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Swift v. Pirnat6/3/2005
FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Plaintiff, Donna Swift (Swift), appeals the trial court's Order granting Appellee-Defendant, Daniel J. Pirnat's (Pirnat) Motion for Change of Venue.
We reverse.
ISSUE
Swift raises one issue on appeal: whether the trial court abused its discretion when it transferred venue to the county where an automobile collision occurred and Pirnat resides, when Swift's complaint alleged damages to chattels which were regularly situated in another county.
FACTS AND PROCEDURAL HISTORY
On October 31, 2003, Swift, a resident of Vigo County, was operating her vehicle in Vanderburgh County when the rear of her vehicle was struck by Pirnat's vehicle. As a result of the collision, Swift suffered temporary and permanent injuries to her neck and lower back. On September 21, 2004, Swift filed a negligence claim against Pirnat, a resident of Vanderburgh County, in the Vigo Superior Court. Swift sought damages for medical expenses, lost wages, and "chattels which are regularly situated in Vigo County . . . ." (Appellant's App. p. 6).
On November 19, 2004, Pirnat filed a motion for change of venue from Vigo County to Vanderburgh County. Specifically, Pirnat alleged that because the accident occurred in Vanderburgh County, which is also his county of residence, venue should lie in Vanderburgh County. Pirnat further alleged that Swift had failed to include in her complaint a basis for establishing preferred venue in Vigo County. In response, Swift claimed that she had established preferred venue under Trial Rule 75(A)(2) by alleging damage to certain chattels, which were "regularly kept and stored in Vigo County . . . ." (Appellant's App. p. 15-16). The trial court granted Pirnat's motion and ordered that venue be transferred to Vanderburgh County.
On December 13, 2004, Swift appealed. Before the parties submitted their appellate briefs, they entered into the following Agreed Statement of Evidence concerning the chattels for which Swift was claiming damages:
1. Plaintiff, Donna Swift, was fully compensated for any and all property damage to her vehicle arising out of the accident . . . prior to filing suit in this case; and
2. Plaintiff, Donna Swift, claims she suffered damage to a Sony 4-channel court tape recorder which she utilizes in her business as a court reporter that was not a fixture in the vehicle, but which was located in her vehicle at the time of the accident . . . ." Plaintiff has not been compensated for any such alleged damages. This tape recorder is the only "chattel" or property for which Plaintiff seeks to recover damages in this lawsuit.
(Appellant's App. p. 22) (emphasis supplied).
DISCUSSION AND DECISION
Swift contends that the trial court erred when it transferred venue from Vigo County, her county of residence, to Vanderburgh County, where the accident occurred. Specifically, Swift contends that she had established preferred venue in Vigo County under Trial Rule 75(A)(2) by including in her complaint a claim for injury to chattels, which were regularly located or kept in Vigo County.
Trial Rule 75 discusses preferred venue requirements and reads in relevant part as follows:
Rule 75. Venue requirements.
(A) Venue. 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 oppo
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