Lake Holiday Conservancy v. Davison

808 N.E.2d 119, 2004 Ind. App. LEXIS 843, 2004 WL 1048310
CourtIndiana Court of Appeals
DecidedMay 10, 2004
Docket49A02-0312-CV-1029
StatusPublished
Cited by10 cases

This text of 808 N.E.2d 119 (Lake Holiday Conservancy v. Davison) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake Holiday Conservancy v. Davison, 808 N.E.2d 119, 2004 Ind. App. LEXIS 843, 2004 WL 1048310 (Ind. Ct. App. 2004).

Opinions

OPINION

BARNES, Judge.

Case Summary

Lake Holiday Conservancy District ("Lake Holiday") appeals the trial court's denial of its motion to transfer venue. We affirm.

Issue

The sole issue is whether the trial court properly denied Lake Holiday's motion to transfer venue from Marion County to Montgomery County.

Facts

Lake Holiday is a local governmental agency that oversees Lake Holiday in Montgomery County. A complaint filed by Nicole Davison alleges that on July 4, 2002, she was struck in the eye by a water balloon fired from a high-velocity slingshot while she was on a boat on the lake. This incident left Davison with a fractured eye socket, a concussion, and permanent damage to her eye. On June 9, 2003, Davison sued Lake Holiday, along with five other defendants who reside in Montgomery County, Hendricks County, or out-of-state. Davison filed suit in Marion County, her county of residence.

On August 7, 2003, Lake Holiday filed a motion to transfer venue to Montgomery County.1 The trial court originally granted this motion on August 26, 2008. However, on September 15, 20083, the trial court reconsidered that ruling upon Davi-son's motion and denied the motion to transfer venue. After seeking and receiving permission from the trial court to initiate a belated interlocutory appeal, Lake Holiday now appeals.

Analysis

We first note that Davison reiterates an argument made before and denied by the motions panel of this court, namely that Lake Holiday's appeal should be dismissed as being untimely initiated. Davison is free to raise this issue again before this panel. See Davis v. State, 77l N.E.2d 647, 649 (Ind.2002). However, we agree with the motions panel's ruling. In the present case, the trial court denied Lake Holiday's motion to transfer venue on September 15, 2008; on November 13, 2003, Lake Holiday filed a motion under Indiana Trial Rule 72(E) seeking an extension of time in which to file a notice of appeal. The trial court granted the motion and gave Lake Holiday until November 22, 2003, to file a notice of appeal. Rule 72(E) provides:

Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section. When the mailing of a copy of the entry by the Clerk is not evidenced [121]*121by a note made by the Clerk upon the Chronological Case Summary, the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel. Such extension shall commence. when the party first obtained actual knowledge and not exceed the original time limitation.

Here, there is no notation in the trial court's chronological case summary indicating that a copy of the denial of transfer ruling was mailed. Therefore, the trial court was entitled to extend Lake Holiday's time limitation for initiating an appeal "upon application for good cause shown. ..." See Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 117 (Ind.1994) (addressing extension of time to file prac-cipe under prior appellate rules). We review a trial court's decision under Rule T2(E) for an abuse of discretion. See Markle v. Indiana State Teachers Ass'n, 514 N.E.2d 612, 614 (Ind.1987).

Lead counsel for Lake Holiday filed a sworn affidavit with the trial court asserting that he received no notice of the trial court's September 15, 2003 ruling until October 23, 2003, when he learned of it through Davison's counsel. It does appear that a copy of the ruling was mailed to another attorney from a different firm who had originally made an appearance for Lake Holiday at the outset of the case, but who has not participated in the litigation of this case and who did not inform lead counsel of the ruling2 We note that although attorneys have a general duty to regularly check the court records and monitor the progress of pending cases, they are entitled to rely upon notification by the clerk of trial court rulings pursuant to Indiana Trial Rule 72(D). Slay v. Marion County Sheriff's Dep't., 603 N.E.2d 877, 883 (Ind.Ct.App.1992), trans. denied (1993). "Further, the law is well-settled that '[wlhere the record reasonably permits, we prefer to dispose of appeals on their merits'" Id. at 883-84 (quoting Swain v. Swain, 565 N.E.2d 1134, 1135 (Ind.Ct.App.1991)). Given the trial court clerk's failure to mail a copy of the September 15, 2003 ruling to Lake Holiday's counsel who was directing the litigation of this action, we do not believe the trial court abused its discretion in allowing it to initiate this belated appeal.

Turning to the merits of the appeal, Lake Holiday argues that Marion County is not a preferred venue for this cause of action and, therefore, the trial court was required to transfer the case to Montgomery County upon Lake Holiday's request. We review a trial court's order on a motion, to change venue for an abuse of discretion. Bostic v. House of James, Inc., 784 N.E.2d 509, 510-11 (Ind.Ct.App.2003), trans. denied. ("An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireurstances before the court, or when the trial court has misinterpreted the law." Id. at 511.

Indiana Trial Rule 75 exclusively governs venue requirements in Indiana. Id. at 510. Rule 75(A) allows a case to be filed initially in any county and provides:

Any case may be venued, commenced . and decided in any court in any county, except, that upon the filing of a pleading or' a motion to dismiss allowed by Rule 12(B)(3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or doe-umentary evidence filed with the motion or in opposition to it, shall order the [122]*122case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case.

Preferred venue is determined by reference to subsections (1)-(9) of Rule 75(A). Bostic, 784 N.E.2d at 511. Rule 75(A) does not favor any of these subsections over another, and if the suit is initially filed in a county of preferred venue, a transfer of venue motion cannot be granted. Id. Conversely, "if the initial court is not a preferred venue, the action must be transferred to a preferred venue under the criteria listed in the rule." Id. If no county of preferred venue is established under Rule 75(A)(1)-(9), then preferred venue may be established under Rule 75(A)(10). Id.

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808 N.E.2d 119, 2004 Ind. App. LEXIS 843, 2004 WL 1048310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-holiday-conservancy-v-davison-indctapp-2004.