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Ahmad v. Duncan8/2/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Appellant, Mirza M. Ahmad, M.D. (Ahmad), appeals the trial court's order reassuming jurisdiction after it transferred venue to Fulton County.
We reverse and remand.
The facts reveal that on July 12, 1999, Judith and Phillip Duncan (collectively "Duncans") filed a lawsuit in Marion County alleging medical malpractice against Dr. Ahmad and the Indiana Patients' Compensation Fund (Fund). Although the Duncans and Dr. Ahmad are residents of Fulton County, the lawsuit was filed in Marion County because the Fund is located there.
On September 1, 1999, Dr. Ahmad filed a Motion to Transfer for Improper Venue alleging that Marion County was not the preferred venue because the Fund was not a proper party to the lawsuit. On September 8, 1999, the Fund filed a Motion to Dismiss. On November 1, 1999, the trial court conducted a hearing on both motions. On the same day, the trial court granted the Fund's motion to dismiss and Dr. Ahmad's motion to transfer venue and ordered the cause transferred to Fulton County.
On December 2, 1999, the Duncans filed a Motion for Court to Reassume Jurisdiction alleging that Dr. Ahmad had failed to perfect the change of venue. The trial court, on January 12, 2000, reassumed jurisdiction on the basis that Dr. Ahmad had failed to perfect the transfer of the cause to Fulton County.
Dr. Ahmad now appeals and contends that the trial court erred when it failed to include a time limit for the Duncans to pay the requisite costs so that the Clerk could transfer the record to Fulton County. The Duncans, on the other hand, maintain that once the trial court ordered transfer of the cause to Fulton County, Dr. Ahmad failed to perfect the transfer by filing a praecipe for the record to have it transferred. Thus, the Duncans assert that the trial court properly reassumed jurisdiction.
Indiana Trial Rule 75(A) provides that a case may be filed in any court in any county in Indiana. However, if the initial county of filing is not one of preferred venue, the trial court, upon a properly filed motion, shall transfer the cause to a county selected by the party filing the motion if such selected county is one of preferred venue. T.R. 75(A); Banjo Corp. v. Pembor (1999) Ind.App., 715 N.E.2d 430, 431. Indiana Trial Rule 75(B) further provides that " henever a claim or proceeding is filed which should properly have been filed in another court . . . . The person filing such claim or proceeding shall pay such costs as are chargeable upon a change of venue . . . ."
Here, neither the Duncans nor Dr. Ahmad dispute that Fulton County is the county of preferred venue. Additionally, the parties agree that it was the Duncans' responsibility to pay the costs of the transfer once the transfer was granted. The dispute is simply who was responsible for effectuating the change.
Once a trial court grants a change of venue to another county, the transfer is effective subject to the payment of costs. Lakeside Mercy Hospital, Inc. v. Indiana State Bd. of Health (1976) N.D. Ind., 421 F. Supp. 193, 204. The presence or absence of the record is not a jurisdictional prerequisite. Id. Therefore, the transfer was effective as of entry of the trial court's order.
The Indiana Trial Rules clearly provide for a change in venue in the instant case and once granted, it is undisputed that the party initially filing suit is responsible for paying the costs of transfer. However, the rules provide no further guidance in determining whether Dr. Ahmad first had a duty to perfect the transfer of the record or if the Duncans were required to first pay the costs so
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