MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 26 2019, 10:35 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Richard K. Milam Donald W. Shelmon Lebanon, Indiana Rensselaer, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the March 26, 2019 Guardianship of Jennie K. Court of Appeals Case No. Moore, Adult 18A-GU-2804 Interlocutory Appeal from the Earl L. Moore, Jasper Circuit Court The Honorable John D. Potter, Appellant-Interested Person, Judge v. Trial Court Cause No. 37C01-1705-GU-491 Nancy J. Pruitt (Guardian), Appellee-Petitioner.
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 1 of 7 Case Summary [1] Earl L. Moore brings this interlocutory appeal of the trial court’s denial of his
motion to transfer venue of the Guardianship of Jennie K. Moore (“the
Guardianship”) from Jasper County to Boone County. Concluding that the
trial court abused its discretion in declining to transfer venue of the proceeding
to Boone County, we reverse and remand with instructions to transfer.
Facts and Procedural History [2] On May 30, 2017, Nancy Pruitt filed a petition to establish guardianship over
the person and estate of ninety-year-old Jennie K. Moore in the Jasper Circuit
Court. The petition alleged that Jennie is unable to maintain and care for her
person and financial affairs due to her advanced age. The petition alleged that
Jennie resides in a nursing home in Lebanon, which is in Boone County. The
petition further alleged that Pruitt resides in Boone County. The petition stated
that Jennie’s closest blood relative is her son Earl. On the same date the
petition for guardianship was filed, counsel for the Guardianship also filed a
consent to guardianship and to the appointment of Pruitt as guardian of
Jennie’s person and estate, signed by Earl. The petition for guardianship was
approved by the trial court and the Guardianship was established on June 7,
2017.
[3] In November 2017, Earl filed an appearance as an interested person in the
guardianship proceeding, and in December 2017 he filed a petition to remove
Pruitt as guardian and a withdrawal of his consent to guardianship. Thereafter,
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 2 of 7 on April 3, 2018, Earl filed a motion to transfer venue of the guardianship
proceeding to Jennie’s county of residence, Boone County. The trial court held
a hearing regarding venue on April 18, 2018, and subsequently denied Earl’s
motion to transfer. After numerous continuances of several other motions filed
by the parties, on November 4, 2018, Earl filed a second motion to transfer
venue to Boone County. Concluding that, in consenting to the guardianship
petition filed in Jasper Circuit Court, Earl had consented to the Jasper Circuit
Court’s exercise of jurisdiction over the guardianship proceeding, the trial court
denied the motion to transfer venue. This interlocutory appeal ensued.
Discussion and Decision [4] Earl asserts that the trial court abused its discretion in declining to transfer
venue of the guardianship proceeding from Jasper County to Boone County.
We agree.
[5] A trial court’s order on a motion to transfer venue is an interlocutory order and
is reviewed under an abuse of discretion standard. In re Adoption of W.M., 55
N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion
occurs if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the trial court has misinterpreted
the law. Id. We review any 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. Arkla Indus., Inc. v. Columbia St. Partners, Inc., 95 N.E.3d 194, 196 (Ind.
Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 3 of 7 [6] As a general matter, Indiana Trial Rule 75(A) governs venue requirements in
Indiana. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006).
The procedure in probate, however, is separate and distinct from the procedure
for civil proceedings prescribed in the trial rules. MacLeod v. Guardianship of
Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996), trans. denied (1997). “It is
only where the probate code does not provide an adequate and complete mode
of procedure that it is proper to resort to the rules of pleading and practice
applicable to civil actions.” Id. Regarding guardianship proceedings, Indiana
Code Section 29-3-2-2 provides an adequate and complete mode of procedure
for determining the proper county of venue. Id. at 178-79. Specifically, Indiana
Code Section 29-3-2-2(a)(1)(A) provides that the venue for the appointment of a
guardian or for protective proceedings, if the alleged incapacitated person or
minor resides in Indiana, is in the county where the alleged incapacitated
person or minor resides.1
[7] Accordingly, here, proper venue for the guardianship proceeding is restricted to
the county where Jennie resides, which is Boone County. In twice denying
Earl’s requests to transfer venue to Boone County, the trial court apparently
confused the legal concepts of jurisdiction and venue. As this Court has
recognized, jurisdiction involves a court’s power to hear a particular group of
cases; venue, on the other hand, connotes the proper situs for the trial of an
1 Indiana Trial Rule 75(A)(8) recognizes the existence of statutes that specify a preferred venue. MacLeod, 671 N.E.2d at 179; In re Trust Created Under Agreement Dated Sept. 19, 1983, By Johnson, 469 N.E.2d 768, 772 (Ind. Ct. App. 1984), trans. denied (1985).
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 4 of 7 action. Cabanaw v. Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995). These
concepts are not interchangeable, and one cannot be used as a substitute for the
other. Id. Relying on In re B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014), the trial
court concluded that a person who consents to the appointment of the guardian
in a particular court, as Earl did here, waives any objection to that court’s
exercise of jurisdiction over the proceeding. Id. at 769. However, the Jasper
Circuit Court’s jurisdiction over the guardianship proceeding is not at issue, and
therefore B.J.N. is not controlling. Indeed, it is well settled that the filing of a
case in a county in which venue does not properly reside does not divest the
trial court of subject matter jurisdiction.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 26 2019, 10:35 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Richard K. Milam Donald W. Shelmon Lebanon, Indiana Rensselaer, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the March 26, 2019 Guardianship of Jennie K. Court of Appeals Case No. Moore, Adult 18A-GU-2804 Interlocutory Appeal from the Earl L. Moore, Jasper Circuit Court The Honorable John D. Potter, Appellant-Interested Person, Judge v. Trial Court Cause No. 37C01-1705-GU-491 Nancy J. Pruitt (Guardian), Appellee-Petitioner.
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 1 of 7 Case Summary [1] Earl L. Moore brings this interlocutory appeal of the trial court’s denial of his
motion to transfer venue of the Guardianship of Jennie K. Moore (“the
Guardianship”) from Jasper County to Boone County. Concluding that the
trial court abused its discretion in declining to transfer venue of the proceeding
to Boone County, we reverse and remand with instructions to transfer.
Facts and Procedural History [2] On May 30, 2017, Nancy Pruitt filed a petition to establish guardianship over
the person and estate of ninety-year-old Jennie K. Moore in the Jasper Circuit
Court. The petition alleged that Jennie is unable to maintain and care for her
person and financial affairs due to her advanced age. The petition alleged that
Jennie resides in a nursing home in Lebanon, which is in Boone County. The
petition further alleged that Pruitt resides in Boone County. The petition stated
that Jennie’s closest blood relative is her son Earl. On the same date the
petition for guardianship was filed, counsel for the Guardianship also filed a
consent to guardianship and to the appointment of Pruitt as guardian of
Jennie’s person and estate, signed by Earl. The petition for guardianship was
approved by the trial court and the Guardianship was established on June 7,
2017.
[3] In November 2017, Earl filed an appearance as an interested person in the
guardianship proceeding, and in December 2017 he filed a petition to remove
Pruitt as guardian and a withdrawal of his consent to guardianship. Thereafter,
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 2 of 7 on April 3, 2018, Earl filed a motion to transfer venue of the guardianship
proceeding to Jennie’s county of residence, Boone County. The trial court held
a hearing regarding venue on April 18, 2018, and subsequently denied Earl’s
motion to transfer. After numerous continuances of several other motions filed
by the parties, on November 4, 2018, Earl filed a second motion to transfer
venue to Boone County. Concluding that, in consenting to the guardianship
petition filed in Jasper Circuit Court, Earl had consented to the Jasper Circuit
Court’s exercise of jurisdiction over the guardianship proceeding, the trial court
denied the motion to transfer venue. This interlocutory appeal ensued.
Discussion and Decision [4] Earl asserts that the trial court abused its discretion in declining to transfer
venue of the guardianship proceeding from Jasper County to Boone County.
We agree.
[5] A trial court’s order on a motion to transfer venue is an interlocutory order and
is reviewed under an abuse of discretion standard. In re Adoption of W.M., 55
N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion
occurs if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the trial court has misinterpreted
the law. Id. We review any 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. Arkla Indus., Inc. v. Columbia St. Partners, Inc., 95 N.E.3d 194, 196 (Ind.
Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 3 of 7 [6] As a general matter, Indiana Trial Rule 75(A) governs venue requirements in
Indiana. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006).
The procedure in probate, however, is separate and distinct from the procedure
for civil proceedings prescribed in the trial rules. MacLeod v. Guardianship of
Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996), trans. denied (1997). “It is
only where the probate code does not provide an adequate and complete mode
of procedure that it is proper to resort to the rules of pleading and practice
applicable to civil actions.” Id. Regarding guardianship proceedings, Indiana
Code Section 29-3-2-2 provides an adequate and complete mode of procedure
for determining the proper county of venue. Id. at 178-79. Specifically, Indiana
Code Section 29-3-2-2(a)(1)(A) provides that the venue for the appointment of a
guardian or for protective proceedings, if the alleged incapacitated person or
minor resides in Indiana, is in the county where the alleged incapacitated
person or minor resides.1
[7] Accordingly, here, proper venue for the guardianship proceeding is restricted to
the county where Jennie resides, which is Boone County. In twice denying
Earl’s requests to transfer venue to Boone County, the trial court apparently
confused the legal concepts of jurisdiction and venue. As this Court has
recognized, jurisdiction involves a court’s power to hear a particular group of
cases; venue, on the other hand, connotes the proper situs for the trial of an
1 Indiana Trial Rule 75(A)(8) recognizes the existence of statutes that specify a preferred venue. MacLeod, 671 N.E.2d at 179; In re Trust Created Under Agreement Dated Sept. 19, 1983, By Johnson, 469 N.E.2d 768, 772 (Ind. Ct. App. 1984), trans. denied (1985).
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 4 of 7 action. Cabanaw v. Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995). These
concepts are not interchangeable, and one cannot be used as a substitute for the
other. Id. Relying on In re B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014), the trial
court concluded that a person who consents to the appointment of the guardian
in a particular court, as Earl did here, waives any objection to that court’s
exercise of jurisdiction over the proceeding. Id. at 769. However, the Jasper
Circuit Court’s jurisdiction over the guardianship proceeding is not at issue, and
therefore B.J.N. is not controlling. Indeed, it is well settled that the filing of a
case in a county in which venue does not properly reside does not divest the
trial court of subject matter jurisdiction. In re Adoption of L.T., 9 N.E.3d 172,
177 (Ind. Ct. App. 2014) (citing State ex rel. Knowles v. Elkhart Circuit Court, 256
Ind. 256, 258, 268 N.E.2d 79, 80 (1971)). Still, the fact that the Jasper Circuit
Court has the authority to hear this case and to properly issue orders thus far
has nothing to do with whether venue can and should be transferred to Boone
County.
[8] Our thorough review of the record reveals that, in declining to transfer venue to
Boone County, the trial court improperly focused on its jurisdiction, which, as
we stated above, is not at issue. The trial court also improperly focused on the
timing of Earl’s request to transfer venue, with the Guardianship having
seemingly convinced the court that the time for it to consider and/or reconsider
the issue had long passed. To the contrary, our legislature has made clear that
proper venue in a guardianship proceeding remains an important consideration
by the trial court throughout the pendency of the guardianship. Indiana Code
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 5 of 7 29-3-2-2(c) instructs in relevant part that if it appears to the court “at any time”
that: “(1) the proceeding was commenced in the wrong county; … or (4) it
would be in the best interest of the incapacitated person or the minor and the
property of the minor or the incapacitated person; the court may order the
proceeding … transferred to another court in Indiana.” (Emphasis added.) The
Jasper Circuit Court has been notified that this proceeding was unquestionably
commenced in the wrong county. Furthermore, because Jennie, the bulk of her
assets, and Pruitt are all located in Boone County, it is patently clear that it
would be in the best interest of Jennie and her property that the proceeding be
transferred to Boone County.2 In short, we can think of no reason why this case
should not be transferred.
[9] Under the circumstances presented, we conclude that the trial court abused its
discretion in declining to transfer venue of the guardianship proceeding to
Boone County. Therefore, we reverse and remand to the trial court with
instructions to “order the proceeding, together with all papers, files, and a
certified copy of all orders,” transferred to Boone County as provided by
Indiana Code Section 29-3-2-2(c).
2 We find it significant that, during a hearing conducted by the trial court, counsel for the Guardianship conceded that neither Jennie nor her property, nor Pruitt have any connection to Jasper County. He offered no explanation for why he filed the petition for guardianship in Jasper County despite the clear direction of the probate code that the proceeding be filed in Jennie’s county of residence.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 6 of 7 [10] Reversed and remanded.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019 Page 7 of 7