ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMPSON SMITH TODD G. VARE
John Martin Smith & Thompson Smith AMY L. WRIGHT
Auburn, Indiana Barnes & Thornburg
Boren Oliver & Coffey
IN THE COURT OF APPEALS OF INDIANA
KEN PHILLIPS, MARK PHILLIPS and ) DILLINGERS, INC., ) ) Appellants-Defendants, ) ) vs. ) No. 55A01-0207-CV-261 ) JEFFREY G. SCALF, ) ) Appellee-Plaintiff. )APPEAL FROM THE MORGAN CIRCUIT COURT The Honorable Matthew G. Hanson, Judge
November 14, 2002
OPINION - FOR PUBLICATION
T.R. 75(A)(2). In construing this rule, we are bound by the cardinal
rule of statutory construction that a statute clear and unambiguous on its face
need not and cannot be interpreted by a court. Storey Oil Co.,
Inc. v. Am. States Ins. Co., 622 N.E.2d 232, 235 (Ind. Ct. App.
1993) (discussing Ind. Trial Rule 75(A)).
Appellants first argue that preferred venue does not exist in Morgan County because no Court has determined that a chattel property right in the John Dillinger right of publicity exists. Appellants Brief at 3. Thus, according to Appellants, the requirements of Ind. Trial Rule 75(A)(2) cannot be met until the trial court makes a determination on the merits of this case. However, such interpretation strains the plain language of Ind. Trial Rule 75(A). Ind. Trial Rule 75(A) clearly states that in determining proper venue, a trial court may consider the allegations of the complaint or, alternatively, consider evidence thereon or . . . affidavits or documentary evidence filed with the motion or in opposition to it. Thus, a determination of the preferred venue may be based solely upon the allegations contained in the complaint. Venue is not dependent on Scalf first proving the merits of his claim to the right of publicity associated with Dillinger. See, e.g., Hagerman, 736 N.E.2d at 821 (reversing a trial courts grant of a motion for change of venue based upon a review of the complaint).
Additionally, Appellants argue that even if a chattel does exist, the chattel is intangible, and they encourage us to hold as a matter of public policy that in disputes involving intangible chattels, venue should be in the defendants home county. The alleged chattel in this case is Scalfs right of publicity associated with Dillinger. Ind. Code § 32-36-1-7 creates a property right in a personalitys right of publicity. Furthermore, Blacks Law Dictionary defines chattel as [m]ovable or transferable property; esp., personal property. Blacks Law Dictionary 229 (7th ed. 1999). One type of chattel is a personal chattel, which is defined as [a] tangible good or an intangible right (such as a patent). Id. Thus, the term chattel includes an intangible right, such as a right of publicity. Ind. Trial Rule 75(A) provides for preferred venue in the county where the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto or relating to . . . such chattels. This rule does not distinguish between tangible and intangible chattels. As we have previously held, [w]e are not at liberty to ignore the strict letter of T.R. 75. Halsey v. Smeltzer, 722 N.E.2d 871, 873 n.2 (Ind. Ct. App. 2000), trans. denied. Any revision of the rule should be articulated by the Supreme Court. Id. Accordingly, we decline Appellants request to create a public policy exception for the preferred venue of intangible chattels.
Lastly, Appellants contend that the chattel that Scalf seeks ownership of in this case is a portion of the stream of revenues generated in Steuben County, Indiana by the restaurant called Dillingers. Appellants Brief at 8. Thus, they argue that preferred venue lies in Steuben County. We disagree. Ind. Trial Rule 75(A)(2) clearly provides for preferred venue in the county where the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto or relating to . . . such chattels. Although Appellants argue that Scalf seeks ownership of a portion of the revenues generated by the Dillingers restaurant, we believe that Scalfs claim is more appropriately viewed as a claim for injuries to or relating to his chattel, namely, his right of publicity associated with Dillinger.
Indiana courts have recognized that under the rule of mobilia sequuntur personam, the situs of intangible personal property is the legal domicile of the owner. Ind. Dept of State Revenue v. Bethlehem Steel Corp., 639 N.E.2d 264, 268-269 (Ind. 1994), rehg denied. Thus, Scalfs right of publicity is located in Morgan County with Scalf. Because the chattel is regularly located or kept in Morgan County, preferred venue for Scalfs complaint exists in Morgan County under Ind. Trial Rule 75(A)(2).
As previously discussed, if a complaint is initially filed in a county of preferred venue, a change of venue request will not be granted. Pratt, 713 N.E.2d at 315. The complaint here was initially filed in Morgan County, a county of preferred venue. Thus, the trial courts decision to deny Appellants motion for change of venue is not clearly against the logic and effect of the facts and circumstances before the trial court. The trial court did not abuse its discretion. See, e.g., Shelton v. Wick, 715 N.E.2d 890, 896 (Ind. Ct. App. 1999) (holding that the trial court did not abuse its discretion by denying the defendants motion for change of venue from Johnson County), trans. denied.
For the foregoing reasons, we affirm the trial courts denial of Appellants motion for change of venue.
FRIEDLANDER, J., and NAJAM, J. concur