FILED
Feb 09 2018, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Duran L. Keller Michael R. Bain
Keller Law Lauren M. Hardesty
Lafayette, Indiana Hume Smith Geddes Green &
Simmons, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelly Bagsby and Aaron Bagsby, February 9, 2018
Appellants-Plaintiffs, Court of Appeals Case No.
79A02-1706-CT-1315
v. Appeal from the Tippecanoe
Circuit Court
Riley T. Snedeker, The Honorable Thomas H. Busch,
Appellee-Defendant. Judge
Trial Court Cause No.
79C01-1702-CT-30
Mathias, Judge.
[1] Kelly and Aaron Basgby (the “Bagsbys”) appeal from the Tippecanoe Circuit
Court’s order granting Riley T. Snedeker’s (“Snedeker”) motion to transfer
venue.
[2] We affirm.
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Facts and Procedural History
[3] On January 23, 2017, Snedeker allegedly shot and killed the Bagsbys’ dog in
Warren County, Indiana. At the time, Snedeker and the Bagsbys were
neighbors in Pine Village, Indiana which is located in Warren County. After the
alleged shooting, the Bagsbys took their dog for a necropsy to the Animal
Disease Diagnostic Laboratory in Tippecanoe County. After the necropsy, the
Bagsbys filed a complaint against Snedeker in Tippecanoe County on February
24 for conversion, intentional infliction of emotional distress, negligent
infliction of emotional distress, trespass to chattel, and negligence.
[4] On April 17, Snedeker filed a motion to correct venue and transfer the action to
Warren County under Indiana Trial Rules 12(B)(3) and 75(A). On May 23, the
trial court held a hearing on Snedeker’s motion. Three days later the trial court
granted the motion and explained:
In this case, everything about the case up to and including the
incident which gave rise to the Complaint occurred in and was
located in Warren County and had no connection to Tippecanoe
County. Only because plaintiffs chose a particular pathologist to
examine the remains of the dog and to retain the body of the dog
does Tippecanoe County have any connection to the case at all.
The dog at issue was regularly kept in Warren County until it
was killed in the incident which gave rise to the Complaint. The
Court finds that whatever happened to it afterwards is immaterial
to venue.
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Appellants’ App. p. 36. The Bagsbys now bring this interlocutory appeal as a
matter of right under Indiana Appellate Rule 14(A)(8). Additional facts will be
provided as necessary.
Discussion and Decision
[5] The Bagsbys contend that the trial court erred in granting Snedeker’s motion to
transfer venue from Tippecanoe County to Warren County because they assert
Tippecanoe County is a preferred venue. 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 facts and
circumstances before the trial court, or when the trial court has misinterpreted
the law.” Id. A trial court’s factual findings linked to a motion to change venue
are reviewed for clear error, and its rulings of law are reviewed de novo. Belcher
v. Kroczek, 13 N.E.3d 448, 451 (Ind. Ct. App. 2014). Factual findings are clearly
erroneous when the record lacks any evidence or reasonable inferences to
support them. Id.
[6] 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). The relevant portion of Trial Rule 75(A) reads:
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:
***
(2) the county where the land or some part thereof is located or
the chattels1 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 . . . .
[7] The Bagsbys argue that Tippecanoe County is a preferred venue under Trial
Rule 75(A)(2) because the chattel at issue is the Bagsbys’ dog which is located
1
A dog is personal property, Lachenman v. Stice, 838 N.E.2d 451, 467 (Ind. Ct. App. 2005), trans. denied, and
thus falls within the definition of a chattel for purposes of Trial Rule 75(A)(2). See Black’s Law Dictionary
(10th ed. 2014).
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in Tippecanoe County, and the Bagsbys intend to bury the dog in Tippecanoe
County where they own a home. As the Bagsbys note, the issue before us is
whether Tippecanoe Circuit Court is a court of preferred venue under Trial
Rule 75. Both parties cite to the same two cases to support their respective
positions.
[8] In R & D Transport, Inc. v. A.H., 859 N.E.2d 332, 337 (Ind. 2006), our supreme
court found that the trial court erred in denying the defendant’s motion to
change venue. In that case, an R & D Transport, Inc. (“R & D”) employee was
driving a tractor-trailer when it collided with a vehicle in which A.H. was the
passenger. The accident occurred in Dearborn County, the employee’s
residence and R & D’s principal place of business was in Hendricks County,
and A.H. lived in Porter County. A.H.’s mother filed suit in Porter County
because the accident resulted in the loss of several of A.H.’s medical and
personal possessions which were regularly located in Porter County. R & D
sought to have the case transferred to either Dearborn County or Hendricks
County. The trial court denied the motion, and R & D appealed.
[9] On appeal, our supreme court held the trial court erred, and that Porter County
was not a county of preferred venue. Id. In reaching its conclusion, the court
examined two cases from this court, factually similar to the case before us, and
determined that they were wrongly decided. Id. at 334. First, in Swift v. Pirnat,
828 N.E.2d 444 (Ind. Ct. App. 2005), the plaintiff suffered injuries in an
automobile accident in Vanderburgh County. However, a tape recorder was
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damaged in the accident that the plaintiff used for work in Vigo County. A
panel of this court found that Vigo County was a preferred venue. Id. at 448.
The Swift court noted “that because [plaintiff] alleged injury to chattels in her
complaint, Subsection (A)(2) clearly and unambiguously allows preferred venue
to lie in the county where the chattel is located.” Id. at 449.
[10] And second, in Halsey v. Smeltzer, 722 N.E.2d 871 (Ind. Ct. App. 2000), trans.
denied, plaintiffs were involved in an automobile accident in Noble County. In
addition to personal injuries, certain personal effects were also damaged. A
panel of this court found that the plaintiffs’ home county was a preferred venue
and that “the trial court did not err in interpreting T.R. 75(A) such that a case
involving injury to chattels could be brought in the county where the chattels
were kept.” Id. at 874.
[11] The R & D Transport court found that Swift and Halsey were wrongly decided for
three reasons. 859 N.E.2d at 334. The first reason, which is most pertinent to
the case before us, is that “the focus of T.R. 75(A)(2) is the location of the
property or activity that gives rise to a claim.” Id. Our supreme court then
explained that when Trial Rule 75(A)(2) was amended to include chattels, this
“signified a broadened understanding of what kind of property might be
important to determining venue, but . . . the significance of real or personal
property’s location [is] the most important factor.” Id. at 335 (emphasis in
original). Therefore, the court found that Porter County was not a preferred
venue under Trial Rule 75(A)(2) because the location where the plaintiff kept
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certain chattels “played no role in the accident itself or in the claims of the
lawsuit she filed.” Id.
[12] The second case cited by both parties is this court’s decision in Gulf Stream
Coach, Inc. v. Cronin, 903 N.E.2d 109 (Ind. Ct. App. 2009). In that case, a
Pennsylvania family, the Cronins, purchased a Gulf Stream RV in Florida. The
RV’s owner manual stipulated that any lawsuit related to the mobile home
needed to be filed in Indiana. Within months, the Cronins began having several
problems with the RV eventually leading to a mold and mildew problem that
made it uninhabitable. The Cronins contacted an Indiana attorney, and the RV
sat in a lot near the attorney’s office in Madison County for seven months
before the Cronins filed suit against Gulf Stream. Gulf Stream asserted that
Madison County was not a preferred venue and moved to transfer venue to
Elkhart County where its principal office is located. The trial court denied Gulf
Stream’s motion stating in relevant part, “The motor home was regularly kept
in Madison County for several months prior to the filing of suit, and it
continues to be kept there.” Id. at 111.
[13] On appeal, a panel of this court determined that the Cronins moved the RV to
Madison County in anticipation of litigation. Id. at 113. We then held, “when a
party moves a chattel to a county . . . solely for purposes of litigation, that
county does not become the county where the chattel is ‘regularly located and
kept’ under Rule 75(A)(2) and therefore is not a preferred venue under Rule
75.” Id.
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[14] The Bagsbys distinguish the case before us from both R & D Transport and Gulf
Stream. They assert that R & D Transport is different because it involved an
automobile accident. And Gulf Stream is inapplicable because the Bagsbys did
not take their dog to Tippecanoe in anticipation of litigation, but rather, because
it is where they wanted the dog to have a necropsy, where they would bury the
dog, and because they own real property there. Snedeker contends that under
our supreme court’s decision in R & D Transport, the trial court did not abuse its
discretion here because “Tippecanoe County played no role in the actual
incident giving rise to the lawsuit, and the actual incident took place in Warren
County.” Appellee’s Br. at 7. Snedeker also maintains that “Gulf Stream is
applicable to cases where the parties disagree over the location the chattel was
‘regularly located or kept.’” Id. at 8. We agree with Snedeker.
[15] Our supreme court expressly rejected the argument asserted by the Bagsbys here
when it determined Swift and Halsey were wrongly decided. R & D Transp., Inc.,
859 N.E.2d at 334. It is immaterial that Swift, Halsey, and R & D Transport all
concerned automobile accidents. The findings that the R & D Transport court
disapproved of in Swift and Halsey, with respect to venue and pertinent to the
case before us, were in regard to the location of the chattels. R & D Transp., Inc.,
859 N.E.2d at 334–35. Both Snedeker and the Bagsbys lived in Warren County
when the dog was allegedly shot. Further, the dog lived in and was allegedly
shot in Warren County. And the Bagsbys’ entire complaint is based on the
incident in Warren County. See id. at 335.
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[16] Moreover, the current location of the dog in Tippecanoe County played no role
in the alleged shooting or any of the claims in the lawsuit. Cf. Surfware, Inc. v.
Allied Specialty Precision, Inc., 876 N.E.2d 1156, 1160 (Ind. Ct. App. 2007)
(finding a county of preferred venue in a county where the accident and
resulting damages occurred). Our court in Gulf Stream found venue improper in
Madison County even though the RV had been sitting there for several months.
903 N.E.2d at 113. The court noted that if Madison County was a preferred
venue, then “[a]n Indiana resident in one county who wanted to file a claim
relating to a chattel could establish preferred venue anywhere in the state by
moving the chattel to a different county.” Id. We acknowledge that the primary
reason for the court’s decision in Gulf Stream was that the RV was moved in
anticipation of ligation, and we make no judgment here as to whether or not the
Bagsbys moved their dog to Tippecanoe County in anticipation of litigation. 2
However, this difference does not dilute our court’s concern in Gulf Stream
regarding forum shopping that we find particularly applicable here.
[17] If we were to hold that Tippecanoe is a preferred county under Indiana Trial
Rule 75(A)(2), then as the trial court aptly stated, “any plaintiff could move [a]
chattel to a favorable venue and assert he did so for a non-litigation reason. This
would require conducting an evidentiary hearing as to the plaintiff’s motivation
in every case.” Appellants’ App. p. 36. We share the concern expressed by the
2
Snedeker does not argue that the Bagsbys moved the dog in anticipation of litigation. Appellee’s Br. at 7
n.1.
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trial court. Such a holding would go against the spirit and intent of the preferred
venue rules, and we decline to do so. See Randolph County v. Chamness, 879
N.E.2d 555, 557 (Ind. 2008). Therefore, Tippecanoe is not a preferred county,
and the trial court did not err when it granted transfer to Warren County.
Conclusion
[18] Based on the facts and circumstances before us, we find that the trial court did
not abuse its discretion when it granted Snedeker’s motion to transfer venue to
Warren County. Accordingly, we affirm.
Najam, J., and Barnes, J., concur.
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