Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE:
GREG A. BOUWER GERALD B. COLEMAN Koransky, Bouwer and Poracky, P.C. Coleman Stevenson & Montel, LLP Dyer, Indiana Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

HERMAN & KITTLE PROPERTIES, INC. , ) ) Appellant/Defendant , ) ) vs. ) No. 49A05

- 1304

- PL

- 169 ) G & G CONSTRUCTION COMPANY OF ) INDIANA, ) ) Appellee/Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cau se No. 49D06

- 1210

- PL

- 40722

December 31, 2013
MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge2 Case Summary
This case arises from a contract for construction on residential property in Lake County

. A dispute arose between the contractor, H erman & Kittle Properties Inc. (“Herman & Kittle”) and subcontractor on the project, G&G Construction Company of Indiana (“G&G”). G&G filed a breach

- of

- contract claim against Herman & Kittle. Herman & Kittle filed a motion to dismiss, alleging that it ha d signed the contract in an
agency capacity and thus could not be held personally liable under the contract . Herman & Kittle also alleged that venue was improper. The trial court denied both of Herman & Kittle’s motions. Because the express language of the contract indicates that Herman & Kittle agreed to be personally bound by the contract

— rather than simply in an agency capacity

— we affirm the trial court.

Facts and Procedural History
Mer r illville Lakes , LLC (“Me r rillville Lakes”) owns residential p ropert y in Lake County . Herman & Kittle and G&G are both Indianapolis

- based construction companies. In 2009, G&G entered into a $900,000 contract with Mer r illville Lakes and
Herman & Kittle to act as a subcontractor on the construction project and perf orm carpentry services. On the title page of the contract, Herman & Kittle is named as
contractor. See Appellant’s App. p. 17. Underneath this designation is also the phrase “agent for owner.” Id. G&G signed as subcontractor and Mer r illville Lakes sig ned as

owner. Id. Throughout the contract, there are numerous references to the three distinct parties

— contr actor, subcontractor, and owner

— and the different rights and responsibilities of each party.3

At some point, a dispute arose between Herman & Kit tle and G&G , and in 2012,
G&G filed a breach

- of

- contract claim against Herman & Kittle in Marion Superior Court

. Me r rillville Lakes was also named as a defendant. Herman & Kittle filed a motion to
dismiss and a motion to transfer venue. In its motion to dismiss, Herman & Kittle argued
that G&G entered into a contract with Me r rillville Lakes only

— Herman & Kittle alleged that it signed the contract as Merri llville Lake’s agent and therefore was not personally
liable under the contract. Because Herman & Ki ttle alleged they were not personally bound by the contract , they also asserted that venue in Marion County was improper. In
response, G&G argued that Herman & Kittle was personally bound and venue was
proper. The trial court denied Herman & Kittle’s m otion s to dismiss and transfer venue. Herman & Kittle now appeal s
. Discussion and Decision On appeal, Herman & Kittle contends that the trial court erred by denying its
motion s to dismiss and transfer venue. I. Motion to Dismiss
The standard of appellate review for motions to dismiss depends on whether the trial court resolved disputed facts, and if so, whether there was an evidentiary hearing. Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids

– Grove No. 29 , 847 N.E.2d 924, 926 (Ind. 2006). Where, as here, the trial court ruled on a paper record, we review the motion to dismiss de novo. Id.4

In its motion to dismiss, Herman & Kittle argued that G&G entered into a contract
with Merri llville Lakes only

— Herman & Kittle allege d that it signed the contract as
Merri llville Lake’s agent. Herman & Kittle claims it is not personally bound by the contract because “where an agent discloses its principal . . . the agent is not personally bound by the contract.” Appellant’s Br. p. 7 ( citing Carlson Wagonlit Travel, Inc. v.
Moss , 788 N.E.2d 501, 503 (Ind. Ct. App. 2003)). But as G&G correctly notes, there is an exception to that rule. Even if an agent discloses its principal, the agent may still be bound by the contract if the agent a grees to be so bound. Carlson , 788 N.E.2d at 503 (citing Boesch v. Marilyn M. Jones & Assocs. , 712 N.E.2d 1061, 1062 (Ind. Ct. App. 1999), trans. denied ). An agent may agree to assume personal liability through express language or custom, usage, and the prior course of dealings between the parties

. See McDonald v. Smart Prof’l Photo Copy Corp. , 664 N.E.2d 761, 765 (Ind. Ct. App. 1996) ; Clark Adver

. v. Avco Broad

. Corp. , 178 Ind. App. 451, 454, 383 N.E.2d 353, 355 (1978)

. Here, the express language of the contract indicates that Herman & Kittle agree d
to be personally bound

. The contract names and defines Merri llville Lakes a nd Herman & Kittle individually, and Herman & Kittle is defined as contr actor throughout the

contract

. Although Herman & Kittle argues that we should read the term contractor to “incorporate [] the phrase ‘agent for Owner’ throughout the entire agreement,” Appellant’s Br. p. 8, we decline to do so. The contract defines and employs the terms “owner” and “contractor” separately ; there is nothing in the contract that indicates that the terms are interchangeable. Rather, the contract defines their rights and5

responsibilities differently, and treats them as separate parties in a number of ways, such as in requiring that both contractor and owner be named as additional insureds. See
A ppellant’s App. p. 23.
The contract also gives Herman & Kittle a number of individual rights as contractor that are separate and distinct from Merri llville Lakes

. 1 For example, Herman & Kittle may also terminate the work

— and thus, G&G’s services

— on the project at any time, for its convenience. Id. at 36. Subject to certain conditions, Herman & Kittle also has the power to terminate the contract for cause. Id. at 34

- 35. Herman & Kittle also has the right to recover attorney’s fees if G&G files an inva lid or inappropriate subcontractor’s lien , as well as damages if G&G defaults. Id. at 29

- 30. And the contract also expressly recognizes Herman & Kittle’s right to indemnification and any other legal or equitable claims arising from the contract . Id. at 32

- 37. Because the express language of the contract indicates that Herman & Kittle agreed to be personally bound

— rather than simply in an agency capacity

— the trial court did not err in denying Herman & Kittle’s motion to dismiss.
II. Preferred Venue
Herman & Kittle also argue that the trial court erred by denying its motion to
transfer venue. We disagree. We review the trial court’s order on a motion to transfer venue pursuant to Indiana Trial Rule 75(A) under an abuse

- of

- discretion standard. Brower Corp. v. Brittain , 792

1 Herman & Kittle argues that “rights do not equal control,” and claims that Merri llville Lakes has ultimate authority over the project . Appellant’s Reply Br. p. 4. Even if this is true, it does not negate the fact that Herman & Kittle possess es a number of individual rights separate and distinct from Merri llville Lakes, which shows Herman & Kittle’s agreement to be personally bound by the contract.6

N.E.2d 75, 77 (Ind. Ct. App. 2003) (citation omitted). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court has misinterpret ed the law. Id. Trial Rule 75(A) allows a case to be filed in any court in any county in Indiana.
When a party files a motion for preferred venue, the trial court must transfer the case to the county selected by the moving party if the selected county is a county of preferred venue and the county in which the action is filed is not a county of preferred venue. Id. However, if the suit is initially filed in a county of preferred venue, a transfer of venue will not be granted. Id. Rule 75(A)(1) provide s that preferred venue lies in “the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides . . . .”
Ind. Trial R ule 75(A)(1). B ecause Herman & Kittle , one of two defendants in this case, is based in Marion County and is personally bound by the contract , preferred venue lies in Marion County. The trial court properly denied Herman & Kittle’s motion to transfer

venu e. Affirmed. RILEY, J., and MAY, J., concur.