Linky v. Midwest Midrange Systems, Inc.

799 N.E.2d 55, 2003 Ind. App. LEXIS 2196, 2003 WL 22780213
CourtIndiana Court of Appeals
DecidedNovember 25, 2003
Docket49A02-0305-CV-373
StatusPublished
Cited by5 cases

This text of 799 N.E.2d 55 (Linky v. Midwest Midrange Systems, Inc.) 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
Linky v. Midwest Midrange Systems, Inc., 799 N.E.2d 55, 2003 Ind. App. LEXIS 2196, 2003 WL 22780213 (Ind. Ct. App. 2003).

Opinion

OPINION

BAKER, Judge.

Appellant-defendant Brian Linky raises one issue in this interlocutory appeal of right under Indiana Appellate Rule 14(A)(8): whether the trial court abused its discretion by denying his Motion to Transfer for Incorrect Venue. Specifically, Linky argues that Marion County, the venue in which appellee-plaintiff Midwest Midrange Systems, Inc. ("Midwest"), brought this case, is not a preferred venue. Thus, he claims that the cause should be transferred to Kosciusko County, which is a preferred venue. Finding that the trial court did not abuse its discretion, we affirm.

FACTS

On April 25, 2001, Linky, a resident of Kosciusko County, signed an Employment Agreement with Midwest, an Indiana corporation with its principal place of business in Kosciusko County and an additional office in Indianapolis, to work at the *56 Kosciusko County office. That contract did not contain an applicable law clause. On June 4, 2002, Nathan Goldenberg, a resident of Kosciusko County, also signed an Employment Agreement with Midwest to work at the Kosciusko County office. However, that contract did contain an applicable law clause, which selected Indianapolis as the venue for any action at law or in equity relating to the employment agreement between the signing parties. Linky also signed Goldenberg's contract in his capacity as sales manager for Midwest. Both Employment Agreements contained "do not compete" clauses.

On March 11, 2008, Midwest brought suit in Indianapolis, Marion County against Linky and Goldenberg based on their alleged violations of the non-compete clauses. Additional claims were made against ServIT, a Georgia corporation with one Indiana office in Kosciusko County, which currently employs Linky and Gold-enberg. On April 2, 2008, Linky filed a Motion to Dismiss or Transfer for Incorrect Venue Under Trial Rule 75, alleging that Marion County is not a preferred venue, and that a preferred venue lies in Kosciusko County. The trial court denied transfer in an order issued on April 10, 2008. In its order, the trial court found that the issue of venue was settled as between Midwest and Goldenberg based on their contractual selection of Marion County as their preferred venue. The trial court further reasoned that because a preferred venue had been established, it was no longer subject to change by a party who would prefer to be elsewhere. The trial court stated that "(alll of the parties herein would be subject to joinder under T.R. 21(B), and the sequence of their inclusion should not change the intent of that trial rule." Appellant's App. p. 8. Linky now appeals.

DISCUSSION AND DECISION

Linky contends that the trial court erred in denying his motion to transfer. Specifically, he argues that the case should be transferred to Kosciusko County because that county is the preferred venue.

Initially, we note that a trial court's order on a motion to transfer venue under T.R. 75(A) is an interlocutory order and is reviewed under an abuse of discretion standard. Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind.Ct.App.1999). "An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and cireumstances before the court, or if the trial court has misinterpreted the law." Id. (quoting Humphrey v. Christopher, 692 N.E.2d 932, 934 (Ind.Ct.App.1998)).

Preferred venue is determined in accordance with Indiana Trial Rule 75(A)(1)-(9). Pratt, 713 N.E.2d at 315. This rule sets forth a number of options for venue which include the following:

(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
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(4) the county where either the principal office of a defendant organization is located or the office or agency of a defendant organization or individual 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 complaint; or
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(6) the county or court fixed by written stipulations signed by all the parties named in the complaint or their attor *57 neys and filed with the court before ruling on the motion to dismiss; or
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(8) the county where a claim in the plaintiff's complaint may be commenced under any statute recognizing or creating a special or general remedy or proceeding; or
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(10) the county where either one or more individual plaintiffs reside, the principal office of any plaintiff organization or governmental organization is located, or the office of any such plaintiff organization or governmental organization to which the claim relates or out of which the claim arose is located, if the case is not subject to the requirements of subsections (1) through (9) of this subdivision or if all the defendants are nonresident individuals or nonresident organizations without a principal office in the state.

Ind. T.R. 75. The rule creates no preference among the first nine subsections. Pratt, 713 N.E.2d at 315. If no county of preferred venue is established under Trial Rule 75(A)(1)-(9), the rule makes it clear that preferred venue may be established under Trial Rule 75(A)(10). It is the general rule that a lawsuit may be commenced in any county in Indiana. Ind. Trial Rule 75(A). However, when a party files for a motion to transfer to a preferred venue, the trial court must transfer the case to the county selected by the moving party if it is a preferred venue and the county in which the action was filed is not a preferred venue. Pratt, 713 N.E.2d at 315. If the lawsuit is initially filed in a county of preferred venue, a transfer will not be granted. City of South Bend v. D & J Gravel Co., Inc., 727 N.E.2d 719 (Ind.Ct.App.2000).

Indiana has long upheld venue and forum selections made by stipulation. The forum selection issue was addressed in Mechanics Laundry v. Wilder Oil Co., 596 N.E.2d 248, 251 (Ind.Ct.App.1992), where we stated, "We have repeatedly held that parties may consent by contract to the exercise of personal jurisdiction by courts that otherwise might not have such jurisdiction." We further observed that contractual provisions that seek to limit "the litigation of future actions to particular courts or places are enforceable if they are reasonable and just under the cireum-stances and there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be deprived of a day in court." Id. at 250.

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Bluebook (online)
799 N.E.2d 55, 2003 Ind. App. LEXIS 2196, 2003 WL 22780213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linky-v-midwest-midrange-systems-inc-indctapp-2003.