MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing Apr 26 2017, 10:58 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Donn H. Wray Mario Garcia
Bamberger, Foreman, Oswald & Hahn, Brattain Minnix Garcia
LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bedrock Hardscapes and April 26, 2017
Landscaping, LLC, and Robert Court of Appeals Case No.
Lester, 41A01-1610-CT-2247
Appellants-Defendants, Interlocutory Appeal from the
Johnson Superior Court
v. The Honorable Kevin M. Barton,
Judge
Shawn Lessor and Amy Lair, Trial Court Cause No.
Appellees-Plaintiffs 41D01-1606-CT-95
Crone, Judge.
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Case Summary
[1] Shawn Lessor and Amy Lair (collectively “Appellees”) filed a complaint
against Bedrock Hardscapes and Landscaping, LLC, and Robert Lester
(collectively “Appellants”) for breach of contract and fraud and to pierce
Bedrock’s corporate veil based on the construction of allegedly faulty brick
walls at Appellees’ residence in Johnson County. Appellants filed a motion to
transfer venue to Marion County, which the trial court denied. On appeal,
Appellants argue that the trial court abused its discretion in denying their
motion. Finding no abuse of discretion, we affirm.
Facts and Procedural History 1
[2] Bedrock is a limited liability company with its principal place of business in
Marion County. Lester is the alleged owner of Bedrock and resides in Marion
County. In June 2015, Bedrock contracted with Appellees to install brick walls
and columns at their Johnson County residence. According to Appellees’
complaint, after part of the project was completed, a section of one wall
collapsed and other sections began to lean because they “were built in an unsafe
manner and not in a workmanlike fashion.” Appellants’ App. Vol. 2 at 6.
1
Appellees’ brief does not contain a statement of issues, a statement of the case, or a statement of facts, all of
which are required by Indiana Appellate Rule 46(B) (“The appellee’s brief shall conform to Section A of this
Rule,” which provides that an appellant’s brief “shall contain” those sections). Indiana Appellate Rule
46(B)(1) provides that “[t]he appellee’s brief may omit … the statement of issues, the statement of the case,
and the statement of facts if the appellee agrees with the statements in the appellant’s brief. If any of these
statements is omitted, the brief shall state that the appellee agrees with the appellant’s statements.”
Appellees’ brief does not state that Appellees agree with Appellants’ statements.
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[3] In June 2016, Appellees filed a complaint against Appellants in Johnson
Superior Court alleging breach of contract and fraud and seeking to pierce
Bedrock’s corporate veil, i.e., to hold Lester “personally liable for his and …
Bedrock’s actions.” Id. at 8. Appellants filed a motion to transfer venue
asserting that venue in Johnson County is improper under Indiana Trial Rule
75(A) because “both defendants are Marion County domiciliaries” and
therefore venue should be transferred to Marion County. Id. at 12. Appellees
filed an objection asserting that venue in Johnson County is proper because
their “claims concern damage done to real property located in Johnson
County[.]” Id. at 15. The trial court denied Appellants’ motion. This
interlocutory appeal followed.
Discussion and Decision
[4] We review a trial court’s ruling on a motion to transfer venue for an abuse of
discretion. Muneer v. Muneer, 951 N.E.2d 241, 243 (Ind. Ct. App. 2011). “An
abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the trial court, or when the
trial court has misinterpreted the law.” Id. Our supreme court has explained,
Trial Rule 75 governs venue requirements in Indiana. It contains
ten subsections, each setting forth criteria establishing “preferred”
venue. A case or complaint may be filed in any county in
Indiana, but 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. T.R. 75(A). The rule does not
create a priority among the subsections establishing preferred
venue. If the complaint is filed in a county of preferred venue,
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then the trial court has no authority to transfer the case based
solely on preferred venue in one or more other counties.
Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973-74 (Ind. 2006)
(citations omitted).
[5] Trial Rule 75(A) reads in pertinent part as follows:
Any case may be venued, commenced and decided in any court
in any county, except, that upon the filing of a pleading or a
motion to dismiss allowed by Rule 12(B)(3), the court, from
allegations of the complaint or after hearing evidence thereon or
considering affidavits or documentary evidence filed with the
motion or in opposition to it, shall order the case transferred to a
county or court selected by the party first properly filing such
motion or pleading if the court determines that the county or
court where the action was filed does not meet preferred venue
requirements or is not authorized to decide the case and that the
court or county selected has preferred venue and is authorized to
decide the case. Preferred venue lies in:
(1) the county where the greater percentage of individual
defendants included in the complaint resides, or, if there is no
such greater percentage, the place where any individual
defendant so named resides; or
(2) the county where the land or some part thereof is located or
the chattels or some part thereof are regularly located or kept, if
the complaint includes a claim for injuries thereto or relating to
such land or such chattels, including without limitation claims
for recovery of possession or for injuries, to establish use or
control, to quiet title or determine any interest, to avoid or set
aside conveyances, to foreclose liens, to partition and to assert
any matters for which in rem relief is or would be proper; or
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…
(10) the county where either one or more individual plaintiffs
reside, the principal office of any plaintiff organization or
governmental organization is located, or the office of any such
plaintiff organization or governmental organization to which the
claim relates or out of which the claim arose is located, if the case
is not subject to the requirements of subsections (1) through (9) of
this subdivision or if all the defendants are nonresident
individuals or nonresident organizations without a principal
office in the state.
[6] In their objection to Appellants’ motion to transfer venue, Appellees argued
that Johnson County is a preferred venue under Trial Rule 75(A)(2) because
their complaint includes a claim for injuries relating to their land, which is
located in Johnson County. The trial court agreed with this argument, which
finds support in this Court’s jurisprudence. See, e.g., Diesel Constr. Co. v. Cotten,
634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994) (“The proper test for the trial court
to apply to determine whether a claim relates to the land under T.R. 75(A)(2) is
whether a sufficient nexus exists between the land and the underlying action.…
[T]he nexus test will be affected by such factors as, but not limited to, whether
the acts giving rise to liability occurred there, and whether examination of the
site may be necessary to resolve the dispute.… Cotten seeks to recover money
for work performed upon the land in Fountain County [i.e., the construction of
an asphalt parking lot].… If the trial court finds that Cotten’s claims concern
only a question of debt, the nexus to the land would be too remote to meet T.R.
75(A)(2). However, if the breach of the contract is based upon the quality of
work performed on the land, for example, such an issue would provide a
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sufficient nexus to the land to be ‘related to the land’ for purposes of T.R.
75(A)(2).”).
[7] Appellants, however, assert that Diesel Construction and subsequent cases 2 have
been superseded by our supreme court’s decision in R & D Transport, Inc. v.
A.H., 859 N.E.2d 332 (Ind. 2006). According to Appellants, R & D Transport
holds that Trial Rule 75(A)(2) grants preferred venue to the county where the
land is located only for actions in rem. 3 Thus, Appellants argue, because
Appellees’ action for breach of contract, fraud, and piercing the corporate veil is
not an action in rem, Trial Rule 75(A)(2) is inapplicable and preferred venue
lies in Marion County under Trial Rule 75(A)(1).
[8] We disagree. R & D Transport dealt specifically with injuries to chattels 4
(personal property allegedly destroyed in an automobile accident), not injuries
relating to land, and therefore its holding does not apply to Diesel Construction
and its progeny or this case. 5 Therefore, we find no abuse of discretion in the
trial court’s denial of Appellants’ motion to correct venue.
2
E.g., Skeffington v. Bush, 846 N.E.2d 761 (Ind. Ct. App. 2006), and Trs. of Purdue Univ. v. Hagerman Constr.
Corp., 736 N.E.2d 819 (Ind. Ct. App. 2000), trans. denied (2001), which are cited in the trial court’s order.
3
Actions in rem are those that “‘[i]nvolve or determin[e] the status of a thing, and therefore the rights of
persons generally with respect to that thing.’” R & D Transport, 859 N.E.2d at 335 (quoting BLACK’S LAW
DICTIONARY 809 (8th ed. 2004)) (alterations in R & D Transport).
4
“‘Chattel’ is a venerable legal term defined as ‘[m]ovable or transferable property; personal property;
esp[ecially], a physical object capable of manual delivery and not the subject matter of real property.’” R & D
Transport, 859 N.E.2d at 333 n.1 (quoting BLACK’S LAW DICTIONARY 251 (8th ed. 2004)) (alterations in R &
D Transport).
5
The R & D Transport majority’s analysis contains much historical background regarding Trial Rule 75(A)(2),
but the essential holding is this: “damage caused to chattels in an automobile accident is subsumed by T.R.
75(A)(3), not authorized under T.R. 75(A)(2) as a way for a plaintiff to be able to sue in the plaintiff’s county
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[9] Affirmed.
Riley, J., and Altice, J., concur.
of residence.” 859 N.E.2d at 337; see Ind. Trial Rule 75(A)(3) (stating that preferred venue lies in “the county
where the accident or collision occurred, if the complaint includes a claim for injuries relating to the
operation of a motor vehicle”). The majority observed that Trial Rule 75(A)(2) retained its predecessor’s
“focus on in rem actions[,]” R & D Transport, 859 N.E.2d at 335, but nowhere did it specifically state that the
current rule is limited to such actions. Indeed, the dissent noted that, “[b]y its express language, [Trial Rule
75(A)(2)] is not restricted to in rem actions ….” Id. at 337 (Dickson, J., dissenting).
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