R & D Transport, Inc. v. A.H.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Michael B. Langford Kenneth J. Allen
A. Jack Finklea Michael T. Terwilliger
Indianapolis, Indiana William Lazarus
Valparaiso, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 64S05-0601-CV-23

R & D TRANSPORT, INC.,

Appellant (Defendant below),

v.

A.H., a minor, and SARAH RICHARDSON,
Individually and as parent and natural guardian
of A.H.,

Appellees (Plaintiffs below).
_________________________________

Appeal from the Porter Superior Court, No. 64D05-0408-CT-7012
The Honorable Raymond D. Kickbush, Special Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-0502-CV-95
_________________________________

December 28, 2006

Sullivan, Justice.

Our Trial Rule 75(A) gives preference to certain counties as the place for a lawsuit to
proceed. In this case, the trial court and the Court of Appeals held that because some personal
property (orthotic devices and clothing) belonging to a victim of a motor vehicle accident had
been damaged, the victim’s home county (the place where the personal property was regularly
kept) enjoyed this preferential status. This was an incorrect interpretation of the trial rule and we
accordingly reverse the decision of the trial court and the Court of Appeals.

Background

While driving a tractor-trailer owned by R & D Transport, Joseph Hazel had an accident
with a vehicle in which A.H. was a passenger. The accident occurred in Dearborn County. Ha-
zel’s residence and R & D Transport’s principal place of business are in Hendricks County.
A.H. resides in Porter County.

Sarah Richardson, individually and as mother and guardian of A.H., filed a lawsuit in
Porter County against Hazel and R & D Transport. The lawsuit sought damages for personal,
physical, and psychological injuries and for the destruction and loss of A.H.’s “orthotic devices,
clothing, and other chattels regularly located in Porter County.” App. at 60. Hazel and R & D
Transport sought to have the case transferred to either Hendricks County or Dearborn County.
The trial court denied the motion. In an unpublished memorandum opinion, the Court of Ap-
peals affirmed. R & D Transport v. A.H., No. 64A05-0502-CV-95, slip op., 835 N.E.2d 232
(Ind. Ct. App. 2005) (table). R & D Transport sought, and we granted, transfer. R & D Trans-
port v. A.H., 855 N.E.2d 996 (Ind. 2006) (table).

Discussion

This is a case about “venue,” a term which refers to “[t]he proper or a possible place for a
lawsuit to proceed . . . .” Black’s Law Dictionary 1591 (8th ed. 2004). We are asked to decide
whether Porter County was the proper or a possible place for this lawsuit to proceed or whether
the trial court should have transferred venue to Hendricks County or Dearborn County.

The rules for the possible and proper places for lawsuits to proceed in Indiana are set
forth in this Court’s Trial Rule 75(A). For purposes of this case, these rules can be summarized
as follows:

2
 • First, in general, any lawsuit may proceed in any county but certain counties are
granted “preferred venue” status under the Rule. Ind. Trial Rule 75(A).

• Second, if a lawsuit is filed in a county that is not a county of preferred venue, the
case can be transferred to a county that has preferred venue. Id.

• Third, if a lawsuit is filed in a county that is a county of preferred venue, the case
cannot be transferred to another county, even if that other county is also a county
of preferred venue. Meridian Mut. Ins. Co. v. Harter, 671 N.E.2d 861, 863 (Ind.
1996).

As noted under the first point supra, T.R. 75(A) confers “preferred venue” status on cer-
tain counties, depending on the facts and circumstances of the case. For purposes of this case,
T.R. 75(A) arguably confers preferred status on counties described in subsections (1), (2), (3),
and (4) of T.R. 75(A):

(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
[1]
chattels or some part thereof are regularly located or kept, if the complaint in-
cludes a claim for injuries thereto or relating to such land or such chattels, includ-
ing without limitation claims for recovery of possession or for injuries, to estab-
lish 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 com-
plaint 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 organi-
zation is located or the office or agency of a defendant organization or individual

1
“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.”
Black's Law Dictionary 251 (8th ed. 2004).

3
 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 com-
plaint[.]

The plaintiffs’ argument is that because, as noted supra, 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 is a county of preferred venue under the lit-
eral reading of subsection (2).

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

This precise question has been addressed several times by the Court of Appeals in deci-
sions that have reached the same result as that advanced by plaintiffs here. 3 However, this Court
has never spoken on this aspect of our venue rule.

Two previous cases interpreting T.R. 75(A)(2) have had comparable fact patterns to this
case. In Swift v. Pirnat, the plaintiff suffered injuries in an automobile accident in Vanderburgh
County. Damaged in the accident was plaintiff’s “Sony 4-channel court tape recorder” that she
used in her business in Vigo County, her home county. Swift, 828 N.E.2d at 446. The Court of
Appeals held that T.R. 75(A)(2) conferred preferred venue status on Vigo County. Id. at 448-49.

Similarly, the plaintiffs in Halsey v. Smeltzer were involved in an automobile accident in
2
Hendricks County is also the county where Hazel, the sole “individual defendant[] included in the com-
plaint[,] resides.” However, no argument is advanced that Hendricks County is a county of preferred
venue under subsection (1).
3
See Swift v. Pirnat, 828 N.E.2d 444, 448 (Ind. Ct. App. 2005); Phillips v. Scalf, 778 N.E.2d 480, 483-84
(Ind. Ct. App. 2002); Halsey v. Smeltzer, 722 N.E.2d 871, 874 (Ind. Ct. App. 2000), trans. denied, 735
N.E.2d 237 (Ind. 2000); Banjo Corp. v. Pembor, 715 N.E.2d 430, 432 (Ind. Ct. App. 1999); Grove v.
Thomas, 446 N.E.2d 641, 642-43 (Ind. Ct. App. 1983), trans. denied.

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Noble County. In addition to personal injuries suffered by one of the plaintiffs, certain clothing
items, books, cassette tapes, children’s books, and two car seats were damaged. Halsey, 722
N.E.2d at 872. The Court of Appeals held (over the dissent of Judge Staton) that T.R. 75(A) al-
lowed for a case to be brought in Elkhart County, the plaintiffs’ home county. Id. at 873-74.

The language and structure of T.R. 75(A) dictate that these cases were wrongly decided.
We say this for three reasons.

First, the focus of T.R. 75(A)(2) is the location of the property or activity that gives rise
to a claim. Trial Rule 75(A)(2) was adopted in 1970 as part of a broader proposal by the Indiana
Civil Code Study Commission to end confusion that had arisen under prior law over how to un-
tangle questions of venue and jurisdiction. 1970 Civil Code Study Commission Comments, re-
printed in 4A William F. Harvey, Indiana Practice 141 (3d ed. 2003). The analog of Trial Rule
75(A)(2) in prior law covered actions concerning only real property:

Actions for the following causes must be commenced in the county in which the
subject of the action, or some part thereof, is situated:
First. For the recovery of real property, or of an estate or interest therein,
or for the determination in any form of such right or interest, and for injuries to
real property.
Second. For the partition of real property.
Third. For the foreclosure of a mortgage of real property.

Burns Ind. Stat. Ann. § 2-701 (Bobbs-Merrill 1967 Replacement). Broadly categorized, the
cases covered by section 2-701 were actions “in rem.” Actions in rem “[i]nvolv[e] or deter-
min[e] the status of a thing, and therefore the rights of persons generally with respect to that
thing.” Black’s Law Dictionary 809 (8th ed. 2004).

The new rule preserved this in rem emphasis but also added language that gives rise to
the issue in this case. This new language provided that a county where “chattels or some part
thereof are regularly located or kept” would be a county of preferred venue in addition to a
county where “land or some part thereof is located.” T.R. 75(A)(2); Harvey, supra, at 141-42.
The “intent [wa]s to broaden the class of local actions allowing suit to be brought in the county
where the land is located.” Harvey, supra, at 141 (emphasis added). The rule itself lists sample

5
types of claims that a complaint may encompass, examples that clearly demonstrate that the new
rule retained focus on in rem actions:

[I]njuries [to the land or chattels] or relating to such land or such chattels, includ-
ing without limitation claims for recovery of possession or for injuries, to estab-
lish 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[.]

T.R. 75(A)(2) (emphasis added).

The Commission explained the addition of “chattels” to real property as follows: “the
provision . . . is new, but can be justified to the extent that the location of personal property often
is more significant than real property.” Harvey, supra, at 142. Thus, the addition of chattels to
T.R. 75(A)(2) signified a broadened understanding of what kind of property might be important
to determining venue, but continued to recognize the significance of real or personal property’s
location as the most important factor. In the instant case, we see the reason for this distinction.
The location where Richardson usually kept her “orthotic devices” played no role in the accident
itself or in the claims of the lawsuit she filed. Rather, her claim involved a motor vehicle acci-
dent; the location that played the important role was that of the actual collision.

Second, consistent with the rule’s stress on the location of the property or activity giving
rise to a claim, we have long had special venue rules for motor vehicle accidents. Though T.R.
75(A) codified Indiana’s venue approach to such accidents, pre-1970 law contained special ref-
erence to them as well. For example, former section 2-707 contained this rule:

[A]ny action brought against the owner, driver or operator of any motor vehicle
arising out of and by reason of the operation, management and control of such
motor vehicle may be brought in the county where the action arose or in the
county of residence of any of the defendants against whom the action is brought.

§ 2-707. The earlier rule put preferred venue for motor vehicle accidents either in the county
where the accident occurred or in a county where the defendants resided. The current T.R.
75(A) retains these options, though it separates them between subsections (1), (3), and (4). Sub-
section (3), as set forth supra, provides that preferred venue is in “the county where the accident

6
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.” This motor-vehicle-specific
rule maintains the approach of the prior rule that gave preferred venue status to the location of
motor accidents. (We enforced this principle in favor of the plaintiff against an insurance com-
pany defendant in Meridian Mutual Insurance Co., 671 N.E.2d at 863.)

Third, we note the rule’s language about the relationship between plaintiffs and venue.
Subsection (10) of the rule allows for the plaintiff’s home county to be a preferred venue if “the
case is not subject to the requirements of subsections (1) through (9) of [T.R. 75(A)] or if all the
defendants are nonresident individuals or nonresident organizations without a principal office in
the state.” 4 See also Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 977 (Ind. 2006)
(holding that, according to the rule’s text, T.R. 75(A)(10) establishes preferred venue under two
separate circumstances). This rule highlights another purpose behind the new version of T.R.
75: “to allow an action to be brought in any court in the state, subject to the right of an objecting
party to transfer the case to a proper county or court as provided by this rule.” Harvey, supra, at
141. The plaintiff may make the first choice of venue in a case, but the defendant may choose
another venue if the plaintiff has not chosen a venue listed in subsections (1) through (9). A de-
fendant is required to remain in the plaintiff’s home county (if that is where the plaintiff initially
files suit) only if the defendant is not a resident of Indiana. 5

The text of subsection (10) suggests that, in most cases, the plaintiff’s home county has
secondary status when it comes to preferred venue. We decline to allow T.R. 75(A)(2) to serve
as the means to bypass the clear intent of the rule’s overall text. Most people “regularly ke[ep]”
their car and other chattels that travel with them in their cars in their home counties. The prefer-
ences expressed by subsections (1), (3), (4), and (10) are easily defeated by the broad interpreta-
tion of subsection (2) given by the Court of Appeals. Subsections (1), (3), (4), and (10) may not
be so readily avoided, although we do emphasize, as discussed supra and as noted in the Com-
mission’s comments, that the preferred venue subsections work in concert. See Harvey, supra, at

4
The former code had a similar provision that applied specifically to nonresident motorists. § 2-709.
5
Subsection (5), which is not at issue in this case, is the exception: if at least one of the defendants is a
governmental organization, the plaintiff may also file in the plaintiff’s home county. T.R. 75(A)(5).

7
142 (elaborating on the meaning of subsection (3), “a plaintiff can bring suit in his county
against a nonresident as provided by subsection (10) . . . to the extent that action against a non-
resident motorist could be brought in the county of the plaintiff’s residence”).

The decisions of the Court of Appeals in Swift v. Pirnat, Halsey v. Smeltzer, and their
companions are contrary to the intent of T.R. 75(A) and are disapproved. They fail to recognize
the point made by Judge Staton in his Halsey dissent: that damage caused to chattels in an auto-
mobile 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 of residence. Halsey, 722 N.E.2d at 874.

Conclusion

For the reasons discussed supra, Porter County is not a county of preferred venue and the
trial court erred in not granting defendant’s motion to transfer the case to a county of preferred
venue. We reverse the decision of the trial court.

Shepard, C.J., and Boehm, J., concur. Dickson, J., dissents with separate opinion in which
Rucker, J., concurs.

8
Dickson, Justice, dissenting.

With today's decision, the majority reinterprets the clear language of this Court's rule in a
manner contrary to thirty years of appellate precedent and established custom and practice of
Indiana judges and lawyers. Such a major shift of policy, if warranted, should be undertaken by
the rule amendment process, not by a judicial opinion in a single case.

The rule subsection at issue, Indiana Trial Rule 75(A)(2), expressly confers "preferred
venue" status upon:
(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 or possession or for injuries, to establish use or control, to quiet title or deter-
mine 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, . . . .
Id. (emphasis added). The majority is correct to note the subsection's application to in rem ac-
tions, but today's decision appears to nullify the above-emphasized language of the subsection.
By its express language, subsection (A)(2) is not restricted to in rem actions, but confers pre-
ferred venue status, without limitation, whenever a complaint even includes a claim for injuries
to chattels.

By holding that the preferred venue status of the county where the plaintiff's damaged
chattels are regularly located is to be ignored and by ordering the venue of this case transferred
to the county where the accident occurred, the Court's decision today is contrary to Indiana Trial
Rule 75(A) and represents a significant and unwarranted departure from clear precedent of this
court and from long-standing case law from the Court of Appeals.

An uninterrupted line of cases has consistently held, as we did in Meridian Mut. Ins. Co.
v. Harter, 671 N.E.2d 861 (Ind. 1996), that:
Ind. Trial Rule 75(A) provides that an action may be filed in any county of preferred
venue. Only if the court in which the action is commenced is not a county of preferred
venue, may the case be transferred to a court of preferred venue meeting the criteria listed
in T.R. 75(A)(1)-(9). If plaintiffs properly file[] their complaint in a county of preferred
venue, the trial court ha[s] no authority to transfer the case to a different county on pre-
 ferred venue grounds.
Id. at 863. 1 This means simply that the criteria for preferred venue provided by Rule 75(A) are
of equal priority, with no hierarchy of preference among them.

Today's decision imposes a new and contrary approach, giving unprecedented preference
for the county where the accident occurred under 75(A)(3) over the regular location of the chattel
claimed to have been damaged under 75(A)(2). Without exception, numerous cases have held
that an action in part embracing a claim for injury to a chattel may be maintained—under the
clear and unambiguous language of Rule 75(A)(2)—in a county where the chattel is regularly
located, expressly rejecting attempts to change venue to the county where the accident or tort oc-
curred. Swift v. Pirnat, 828 N.E.2d 444, 448-49 (Ind. Ct. App. 2005) (venue based on damage to
tape recorder kept in vehicle at time of collision), trans. not sought; Phillips v. Scalf, 778 N.E.2d
480, 483 (Ind. Ct. App. 2002) (venue based on location of intangible chattel right of publicity
used elsewhere for commercial purposes), trans. not sought; Halsey v. Smeltzer, 722 N.E.2d
871, 873-74 (Ind. Ct. App. 2000) (venue based on damage to clothing, books, and cassette tapes
in vehicle at time of collision), trans. denied; Banjo Corp. v. Pembor, 715 N.E.2d 430, 432 (Ind.
Ct. App. 1999) (venue based on damage to clothing and equipment damaged when a herbicide
valve malfunctioned), trans. not sought; Grove v. Thomas, 446 N.E.2d 641, 642-43 (Ind. Ct.
App. 1983) (venue based on regular location of automobile damaged in collision), trans. denied.

A substantive rule change, especially one of the magnitude implemented by today's ma-
jority opinion, should not be undertaken in a single case opinion. To the contrary, Indiana Trial
Rule 80 specifies the procedure for amending our trial rules, which involves seeking the recom-
mendation of the Supreme Court Committee on Rules of Practice and Procedure after comment
from the bench, bar, and public. Trial Rule 80(D) directs that this procedure "shall be followed"
except "in case of an emergency or as otherwise directed by the Supreme Court." Id. In my
1
Accord Monroe Guar. Ins. Co. v. Berrier, 827 N.E.2d 158, 161 (Ind. Ct. App. 2005), trans. de-
nied; Bostic v. House of James, Inc., 784 N.E.2d 509, 511 (Ind. Ct. App. 2003), trans. denied; Halsey v.
Smeltzer, 722 N.E.2d 871, 873-74 (Ind. Ct. App. 2000), trans. denied; Shelton v. Wick, 715 N.E.2d 890,
893 (Ind. Ct. App. 1999), trans. denied; Banjo Corp. v. Pembor, 715 N.E.2d 430, 431 (Ind. Ct. App.
1999), trans. not sought; Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind. Ct. App. 1999), trans. not sought;
Humphrey v. Christopher, 692 N.E.2d 932, 934 (Ind. Ct. App. 1998), trans. not sought; Hootman v. Fin.
Ctr. Fed. Credit Union, 462 N.E.2d 1064, 1066 n.5 (Ind. Ct. App. 1984), trans. not sought; Bd. of Com-
m'rs of Cass County v. Nevitt, 448 N.E.2d 333, 343 (Ind. Ct. App. 1983), trans. denied.

10
view, an emergency does not exist, and it is unwarranted and unwise for this Court to "otherwise
direct" that the express language and consistent long-standing precedent interpreting Trial Rule
75(A) be modified by opinion in this individual case.

For these reasons, I respectfully dissent.

Rucker, J., concurs.

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