Freeman v. Timberland Home Ctr., Inc.

148 N.E.3d 321

Floyd FREEMAN, Individually, and Clover Homes, Inc., Appellants-Defendants/Third-Party Plaintiffs,

v.TIMBERLAND HOME CENTER, INC., Plaintiff,andTracy Nash and Robbyn Nash, Appellees-Third-Party Defendants,

and

V-Live General Services, LLC, and Unknown Member of V-Live General Services, LLC, Third-Party Defendants

V-Live General Services, LLC, Counterclaimant,

v.Floyd Freeman, individually, and Clover Homes, Inc., Counterclaim Defendants

V-Live General Services, LLC, Cross-Claim Plaintiff,

v.Timberland Home Center, Inc., and Tracy Nash and Robbyn Nash, Cross-Claim Defendants

V-Live General Services, LLC, Third-Party Plaintiff,

v.Avila Construction, LLC, Jose Alfredo Avila Rivas, individually, Look-E Excavating, Inc., William Lookabill, individually, Francis Lookabill, individually, and Bryan Young d/b/a Young Architecture Services, Third-Party Defendants

Court of Appeals Case No. 19A-CC-1889

Court of Appeals of Indiana.

FILED April 29, 2020

Attorneys for Appellants Floyd Freeman and Clover Homes, Inc.: Andrew R. Falk, Indianapolis, Indiana, Jeffrey A. Boggess, Greencastle, Indiana

Attorney for Appellees Tracy and Robbyn Nash: Terrence J. Sorg, Brooks Koch & Sorg, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Floyd Freeman, individually, and Clover Homes, Inc. (collectively Clover Homes), bring this interlocutory appeal of the trial court's order granting the motion to transfer venue filed by Tracy Nash and Robbyn Nash.¹ Clover Homes argues that because the original plaintiffs filed this case in a county with preferred venue, the trial court erred by transferring the action to another county with preferred venue. We agree and therefore reverse.

Facts and Procedural History

[2] The relevant undisputed facts follow. Around July 26, 2017, Clover Homes and the Nashes entered into a contract, in which Clover Homes agreed to sell and Nashes agreed to buy a home to be constructed on the Nashes' property located in Hendricks County. Clover Homes opened a commercial charge account with Timberland Home Center, Inc., to purchase building materials to be used in the construction of the home. Freeman executed a personal guaranty of Clover Homes' obligations under the commercial charge account. Freeman is a resident of Putnam County. Clover Homes is a domestic corporation with its principal place of business in Putnam County. Timberland is a domestic corporation with its principal place of business in Clay County. Clover Homes also subcontracted with V-Live General Services, LLC, to perform work on the Nashes' home. V-Live is a limited liability company with its principal place of business in Marion County. Work was performed on the home by Clover Homes through its subcontractors, but in March 2018, the Nashes terminated the contract. Clover Homes alleges that the Nashes have not paid for all the work done under the contract to build the home and for materials provided by Timberland to build the home.

[3] On May 25, 2018, Clover Homes filed in Hendricks County a notice of mechanic's lien on the Hendricks County lot, which was recorded by the Hendricks County recorder. On June 5, 2018, the Nashes served Clover Homes notice to commence suit to foreclose its mechanic's lien within thirty days pursuant to Indiana Code Section 32-28-3-10.

[4] On June 19, 2018, Timberland initiated this action by filing a complaint in the Putnam County Superior Court against Clover Homes, seeking payment of the balance due on the commercial charge account. On July 3, 2018, Clover Homes filed a third-party complaint against the Nashes alleging a breach of contract claim (Count 1) and a claim for foreclosure of Clover Homes' mechanic's lien (Count 2). Clover Homes later amended the third-party complaint to add two counts of defamation against the Nashes. The third-party complaint also included a breach of contract claim against V-Live, alleging that V-Live breached its agreement with Clover Homes by failing to perform work in a workmanlike manner.

[5] In August 2018, the Nashes filed a motion to dismiss Count 2 of Clover Homes' third-party complaint against them for lack of jurisdiction, arguing that Indiana Code Section 32-28-3-6 required the foreclosure action to be filed in Hendricks County, where the property subject to the lien is located. They later renewed the motion on the same basis. Clover Homes filed an opposition to the Nashes' motion to dismiss. The Nashes filed a reply, this time arguing that pursuant to Indiana Code Section 32-28-3-10 and this Court's decision in Ford v. Culp Custom Homes, Inc. , 731 N.E.2d 468 (Ind. Ct. App. 2000), trans. denied, preferred venue for the foreclosure claim rested in Hendricks County. The Nashes requested that in lieu of dismissal of Count 2, the trial court transfer venue of the amended third-party complaint to Hendricks County. Clover Homes filed a surrebuttal to the Nashes' motion to transfer, arguing that pursuant to Indiana Trial Rule 75, Putnam County was a preferred venue and because the action was initiated in a county of preferred venue, venue could not be transferred.

[6] In June 2019, the trial court held a hearing on all pending motions, including the Nashes' motion to transfer venue to Hendricks County. The transcript of the hearing is not in the record before us. The trial court took the matters under advisement, and on July 16, 2019, issued an order transferring the entire action to Hendricks County. The trial court based its decision on Ford , concluding as follows:

In the present case before this Court, the mechanic's lien is attached to Tracy and Robbyn Nash's real property which is located in Hendricks County, Indiana. The complaint which is the subject of this litigation was filed in Putnam County. The Court hereby orders this case be transferred to Hendricks County where all remaining pleadings and pending motions which have not been resolved shall be heard.

Appealed Order at 3. Clover Homes then initiated this interlocutory appeal.

Discussion and Decision

[7] Clover Homes argues that the trial court erred by transferring venue of this action to Hendricks County because preferred venue had already been established in Putnam County. The Nashes frame the issue differently, arguing that they were misjoined as third-party defendants and that the trial court erred in transferring the entire action instead of severing and transferring only Clover Homes' third-party complaint. Before turning to the substance of these arguments, we note that for purposes of determining whether the trial court properly transferred this action on the basis of preferred venue, the facts of this case are undisputed. As such, the only question before us is whether the trial court properly applied the law. When the issue on appeal presents a question of law, our review is de novo. Bagsby v. Snedeker , 93 N.E.3d 1127, 1129 (Ind. Ct. App. 2018), trans. denied .

[8] As an initial matter, we observe that the Nashes did not present a misjoinder argument to the trial court in support of their motion for transfer. "Generally, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court." Baird v. ASA Collections , 910 N.E.2d 780, 786 (Ind. Ct. App. 2009), trans. denied , 929 N.E.2d 786 (Ind. 2010). The Nashes contend that they effectively raised misjoinder because they moved to transfer only Clover Homes' third-party complaint against them. In their first motion to dismiss, the Nashes contended that the trial court did not have jurisdiction over the mechanic's lien foreclosure action based on Indiana Code Section 32-28-3-6. After Clover Homes filed its opposition to the motion to dismiss, the Nashes then argued that Hendricks County was the preferred venue for Clover Homes' third-party complaint against it based on Indiana Code Section 32-28-3-10 and Ford . We cannot agree that either of these arguments adequately raised the question of whether the Nashes were misjoined in Timberland's action against Clover Homes. Because the Nashes failed to adequately raise a misjoinder argument below, they have waived this argument for appellate review.² See Salsbery Pork Producers, Inc. v. Booth , 967 N.E.2d 1, 3 (Ind. Ct. App. 2012) ("Failure to raise an issue before the trial court waives that issue on appeal."). Accordingly, we will address only whether transfer of the action was proper on the basis that Hendricks County is the preferred venue for the mechanic's lien foreclosure action.

[9] Indiana Trial Rule 75(A), which governs venue requirements for actions filed in Indiana courts, provides,

Any case may be venued, commenced and decided in any court in any county, except, that upon the filing of a pleading or a motion to dismiss allowed by Rule 12(B)(3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or documentary evidence filed with the motion or in opposition to it, shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case.

(Emphasis added.) Trial Rule 75(D) provides that statutes regarding venue are superseded by Trial Rule 75 :

Any provision of these rules and any special or general statute relating to venue, the place of trial or the authority of the court to hear the case shall be subject to this rule, and the provisions of any statute fixing more stringent rules thereon shall be ineffective. No statute or rule fixing the place of trial shall be deemed a requirement of jurisdiction.

[10] Our supreme court has explained that "[g]enerally, any case may be venued in any court in the state, subject to the right of an objecting party to request that the case be transferred to a ...