ELZEY v. GARRETT (2024)

MEMORANDUM DECISION

Case Summary

[1] Kortney Lee Elzey filed a complaint against Robert S. Garrett and Shelley Septer (collectively Appellees) in Allen County, alleging that Appellees stole and tampered with his legal filings in other proceedings. Appellees filed a motion to transfer the case to Huntington County, claiming that Huntington County was a preferred venue under Indiana Trial Rule 75(A). The motion was granted. Elzey, pro se, now brings this interlocutory appeal, arguing that the trial court abused its discretion by granting Appellees’ motion to transfer the case. We affirm.

Facts and Procedural History

[2] On November 21, 2023, Elzey, then incarcerated in the Huntington County Jail, filed a verified complaint in Allen Superior Court against Garrett, the Huntington County attorney, and Septer, the Huntington County clerk of courts, to “redress the deprivation of [his] rights[.]” Appellees’ App. Vol. 2 at 2. He alleged that Appellees “conspired together to steal” and tamper with his pleadings in other cases and sought $500,000 in damages as well as injunctive relief. Id. at 4 (internal quotation mark omitted). Elzey also sought a preliminary injunction against Appellees to prevent them from “altering, damaging, stealing, or disposing of” his legal mail and pleadings. Id. at 8. He asserted that Allen County was the proper venue for his case because he “is a resident of Allen County[,]” and there was a “direct conflict of interest” arising from Appellees’ positions in Huntington County. Id. at 3.

[3] The Appellees filed a “Motion to Dismiss or, in the Alternative for Change of Venue” pursuant to Indiana Trial Rules 12(B)(3) and 75(A), arguing that Huntington County, not Allen County, was the preferred venue for the case because both Garrett and Septer are residents of Huntington County. Appellant's App. Vol. 2 at 6-8. They also argued that the alleged wrongful acts upon which Elzey based his claims occurred in Huntington County. Elzey filed his response to Appellees’ motion, asserting that Allen County was the proper venue under Indiana Trial Rule 75(A)(10) because he was a “legal resident” of that county and was “only temporarily held in Huntington County[.]” Id. at 14. He also asserted that he was unlikely to receive a fair trial in Huntington County because of Appellees’ “positions within [the county].” Id.

[4] On February 15, 2024, the Allen Superior Court granted Appellees’ motion and ordered the case transferred to Huntington County. Specifically, the trial court found that

Huntington County is the preferred venue under [Indiana Trial Rule] 75(A)(1), which establishes preferred venue in “the county where the greater percentage of individual defendants included in the complaint resides ․” Huntington County is additionally established as the preferred venue under T.R. 75(A)(7), “the county where the individual is held in custody or is restrained, if the complaint seeks relief with respect to such individual's custody or restraint upon his freedom.”

Although Elzey seeks to have venue determined under T.R. 75(A)(10), this subsection of the Rule only applies if there is no preferred venue established under subsections (1) through (9) of the Rule․ Garrett and Septer have established that preferred venue lies in Huntington County[.] Having concluded that the claim or proceeding was filed by Elzey in an improper court, the Court GRANTS the Motion to Transfer Venue.

Id. at 11. This interlocutory appeal ensued.

Discussion and Decision

[5] We note that Elzey is proceeding pro se. Such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Martin v. Hunt, 130 N.E.3d 135, 136 (Ind. Ct. App. 2019) (citing Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied). This Court will not “indulge in any benevolent presumptions on [their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal.” Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 679 n.1 (Ind. Ct. App. 2009) (alteration in Ankeny) (citation omitted), trans. denied (2010).

[6] “We review a trial court's order on a motion to transfer venue for an abuse of discretion.” Muneer v. Muneer, 951 N.E.2d 241, 243 (Ind. Ct. App. 2011) (quoting Comm'r of Labor v. An Island, LLC, 948 N.E.2d 1189, 1190 (Ind. Ct. App. 2011), trans. denied). The trial court abuses its discretion when its “decision is clearly against the logic and effect of the facts and circumstances before [it], or when [it] has misinterpreted the law.” Id. In granting the instant motion to transfer, the trial court ruled on a paper record. Thus, our review of any predicate factual determination is de novo. Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 37 (Ind. 2001). Moreover, this appeal turns on whether Allen County is a preferred venue, a question of law we review de novo. See Morrison v. Vasquez, 124 N.E.3d 1217, 1219 (Ind. 2019).

[7] Indiana Trial Rule 75(A) governs venue requirements in Indiana and provides that, “[a]ny case may be venued, commenced and decided in any court in any county[.]” However, if a party files “a pleading or a motion to dismiss allowed by Indiana Trial Rule 12(B)(3),” the trial court

shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the trial 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.

Ind. Trial Rule 75(A). Trial Rule 75(A) contains ten subsections, each setting forth criteria that establish “preferred” venue. Id. The rule does not create a priority among the subsections establishing preferred venue. Coffman v. Olson & Co., P.C., 872 N.E.2d 145, 147 (Ind. Ct. App. 2007). If the action has been commenced in a county of preferred venue, no transfer will be granted. Shelton v. Wick, 715 N.E.2d 890, 893 (Ind. Ct. App. 1999), trans. denied (2000).

[8] Elzey contends that the trial court erred in granting Appellees’ motion to transfer venue from Allen County to Huntington County. He argues that because he is a resident of Allen County, that county is a preferred venue under Indiana Trial Rule 75(A)(5). However, Rule 75(A)(5) provides for venue in an individual plaintiff's county of residence only if a governmental organization is sued. Because Appellees are individuals and not governmental organizations, Rule 75(A)(5) cannot be used to establish preferred venue in this case.¹

[9] The trial court found that preferred venue existed in Huntington County both under Trial Rule 75(A)(1), the county where the greater percentage of the defendants resided, and under Trial Rule 75(A)(7), the county where Elzey was held in custody since his complaint sought relief with respect to his custody. We must agree. We conclude that under those rules, Huntington County is the preferred venue for Elzey's case, not Allen County. Thus, the trial court was required to transfer the case upon Appellees’ request. See Ind. Trial Rule 75(A). Accordingly, the trial court did not abuse its discretion by granting Appellees’ motion to transfer venue.

[10] Affirmed.

FOOTNOTES

1.   We note that Elzey does not raise in his appellant's brief the venue argument he raised in the trial court that was based on Indiana Trial Rule 75(A)(10) (county of plaintiff's residence is a preferred venue only where there are no other preferred venues). Therefore, we need not address it.

Crone, Judge.

Bradford, J., and Tavitas, J., concur.