Wontorski v. Williamsburg Mobile Homes, Inc.

775 N.E.2d 691, 2002 Ind. App. LEXIS 1597, 2002 WL 31123858
CourtIndiana Court of Appeals
DecidedSeptember 26, 2002
DocketNo. 56A04-0112-CV-530
StatusPublished
Cited by1 cases

This text of 775 N.E.2d 691 (Wontorski v. Williamsburg Mobile Homes, 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
Wontorski v. Williamsburg Mobile Homes, Inc., 775 N.E.2d 691, 2002 Ind. App. LEXIS 1597, 2002 WL 31123858 (Ind. Ct. App. 2002).

Opinion

OPINION

SULLIVAN, Judge.

Williamsburg Mobile Homes, Inc. (“Williamsburg”) filed suit for breach of contract and to foreclose a mechanic’s lien against John and Laura Wontorski following their purchase of a modular home from Williamsburg. The Wontorskis appeal from the trial court’s order denying their motion to transfer venue of the claims against them from Newton Circuit Court to Lake County, where the property at issue in the litigation is located. We restate the issues presented as whether the trial court erred in finding that venue was controlled by a forum selection clause contained in a purchase contract between the parties.

We affirm.

The Wontorskis entered into a contract with Williamsburg to purchase the modular home on July 17, 1999. The contract, which was signed by both John and Laura, contained a forum selection clause which reads:

“14. CONTROLLING LAW AND PLACE OF SUIT. The law of the State, in which I sign this contract, is the law which is to be used in interpreting the terms of the contract. You and I agree that if any dispute between us is submitted to a court for resolution, such legal proceeding shall take place in the county in which your principle offices are located.” Appendix at 42 (emphasis supplied).

On October 13, 2000, Williamsburg filed a notice of mechanic’s lien for the amount of $21,272.85 against the property upon which the modular home was located. On July 25, 2001, Williamsburg filed its complaint against the Wontorskis. On September 1, 2001, the Wontorskis filed a motion to dismiss pursuant to Trial Rule 12(B)(3) and Trial Rule 75.1 Both parties [693]*693filed memoranda addressing the propriety of the motion to dismiss. ■ Following a hearing upon the matter, the trial court entered an order stating that the Won-torskis’ motion to dismiss was denied, with the cause to proceed in Newton County.

A case may be commenced in any county in Indiana pursuant to Trial Rule 75. City of South Bend, Dep’t of Public Works v. D & J Gravel Co., Inc., 727 N.E.2d 719, 721 (Ind.Ct.App.2000). Upon the filing of a proper motion, a trial court must transfer the case to the county selected by a party if: (1) the court where the cause was initially filed was not in a county of preferred venue as defined by Indiana Trial Rule 75(A), and (2) the county selected by the party seeking transfer is a county of preferred venue. Id. Trial Rule 75(A) creates no preference among the counties of preferred venue. Id. Transfer of venue will not be granted if a suit is initially filed in a county of preferred venue. Id.

The Wontorskis make several assertions regarding their claim. They allege that because the cause of action to foreclose the lien is equitable, the entire cause is drawn into equity and that preferred venue for the equity action should control. They further assert that Indiana law requires that actions to foreclose a mechanic’s lien must be brought in the county in which the real property is located, and hence, as the home was constructed upon real estate located in Lake County, the entire cause should proceed in Lake County, and not Newton County as the language in the forum selection clause requires.

In making the assertion that the entire cause must be drawn into equity, it is apparent that the Wontorskis believe that if an essential part of one cause of action is equitable, then the entire cause2 must be considered equitable. Once the entire cause is deemed equitable, the Wontorskis argue that the contract would no longer have a controlling effect upon the venue of the case. Rather, the Wontorskis assert that since both T.R. 75 and Indiana Code § 32-8-3-6 (Burns Code Ed. Repl.1995)3 require that the foreclosure action be conducted in Lake County, the entire cause must be heard in Lake County.

Because there is no case law addressing such issue, the Wontorskis base their assertion upon an analogy to a party’s right to a jury trial in situations in which a cause is comprised of both equitable' and legal causes of action. They claim that case law has interpreted Indiana Trial Rules 38 and 39 as denying the right to a jury trial on an entire cause when an essential part of a cause of action is equitable. See Baker v. R & R Const., Inc., 662 N.E.2d 661 (Ind.Ct.App.1996). The Wontorskis claim by analogy is that if the right to a jury trial is controlled ’ by whether part of a cause is equitable, then the venue of the cause should also be controlled by the equitable cause of action.

[694]*694However, since the time that the Won-torskis submitted their brief, the Indiana Supreme Court has disapproved of the authority upon which the Wontorskis rely. In Songer v. Civitas Bank, 771 N.E.2d 61 (Ind.2002), our Supreme Court reviewed the case law which has developed in determining whether equity controlled for the purpose of conducting a bench trial as opposed to a trial by jury. Our Supreme Court approved of the first case, Hiatt v. Yergin, 152 Ind.App. 497, 284 N.E.2d 834 (1972), called into question on other grounds by Erdman v. White, 411 N.E.2d 653 (Ind.Ct.App.1980), which interpreted T.R. 38(A) as it was adopted in 1970. Songer, 771 N.E.2d at 67. However, our Supreme Court noted that several cases had misconstrued the holding of Hiatt. Id. at 67-68. These cases, including Baker, failed to recognize the distinction between a “cause of action” and a “cause.” Id. at 68. Our Supreme Court then determined that the correct reading of T.R. 38(A), and of Hiatt, is that inclusion of an equitable cause of action does not draw an entire case into equity. Id. Rather, T.R. 38(A) requires that if there are distinct causes of action, those which are equitable are not triable to a jury, but those causes of action within the cause which are legal claims are appropriate for trial by jury. Id. at 68.

Drawing upon the analogy offered by the Wontorskis, we are not faced with a situation in which the entire cause is drawn into equity. One cause of action is grounded in legal principles and the other in equity. Therefore, applying the analogy of the right to a jury trial to the venue of this case, the Wontorskis and Williams-burg would be subject to two trials, the contract issue to be tried in Newton County and the equitable issue to be tried in Lake County. Not only is this result undesirable, we also do not believe that it is warranted under any theory advanced by the Wontorskis.

The grant or denial of a jury trial in a civil case is governed by T.R. 38 and 39. Trial Rule 38, as discussed, makes a distinction between whether the cause of action is in equity or at law. Venue of a trial, on the other hand, is controlled by T.R. 75. Trial Rule 75 makes no distinction between causes of action which are in equity or at law. Rather, T.R. 75 focuses upon a list of criteria, some of which include equitable causes of action, which govern where preferred venue of a case lies. Because T.R.

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Related

Wontorski v. Williamsburg Mobile Homes, Inc.
794 N.E.2d 433 (Indiana Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
775 N.E.2d 691, 2002 Ind. App. LEXIS 1597, 2002 WL 31123858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wontorski-v-williamsburg-mobile-homes-inc-indctapp-2002.