Scribbles, LLC, Pittsboro Christian Church, d/b/a Scribbles Ministry of Pittsboro Christian Church, Christeen Michael, and Debbie Spurlock v. Camden "Jax" Wedgewood

FILED
Apr 27 2018, 8:35 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT, ATTORNEY FOR APPELLEES
PITTSBORO CHRISTIAN CHURCH, Nicholas C. Deets
D/B/A SCRIBBLES MINISTRY OF Hovde Dassow & Deets LLC
PITTSBORO CHRISTIAN CHURCH Indianapolis, Indiana
Robert B. Thornburg
Julia Blackwell Gelinas
Maggie L. Smith
Frost Brown Todd LLC
Indianapolis, Indiana
Katherine J. Noel
Noel Law
Kokomo, Indiana
ATTORNEYS FOR APPELLANT,
SCRIBBLES LLC
Scott P. Sullivan
Flynn & Sullivan PC
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT,
CHRISTEEN MICHAEL
Jan N. Campbell
Jeffrey R. Oberlies
Leeuw Oberlies & Campbell
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT,
DEBBIE SPURLOCK
Kyle Michael Baker
Salma Naji Qaddourah
McNeely, Stephenson
Shelbyville, Indiana

IN THE
COURT OF APPEALS OF INDIANA
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 Scribbles, LLC, Pittsboro April 27, 2018
Christian Church, d/b/a Court of Appeals Case No.
Scribbles Ministry of Pittsboro 49A04-1706-CT-1434
Christian Church, Christeen Appeal from the Marion Superior
Michael, and Debbie Spurlock, Courts
Appellants/Defendants, The Honorable James A. Joven,
Judge
v. Trial Court Cause No.
49D13-1702-CT-7313
Camden “Jax” Wedgewood, by
next of friend Brian Scott
Wedgewood, Hannah Jade Hill,
and Camden Riley Wedgewood,
Appellees/Plaintiffs.

Pyle, Judge.

Statement of the Case
[1] In this interlocutory appeal, Scribbles, LLC (“Scribbles”); Pittsboro Christian

Church d/b/a Scribbles Ministry of Pittsboro Christian Church (“the Church”);

Christeen Michael (“Michael”); and Debbie Spurlock (“Spurlock”) (collectively

“the Defendants”) appeal the trial court’s denial of their motion to transfer

venue to Hendricks County in a negligence action filed against them in Marion

County by infant Camden “Jax” Wedgewood (“Infant Wedgewood”), by his

next friend, his grandfather, Brian Scott Wedgewood (“Grandfather”); Hannah

Jade Hill (“Mother”); and Camden Riley Wedgewood (“Father”) (collectively

(“the Plaintiffs”)). Because Hendricks County is a preferred venue and Marion

County is not, the trial court erred in denying the Defendants’ motion to

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 transfer venue to Hendricks County. We therefore reverse and remand with

instructions for the trial court to grant the Defendants’ motion and transfer this

case to Hendricks County.

[2] We reverse and remand with instructions.

Issue
The sole issue for our review is whether the trial court erred in
denying the Defendants’ motion to transfer venue.

Facts
[3] Scribbles and the Church operate a child care ministry located in Hendricks

County. Michael is an infant caregiver at Scribbles, and Spurlock is the

director. Both women are Hendricks County residents. Infant Wedgewood,

Grandfather, Mother, and Father are also Hendricks County residents.

[4] In January 2016, Infant Wedgewood began attending Scribbles. Shortly

thereafter, he suffered a catastrophic brain injury. The following year, the

Plaintiffs filed a two-count complaint in the Marion Superior Court. The first

count was a negligence action against Scribbles, the Church, Michael, and

Spurlock. The second count was a claim for a declaratory judgment against the

Indiana Family and Social Services Administration (FSSA). Specifically, the

Plaintiffs explained that Infant Wedgewood was a beneficiary of the Indiana

Medicaid Plan (“the Plan”) and asked the trial court to determine whether the

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 Plan had a lien on the Plaintiffs’ recovery and, if so, the amount of the lien.1

The Defendants all raised the affirmative defense of improper venue under

Indiana Trial Rule 75 in their respective answers. They all also alleged that it

was the Plaintiffs who were at fault for Infant Wedgewood’s injuries. FSSA did

not respond to the complaint.

[5] In May 2017, the Defendants filed a joint motion to transfer venue wherein

they asked the trial court to transfer venue from Marion County to Hendricks

County because Marion County was not a preferred venue. The Plaintiffs

responded that Marion County was a preferred venue pursuant to Trial Rule

75(A)(5) because FSSA was a governmental organization located in Marion

County. The trial court concluded that “Marion County [was] a preferred

venue and the Court lack[ed] the authority to transfer the case to Hendricks

County” and denied the Defendants’ motion. (App. 11). The Defendants

appeal.

Decision
[6] The Defendants argue that the trial court erred in denying their motion to

transfer venue to Hendricks County. Specifically, they contend that the trial

1
We note that FSSA has a statutory right to assert a lien against any recovery that the Plaintiffs might obtain.
See IND. CODE § 12-15-8-1 et seq. (setting forth the specific procedures that FSSA must follow to perfect its
lien). FSSA may also waive its right to a lien. I.C. § 12-15-8-9. Here, at the time the Plaintiffs filed their
complaint, FSSA had not performed any of the statutory prerequisites to perfecting a lien.

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 court should have granted their motion because Marion County is not a

preferred venue, and Hendricks County is. We agree with both contentions.

[7] We review factual findings on an appeal from a ruling on a motion for transfer

of venue for clear error and review conclusions of law de novo. Am. Family Ins.

Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006). Where factual

determinations are made from a paper record, however, those determinations

are also reviewed de novo. Id.

[8] Trial Rule 75(A), which governs preferred venue in Indiana, provides, in

relevant 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

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 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

(3) the county where the accident or collision occurred, if the
complaint includes a claim for injuries relating to the operation of
a motor vehicle or a vehicle on railroad, street or interurban
tracks; or

(4) the county where either the principal office of a defendant
organization is located or the office or agency of a defendant
organization or individual to which the claim relates or out of
which the claim arose is located, if one or more such
organizations or individuals are included as defendants in the
complaint; or

(5) the county where either one or more individual plaintiffs
reside, 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; or

(6) the county or court fixed by written stipulations signed by all
the parties named in the complaint or their attorneys and filed
with the court before ruling on the motion to dismiss; or

(7) the county where the individual is held in custody or is
restrained, if the complaint seeks relief with respect to such
individual’s custody or restraint upon his freedom; or

(8) the county where a claim in the plaintiff’s complaint may be
commenced under any statute recognizing or creating a special or
general remedy or proceeding; or

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 (9) the county where all or some of the property is located or can
be found if the case seeks only judgment in rem against the
property of a defendant being served by publication; or

(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.

[9] The Indiana Supreme Court has explained the role of this rule in determining

preferred venue as follows:

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 a
proper request from a party. The rule does not create a priority
among the subsections establishing preferred venue. Id. If the
complaint is filed in a county of preferred venue, then the trial
court has no authority to transfer the case based solely on
preferred venue in one or more other counties.

Id. at 973-74. The preferred venue status of a given county can only be

determined as of the time a complaint is filed. Painters Dist. Counsel 91 v. Calvert

Enterprises Electronic Services, Inc., 906 N.E.2d 254, 257 (Ind. Ct. App. 2009).

[10] The Indiana Supreme Court further explained preferred venue as follows in

Randolph County v. Chamness, 879 N.E.2d 555, 557 (Ind. 2008):

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 Preferred venue is located in counties where information is
readily available, where relevant land and personal property can
be found, where witnesses can be easily brought to court, and
where the litigants reside or hold office. Reliable preferred venue
rules increase judicial efficiency because a judge can focus on the
merits of a dispute rather than its relocation to a more convenient
forum. Litigants likewise benefit from relative certainty about
the preferred forum and from the savings in time and expense
that such rules provide.

[11] Here, although the alleged injury to Infant Wedgewood occurred in Hendricks

County, and all of the Plaintiffs and Defendants were either located in or lived

in Hendricks County, the Plaintiffs filed their complaint in Marion County.

The Defendants filed a motion to transfer venue to Hendricks County, which

the trial court denied. On appeal, the Defendants argue that “Indiana law does

not allow preferred venue to be asserted simply by including a separate count

seeking a declaratory judgment action against a governmental organization

with an attenuated interest in the underlying litigation.” (Defendants’ Br. at 9).

The Defendants further contend that the “possible assertion of a lien by FSSA

in the present case lacks any connection to the underlying negligence action

and, therefore, cannot establish preferred venue.” (Defendants’ Br. at 9). We

agree.

[12] First, it has already been held that the Uniform Declaratory Judgment Act does

not create a basis for preferred venue requirements. Jasper Cty. Bd. of Cty. Comr’s

v. Monfort, 663 N.E.2d 1166, 1167 (Ind. Ct. App. 1996). Second, the

Defendants are correct that a “county’s ‘incidental’ connection to the claims

asserted will not establish preferred venue . . . .” (Defendants’ Br. at 12).
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[13] For example, in R & D Trans., Inc. v. A.H., 859 N.E.2d 332 (Ind. 2006), Joseph

Hazel (“the truck driver”) was driving a tractor-trailer owned by R & D

Transport when he was involved in an accident that injured A.H. The accident

occurred in Dearborn County. The truck driver’s residence and R & D’s

principal place of business were in Hendricks County. A.H.’s mother filed a

negligence action in Porter County where A.H. resided. Her complaint alleged

the “destruction and loss of A.H.’s ‘orthotic devices, clothing, and other

chattels regularly located in Porter County.’” Id. at 333. The truck driver and

R & D filed a motion to transfer venue, which the trial court denied. This

Court affirmed the denial on direct appeal. R & D Trans. v. A.H., No. 64A05-

0502-CV-95, (Ind. Ct. App. Sept. 28, 2005).

[14] The Indiana Supreme Court granted transfer. In support of her argument that

preferred venue was found in Porter County, A.H.’s mother relied on Trial

Rule 75(A)(2), which provides, in relevant part, that preferred venue lies in the

county where the chattels or some part of them are regularly kept, if the

complaint includes a claim for injuries relating to such chattels. According to

A.H.’s mother, because “A.H. suffered in the accident, the destruction and loss

of ‘orthotic devices, clothing, and other chattels’ and those chattels were

‘regularly located’ in Porter County, Porter County [was] a county of preferred

venue under the literal reading of [T.R. 75(A)(2)].” R & D, 859 N.E.2d at 334.

[15] The defendants responded that:

[T]he clear purpose and spirit of Rule 75(A) taken as a whole
[was] that incidental damage to chattels in a motor vehicle
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 accident [was] not enough to create preferred venue under [T.R.
75(A)(2)]; rather, Dearborn County [was] a county of preferred
venue under subsection [T.R. 75(A)(3)] because that [was] ‘the
county where the accident or collision occurred’ and Hendricks
County [was] a county of preferred venue under [T.R. 75(A)(4)]
because that is the county where ‘the principal office’ of R & D
Transport [was] located.

Id.

[16] The Indiana Supreme Court agreed with the defendants and concluded that,

although technically permitted under Trial Rule 75(A)(2), basing preferred

venue on the existence of A.H.’s chattels in that instance was inappropriate

because those chattels, such as the orthotics, “played no role in the accident

itself or in the claims of the lawsuit that [Mother] filed. Rather, her claim

involved a motor vehicle accident; the location that played the important role

was that of the actual collision.” Id. The Indiana Supreme Court explained

that to decide otherwise would defeat the purpose of Trial Rule 75(A) and

“allow T.R. 75(A)(2) to serve as the means to bypass the clear intent of the

rule’s overall text.”2 Id. at 336.

[17] We reached a similar result in Salsberry Pork Producers, Inc. v. Booth, 967 N.E.2d

1 (Ind. Ct. App. 2012). Booth was a passenger involved in a motor vehicle

accident in Tipton County. The driver of the other vehicle was a resident of

2
The Indiana Supreme Court concluded that this Court’s prior decisions that broadly interpreted Trial Rule
75(A)(2) were “contrary to the intent of T.R. 75(A) and [were] disproved.” R & D, 859 N.E.2d at 336-37
(citing Swift v. Pernat, 828 N.E.2d 444 (Ind. Ct. App. 2005) and Halsey v. Smeltzer, 722 N.E.2d 871 (Ind. Ct.
App. 2000)).

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 Tipton County acting within the scope of his employment with a Tipton

County employer. Booth filed a negligence action against both drivers, the

employer, the Tipton County Commissioners, and the Indiana Department of

Transportation (“IDOT). Booth filed the action in Marion County based upon

the count against IDOT, which is headquartered there. The other defendants

filed a motion to transfer the case to Tipton County, which the trial court

denied.

[18] On appeal, this Court pointed out that a “Marion County venue for the case

[was] discordant with the general purpose of the venue rules, which [was] to

allow trial in the county where the events giving rise to a dispute or where the

greatest amount of evidence with respect to the dispute [would] likely be

found.” Id. at 6. We noted that the “collision that injured Booth occurred in

Tipton County; Booth, the majority of the defendants, and the County all

reside[d] in or [were] headquarter[ed] in Tipton County,” and concluded that

Marion County was not a preferred venue. Id. We therefore reversed the trial

court and remanded the case with instructions to transfer it to Tipton County.

Id.

[19] Here, as in R & D and Salsbery, FSSA has an incidental connection to the

subject matter of the litigation, which is insufficient to support preferred venue.

Specifically, as in R & D, FSSA played no role in the underlying litigation,

which involved an alleged catastrophic brain injury to an infant. Further, the

alleged injury occurred in Hendricks County. In addition, all of the Plaintiffs

and Defendants resided in or were headquartered in Hendricks County. Under

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 these circumstances, we agree with the Defendants that Marion County is not a

preferred venue. See Salsberry, 967 N.E.2d at 6. To decide otherwise would

defeat the purpose of T.R. 75(A) and allow T.R. 75(A)(5) to serve as the means

to bypass the clear intent of the rule’s overall text. See R & D¸ 859 N.E.2d at

336.

[20] Having determined that Marion County is not a county of preferred venue, we

must determine whether Hendricks County is. Our review of Trial Rule 75(A),

as well as the facts of this case, reveal that Hendricks County is a preferred

venue pursuant to T.R. 75(A)(1) because all of the Defendants reside in or are

located in Hendricks County. Hendricks County is also a preferred venue

pursuant to T.R. 75(A)(4) because both Scribbles and the Church are located in

Hendricks County.

[21] Because Hendricks County is a preferred venue and Marion County is not, the

trial court erred in denying the Defendants’ motion to transfer venue to

Hendricks County. We therefore reverse and remand with instructions for the

trial court to grant the Defendants’ motion and transfer this case to Hendricks

County.

[22] Reversed and remanded with instructions.

Kirsch, J., and Bailey, J., concur.

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