Regal Homes & Restoration, LLC, and Scott Williams v. Richard Swenke (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 28, 2019
• Docket: 18A-PL-1067
• 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 Jun 28 2019, 9:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Jeffrey A. Boggess Greencastle, Indiana

IN THE COURT OF APPEALS OF INDIANA

Regal Homes & Restoration, June 28, 2019 LLC, and Scott Williams, Court of Appeals Case No. Appellants-Plaintiffs, 18A-PL-1067 Appeal from the Hendricks v. Superior Court The Honorable Rhett M. Stuard, Richard Swenke, Judge Appellee-Defendant. Trial Court Cause No. 32D02-1801-PL-3

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 1 of 11 Case Summary and Issue [1] In 2017, Regal Homes & Restoration, LLC (“Regal Homes”) and Richard

Swenke entered into a contract in which Regal Homes agreed to repair fire

damage on Swenke’s property located in Hendricks County. In 2018, Swenke

filed a complaint in Hendricks County for declaratory judgment against Regal

Homes alleging breach of contract. Regal Homes filed a motion to change

venue to Putnam County, alleging Hendricks County was not a county of

preferred venue. Swenke filed an objection and argued that Hendricks County

was a preferred venue under Trial Rule 75(A)(2). The trial denied the motion

and Regal Homes filed a motion to correct error, which the trial court also

denied. Regal Homes appeals, presenting one issue for our review, which we

restate as whether the trial court abused its discretion by denying Regal Homes’

motion for change of venue because Hendricks County was not a county of

preferred venue under Trial Rule 75(A)(2). Concluding the trial court did not

abuse its discretion because Hendricks County is a preferred venue, we affirm.

Facts and Procedural History [2] Swenke owns property in Danville, Hendricks County, Indiana. Regal Homes

is a Tennessee limited liability company originally formed in January 2016 and

registered as a foreign limited liability company with the Indiana Secretary of

State. Regal Homes’ principal place of business is located in Putnam County,

Indiana. Scott Williams is Regal Homes’ registered agent, whose address is

also in Putnam County, Indiana.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 2 of 11 [3] On March 27, 2017, Swenke and Regal Homes entered into a contract in which

Regal Homes agreed to “[r]epair and/or replace all damages from fire

damage[.]” Appendix of Appellant at 16. The contract stated, in part:

1. Purchaser acknowledges that Regal Homes & Restoration may be subject to delays due to inclement weather and material shortages which are beyond the control of Regal [Homes]. Purchaser hereby accepts any delays due to one or all of these circumstances in the construction process. Purchaser further agrees to pay to Regal Homes & Restoration an amount equal to 20% of the total insurance estimate or Regal Homes & Restoration’s bid if not provided, should Purchaser cancel the contract for any reason after the 24 hour deadline.

Id.

[4] In August 2017, Swenke received his first distribution from the insurance

company and contacted Regal Homes “to sign the check over to Regal Home[s]

for the future work” it was going to perform. Id. at 10-11. However, Regal

Homes did not return Swenke’s calls. Months later, on December 4, 2017,

Swenke received a letter from Regal Homes indicating he owed $42,114.20 and

offering a $12,000 discount if he paid the amount by December 15.

[5] On January 5, 2018, Swenke filed his Verified Complaint for Declaratory

Judgment in Hendricks County against Regal Homes and Williams alleging

Regal Homes breached the contract. Specifically, he alleged that Regal Homes

failed to perform the terms of the contract and, as a result, he was forced to

obtain a new builder; Regal Homes failed to pay the subcontractor who did the

demolition on the property; Regal Homes was shut down by Hendricks County

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 3 of 11 for failing to obtain proper permits; there was no inclement weather that would

have delayed Regal Homes’ work; no shortage of material was communicated

to him “nor was the project even at a point of requiring material when Regal

Home[s] stopped all communication”; and the contract failed to comply with

the Indiana Home Improvement Act. Id. at 10. Swenke requested that the trial

court enter a declaratory judgment that “due to Regal Homes[’] failure to

perform under the terms of the March 27, 2017 Document, [he] does not have

any obligations to Regal Homes.” Id. at 11.

[6] Regal Homes and Williams filed a Motion for Change of Venue on March 13,

2018, arguing that the “preferred venue,” pursuant to Trial Rule 75(A)(1), is

Putnam County, the county where the greater percentage of the individual

defendants reside. Swenke filed an objection and response to the motion,

acknowledging that Putnam County is a preferred venue under the rule but

arguing that Hendricks County is also a preferred venue pursuant to Trial Rule

75(A)(2) because the land in question is located in Hendricks County. And

because the matter was initially filed in a preferred venue, Swenke argued the

trial court lacked authority to transfer the case. The trial court denied the

motion for change of venue on April 3, 2018. Regal Homes and Williams

subsequently filed a Motion to Correct Error arguing Putnam County is the

preferred venue because Swenke’s complaint relates only to a debt, which is an

insufficient nexus to the land under 75(A)(2). The trial court denied the motion

and later dismissed Williams as a party. Regal Homes now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 4 of 11 Discussion and Decision I. Standard of Review [7] We begin by acknowledging that no appellee’s brief was filed on behalf of

Swenke. When an appellee does not file a brief, this court is not required to

advance arguments on the appellee’s behalf. Neal v. Austin, 20 N.E.3d 573, 575

(Ind. Ct. App. 2014). We may reverse if the appellant presents a case of prima

facie error; however, even when an appellee does not file a brief, questions of

law are nonetheless reviewed de novo. Id.

[8] A trial court’s ruling on a motion to transfer venue is reviewed for an abuse of

discretion, which occurs if the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before it or it misinterprets the law.

Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006). A trial

court’s factual findings linked to a motion under Trial Rule 75 are reviewed for

clear error, and its rulings of law are reviewed de novo. Bagsby v. Snedeker, 93

N.E.3d 1127, 1129 (Ind. Ct. App. 2018), trans. denied. “If factual

determinations are based on a paper record, they are also reviewed de novo.”

Am. Family Ins. Co., 857 N.E.2d at 973.

II. Motion for Change of Venue [9] Trial Rule 75 governs venue requirements in Indiana. Pursuant to Trial Rule

75(A), any case may be filed in any county in Indiana, but each of its ten

subsections set forth criteria establishing a preferred venue. Garrison v. Ford, 53

N.E.3d 454, 455 (Ind. Ct. App. 2016). If a matter is not filed in a preferred Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 5 of 11 venue, the trial court must transfer the case to a preferred venue upon proper

request from a party. Id. However, there is no priority among Rule 75(A)’s

subsections. Belcher v. Kroczek, 13 N.E.3d 448, 451 (Ind. Ct. App. 2014). There

may be multiple preferred venues in a given case, and a motion to transfer

venue cannot be granted when an action has been filed in a preferred venue. Id.

[10] At the trial court, the parties disputed whether Hendricks County was a

preferred venue. Swenke contended it was, pursuant to subsection (2), which

states that preferred venue lies in:

the county where the land or some part thereof is located or the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto or relating to such land or such chattels, including without limitation claims for recovery of possession or for injuries, to establish use or control, to quiet title or determine any interest, to avoid or set aside conveyances, to foreclose liens, to partition and to assert any matters for which in rem relief is or would be proper[.]

T.R. 75(A)(2) (emphasis added). The 1970 Civil Code Study Commission’s

intent when creating this subsection was “to broaden the class of local actions

allowing suit to be brought in the county where the land is located.” Diesel

Constr. Co., Inc. v. Cotten, 634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994) (quotation

omitted). Thus, when a complaint alleges a claim related to land, the county

where the land is located is a preferred venue. Id.

[11] We employ a “nexus test” to determine whether a claim relates to the land

within the meaning of Trial Rule 75(A)(2): a claim relates to the land if there is

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 6 of 11 a sufficient nexus between the land and the underlying action. Id. This nexus

test is affected “by such factors as, but not limited to, whether the acts giving

rise to liability occurred there, and whether examination of the site may be

necessary to resolve the dispute.” Id. In Diesel Constr. Co., a panel of this court

reversed and remanded the trial court’s denial of a motion to transfer venue and

explained:

If the trial court finds that [the plaintiff’s] claims concern only a question of debt, the nexus to the land would be too remote to meet T.R. 75(A)(2). However, if the breach of the contract is based upon the quality of work performed on the land, for example, such an issue would provide a sufficient nexus to the land to be “related to the land” for purposes of T.R. 75(A)(2).

Id.; see also Bayless Specialties v. Affordable Housing, Inc., 637 N.E.2d 840, 841 (Ind.

Ct. App. 1994) (holding that preferred venue was in the county where

defendant’s principal place of business was located because plaintiffs’

complaints were entitled “complaint on account stated” and alleged that

defendant “failed and refused and continues to refuse to pay for . . . services and

is thereby indebted . . .” to plaintiffs rendering them “merely requests for the

repayment of debts”), trans. denied.

[12] In Skeffington v. Bush, 846 N.E.2d 761, 763-64 (Ind. Ct. App. 2006), a panel of

this court concluded that preferred venue was where land was located, finding

that, even if a plaintiff seeks to recover monetary damages, if the underlying

legal theory is based on the quality of work performed on the land, a sufficient

nexus exists between the action and land to be “related to land.” There, the

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 7 of 11 plaintiff filed a lawsuit alleging breach of contract, breach of warranty, and

negligence in performance of the work in a contract to hydro-seed football

fields. Id. at 762. In determining whether a nexus existed between the action

and the land under Trial Rule 75(A)(2), this court concluded the plaintiff’s

claims were based on the quality of work performed on the land in question:

Although [the plaintiff] seeks to recover monetary damages, her legal theory is based on the alleged poor quality of [the defendant’s] work. . . . [Plaintiff] alleged [defendant] had “guaranteed that the grass he sowed would sprout and grow” but that he “failed to properly hydro-seed the fields and the grass did not grow. Because the grass did not grow, [plaintiff] alleges she had to “strip the fields of the nonconforming vegetation,” purchase sod, and have the sod installed on the football fields, all at her expense.

We find a sufficient nexus between [plaintiff’s] action and the football fields [defendant] hydro-seeded for [plaintiff’s] complaint to allege[] claims related to land [under Trial Rule 75(A)(2)].

Id. at 763-64 (emphasis added) (internal citations omitted). Thus, the county

where the football fields were located was a preferred venue.

[13] In Trustees of Purdue Univ. v. Hagerman Constr. Corp., 736 N.E.2d 819 (Ind. Ct.

App. 2000), trans. denied, Purdue entered into agreements with several

contractors to construct a building on their campus in Tippecanoe County and

subsequently filed a declaratory relief action in Tippecanoe County against the

contractors, including Hagerman. Hagerman objected to venue and moved to

change venue, and the trial court granted the motion and transferred the case to

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 8 of 11 Allen County. A panel of this court held that a sufficient nexus existed between

the land in Tippecanoe County where the contractor was to perform work and

Purdue’s action for three reasons: (1) the resolution of whether the contractor

breached its contractual duty of coordinating and scheduling may require an

evaluation of the parties’ business relationships, which was centered around the

project where the land was located; (2) the contractor’s “work” was

coordinating and scheduling which affected the land where the project was

located and Purdue’s legal theory was based on the contractor’s alleged poor

quality of work that affected the land; and (3) Purdue persuasively argued that

Tippecanoe County was the more convenient venue because potential witnesses

were located in or near Tippecanoe County. Thus, a panel of this court agreed

that there was a sufficient nexus between Purdue’s claim and the land making

Tippecanoe County a preferred venue.

[14] On appeal, Regal Homes argues that Swenke’s complaint only concerns a

question of debt and is therefore too remote to relate to the land under Trial

Rule 75(A)(2). We disagree. Here, Swenke’s complaint alleged: Regal Homes

failed to perform the terms of the contract; Regal Homes failed to pay a

subcontractor who completed the demolition on the property; “Regal Homes’

work at the Danville property was shut down” by the county due to its failure to

obtain proper permits; after obtaining the proper permits, Regal Homes

“provided no further work” on the property which forced Swenke to hire

another builder; Regal Homes would not communicate with Swenke after this;

and the contract failed to comply with the Indiana Home Improvement Act.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 9 of 11 App. of Appellant at 9. Swenke sought a declaratory judgment “stating [that]

due to Regal Homes[’] failure to perform under the terms of the March 27, 2017

Document, [he] does not have any obligations to Regal Homes.” Id. at 11.

[15] Although Swenke ultimately seeks a declaratory judgment that he is not indebted

to Regal Homes and there are some issues set forth in the complaint that do not

relate to the land in question, at least one issue set forth in the complaint relates

to the land. Specifically, Swenke alleges that Regal Homes performed some

work on the property but later abandoned the work. Thus, the trial court must

determine whether Swenke is indebted to Regal Homes – an inquiry that hinges

on evaluating work Regal Homes performed on the land in Hendricks County

pursuant to the contract. We conclude that there is a sufficient nexus between

the land and Swenke’s claim. Therefore, Hendricks County is a county of

preferred venue and the trial court did not abuse its discretion by denying Regal

Homes’ motion to transfer venue.

Conclusion [16] In sum, we conclude Swenke’s action does relate to the land located in

Hendricks County and that Hendricks County is a preferred venue under Trial

Rule 75(A)(2). Therefore, the trial court did not abuse its discretion by denying

Regal Homes’ motion to transfer venue to Putnam County. The order of the

trial court is affirmed.

[17] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 10 of 11 Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019 Page 11 of 11