Morrison v. Vasquez
| Decision Date | 28 August 2018 |
| Docket Number | Court of Appeals Case No. 18A-CT-376 |
| Citation | 107 N.E.3d 1103 |
| Parties | Cynthia MORRISON, Individually and on behalf of Ernest Morrison, Deceased, Appellants-Plaintiffs, v. Ricardo VASQUEZ, M.D., and Vascular Center & Vein Clinic of Southern Indiana, Appellees-Defendants, Kevin O'Connor M.D., Fort Wayne Radiology Association, LLC, Amar Pinto M.D., Premier Healthcare, LLC, Mohamed Nassar, M.D., and Indiana University Health Bloomington, Inc. d/b/a Bloomington Hospital, Inc., Defendants. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Mary A. Findling, Findling Park Conyers & Woody, P.C., Indianapolis, Indiana
Attorneys for Appellees: Karl L. Mulvaney, Nana Quay-Smith, Bingham Greenebaum Doll LLP, Indianapolis, Indiana, David S. Strite, Rachel K. Dalton, O'Bryan, Brown & Toner, PLLC, Louisville, Kentucky
[1] In this interlocutory appeal, Cynthia Morrison ("Morrison"), individually and on behalf of Ernest Morrison ("Ernest"), deceased, appeals from the trial court's order that the case be transferred from Marion County to Monroe County. We affirm.
[2] On December 20, 2017, Morrison filed a complaint for medical malpractice in Marion County naming as defendants Dr. Ricardo Vasquez and Vascular Center & Vein Clinic of Southern Indiana (together, "Appellees"), as well as Dr. Kevin O'Connor, Fort Wayne Radiology Association, LLC, Dr. Amar Pinto, Premier Healthcare, LLC, Dr. Mohamed Nassar, and Indiana University Health Bloomington, Inc. d/b/a Bloomington Hospital, Inc., ("Bloomington Hospital").1 The complaint alleged in part that the care, advice, and treatment of the defendants fell below the acceptable standard of care, proximately resulting in Ernest's death.
[3] On January 17, 2018, Appellees filed a Motion to Transfer Venue requesting transfer of the case to the Monroe Superior Court pursuant to Ind. Trial Rule 75(A). Appellees argued that Marion County does not meet preferred venue requirements and the greater percentage of defendants reside in Monroe County. They argued in part that Ernest presented to Dr. Vasquez's office in Bloomington in November 2013 and underwent a procedure at Bloomington Hospital in December 2013; Ernest presented to Bedford Hospital on May 27, 2014, where a CT was performed; Dr. O'Connor in Fort Wayne remotely interpreted the CT; Dr. Pinto agreed to consult; Dr. Nassar, the hospitalist at Bloomington Hospital, accepted care of Ernest and Ernest was transferred from Bedford Hospital to Bloomington Hospital on the evening of May 27, 2014; and Ernest expired at Bloomington Hospital on May 28, 2014. Appellees further argued that they, as well as Dr. Pinto and Premier Healthcare, LLC, reside in Monroe County; Dr. Nassar resides in Marion County; Bloomington Hospital is primarily located in Monroe County; and Dr. O'Connor and Fort Wayne Radiology Association, LLC, are located in Allen County, and noting that five of the eight named defendants are located in Monroe County.
[4] On January 18, 2018, Morrison filed an objection to Appellees' motion to transfer venue and argued that Marion County is a county of preferred venue because the registered office and agent of Bloomington Hospital, one of the defendants, are located in Marion County. In support of her objection, Morrison cited to Trial Rule 75(A)(4) and Am. Family Ins. Co. v. Ford Motor Co. , 857 N.E.2d 971 (Ind. 2006). On February 19, 2018, the trial court entered an Order Granting Transfer of Venue which ordered that the case be transferred to the Monroe Superior Court pursuant to Trial Rule 75(A). Morrison now brings this interlocutory appeal.
[5] The issue is whether the trial court erred in granting Appellees' motion to transfer venue from Marion County to Monroe County. We review factual findings on an appeal from a ruling on a motion for transfer of venue for clear error and review conclusions of law de novo .
Arkla Indus., Inc. v. Columbia St. Partners, Inc. , 95 N.E.3d 194, 196 (Ind. Ct. App. 2018) (citing Am. Family Ins. Co. v. Ford Motor Co. , 857 N.E.2d 971, 973 (Ind. 2006) ), trans. denied . Where factual determinations are made from a paper record, those determinations are also reviewed de novo . Id.
[6] Ind. Trial Rule 75(A) allows a case to be filed in any county in Indiana. Id. However, the rule also sets forth criteria establishing ten "preferred" venues. Id. at 196-197. Trial Rule 75(A) provides in part:
[7] Trial Rule 75(A) does not create a priority among the subsections establishing preferred venue, and there may be multiple preferred venues in a given case. Arkla Indus. , 95 N.E.3d at 197. "A motion to transfer venue cannot be granted when an action has been filed in a preferred venue, but if the complaint is not filed in a preferred venue, the court is required to transfer the case to a preferred venue upon a proper request from a party." Id. (citing Am. Family Ins. Co. , 857 N.E.2d at 974 ).
[8] The Indiana Supreme Court has observed that "[p]referred venue is located in counties where information is readily available, where relevant land and personal property can be found, where witnesses can be easily brought to court, and where the litigants reside or hold office" and that litigants "benefit from relative certainty about the preferred forum and from the savings in time and expense that such rules provide." Randolph Cty. v. Chamness , 879 N.E.2d 555, 557 (Ind. 2008).
[9] Morrison argues that Marion County is a county of preferred venue under Trial Rule 75(A)(4). She contends that, pursuant to the Indiana Supreme Court's opinion in Am. Family Ins. Co. , the registered agent and office of a domestic corporation provide the basis for venue under Rule 75(A)(4), that the address of Bloomington Hospital's registered agent was an address in Marion County, and thus that Marion County is a county of preferred venue. Morrison also argues that the complaint was filed on December 20, 2017, that venue is determined as of the time the complaint was filed, and that Ind. Code § 23-0.5-4-12,2 which became effective on January 1, 2018, does not apply to this case.
[10] Appellees maintain that Marion County is not a county of preferred venue. They argue that Am. Family Ins. Co. applies only to foreign corporations without a physical office in Indiana. Appellees further maintain that Ind. Code § 23-0.5-4-12 should be applied because they filed their motion to transfer venue after the statute became effective and, alternatively, that it is a procedural and remedial statute which should be applied retroactively. They contend that venue statutes are procedural rather than substantive in nature and that Ind. Code § 23-0.5-4-12 was a legislative response to Am. Family Ins. Co.
[11] In reply, Morrison maintains that Am. Family Ins. Co. , by its language, applies equally to domestic and foreign corporations and its holding is not limited to corporations without a physical office in Indiana. She further maintains that Ind. Code § 23-0.5-4-12 is ineffective under Trial Rule 75(D) and there is no compelling reason to apply the statute retroactively.
[12] The parties do not dispute that Monroe County is a county of preferred venue under Trial Rule 75(A)(1). Thus, if Marion County is not a county of preferred venue, the trial court was required to transfer the case to a preferred venue upon request. See Arkla Indus. , 95 N.E.3d at 197.
[13] Trial Rule 75(A)(4) provides for preferred venue in "the county where ... the principal office of a defendant organization is located." In Am. Family Ins. Co. , the Indiana Supreme Court addressed preferred venue under Rule 75(A)(4) where the plaintiff filed suit in Marion County against Ford Motor Company, which had no offices in Indiana but maintained a registered office and agent in Marion County. 857 N.E.2d at 972. The Court found that the term "principal office" in Rule 75(A)(4) refers to a domestic or foreign corporation's registered office in Indiana and thus that Marion County was a county of preferred venue. Id. Subsequently, in CTB, Inc. v. Tunis , the plaintiffs filed suit in Marion County against CTB, Inc., an Indiana corporation with a registered agent and office in Kosciusko County, CTB requested transfer of venue to Kosciusko County, and the trial court denied the request. 95 N.E.3d 185, 186 (Ind. Ct. App. 2018), trans. denied . This Court cited Am. Family Ins. Co. , noted that CTB's principal office under Rule 75(A)(4) was in Kosciusko County, and found that the court should have transferred the case to Kosciusko County. Id. at 189. Our opinion in CTB specifically acknowledged that revisions to Indiana's corporation law took effect on January 1, 2018, and that the parties did not argue that the revisions were applicable. Id. at 187. We also note that, in CTB , the complaint was filed on May 9, 2017, CTB filed its motion to transfer venue on June 20, 2017, and the court entered its order denying the motion on September 8, 2017.
[14] We observe that, unlike in Am. Family Ins. Co. , where defendant Ford Motor Company had no offices in Indiana but maintained a registered office and agent in Marion County, see Am. Family Ins. Co. , 857 N.E.2d at 972, the Indiana Secretary of State's record for Bloomington Hospital shows a "principal office address" for Bloomington Hospital on Second Street in Bloomington, Indiana. Appellant's Appendix Volume II at 62. We further...
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Ind. Univ. Health S. Ind. Physicians, Inc. v. Noel
...Another panel of this court recently determined that I.C. § 23-0.5-4-12 is not ineffective under T.R. 75(D). Morrison v. Vasquez , 107 N.E.3d 1103, 1109-10 (Ind. Ct. App. 2018) (rehearing denied October 22, 2018). The court stated: Trial Rule 75(A)(4) provides that preferred venue lies in t......