ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
DENNIS R. BROWN J. DAVID YOUNG
COURT OF APPEALS OF INDIANA
DENNIS H. GEISLEMAN Law Offices of J. David Young
Law Office of Dennis H. Geisleman Indianapolis, Indiana
Fort Wayne, Indiana
Hall & Griffin
BRIAN R. LINKY, an Individual; )
NATHAN GOLDENBERG, an Individual; )
and SERVIT, a Georgia Corporation, )
vs. ) No. 49A02-0305-CV-373
MIDWEST MIDRANGE SYSTEMS, INC., )
an Indiana Corporation, )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Theodore Sosin, Judge
Cause No. 49C01-0303-CT-664
November 25, 2003
OPINION- FOR PUBLICATION
Appellant-defendant Brian Linky raises one issue in this interlocutory appeal of right under
Indiana Appellate Rule 14(A)(8): whether the trial court abused its discretion by denying
his Motion to Transfer for Incorrect Venue. Specifically, Linky argues that Marion
County, the venue in which appellee-plaintiff Midwest Midrange Systems, Inc. (Midwest), brought this
case, is not a preferred venue. Thus, he claims that the cause
should be transferred to Kosciusko County, which is a preferred venue. Finding
that the trial court did not abuse its discretion, we affirm.
On April 25, 2001, Linky, a resident of Kosciusko County, signed an Employment
Agreement with Midwest, an Indiana corporation with its principal place of business in
Kosciusko County and an additional office in Indianapolis, to work at the Kosciusko
County office. That contract did not contain an applicable law clause.
On June 4, 2002, Nathan Goldenberg, a resident of Kosciusko County, also signed
an Employment Agreement with Midwest to work at the Kosciusko County office.
However, that contract did contain an applicable law clause, which selected Indianapolis as
the venue for any action at law or in equity relating to the
employment agreement between the signing parties. Linky also signed Goldenbergs contract in
his capacity as sales manager for Midwest. Both Employment Agreements contained do
not compete clauses.
On March 11, 2003, Midwest brought suit in Indianapolis, Marion County against Linky
and Goldenberg based on their alleged violations of the non-compete clauses. Additional
claims were made against ServIT, a Georgia corporation with one Indiana office in
Kosciusko County, which currently employs Linky and Goldenberg. On April 2, 2003,
Linky filed a Motion to Dismiss or Transfer for Incorrect Venue Under Trial
Rule 75, alleging that Marion County is not a preferred venue, and that
a preferred venue lies in Kosciusko County. The trial court denied transfer
in an order issued on April 10, 2003. In its order, the
trial court found that the issue of venue was settled as between Midwest
and Goldenberg based on their contractual selection of Marion County as their preferred
venue. The trial court further reasoned that because a preferred venue had
been established, it was no longer subject to change by a party who
would prefer to be elsewhere. The trial court stated that [a]ll of
the parties herein would be subject to joinder under T.R. 21(B), and the
sequence of their inclusion should not change the intent of that trial rule.
Appellants App. p. 8. Linky now appeals.
DISCUSSION AND DECISION
Linky contends that the trial court erred in denying his motion to transfer.
Specifically, he argues that the case should be transferred to Kosciusko County
because that county is the preferred venue.
Initially, we note that a trial courts order on a motion to transfer
venue under T.R. 75(A) is an interlocutory order and is reviewed under an
abuse of discretion standard. Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind.
Ct. App. 1999). An abuse of discretion may occur if the trial
courts decision is clearly against the logic and effect of the facts and
circumstances before the court, or if the trial court has misinterpreted the law.
Id. (quoting Humphrey v. Christopher, 692 N.E.2d 932, 934 (Ind. Ct. App.
Preferred venue is determined in accordance with Indiana Trial Rule 75(A)(1)-(9). Pratt,
713 N.E.2d at 315. This rule sets forth a number of options
for venue which include the following:
(1) the county where the greater percentage of individual defendants included in the
complaint resides, or, if there is no such greater percentage, the place where
any individual defendant so named resides; or
. . .
(4) the county where either the principal office of a defendant organization is
located or the office or agency of a defendant organization or individual to
which the claim relates or out of which the claim arose is located,
if one or more such organizations or individuals are included as defendants in
the complaint; or
. . .
(6) the county or court fixed by written stipulations signed by all the
parties named in the complaint or their attorneys and filed with the court
before ruling on the motion to dismiss; or
. . .
(8) the county where a claim in the plaintiff's complaint may be commenced
under any statute recognizing or creating a special or general remedy or proceeding;
. . .
(10) the county where either one or more individual plaintiffs reside, the principal
office of any plaintiff organization or governmental organization is located, or the office
of any such plaintiff organization or governmental organization to which the claim relates
or out of which the claim arose is located, if the case is
not subject to the requirements of subsections (1) through (9) of this subdivision
or if all the defendants are nonresident individuals or nonresident organizations without a
principal office in the state.
Ind. T.R. 75. The rule creates no preference among the first nine
subsections. Pratt, 713 N.E.2d at 315. If no county of preferred
venue is established under Trial Rule 75(A)(1)-(9), the rule makes it clear that
preferred venue may be established under Trial Rule 75(A)(10). It is the
general rule that a lawsuit may be commenced in any county in Indiana.
Ind. Trial Rule 75(A). However, when a party files for a
motion to transfer to a preferred venue, the trial court must transfer the
case to the county selected by the moving party if it is a
preferred venue and the county in which the action was filed is not
a preferred venue. Pratt, 713 N.E.2d at 315. If the lawsuit
is initially filed in a county of preferred venue, a transfer will not
be granted. City of South Bend v. D & J Gravel Co.,
Inc., 727 N.E.2d 719 (Ind. Ct. App. 2000).
Indiana has long upheld venue and forum selections made by stipulation. The
forum selection issue was addressed in Mechanics Laundry v. Wilder Oil Co., 596
N.E.2d 248, 251 (Ind. Ct. App. 1992), where we stated, We have repeatedly
held that parties may consent by contract to the exercise of personal jurisdiction
by courts that otherwise might not have such jurisdiction. We further observed
that contractual provisions that seek to limit the litigation of future actions to
particular courts or places are enforceable if they are reasonable and just under
the circumstances and there is no evidence of fraud or overreaching such that
the agreeing party, for all practical purposes, would be deprived of a day
in court. Id. at 250.
It is clear from the record that venue properly lies in Marion County
as to Goldenberg based on the Applicable Law section of his employment contract.
Appellants App. p. 72. But for this contractual provision, Marion County
would not otherwise be a preferred venue under Trial Rule 75(A)(1)-(9). There
is no evidence in the record of fraud or overreaching in the formation
of the contract, and thus the provision is enforceable.
What remains at issue is whether Goldenbergs employment contract is enough for venue
to properly lie in Marion County as to Linky. We believe that
it is. If the venue in which the plaintiff files the case
is preferred as to one defendant, then the venue is preferred as to
all defendants. Thus, because the forum selection clause is applicable to Goldenberg,
it follows that it is applicable to all of the defendants. See
Parkison v. TLC Lines, Inc., 506 N.E.2d 1105, 1108 (Ind. Ct. App. 1987)
(finding that the drafters of Trial Rule 75(A)(1) determined that one preferable location
for a case in which all defendants resided in different counties was any
county in which a single defendant resided).
Had Midwestern originally sued Goldenberg in Marion County and Linky in Kosciusko County
but later joined the two actions in Marion County, this case would not
be before us today. We conclude, as did the trial court, that
this action would properly be in Marion County if Linky had been joined
pursuant to Trial Rule 21(B), which states:
Effect of venue or jurisdiction over part of case. The court shall
have venue and authority over all persons or claims required to be joined
or permissively joined, impleaded or included by intervention, interpleader, counterclaim or cross-claim if
it has venue or is authorized to determine any claim asserted between any
of the parties thereto, notwithstanding any requirement of venue or of jurisdiction over
the subject-matter applicable to other claims or other parties. The court may
transfer the proceedings to the proper court if it determines that venue or
authority of the court is dependent upon a claim, or a claim by
or against a particular party which appears from the pleadings, or proves to
be a sham or made in bad faith; and if another action is
pending in this state by or against a person upon the same claim
at the time he becomes a party, the court may dismiss the action
as to him, or in its sound discretion, it may order all or
part of the proceedings to be consolidated with the first pending action.
It would simply constitute a waste of judicial resources to sever the action
against Linky and transfer it to Kosciusko County only to have him subsequently
joined as a party to the action against Goldenberg in Marion County.
The sequence of the inclusion of the defendants in this action does not
change the result. Thus, the trial court correctly denied Linkys motion to
BROOK, C.J., and SHARPNACK, J., concur.
Footnote: Inasmuch as Marion County is a preferred venue, we hereby deny Linkys
request for costs incurred while conducting litigation in a non-preferred venue.