FOR PUBLICATION

ATTORNEY FOR APPELLANT :    ATTORNEY FOR APPELLEES:

DAVID W. STONE IV    STEVEN K. HUFFER
STONE Law Office & Legal Research    Huffer & Weathers, P.C.
Anderson, Indiana    Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

MICHAEL SIEGEL,                 )
                                     )
Appellant-Defendant,                 )
                                     )
vs.                                  )    No. 49A02-0405-CV-444   
                                     )
MARJORIE WILLIAMS and                )
CHARLES WILLIAMS,                    )
                                     )
Appellees-Plaintiffs.                )

     November 30, 2004

     OPINION - FOR PUBLICATION

BAILEY, Judge

* * * * *

    The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or for fraud upon the court.

    The Williamses argue that their complaint is not an attack on the Hendricks County settlement, but is instead an action for fraudulent inducement to settle a lawsuit. Siegel counters that regardless of whether the Williamses’ complaint is an independent action for fraud or an attack on the judgment, the Marion County court did not have jurisdiction over the complaint. Siegel notes that this Court held that an independent action under Trial Rule 60(B) to set aside a judgment must be filed in the court that issued the original judgment or order. Kiskowski v. O’Hara, 622 N.E.2d 991, 993 (Ind. Ct. App. 1993), reh’g denied, trans. denied.
    The settlement agreement entered by the parties before the Hendricks County court is in actuality an agreed judgment. There has been much debate over the years of whether an agreed judgment is contractual in nature or a judicial act. See Hanover Logansport, Inc. v. Robert C. Anderson, Inc., 512 N.E.2d 465, 470 (Ind. Ct. App. 1987); State ex rel. Prosser v. Ind. Waste Syst., Inc., 603 N.E.2d 181, 186 (Ind. Ct. App. 1992). Nevertheless, Indiana law and precedent repeatedly provide that agreed judgments do “‘not represent the judgment of the court. The court merely performs the ministerial duty of recording the agreement of the parties.’” Prosser, 603 N.E.2d at 186 (quoting State v. Huebner, 230 Ind. 461, 104 N.E.2d 385, 387-88 (1952)). Accordingly, Trial Rule 60(B) “is inapplicable to the modification of a pre-existing agreed judgment agreed to by the parties to that judgment.” Id.
    Regardless, rather than an action to set aside the prior agreed judgment, we view the Williamses’ complaint as they do, an action for fraud in the inducement of the settlement agreement. In such cases, the party bringing the action has an election of remedies: “he may stand upon the contract and seek damages, or rescind the contract, return any benefits he may have received, and seek a return to the status quo ante.” A.G. Edwards and Sons, Inc. v. Hilligoss, 597 N.E.2d 1, 3 (Ind. Ct. App. 1991); see also Farm Bureau Mut. Ins. Co. of Ind. v. Seal, 134 Ind. App. 269, 179 N.E.2d 760, 763-64 (1962) (quoting Automobile Underwriters, Inc. v. Rich, 222 Ind. 384, 53 N.E.2d 775, 777 (1944) (“He can keep what he has received and file suit against the ones perpetrating the fraud and recover such amounts as will make the settlement an honest one.”)).
Marion County Superior Courts, as courts of general jurisdiction, have subject-matter jurisdiction over complaints for fraud. See Ind. Code § 33-5.1-2-4. Thus, the question becomes one of venue, not jurisdiction. The venue statutes and rules do not confer jurisdiction but rather prescribe the location at which trial proceedings are to occur from among the courts empowered to exercise jurisdiction. Benham v. State, 637 N.E.2d 133, 137 (Ind. 1994). Indiana Trial Rules 75 and 76 set forth the requirements for determining preferred venue and changing venue, respectively. Siegel presents no argument that venue is inappropriate, and our review of the record reveals that Marjorie resides in Marion County, and that Siegel’s law office was located in Marion County, two factors that suggest preferred venue lies in Marion County.
The Marion County trial court has subject-matter jurisdiction over Williamses’ complaint, and Marion County appears to be a county of preferred venue. Accordingly, the trial court properly denied Siegel’s motion to dismiss for lack of jurisdiction.

(4)    injury to the complaining party as a proximate result thereof; and

(5)    the gaining of an advantage by the party to be charged at the expense of the complaining party.

Nestor v. Kapetanovic, 573 N.E.2d 457, 458 (Ind. Ct. App. 1991).

    We note that Siegel made two representations to Williamses’ attorneys. First, Siegel “basically indicated that anything above $20,000 or $25,000 he couldn’t pay. He didn’t have the money, he didn’t have the wherewithal to pay anything above that amount—the $20,000 to $25,000 amount.” Tr. at 91. Siegel also said, “If you get any more than that, I’m going to file bankruptcy anyway, so you might as well take what you can get, because if you get any more, I’m going to file bankruptcy and you’ll get nothing.” Tr. at 86.
    This evidence supports the trial court’s findings on this issue. The trial court specifically found, “In order to induce Williams to settle her claim against him, Siegel represented to Williams, through her attorneys, during the trial of the Hendricks Case, that his net worth or financial resources did not permit him to pay any more than Twenty Five Thousand Dollars ($25,000.00) and that he would file a bankruptcy proceeding to discharge any verdict in excess of that sum.” App. at 100-101. The trial court further found Siegel’s representations to be false, as he had assets to pay a judgment in excess of $300,000. Because Siegel’s representation as to his present inability to pay more than a $25,000 judgment was false, the trial court properly concluded Siegel’s conduct constituted actual fraud. See Fire Ins. Exchange v. Bell, 643 N.E.2d 310 (Ind. 1994) (misrepresentation of policy limits was actionable fraud). Further, because Siegel was an attorney of record, Williamses’ attorneys had “a right to rely upon any material misrepresentations that may have been made by opposing counsel . . . as a matter of law.” Id. at 313. Siegel’s false threat to file for bankruptcy if the jury returned a verdict awarding the Williamses more than $25,000 formed the basis for constructive fraud. The Williamses’ reliance on Siegel’s threat benefited Siegel, as he was able to reduce his exposure to damages for his malpractice, and placed the Williamses in a worse position, as the estimated value of a jury verdict ranged from $100,000 to $150,000. Accordingly, the trial court’s conclusion that Siegel’s statements constituted a material misrepresentation is not clearly erroneous.