Gorman v. Northeastern REMC

Decision Date17 August 1992
Docket NumberNo. 57A04-9202-CV-64,57A04-9202-CV-64
PartiesDeanna GORMAN, Appellant-Plaintiff Below, v. NORTHEASTERN REMC, Appellee-Defendant Below.
CourtIndiana Appellate Court

Leonard E. Eilbacher, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellant-plaintiff.

Wayne O. Adams, III, David J. Carr, Johnson Smith Densborn Wright & Heath, Indianapolis, John S. Bloom, Bloom Bloom & Gage, Columbia City, for appellee-defendant.

STATON, Judge.

Northeastern REMC petitions for rehearing from our opinion reversing an award of attorney fees due to the awarding court's lack of jurisdiction. Gorman v. Northeastern REMC (July 8, 1992), Ind.App., 594 N.E.2d 843. In our opinion, we concluded that the Whitley County Circuit Court did not have jurisdiction to grant a change of venue to Noble County because the original court dismissed the lawsuit for lack of subject matter jurisdiction, and no petition for attorney fees had as yet been filed in Whitley County. Northeastern makes four arguments in support of its claim that our determination was in error. Although we deny the petition for rehearing, we issue this opinion to clarify our original opinion.

I.

Northeastern first contends that our opinion is in conflict with the holding of Berkemeier v. Rushville National Bank (1984), Ind.App., 459 N.E.2d 1194. According to Northeastern, Berkemeier stands for the proposition that a trial court's jurisdiction over attorney fees, standing alone is a sufficient jurisdictional basis for the grant of a motion for change of venue.

While we agree that the Berkemeier case allows a court with jurisdiction over attorney fees to grant a change of venue to allow the petitioner an unprejudiced adjudication of the issue, the jurisdiction of the court must first be invoked by petition or continuing jurisdiction of some kind. For example, in Berkemeier, a bank instituted an action to collect a promissory note secured by a mortgage providing for attorney fees. The court rendered a judgment that included $17,500 in attorney fees against the debtors, and the debtors appealed. The Court of Appeals reversed and remanded for a new trial. Nine days after the appellate opinion was handed down, the debtors filed a counterclaim and moved for a change of venue. Upon the appeal from the second trial, the Court of Appeals found that it was error to deny the motion for a change of venue. Specifically, the court found that Ind.Trial Rule 76(5) expressly allowed a party one change of venue if the application is filed within ten days from the date an order granting a new trial is entered. 459 N.E.2d at 1197. Thus, the trial court clearly had jurisdiction over the case and a change of venue was mandated.

In the present case, however, the jurisdiction of the Whitley County court had not been invoked, by petition for attorney fees or otherwise. In fact, nothing was before the court at the time Northeastern applied for a change of venue. Berkemeier and the rest of the cases cited by Northeastern are inapposite to this situation. See, e.g., State ex rel. Interstate Finance, Inc. v. Superior Court of Marion County (1963), 244 Ind. 491, 193 N.E.2d 909 (jurisdiction of the court invoked by petition for payment of trust funds filed by party requesting change of venue); State ex rel. Duffy v. Lake Juvenile Court, Lake County (1958), 238 Ind. 404, 151 N.E.2d 293 (jurisdiction of the court invoked by filing of a petition for finding of delinquency); State ex rel. Boeldt v. Criminal Court of Marion County (1957), 236 Ind. 290, 139 N.E.2d 891 (jurisdiction of court first invoked by defendant's application for discharge from hospital for mentally ill).

II.

Northeastern also contends that this court erroneously determined that a party seeking attorney fees for the filing of a frivolous lawsuit cannot avail itself of a change of venue from a trial court lacking subject matter jurisdiction in the original claim.

This court made no such determination. The opinion recognized that the original court could entertain a petition for attorney fees (despite the fact that Northeastern failed to originally file its petition there). Once there is a motion, claim, petition, etc. before the court invoking its jurisdiction, Northeastern may then file a motion for a change of venue if it feels that the original court may be prejudiced in its adjudication of the merits of the petition. It is not for this court to advise Northeastern of its options upon remand, though the option of filing a motion for a change of venue remains. While this may result in duplicitous efforts by the original and venued courts, it is the result mandated by our trial rules and case law interpretati...

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8 cases
  • Young v. Estate of Sweeney
    • United States
    • Court of Appeals of Indiana
    • May 28, 2004
    ...parties." Id. (quoting Gorman v. Northeastern REMC, 594 N.E.2d 843, 845 (Ind.Ct.App.1992), decision clarified on denial of reh'g 597 N.E.2d 366 (Ind.Ct.App.1992), trans. denied). Jurisdiction is a question of law we review de novo. Id. Young filed a notice of appeal claiming "This appeal is......
  • Howell v. Indiana-American Water Co., Inc., INDIANA-AMERICAN
    • United States
    • Court of Appeals of Indiana
    • July 31, 1996
    ...(subject matter jurisdiction must be derived from Constitution or statute), opinion clarified on denial of rehearing by, 597 N.E.2d 366 (Ind.Ct.App.1992), trans. denied. Any act of an agency in excess of its power is ultra vires and void. See Anderson Lumber & Supply Co. v. Fletcher, 228 In......
  • Rogers v. Anonymous Physician C, 02A03–1507–CT–826.
    • United States
    • Court of Appeals of Indiana
    • February 29, 2016
    ...of the parties.” Id. (quoting Gorman v. Northeastern REMC, 594 N.E.2d 843, 845 (Ind.Ct.App.1992), decision clarified on denial of reh'g 597 N.E.2d 366 (Ind.Ct.App.1992), trans. denied). Jurisdiction is a question of law we review de novo. Id.... Our Rules of Appellate Procedure provide that......
  • IND. FAM. & SOC. SERV. ADMIN. v. Legacy Healthcare, Inc.
    • United States
    • Court of Appeals of Indiana
    • October 10, 2001
    ...1364 (Ind.Ct.App. 1994) (quoting Gorman v. Northeastern REMC, 594 N.E.2d 843, 845 (Ind.Ct.App. 1992),opinion clarified on denial of reh'g 597 N.E.2d 366, trans. denied). The trial court was without jurisdiction to grant the stay. Therefore, the stay is void and we vacate the trial court's o......
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