A)(4) because that was where Powers was a resident and where Powers
Energy and Worldnet had their principle offices. On March 9, 2015, the trial
court entered an order granting the Defendants’ motion for change of venue.3
1
We note that many of the pleadings contained in Genahol’s Appellant’s Appendix are not file stamped, and
it appears that Genahol used its own copies of these pleadings when compiling its Appendix. Additionally,
Genahol asserts that various orders are not contained in its Appellant’s Appendix, claiming that it never
received a copy of the orders. We direct Genahol’s attention to Indiana Appellate Rule 50(A)(2)(f), which
directs that an Appellant’s Appendix should contain copies of “pleading and other documents from the
Clerk’s Record[.]” Thus, Genahol should have obtained all necessary pleadings and orders from the trial
court clerk and then included those in its Appellant’s Appendix.
We also note that Genahol’s Statement of Facts section is an exact repeat of its Statement of Case section.
We direct Genahol to Appellate Rule 46(A)(6), which provides that the Statement of Facts section “need not
repeat what is in the statement of the case.”
2
According to the complaint, Genahol, LLC is registered in Ohio, and Genahol-Powers, LLC is licensed in
Indiana.
3
Genahol did not include a copy of this order in its Appellant’s Appendix. The Defendants, however,
attached a copy of this order to the back of their Appellees’ Brief instead of filing it in an Appellees’
Appendix. We direct the Defendants’ attention to Indiana Appellate Rule 50(A)(3), which provides that an
Appellee may file an Appellee’s Appendix to include items relevant to appellate issues that are not contained
in the Appellant’s Appendix.
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Specifically, the trial court ordered the case to be transferred to Vanderburgh
County, and it ordered Genahol to pay all the required transfer fees. Pursuant
to Trial Rule 75(B)(2), Genahol was required, “within twenty (20) days, [to]
pay such costs as are chargeable upon a change of venue.”
[5] A few days after the trial court had entered its order, Genahol filed a response
to the Defendants’ venue motion, arguing that Marion County was a proper
venue because it was where the contract at issue was signed. On March 20,
2015, Genahol then filed a motion to reconsider, requesting the trial court to
reconsider its order granting the Defendant’s change of venue motion. Genahol
raised a procedural argument only, asserting that the trial court should not have
entered an order on the Defendants’ venue motion before giving Genahol a
chance to respond or without holding a hearing on the venue motion. The
motion was not ruled upon within five days; therefore, it was deemed denied. 4
[6] Thereafter, on April 8, 2015, Genahol filed a motion to correct error, again
challenging the procedural timing of the trial court’s order granting the change
of venue motion. The trial court did not set the motion to correct error for a
hearing nor did it enter an order addressing it.
4
See Ind. Trial Rule 53.4(B) (explaining that a motion to reconsider is “deemed denied” if not ruled upon
within five days). Despite this “deemed denied” status, the trial court, on April 13, 2015, attempted to deny
Genahol’s motion to reconsider by handwriting “denied” on Genahol’s proposed order in which it sought to
have the trial court grant its motion to reconsider and to “vitiate[]” the “order of March 9th, 2015 granting a
change of venue.” (App. 34). The following day, on April 14, 2015, the trial court clerk entered a
chronological case summary (“CCS”) entry for this order and mistakenly indicated that the trial court had
entered an “Order Denying Motion for Change of Venue.” (App. 3). A few days later, another CCS entry
indicated that the April 14, 2015 entry was a clerical mistake and should be disregarded.
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[7] On May 19, 2015, the trial court issued an order reassuming jurisdiction over
the case. In its order, the trial court noted that it had “reviewed the file in this
cause” and “determine[d] [that] the Defendants ha[d] failed to perfect their
change of venue pursuant to the Indiana Trial Rules[.]” (App. 35).
[8] The following day, the Defendants filed a motion to dismiss the action without
prejudice pursuant to Trial Rule 75(B). The Defendants argued that—under
Trial Rule 75(B)(2)—Genahol had been required, within twenty days, to pay
the costs to transfer venue of its case to Vanderburgh County and that—under
Trial Rule 75(B)(3)—Genahol’s failure to pay the transfer costs required the
trial court to dismiss Genahol’s case without prejudice.
[9] On June 25, 2015, the trial court held a hearing on the Defendants’ motion to
dismiss.5 During the hearing, the trial court also allowed Genahol to present its
argument regarding the change of venue issue.6 On June 29, 2015, the trial
court issued an order “dismissing [the] case for failure to perfect preferred
venue[.]” (App. 4) (all capitalization removed). In its order granting the
Defendants’ motion to dismiss, the trial court also reaffirmed its prior order on
venue, noting that “the Marion Superior Court where the action was filed does
5
The CCS indicates that this hearing was initially scheduled as a hearing on a “Motion for 41E Dismissal[.]”
(App. 3). At the beginning of the hearing, the Defendants’ counsel clarified that their motion to dismiss was
filed pursuant to Trial Rule 75 and based on Genahol’s failure to pay the required fees to transfer venue of the
its case.
6
Genahol presented a witness who testified that the parties signed a contract in Marion County, and it
argued that Marion County was, therefore, the proper venue.
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not meet preferred venue requirements and that Vanderburgh County has
preferred venue and is authorized to decide the case.” (App. 47).
[10] On July 27, 2015, Genahol filed a motion to correct error, contending that the
trial court’s order erred by dismissing the case without prejudice. Genahol
argued that the order would result in prejudice, even though it was ordered to
be without prejudice, because Genahol would be required to file a new cause of
action. It alleged that “the statute of limitations for their action will have run”
and argued that, as a result, it would “mak[e] court action impossible[.]” (App.
49). Genahol argued that it was “under no obligation to perfect a change of
venue” because the trial court had reassumed jurisdiction and had entered
orders in the case. Genahol contended that, instead of dismissing the case, the
trial court should have transferred the case to Vanderburgh County and allowed
Genahol “an opportunity to change venue within the time frame of Trial Rule
75[.]” (App. 50) (emphasis in original).
[11] On July 29, 2015, the Defendants filed a response to Genahol’s motion to
correct error. The Defendants pointed out that the language of Trial Rule
75(B)(3) was mandatory and required the trial court to dismiss the action
without prejudice upon Genahol’s failure to pay to the transfer costs within
twenty days of the order transferring venue, and it asserted that the trial court
should deny Genahol’s request to “treat the dismissal provision under Ind. T.R.
75(B)(3) as discretionary.” (App. 52).
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[12] Thereafter, on August 3, 2015, the trial court denied Genahol’s motion to
correct error.7 Genahol now appeal.
Decision
[13] Genahol challenges the trial court’s order granting the Defendants’ motion to
dismiss without prejudice pursuant to Trial Rule 75(B)(3), and it argues that the
trial court abused its discretion by denying its motion to correct error.
[14] On appeal, we review a trial court’s ruling on a motion to correct error for an
abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048,
1055 (Ind. 2003). We will reverse a trial court’s ruling on a motion to correct
error “only where the trial court’s judgment is clearly against the logic and
effect of the facts and circumstances before it or where the trial court errs on a
matter of law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
[15] Indiana Trial Rule 75(B) provides, in relevant part, that:
(1) Whenever a claim or proceeding is filed which should
properly have been filed in another court of this state, and proper
objection is made, the court in which such action is filed shall not
then dismiss the action, but shall order the action transferred to
the court in which it should have been filed.
(2) The person filing the action shall, within twenty (20) days,
pay such costs as are chargeable upon a change of venue and the
papers and records shall be certified to the court of transfer in like
manner as upon change of venue and the action shall be deemed
7
The trial court denied the motion by handwriting “denied” on Genahol’s proposed order. (App. 54).
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commenced as of the date of filing the action in the original
court.
(3) If the party filing the action does not pay the costs of transfer
within twenty (20) days of the order transferring venue, the
original court shall dismiss the action without prejudice and shall
order payment of reasonable attorney fees to the party making
proper objection.
[16] The crux of Genahol’s appellate challenge to the trial court’s order granting the
Defendants’ motion to dismiss under Trial Rule 75(B)(3) is that the trial court
should have “order[ed] the matter transferred” instead of dismissing the case
without prejudice. (Genahol’s Br. 6). Genahol does not dispute the fact that it
did not pay the transfer costs within twenty days of the trial court’s March 9,
2015 venue order as was required by Trial Rule 75(B)(2). Instead, it offers an
excuse for why it did not pay the costs of transferring the case to Vanderburgh
County within twenty days. Specifically, Genahol contends that it
“detrimentally relied upon [its belief] that they were under no obligation to
perfect a change of venue where the court was still exercising jurisdiction . . .
and while a ruling on a motion to correct errors was pending.” (Genahol’s Br.
6).
[17] We find Genahol’s excuse to be hollow, especially in light of the fact that its
motion to correct error had not even been filed at the time that the transfer fees
were due. Here, the Defendants filed a motion for change of venue pursuant to
Indiana Trial Rule 75. On March 9, 2015, the trial court granted this motion
and—pursuant to Trial Rule 75(B)(1)—ordered the case transferred to
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Vanderburgh County and—pursuant to Trial Rule 75(B)(2)—ordered Genahol
to pay the costs associated with the change of venue. Because March 29, 2015
was a Sunday, Genahol was required to pay the associated transfer fees by
Monday March 30, 2015. Genahol, however, did not pay these costs within
twenty days as required by Trial Rule 75(B)(2). Instead, on March 20, 2015,
Genahol filed a motion to reconsider. However, the filing of this motion did
not extend the date by which Genahol was required to pay the venue transfer
costs. See T.R. 53.4(A) (explaining that a motion to reconsider “shall not . . .
extend the time for any further required or permitted action, motion, or
proceeding”). Then, on April 8, 2015, Genahol filed a motion to correct error.
This motion was filed nine days after the date that Genahol was required to pay
the venue transfer costs; thus, this motion was not pending during the relevant
time period that Genahol had to pay the transfer costs.
[18] Once a trial court grants a change of venue to another county, “the burden is
upon the plaintiff or claimant to ascertain the costs associated with the transfer
and pay them.” Ahmad v. Duncan, 732 N.E.2d 862, 865 (Ind. Ct. App. 2000),
trans. denied. The language of Trial Rule 75(B)(3) unambiguously provides that,
upon a plaintiff’s failure to pay the transfer costs within twenty days, a trial
court “shall dismiss the action without prejudice[.]” Here, upon a motion filed
by the Defendants, the trial court dismissed Genahol’s case without prejudice
pursuant to this rule. Because the language of Trial Rule 75(B)(3) is
mandatory, we affirm the trial court’s order, entered pursuant to Trial Rule
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75(B)(3), dismissing Genahol’s case without prejudice.8 See Daugherty v.
Robinson Farms, Inc., 858 N.E.2d 192, 197 (Ind. Ct. App. 2006) (explaining that
we apply rules of statutory construction when interpreting trial rules and that
we “construe the word ‘shall’ as mandatory”), trans. denied.
[19] Affirmed.
Baker, J., and Bradford, J., concur.
8
Genahol also appears to suggest that the trial court erred by failing to hold a hearing on the Defendants’
motion for change of venue prior to issuing an order on the motion. We decline to address this collateral
attack to the trial court’s March 2015 change of venue order.
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