MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 03 2020, 8:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Mark J. Schocke Anthony L. Holton
Highland, Indiana Katherine M. Haire
Trenton W. Gill
Reminger Co., LPA
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julie Hammond, September 3, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-3027
v. Appeal from the Marion Superior
Court
Richard Gillespie, Z Force IN The Honorable John F. Hanley
Transportation Inc., and Danny Trial Court Cause No.
Hammond Sr., 49D11-1805-CT-17229
Appellees-Defendants
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 1 of 8
[1] Julie Hammond 1 appeals following the trial court’s order granting Richard
Gillespie and Z Force IN Transportation Inc.’s motion to dismiss for improper
venue and ordering the case transferred to Newton County. 2 We reverse and
remand.
Facts and Procedural History
[2] On May 2, 2018, the Estate of Daniel Hammond 3 filed suit against Gillespie
and Z Force IN Transportation Inc. (collectively, “Z Force”) in Marion
Superior Court. The complaint alleged that Gillespie, in the course of his
employment for Z Force, negligently drove a tractor-trailer on US Highway 41
in Newton County and collided with a tractor being driven by 17- year-old
Daniel Hammond. Daniel Hammond died shortly thereafter. The complaint
also alleged that Gillespie resided in Morocco, Indiana, which is located in
Newton County, and that Z Force IN Transportation Inc.’s principal place of
1
Initially, we note several defects in Hammond’s brief. For instance, the statement of the case contains
argument rather than a simple recitation of the nature of the case and the course of proceedings as required
by Indiana Rule of Appellate Procedure 46(A)(5). (See, e.g., Appellant’s Br. at 6 (“Accordingly, [Z Force and
Gillespie] waived their objection to improper venue under the present circumstances.”).) The statement of
the facts is not presented in narrative form as required by Appellate Rule 46(A)(6)(c). Further, the argument
section of the brief fails to contain “a concise statement of the applicable standard of review.” Ind. App. R.
46(A)(8)(b). In addition, while technically not a violation of Appellate Rule 43, the font in the brief’s
footnotes differs from the font in the body of the brief. These deficiencies have impaired our review, and we
encourage Hammond’s counsel to familiarize himself with Indiana’s Rules of Appellate Procedure before
submitting further briefs to this court.
2
Danny Hammond Sr. did not join the motion to dismiss for improper venue and does not participate in this
appeal.
3
Julie Hammond was Daniel Hammond’s mother. She was appointed administratrix of his estate on April
30, 2018.
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business in Indiana was Marion County. Z Force filed an answer on May 24,
2018, in which Z Force denied the material allegations in the complaint,
including the allegation that its principal place of business in Indiana was in
Marion County. Z Force is an Illinois corporation that is headquartered in
Chicago Heights, Illinois, and it has a registered agent 4 in Marion County,
Indiana. Z Force asserted several affirmative defenses in its answer, but Z
Force did not assert improper venue.
[3] On March 18, 2019, the Estate of Daniel Hammond moved for leave to amend
its complaint to substitute the real party in interest, Julie Hammond, for the
Estate and to add the non-custodial parent, Danny Hammond Sr., as a
defendant pursuant to the Wrongful Death or Injury of a Child Act.5 Z Force
did not object to the motion to substitute, but it did “submit notice to the court”
that it reserved the right to challenge Marion County as the preferred venue.
(Appellant’s App. at 24.) The trial court granted the motion for leave to amend
the complaint, and Z Force answered the amended complaint and raised
4
A business entity registered with the Indiana Secretary of State must designate and maintain a registered
agent in the state. Ind. Code § 23-0.5-4-1. “‘Registered agent’ means an agent of an entity which is
authorized to receive service of any process, notice, or demand required or permitted by law to be served on
the entity. The term includes a commercial registered agent and a noncommercial registered agent.” Ind.
Code § 23-0.5-1.5-36.
5
Indiana Code section 34-23-2-1 states:
An action may be maintained under this section against the person whose wrongful
act or omission caused the injury or death of a child. The action may be maintained
by: (1) the father and mother jointly, or either of them by naming the other parent as
a codefendant to answer as to his or her interest[.]
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improper venue as an affirmative defense. The next day, Z-Force filed a
motion to dismiss the case for improper venue. The trial court held a hearing
on the motion on October 28, 2019. On November 15, 2019, the court granted
the motion and ordered the case transferred to Newton County pursuant to
Trial Rule 75(B). Hammond filed a motion to correct error on December 4,
2019, and the trial court denied the motion without hearing on December 11,
2019.6
Discussion and Decision
[4] Hammond contends Z Force waived its right to challenge venue because it did
not assert improper venue in its initial responsive pleading or file a motion to
dismiss until fourteen months after the lawsuit was filed. The grant or denial of
a Trial Rule 12(B)(3) motion is an interlocutory order, which we review for an
abuse of discretion. Hollingsworth v. Key Ben. Adm’rs, Inc., 658 N.E.2d 653, 655
(Ind. Ct. App. 1995), reh’g denied, trans. denied. An abuse of discretion occurs if
the trial court’s decision is clearly against the facts and circumstances before the
trial court or if the trial court misinterpreted the law. Id.
[5] Indiana Trial Rule 12(B) states:
Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim,
6
Hammond pursues this interlocutory appeal as a matter of right because she is challenging an order
transferring the case pursuant to Trial Rule 75. See Ind. App. R. 14 (in part defining interlocutory orders that
may be appealed as a matter of right).
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shall be asserted in the responsive pleading thereto if one is
required; except that at the option of the pleader, the following
defenses may be made by motion:
*****
(3) Incorrect venue under Trial Rule 75, or any statutory
provision. The disposition of this motion shall be consistent with
Trial Rule 75[.]
Trial Rule 12(G) provides that a party waives any defense or objection available
under Trial Rule 12(B) if the party makes a motion under Trial Rule 12 and
omits the defense or objection. Trial Rule 12(H)(1) provides:
A defense of lack of jurisdiction over the person, improper venue,
insufficiency of process, insufficiency of service of process, or the
same action pending in another state court of this state is waived
to the extent constitutionally permissible . . . if it is neither made
by motion under this rule nor included in a responsive pleading
or an amendment thereof permitted by Rule 15(A) to be made as
a matter of course.
Thus, the defense of improper venue “must be raised in a responsive pleading as
an affirmative defense or must be raised by motion filed prior to the filing of a
pleading.” Shanklin v. Shireman, 659 N.E.2d 640, 644 (Ind. Ct. App. 1995). If
not, the defense is waived. Id. While Hammond filed an amended complaint,
we look to when the original complaint and answer were filed to determine
whether a motion for change of venue is timely. Matter of Niemiec’s Estate, 435
N.E.2d 999, 1001 n.2 (Ind. Ct. App. 1982).
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[6] Z Force explains it did not raise improper venue in its initial answer because it
believed the law was unsettled regarding whether the presence of a
corporation’s registered agent in a county made the county a preferred venue
when it filed its answer. “A plaintiff may file an action in any court in any
county in Indiana.” Shanklin, 659 N.E.2d at 642. If the county where the suit
is filed is not a preferred venue, the defendant may move to transfer the case to
a preferred venue county. Id. Trial Rule 75 recognizes that that preferred
venue may lie where “the principal office of a defendant organization is
located[.]” Z Force maintains our Indiana Supreme Court’s decision in
Morrison v. Vasquez, 124 N.E.3d 1217 (Ind. 2019), changed the law regarding
preferred venue, and Z Force filed its motion to dismiss shortly after the
Morrison decision.
[7] In 2006, our Indiana Supreme Court held that Marion County was the proper
venue for a lawsuit filed by the American Family Insurance Company against
the Ford Motor Company because Ford’s registered agent was located in
Marion County. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975
(Ind. 2006). However, effective January 1, 2018, the General Assembly enacted
Indiana Code section 23-0.5-1.5-29, which states, “‘Principal office’ means the
principal executive office of an entity, whether or not the office is located in
Indiana,” and Indiana Code section 23-0.5-4-12, which states, “The designation
or maintenance in Indiana of a registered agent does not by itself create the
basis for personal jurisdiction over the represented entity in Indiana. The
address of the agent does not determine venue in an action or a proceeding
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involving the entity.” In Morrison, our Indiana Supreme Court granted transfer
in two cases to resolve “whether for the purposes of determining preferred
venue pursuant to Trial Rule 75(A)(4), an organization with a location in the
State of Indiana is considered to have a ‘principal office’ at the address of its
registered agent.” 124 N.E.3d at 1219. The court explained that the American
Family case was no longer controlling law because the decision was premised
on statutory provisions that have since been repealed and replaced. Id. at 1221.
The court held “that in light of new business corporation statutes, the location
of the registered agent no longer determines preferred venue for either domestic
or foreign corporations.” Id. at 1219. The Morrison decision did not announce
a new rule of law. It simply clarified what the recently enacted new business
corporation statutes already stated, the presence of a corporation’s registered
agent in a county does not make the county the corporation’s principal place of
business, conferring preferred venue status.
[8] Z Force could have asserted the defense of improper venue when it filed its
initial answer based on statutes in place at the time, but Z Force chose not to do
so. While Morrison does include a discussion explaining Indiana Code section
23-0.5-1.5-29 is a procedural statute which can be applied retroactively, the
consequence of this discussion is that the statute applies to suits filed before the
statute became effective. Id. at 1222. The Court did not hold a party may
resurrect a waived venue argument premised on its decision, which is what Z
Force is attempting to do. Therefore, Z Force waived its improper venue
defense, and the Morrison decision does not allow Z Force to make an untimely
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challenge to venue. We reverse the trial court’s order granting Z Force’s
motion to dismiss and ordering the case transferred to Newton County. See
Irmscher Suppliers, Inc. v. Capital Crossing Bank, 887 N.E.2d 97, 101 (Ind. Ct.
App. 2008) (holding party waived claim under Trial Rule 12(B)(8) by not timely
moving to dismiss the complaint or asserting the defense in its answer).
Conclusion
[9] While Marion County is not a preferred venue in the case at bar, Z Force failed
to timely assert its improper venue defense. Therefore, Z Force cannot do so
now, and the trial court abused its discretion in granting Z Force’s motion.
Accordingly, we reverse and remand.
[10] Reversed and remanded.
Robb, J., and Vaidik, J., concur.
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