Arkla Industries, Inc., Arkla Inc. by and through its successor by mergers CenterPoint Energy, Inc., Appellants-Defendants,
Columbia Street Partners, Inc. and Columbia Street Partners Remediation Trust, Appellees-Plaintiffs. Bendix-Westinghouse Automotive Air Brake Company, by and through its successor by mergers Honeywell International, Inc. Defendant below,
from the Warrick Circuit Court The Honorable Greg A. Granger,
Judge Trial Court Cause No. 87C01-1608-CC-905
Attorneys for Appellants Daniel J. Deeb Schiff Hardin LLP
Chicago, Illinois William R. Peterson Craig Stanfield Morgan,
Lewis & Bockius LLP Houston, Texas.
Attorneys for Defendant below John W. Woodard, Jr. Jordan M.
White Wyatt, Tarrant & Combs, LLP Louisville, Kentucky.
Attorneys for Appellees G. Daniel Kelley Samuel B. Gardner
Ice Miller LLP Indianapolis, Indiana David Miller Newburgh,
Summary and Issue
The trial court denied the motion of Arkla Industries, Inc.,
and Arkla, Inc. by and through its successor by mergers
CenterPoint Energy, Inc. (collectively,
"Centerpoint"), to transfer this case to a
preferred venue pursuant to the provisions of Indiana Trial
Rules 12 and 75. Centerpoint appeals, raising the sole issue
of whether the trial court clearly erred in concluding it
waived its right to seek a preferred venue. Concluding the
trial court's order denying Centerpoint's motion was
clear error because Centerpoint made a proper motion raising
the defense of improper venue, we reverse and remand to the
trial court to grant the motion and transfer this case to a
and Procedural History
On August 4, 2016, Columbia Street Partners, Inc., and
Columbia Street Partners Remediation Trust (collectively,
"Columbia"), filed in Warrick Circuit Court a
complaint for damages for environmental contamination on real
property it owns in Evansville. Columbia named the following
as defendants who allegedly caused or contributed to the
contamination: Centerpoint and Bendix-Westinghouse Automotive
Air Brake Company, by and through its successor by mergers
Honeywell International, Inc. ("Honeywell"). The
trial court granted two unopposed motions for extension of
time for the defendants to respond to the complaint, giving
them until October 21, 2016, to do so. In seeking
Columbia's agreement to an extension, Centerpoint
informed Columbia it might be filing a motion to transfer
venue. On October 20, 2016, however, before Centerpoint had
filed any responsive pleading or other motion in the trial
court, Honeywell removed the case to the United States
District Court for the Southern District of Indiana.
Honeywell alleged as grounds for removal the complete
diversity of the parties and the amount in controversy.
Honeywell also alleged that it had "met and conferred
with" Centerpoint, which consented to removal.
Appellants' Appendix, Volume II at 62. The only document
Centerpoint filed in federal court was its answer to the
complaint as required.
Columbia filed a motion to remand the case to Warrick County
challenging the complete diversity of the parties.
Centerpoint did not oppose the motion. On May 23, 2017, the
district court issued an order finding it did not have
diversity jurisdiction over the case and granting the motion
to remand to state court. The district court also ordered
Honeywell to pay Columbia's attorney fees, which is
allowed "only where the removing party lacked an
objectively reasonable basis for seeking removal."
Id. at 131.
On May 25, 2017, Centerpoint filed a motion in Warrick
Circuit Court to transfer the case to Vanderburgh County, a
preferred venue pursuant to Indiana Trial Rule 75(A).
Columbia objected to the transfer of venue because
Centerpoint "agreed to and did engage in baseless
litigation . . . and other tactics to delay this case . . .
and by such conduct have waived and are estopped to now 9
months later seek to transfer venue." Id. at
Following a hearing on the motion to transfer venue and the
submission of proposed findings and conclusions by the
parties, the trial court largely adopted Columbia's
proposed order and denied the motion to transfer venue:
4. Centerpoint, like Honeywell, chose to pursue venue in
federal court. Centerpoint could have refused to consent to
the removal (which removal could not have been filed without
such consent . . .) and then back in September-October 2016
they could have filed their Motion to Transfer to Vanderburgh
County. Instead Centerpoint chose to acquiesce in the pursuit
of venue in federal court, not in Vanderburgh County.
6. Despite the fact Centerpoint knew or should have known
that the removal was baseless, Centerpoint did not reconsider
its decision nor did it withdraw its consent over the next
seven months. The day after remand . . ., Centerpoint filed
its eight page Motion to Transfer.
13. The facts demonstrate that Centerpoint Defendants and
Honeywell Defendants sought venue in federal court, and did
not intend to return to state court. Centerpoint waived its
right to seek a new venue by not filing a Rule 75 Motion to
Transfer Venue to Vanderburgh [County] before the removal, by
consenting to the removal rather than filing to transfer
venue and by not withdrawing its consent. Centerpoint
demonstrated that it did not intend to seek venue in state