Robb, J.
Case 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 preferred venue.
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Here, there seems to be no dispute that Warrick County is not a preferred venue, as Columbia does not defend Warrick County as a preferred venue and does not dispute that Vanderburgh County would be a preferred venue. [Footnotes omitted.] The question, therefore, is not whether transfer of this case to Vanderburgh County is improper because the case is already in a proper venue, but whether Centerpoint is entitled at this point in the litigation to have the case transferred to a preferred venue…Centerpoint argues the Trial Rules require the trial court to transfer this case to a preferred venue upon its motion; Columbia contends Centerpoint has waived any objection to venue by its conduct surrounding the removal to federal court.
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Centerpoint’s motivations and intent—even if they are as Columbia alleges— are irrelevant. Transfer from a non-preferred venue to a preferred venue is mandatory if the movant meets the provisions of Trial Rules 12 and 75. The issue of improper venue must be raised in a responsive pleading as an affirmative defense or must be raised by motion prior to the filing of the responsive pleading. City of Carmel ex rel. Redevelopment Comm’n v. Crider & Crider, Inc., 988 N.E.2d 808, 810 n.1 (Ind. Ct. App. 2013), trans. denied. Thus, entitlement to a change of venue is a matter of timing not intent; if the movant makes a proper and timely motion, the trial court has no discretion to deny it. Trial Rule 12(H) states the circumstances under which a defense of improper venue may be waived. Alleged misconduct in the course of litigation is not one of those circumstances. [Footnote omitted.]
Here, Centerpoint was not yet required to file an answer to Columbia’s complaint when the case was removed to federal court. The general rule is that removal of a case to federal court divests the state court of jurisdiction….
Similarly here, when the case was removed to federal court, Centerpoint had not yet filed an answer, and thus the time allowed under Rule 12 to either assert improper venue in a responsive pleading or to file a motion asserting the defense of incorrect venue had not yet run. While the case was in the federal court, the time period for raising the defense of improper venue was tolled…The motion Centerpoint made on May 25, 2017, asserting improper venue was the first motion Centerpoint had made in response to the complaint. The defense was not omitted from a motion in the circumstances described in subsection (G) of Rule 12 and it was made by a motion under the rule. Therefore, there is no basis in Trial Rule 12 upon which to conclude Centerpoint has waived the defense of improper venue.
Conclusion
The trial court clearly erred in concluding that Centerpoint’s conduct surrounding the removal of this case to federal court waived its right to object to the improper venue upon return to the state court. The trial court’s denial of Centerpoint’s motion to transfer to a preferred venue is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Crone, J., and Bradford, J., concur