Bostic v. House of James, Inc.
784 N.E.2d 509
Ind. Ct. App.
2003
Check Treatment

*1 nоt, however, summary Hammock did seek basis, pre- and has not

judgment on this upon appeal. I argument

sented this respectfully dissent from the ma-

therefore that Hammock enti-

jority's conclusion summary judgment ground on the

tled to duty

that he owed no to Red Gold. BOSTIC, Appellant-Defendant,

Rick JAMES, INC.,

HOUSE OF

Appellee-Plaintiff.

No. 29A02-0207-CV-529.

Feb.

510 Price, Peru, IN, that the trial court Attorney requested for Bostic

Jeffry G. action or transfer it to Appellant. either dismiss the Howard The trial court found IN, Attor- Indianapolis, Merrill Moores "in the nature of a was ney Appellee. chattel and under Trial Rule brought in which suit be OPINION was entered." SHARPNACK, Judge. Appellant's Appendix at 28. ap brings interlocutory this Rick Bostic trial court denied Bostic's motion. the trial court's denial of his peal from issue whether the trial court sole rais change motion a of venue. Bostic by denying abused its discretion Bostic's issuе, restate as whether es one which we respect change motion for a of venue with its discretion the trial court abused of of to House James's action for renewal change of venue.1 denying his motion for against At its 1992 Bostic. com- affirm. We law, supreme mon our court held the fol- 11, May On The relevant facts follow. respect with to venue of actions on lowing ("House 1992, James, of Inc. of House judgments: James") obtained a Inc., judgment may The owner of a enforce Design, Hair Rick Indy's Academy of Bostic, process its collection of ‍‌​‌​​​​​​​​‌​‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​​‌‌​‌‌‍the court Kathy (collectively "De- Bostic fendants") $52,952.60 rendered, in the amount of may, wherein it or he if elect, County Superior No. the Hamilton Court he so use his as a cause action, bring 16, 2002, of suit thereon April 3. On House of James filed "Complaint Judgment" against on competent or court of County Supe- Defendants in the Hamilton jurisdiction, prosecute such to suit complaint, rior In the House Court No. 3. final judgment. that the 1992 alleged of James Becknell, 42, 47, Becknell v. 110 Ind. 10 requested and it unpaid, remained re- N.E. venue is newal of the 1992 governed by now Trial Ind. Rule 75. filed a motion to dismiss or Bostic Union, Hootman v. Fin. Fed. Ctr. Credit change the venue of the action to (Ind.Ct.App.1984) Rule 12(B)(3)2 and Trial Ind. Trial Ind. (noting that venue in Indiana 75(A). alleged Rule that he resides Bostic are "governed exclusively" by Ind. Trial County, greater percentage Howard 75). Rule of defendants reside outside of individual review a trial order on a County, and none of the individ We court's change

ual defendants reside in Hamilton motion to under Trial venue Ind. (30) jurisdiction interlocutory days eniry interlocutory We 1. have over this of the 5(B) appeal pursuant Appellate Rules (8) Transferring refusing order: ... to 14(A)(8). 5(B) Appellate pro- Rule transfer a case under Trial Rule 75." vides that shall have "[the jurisdiction appeals interlocutory over or- 12(B)(3) permits party Ind. Trial Rule Appellate ders under Rule 14." Ind. Rule plead venue under Trial Rule [incorrect 14(A) provides, part, "[alppeals from any statutory provision. disposition following interlocutory orders are taken ° with Trial Rule this motion shall consistent right by filing as a matier of Notice 75." Appeal thirty with the court clerk within ty of discretion. Trs. venue is Rule 75 for an abuse established under Hagerman Corp., Purdue Univ. 75(A)(1)-(9), Trial Rule then (Ind.Ct.App.2000), be established under Ind. Trial An oc- trans. denied. abuse discretion 75(A)(10). Rule In construing Id. Ind. Tri *3 when trial court's decision is curs al Rule we are by bound the cardinal logic and effect of the clearly against statutory rule of construction that "a stat court, cireumstances before the clear facts and unambiguous ute on its face need misinterpreted the trial court has or when interpreted by not and cannot be a court." law. Id. Co., Cо., Inc. Storey Oil v. Am. States Ins. (Ind.Ct.App.1998) 622 N.E.2d 75(A), a Ind. Trial Rule Under 75(A)). (discussing Ind. Trial Rule in in may any county case be tried Pembor, Banjo Corp. v. 715 N.E.2d preferred Bostic argues venue ex- (Ind.Ct.App.1999). Specifically, County in Howard ists 75(A) pertinent in provides, provides pre- part: in county ferred venue "the where the venued, Any case be commenced greater percentage of individual defen- any any county, in court in and decided resides, or, complaint dants included in the exeept, filing pleading if there is no such greater percentage, the to Rule or motion dismiss allowed place any where individual dеfendant so 12(B)(8), allegations from named resides." the trial court complaint evidence hearing or after preferred held that venue in also exists considering thereon or affidavits or doe- County Hamilton because the judgment umentary evidence filed with the motion was "in the nature of a chattel and under it, in opposition or to shall order the 75(A)@), Trial Rule suit county case transferred to a or court in brought county in which the judg- party properly filing selected first ment Appellant's entered." if pleading such motion or the court Appendix Consequently, at 23. the issue county determines оr court County county is whether Hamilton is a where the action was filed does not meet preferred venue such court preferred or is not required grant change was not to authorized to decide the case and that venue. county pre- the court or selected has 75(A)(2) provides ferred venue and is authorized to decide Ind. Trial Rule preferred venue in: exists the case. preferred if the initial court is not county where ... the chattels or

venue, the action must be transferred to a part regularly thereof are some located ‍‌​‌​​​​​​​​‌​‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​​‌‌​‌‌‍preferred venue under thе criteria listed in if kept, includes a claim Banjo, rule. 715 N.E.2d at 431. injuries relating thereto or to ... chattels, including such without limita- in

Preferred venue is determined recovery possession tion claims for 75(A)(1)- accordance with Ind. Trial Rule control, injuries, to establish use or Pierce, Pratt 75(A) interest, (Ind.Ct.App.1999). any quiet Ind. Trial Rule to title or determine preference among conveyances, creates no these subsec to avoid or set aside to tions, liens, partition if and to initially the suit is filed foreclose to assert venue, a transfer of matters for which rem relief is or granted. proper. venue will not be Id. If no coun- would be Fur Summary Judgment Docket." 75(A)(2). Thus, establish whether TR. venue, thermore, County is a we 77 requires Hamilton Ind. Trial Rule (1) clerk of the cireuit court to maintain rec is a if: must determine (2) circuit, superior, county, pro part chattel; chattel "or some "for all ords "regularly thereof" is municipаl county," courts in the bate (8) County, and Here, the including judgments. records of injuries thereto or claim for "includes a original judgment was issued Hamilton chattel. to" the relating County Superior Court No. 3. record intangi that a argues Bostic can be found Hamilton "chattel" refers to a and the term ble County. Cоnsequently, we conclude that *4 property. How piece personal of tangible part the or some thereof is located chattel ever, Phillips v. recently we held See, Scalf e.g., In re Trust 75(A)@) "does not Johnson, 768, (Ind.Ct. N.E.2d 772 469 of tangible intangi distinguish between App.1984) (holding that (Ind.Ct. N.E.2d chattels." 778 ble declaratory judgment regard for a action type chat App.2002) (noting "[olne ing validity of a ‍‌​‌​​​​​​​​‌​‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​​‌‌​‌‌‍trust existed in Hamil chattel, personal which is defined tel is a 75(A)(8) County ton under Ind. Trial Rule good intangible right or an tangible "[a] as § and Ind.Code 30-4-6-8 because the "). Thus, (such argu patent) a Bostic's as kept trust's records were there аnd Trust ' misplaced. ment is denied, there), reh'g trans. de ee resided 1-1-4-5(10) § defines nied. Ind.Code orders, decrees, final "all

judgments as Finally, we must determine whether the in an action and all and determinations complaint injuries a claim for "includes executions upon which issue." orders chattel, i.e., relating thеreto or to" the "(tlhe Further, plaintiff the action in 75(A)(@2). TR. House of James judgment a is recovered argues complaint a claim includes owner of the presumed defendant is to" a "relating rather than Judgments 46 Am.Jur2d judgment." injuries" claim "for to the Cf. example, § 12 For Ind.Code 34- Phillips, (holding 778 N.E.2d at 483 provides "[jludgments and de 54-7-1 prоper venue was when the in recovery of record for the crees of a court injuries cluded a claim for to a assigned plaintiff money Co., publicity). "title to In Diesel complainant" Inc. v. Cotten, in the assignee. interpreta then vests we held that a "broad or decree" with the trial сourt that a agree we "relating language tion" of the to" "in nature a (Ind. is chattel." appropriate. 634 N.E.2d Furthermore, Ct.App.1994). we held that Next, determine whether we must "proper apply test for the court to part thereof" is "regularly chattel "or some to determine whether a claim relates to in Hamilton 75(A)@) under TR. is whether a land provides "upon a verdiet Trial Rule 58 sufficient nexus exists between the land jury, upon a a decision of the action." underlying Id. We be promptly prepare sign the court shall reasoning appropri lieve that the judgment, and the clerk shall therе a determining ate when whether claim re in the Record of enter the under Ind. entry and note the lates to chattel Judgments and Orders T5(A)(@Q). Chronological Case Bostic contends that House of James's because there was a sufficient nexus be- "question concerns of debt" plaintiff's claim tweеn the action and the land on occurred). and, thus, which the too remote. project construction nexus is We plaintiff's held Diesel Constr. that if the requirement Each of Ind. Trial Rule debt, "only question claims concerned 75(A)(@Q) Thus, preferred is satisfied. ven nexus land would be too remote ue for House оf James's on the 75(A)(2)." to meet TR. Id. "if exists Hamilton County. the breach of the contract is based Consequently, the trial court did not abuse land, performed quality of work on the its discretion when it denied Bostic's mo example, provide for such an issue would tion for change of venue to Howard Coun sufficiеnt nexus to the land to be 'related See, ty. e.g., Smeltzer, Halsey v. T5(A)(2)." purposes to the land' of TR. N.E.2d 874 (Ind.Ct.App.2000) (holding Furthermore, Id. in Bayless Spe we found the trial court did not err when it Housing, cialties Inc. that a Affordable denied the defendant's motion to transfer "complaint merely on account stated" wаs venue), trans. denied. request repayment of debts. 637 (Ind.Ct.App.1994), reh'g reasons, foregoing For the we affirm the *5 denied, trans. denied. the claim trial court's denial of Bostic's motion for debt, only question preferred was change of venue. venue was not established ‍‌​‌​​​​​​​​‌​‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​​‌‌​‌‌‍Affirmed. 75(A)(2). Id.; Pratt, see also N.E.2d at (holding proper that venue for a claim an unpaid on account KIRSCH, J. concurs. county

was the where the defendants re SULLIVAN, in J. concurs result with sided). However, judgment is than more separate opinion. Rather, simply question of debt. as above, judgments noted "all are defined as SULLIVAN, Judge, concurring in re- orders, decrees, final and determinations sult. in upon an action and all orders which executions issue." 1-1-4- I.C. I in fully majority's coneur the conclu- 5(10). chattel, judgment sion that this ais albeit intangible. an fact chattel,

A clear nexus exists between the chattel exists does not end inquiry with ie., judgment, and House of James's regard preferred venue. In addition to action to renew the judgment against chattel, intangible its status as an the chat- Bostic. A resolution of House of James's tel must a present also have situs within complaint necessarily requires that tri county county claimed to be a of pre- al cоurt consider the More us, In ferred venue. the case before over, the trial court cannot render preferred factor which venue is regarding determination House of James's considering without judg years previously, is fact that based ten judgment in in was entered interpreta ment. under the broаd I do not "relating tion of the to" in subscribe to language implication majority opin- the clear of the to renew judgment always "regularly ion that a is "relates to" the kept" in county where it See, was e.g., Hagerman Corp., 736 at (holding plaintiff's originally merely entered it because was comрlaint alleged claims related to land rendered there. so as to enforce it made intimation trol over is argument

The rendered when that because more than a mere cireumstance or coin- in as a matter of record entered becomes cidence. long as nоt vacated or county, so sure, principal To ‍‌​‌​​​​​​​​‌​‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‌​​​‌‌​‌‌‍be the two cases re "remains extinguished, majority conjunction in lied judgment itself county. in with the "location" of the chattel would required placed to be original

in form is its position I support seem Judgments and Or- the Record of within Scalf, In 778 N.E.2d 480 Phillips take. TT(C). 77(A))@), To Trial Rules ders. (Ind.Ct.App.2002), the suit involved a claim that extent and to the extent right publicity. of a of violation and Orders remains Record Judgments lay in court held that county, in that of record Morgan County because the owner of the county. "kept" in that be said to be Morgan County was domiciled in right my persuasive argument, The more ie., chattel, therefore the estimation, recognizes that the terms "lo publicity, assumed the situs of the owner. "kept" per that some cated" and connote Id. at 483-84. owner entity son or within that has Johnson, This ship or control over the chattel. In In Re Trust appear especially true the case of would the determination (Ind.Ct.App.1984), physical which do not have a intangibles the court that venue with Only the presence in and of themselves.3 respect lay to the trust in Hamilton Coun favor the person whose ty only upon rested not the fact that the may rеalize the assignee rendered or his trust records were maintained Hamilton *6 judgment by enforcing benefits of that it. County, perhaps importantly but more it would seem that the mere Accordingly, the Trustee resided Hamilton intangible recordation of an within the County. satisfy does not may, Be that as it Bostic's Motiоn to there is some unless premised Dismiss or Transfer Venue was entity county having domiciled within that proposition solely that the defen- proprietary in the interest in Howard dants resided The majority opinion acknowledges itself way challenged applica- in no Motion degree import given which must be 75(A)(2) bility of TR. to the here ownership opin- no Accordingly, involved. there is issue states, "Further, plaintiff ion [tlhe presented the case as to us as to whether action in which a is recovered James, corpora- House of Inc. is or is not a presumed the defendant is the in Hamilton tion dоmiciled Op. at 512. In judgment.'" owner of the Therefore, wholly inappropri- it would be addition, majority places significance to conclude that venue lies in ate provides 34-54-7-1 which L.C. County only judg- because the " 'ti- judgment may assigned ment was entered there. tle to the or decree' then vests in assignеe." Id. It is clear to me there- Bostic has not demonstrated

fore, under TR. location of a court's determination the existence and person ownership entity having 7T5(A)(2) or con- was erroneous as a matter of law. Dictionary intangible "property (6th 3. An is defined as that is existence." Black's Law Ed.1990). lacking physical ... one which is reason, I concur the result For this by majority.

reached

Randy WATSON, Appellant- L.

Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 48A05-0205-CR-229.

March