City of Lawrenceburg, Indiana, Mayor of Lawrenceburg in his official capacity, Common Council of the City of Lawrenceburg in their official capacities v. Franklin County, Indiana

FILED
Aug 29 2016, 6:32 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Leanna Weissmann Grant M. Reeves
Lawrenceburg, Indiana Barada Law Offices LLC
Rushville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

City of Lawrenceburg, Indiana, August 29, 2016
Mayor of Lawrenceburg in his Court of Appeals Case No.
official capacity, Common 24A05-1603-PL-535
Council of the City of Interlocutory Appeal from the
Lawrenceburg in their official Franklin Circuit Court
capacities The Honorable J. Steven Cox
Appellants-Defendants, Trial Court Cause No.
24C01-1511-PL-740
v.

Franklin County, Indiana, & the
Franklin County Board of
Commissioners in their official
capacities,
Appellees-Plaintiffs

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016 Page 1 of 5
[1] In 2015, Appellees-Plaintiffs Franklin County and the Franklin County Board

of Commissioners (collectively, “Franklin”) filed a complaint in Franklin

Circuit Court alleging breach of contract by Appellants-Defendants the City of

Lawrenceburg, the mayor of Lawrenceburg, and the common council of

Lawrenceburg (collectively, “the City”). The City filed a motion, pursuant to

Trial Rule 76(A), requesting a change of venue from Franklin County to

Dearborn County. The trial court denied the City’s motion. On appeal, the

City contends that the trial court erred in denying its motion for change of

venue. We reverse the trial court’s ruling and remand with instructions.

Facts and Procedural History
[2] On January 17, 2006, the City and Franklin entered into a contract under which

the City agreed to share riverboat casino earnings with Franklin. On November

19, 2013, the City notified Franklin of its intent to terminate the agreement. On

November 18, 2015, Franklin filed a complaint in Franklin Circuit Court

alleging breach of contract by the City. On January 8, 2016, the City moved to

change venue, arguing that pursuant to Indiana Trial Rule 76(A), the Franklin

Circuit Court is an inappropriate venue because Franklin County is a party to

the lawsuit. On February 12, 2016, the trial court denied the City’s motion to

change venue.

Discussion and Decision

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[3] On appeal, the City argues that the trial court erred in denying its motion to

change venue. Indiana Trial Rule 76(A) provides as follows:

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.
Denial of a motion for change of venue from the county shall be
reviewable only for an abuse of discretion….

(emphasis added).

[4] The City contends that its motion should have been granted because Franklin

County is a party and the suit is pending in Franklin Circuit Court. For its part,

Franklin argues that, according to Trial Rule 75(A)(5), Franklin Circuit Court is

a preferred venue and so the case should not be transferred.

Preferred venue lies in: … the county where…the principal office
of a governmental organization is located, or the office of a
governmental organization to which the claim relates or out of
which the claim arose is located, if one or more governmental
organizations are included as defendants in the complaint;

T.R. 75(A)(5). Regardless of whether Franklin County is a preferred venue, its

status as such is trumped by Trial Rule 76(A), which states explicitly that a

motion requesting a change of venue “shall be granted only upon a showing

that the county where suit is pending is a party.” That is clearly the case here.

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 Accordingly, the trial court was required to grant the City’s motion and erred in

failing to do so. See Scott v. Consol. City of Indianapolis, 833 N.E.2d 1094, 1101

(Ind. Ct. App. 2005) (“According to the plain reading of Trial Rule 76, a change

of venue occurs when the county is a party to the action.”); see also Bd. of

Comm’rs of LaPorte Cnty. v. Great Lakes Transfer, LLC, 888 N.E.2d 784, 790 (Ind.

Ct. App. 2008) (holding that T.R. 76(A) required that the trial court grant the

motion for change of venue from LaPorte County where LaPorte County was a

party to the action despite the fact that it was also a preferred venue.).

[5] The City also claims that the case should be moved to Dearborn County

specifically. Indiana Trial Rule 76(D) provides the procedure by which a new

venue is determined following the grant of a Rule 76 change of venue motion:

Whenever a change of venue from the county is granted, the
parties may, within three (3) days from the granting of the
motion or affidavit for the change of venue, agree in open court
upon the county to which venue shall be changed, and the court
shall transfer such action to such county. In the absence of such
agreement, the court shall, within two (2) days thereafter, submit
to the parties a written list of all counties adjoining the county
from which the venue is changed, and the parties within seven (7)
days from the date the clerk mails the list to the parties or within
such time, not to exceed fourteen (14) days from that date, as the
court shall fix, shall each alternately strike off the names of such
counties. The party first filing such motion shall strike first, and
the action shall be sent to the county remaining not stricken
under such procedure.

The City seems to ignore this procedure and argues instead that Dearborn

County is the appropriate venue because the City is located in Dearborn

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 County, making it a preferred venue. However, Rule 76(D) sets forth specific

procedural steps for change of venue determinations and preferred venue is not

a requirement. Accordingly, it is up to the parties on remand to determine a

new venue in accordance with Rule 76(D).

[6] The judgment of the trial court is reversed and remanded with instructions.

Pyle, J., and Altice, J., concur.

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