Julie Hammond v. Richard Gillespie, Z Force IN Transportation Inc., and Danny Hammond Sr. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 3, 2020
• Docket: 19A-CT-3027
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 2 of 8 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[.]

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 3 of 8 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).

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 4 of 8 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).

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 5 of 8 [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

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 6 of 8 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

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 7 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-3027 | September 3, 2020 Page 8 of 8