Heustess v. Bladenboro Emer. Servs. , 791 S.E.2d 669 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-106
Filed: 20 September 2016
Robeson County, No. 15 CVS 250
SONYA PAIT HEUSTESS, Administratrix of The Estate of RONNIE WAYNE
HEUSTESS, Plaintiff,
v.
BLADENBORO EMERGENCY SERVICES, INCORPORATED, d/b/a
BLADENBORO RESCUE; LYNDA A. SANDERS, individually; DAVID D. HOWELL,
in his official capacity as a Emergency Medical Technician with BLADENBORO
EMERGENCY SERVICES, INCORPORATED, and individually; JEFFERY
BRISSON, in his official capacity as a Emergency Medical Technician with
BLADENBORO EMERGENCY SERVICES, INCORPORATED and individually; and
HOLLIS FREEMAN, in his official capacity as a Emergency Medical Technician with
BLADENBORO EMERGENCY SERVICES, INCORPORATED and individually,
Defendants.
Appeal by defendants from Order entered 29 June 2015 by Judge Mary Ann
Tally in Robeson County Superior Court. Heard in the Court of Appeals 10 August
2016.
MUSSELWHITE, MUSSELWHITE, BRANCH & GRANTHAM, by J. William
Owen and W. Edward Musselwhite, Jr., for plaintiff.
CRANFILL SUMNER & HARTZOG LLP, by Jaye E. Bingham-Hinch, Colleen
N. Shea, and Elizabeth C. King, for defendants.
ELMORE, Judge.
Defendants1 appeal from the trial court’s order denying their motion to change
1 Defendant Lynda A. Sanders did not file a notice of appeal.
HEUSTESS V. BLADENBORO EMERGENCY SERVICES
Opinion of the Court
venue. After careful consideration, we affirm.
I. Background
This appeal arises out of an action filed in Robeson County by Sonya Heustess
(plaintiff), administratrix of the estate of Ronnie Wayne Heustess (the decedent),
against Bladen County; Bladen County Emergency Services (EMS), a department of
Bladen County; Bladenboro Emergency Services, Inc. d/b/a Bladenboro Rescue
(Bladenboro EMS); Lynda A. Sanders in her official capacity as a paramedic with
Bladen County EMS and individually; David D. Howell in his official capacity as an
emergency medical technician (EMT) with Bladenboro EMS and individually; Jeffery
Brisson in his official capacity as an EMT with Bladenboro EMS and individually;
and Hollis Freeman in his official capacity as an EMT with Bladenboro EMS and
individually. Plaintiff later voluntarily dismissed without prejudice all claims
against Bladen County, Bladen County EMS, and Sanders in her official capacity.
In plaintiff’s complaint, she alleged that in February 2013, her husband, the
decedent, began to experience abdominal pain and shortness of breath, and soon
thereafter collapsed in their home. Plaintiff summoned the help of their daughter’s
boyfriend, an off-duty paramedic, who was sleeping in their daughter’s house next
door. Plaintiff also called the Bladen County 911 operator. Bladen County EMS and
Bladenboro EMS were dispatched to the home in Bladen County and stayed on the
scene for approximately twenty-six minutes before departing for Southeastern
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HEUSTESS V. BLADENBORO EMERGENCY SERVICES
Opinion of the Court
Regional Medical Center in Robeson County. A hospital physician informed
plaintiff’s family that he believed the decedent had a heart attack, but he was unable
to treat the decedent due to “bleeding of the brain caused by the lack of oxygen to the
brain.” Plaintiff alleged that Sanders, Howell, Brisson, and Freeman, as agents of
their respective employers, failed to do the following: comply with the applicable
protocols set forth by the North Carolina Office of EMS and Bladen County EMS;
ensure that the decedent was properly intubated and that such intubation was
properly monitored; make sure that the “king airway” was properly inserted and
monitored while en route to the hospital; and take all necessary action to make sure
the decedent received adequate oxygen.
Bladenboro EMS, Sanders, Howell, Brisson, and Freeman filed a motion to
dismiss or, alternatively, to change venue to Bladen County pursuant to N.C. Gen.
Stat. § 1-83(1), claiming that venue was not proper in Robeson County. After a
hearing, the Robeson County Superior Court denied the motion and concluded that
venue was proper in Robeson County, as alleged in plaintiff’s complaint, pursuant to
N.C. Gen. Stat. § 1-77. Bladenboro EMS, Howell, Brisson, and Freeman (collectively
defendants) appeal.
II. Analysis
Defendants argue that the trial court erred in denying their motion to change
venue because Robeson County is not the proper venue for this action. Defendants
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Opinion of the Court
contend that venue is governed by N.C. Gen. Stat. § 1-82 whereas plaintiff alleges
that N.C. Gen. Stat. § 1-77 controls.
At the outset, we acknowledge that an order denying a motion to change venue
is interlocutory, and interlocutory orders are generally not immediately appealable.
See Hawley v. Hobgood, 174 N.C. App. 606, 607–08, 622 S.E.2d 117, 118 (2005) (citing
Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)) (“An
interlocutory order is one made during the pendency of an action, which does not
dispose of the case, but leaves it for further action by the trial court in order to settle
and determine the entire controversy.”). Our courts have established, however, that
“[m]otions for change of venue because the county designated is not proper affect a
substantial right and are immediately appealable.” Id. at 608, 622 S.E.2d at 119
(citations omitted).
Defendants filed a motion for change of venue under N.C. Gen. Stat. § 1-83
(2015), which states,
If the county designated for that purpose in the summons
and complaint is not the proper one, the action may,
however, be tried therein, unless the defendant, before the
time of answering expires, demands in writing that the
trial be conducted in the proper county, and the place of
trial is thereupon changed by consent of parties, or by order
of the court.
The court may change the place of trial in the following
cases:
(1) When the county designated for that purpose is not the
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Opinion of the Court
proper one. . . .
“Despite the use of the word ‘may,’ it is well established that ‘the trial court
has no discretion in ordering a change of venue if demand is properly made and it
appears that the action has been brought in the wrong county.’ ” Stern v. Cinoman,
221 N.C. App. 231, 232, 728 S.E.2d 373, 374 (2012) (quoting Swift & Co. v. Dan-Cleve
Corp., 26 N.C. App. 494, 495, 216 S.E.2d 464, 465 (1975)). “A determination of venue
under N.C. Gen. Stat. § 1-83(1) is, therefore, a question of law that we review de
novo.” Id. (citations omitted).
Under N.C. Gen. Stat. § 1-77 (2015),
Actions for the following causes must be tried in the county
where the cause, or some part thereof, arose, subject to the
power of the court to change the place of trial, in the cases
provided by law:
....
(2) Against a public officer or person especially appointed
to execute his duties, for an act done by him by virtue of his
office; or against a person who by his command or in his aid
does anything touching the duties of such officer.
However, “[i]n all other cases the action must be tried in the county in which
the plaintiffs or the defendants, or any of them, reside at its commencement . . . .”
N.C. Gen. Stat. § 1-82 (2015).
Here, the trial court concluded as a matter of law that N.C. Gen. Stat. § 1-77(2)
applies, in that there was “an agency relationship between Bladen County and
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HEUSTESS V. BLADENBORO EMERGENCY SERVICES
Opinion of the Court
Bladenboro [EMS] for purposes of venue under N.C. Gen. Stat. § 1-77(2).”
Additionally, it concluded that plaintiff’s allegations were sufficient to establish that
part of plaintiff’s cause of action arose in Robeson County.
Our Supreme Court has stated that “[a]ny consideration of G.S. 1-77(2)
involves two questions: (1) Is defendant a ‘public officer or person especially appointed
to execute his duties’? (2) In what county did the cause of action in suit arise?” Coats
v. Sampson Cty. Mem. Hosp., Inc., 264 N.C. 332, 333, 141 S.E.2d 490, 491 (1965)
(holding that the defendant-hospital was an agency of Sampson County and venue
was proper in Sampson County under N.C. Gen. Stat. § 1-77); see also Wells v.
Cumberland Cty. Hosp. Sys., Inc., 150 N.C. App. 584, 587, 564 S.E.2d 74, 76 (2002).
Defendants argue that N.C. Gen. Stat. § 1-77 does not apply because plaintiff
dismissed the three “County defendants” and failed to allege or present any evidence
that the remaining defendants were public officers within the meaning of section 1-
77. Defendants rely on our holding in Fraley v. Griffin, 217 N.C. App. 624, 629, 720
S.E.2d 694, 697 (2011), to support their argument. In that case, this Court held that
the defendant, an EMT, was not entitled to public official immunity and could be held
personally liable for any harm caused by his negligence as an EMT. Id. For the
following reasons, Fraley is not controlling here.
In Hyde v. Anderson, 158 N.C. App. 307, 309–10, 580 S.E.2d 424, 425 (2003),
this Court observed that the test for whether a party can be considered a public officer
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Opinion of the Court
for purposes of venue does not take into account the test for finding immunity. In
Hyde, the plaintiff argued that “the correct test for determining if section 1-77(2)
applies should be whether a municipality is engaged in a proprietary function or a
governmental function.” Id. We stated, “Although we acknowledge this is the proper
test for determining whether a governmental actor is entitled to sovereign immunity,
. . . we discern no basis for applying it to determinations of venue in suits against a
municipality.” Id. at 310, 580 S.E.2d at 425.
Here, plaintiff claims that there was an agency relationship between Bladen
County, a government entity, and Bladenboro EMS, a nonprofit corporation, and that
Bladenboro EMS was serving the “essential government and public function” of
providing emergency medical care to Bladen County citizens.
“In determining whether a corporate entity should be treated as an agency of
local government, ‘we . . . must look at the nature of the relationship between the
[corporation] and the county[.]’ ” Odom v. Clark, 192 N.C. App. 190, 195, 668 S.E.2d
33, 36 (2008) (quoting Publishing Co. v. Hosp. Sys., Inc., 55 N.C. App. 1, 11, 284
S.E.2d 542, 548 (1981)). Under N.C. Gen. Stat. § 143-507 (2015), the General
Assembly established a “Statewide Emergency Medical Services System” in the
Department of Health and Human Services as follows:
Emergency Medical Services as referred to in this Article
include all services rendered by emergency medical
services personnel as defined in G.S. 131E-155(7) in
responding to improve the health and wellness of the
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Opinion of the Court
community and to address the individual’s need for
immediate emergency medical care in order to prevent loss
of life or further aggravation of physiological or
psychological illness or injury.
N.C. Gen. Stat. § 131E-155(7) (2015) states that “[e]mergency medical services
personnel” include an EMT, which is defined in N.C. Gen. Stat. § 131E-155(10) (2015)
as “an individual who has completed an educational program in emergency medical
care approved by the Department and has been credentialed as an emergency medical
technician by the Department.” See also N.C. Gen. Stat. § 131E-158 (2015)
(“Credentialed personnel required.”); N.C. Gen. Stat. § 131E-159 (2015)
(“Credentialing Requirements.”).
Moreover, “[e]ach county shall ensure that emergency medical services are
provided to its citizens[,]” N.C. Gen. Stat. § 143-517 (2015), and “a county may operate
or contract for ambulance services in all or a portion of the county.” N.C. Gen. Stat.
§ 153A-250(b) (2015). The “Regulation of Emergency Medical Services” is provided
for in Chapter 131E, Article 7 of our General Statutes. N.C. Gen. Stat. § 131E-156(a)
(2015) provides,
No person, firm, corporation, or association, either as
owner, agent, provider, or otherwise, shall furnish, operate,
conduct, maintain, advertise, or otherwise engage in or
profess to be engaged in the business or service of
transporting patients upon the streets or highways,
waterways or airways in North Carolina unless a valid
permit from the Department has been issued for each
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HEUSTESS V. BLADENBORO EMERGENCY SERVICES
Opinion of the Court
ambulance2 used in the business or service.
Similarly, “No firm, corporation, or association shall furnish, operate, conduct,
maintain, advertise, or otherwise engage in or profess to provide emergency medical
services or transport patients upon the streets or highways, waterways, or airways
in North Carolina unless a valid EMS Provider License has been issued by the
Department.” N.C. Gen. Stat. § 131E-155.1(a) (2015).
Consistent with the statutes cited above, here, Bladenboro EMS and Bladen
County entered into a contract signed by the Chairman of the Board of Directors of
Bladenboro EMS and the Chairman of the Board of Commissioners of Bladen County.
Pursuant to that contract, both parties agreed that Bladenboro EMS would “furnish
and provide continuing EMS services to all individuals lying within the boundaries
of the Bladenboro EMS [ ] response area by dispatching upon call of any individual
within the response area, with adequate equipment and personnel.” While
defendants claim that Bladenboro EMS was in complete “control of its vehicles,
programs, volunteers, assistants and employees[,]” Bladenboro EMS was subject to
the regulations provided in the statutes discussed above. Furthermore, in order to
satisfy its own statutory duty to “ensure that emergency medical services are
provided to its citizens[,]” N.C. Gen. Stat. § 143-517, Bladen County entered into a
contract with Bladenboro EMS. Based on the nature of the relationship between
2The definition of “ambulance” in N.C. Gen. Stat. § 131E-155(1a) (2015) includes any privately or
publicly owned vehicle.
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Opinion of the Court
Bladenboro EMS and Bladen County, we conclude that Bladenboro EMS is an agency
of Bladen County for purposes of venue here.
Additionally, although defendants argue that the alleged omissions giving rise
to the cause of action occurred only in Bladen County, plaintiff alleged in her
complaint that defendants failed to properly monitor the decedent and make sure
that he had adequate oxygen while defendants transported him from plaintiff’s home
in Bladen County to the hospital in Robeson County. Plaintiff alleged that upon
arriving at the hospital, a physician removed the king airway device and re-intubated
the decedent. Plaintiff further alleged that the decedent died as a result of his brain
being deprived of oxygen.
Even though plaintiff alleged other negligent acts and omissions that she
claimed occurred in Bladen County, because part of the cause of action arose in
Robeson County, venue is proper in Robeson County under N.C. Gen. Stat. § 1-77(2).
See Coats, 264 N.C. at 334, 141 S.E.2d at 492 (“ ‘A broad, general rule applied or
stated in many cases is that the cause of action arises in the county where the acts or
omissions constituting the basis of the action occurred.’ ” (quoting Annot., Venue of
actions or proceedings against public officers, 48 A.L.R. 2d 423, 432)); see also Frink
v. Batten, 184 N.C. App. 725, 726, 730, 646 S.E.2d 809, 810, 812 (2007) (noting that
section 1-77, which states that venue exists “ ‘where the cause, or some part thereof,
arose,’ acknowledges that those acts and omissions may arise in multiple counties”
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Opinion of the Court
and “one of the sets of defendants will be required to litigate the case outside their
home county”).
Defendants also claim that the trial court erred in failing to rely on the
affidavit of David D. Howell, dated 21 May 2015, and in making findings of fact and
conclusions of law that were in conflict with his sworn testimony. “[T]he trial court
in ruling upon a motion for change of venue is entirely free to either believe or
disbelieve affidavits such as those filed by the defendants without regard to whether
they have been controverted by evidence introduced by the opposing party.” Godley
Const. Co. v. McDaniel, 40 N.C. App. 605, 608, 253 S.E.2d 359, 361 (1979) (citations
omitted). The trial court was not required to rely on, or find facts and enter
conclusions of law in accordance with, Howell’s affidavit.
III. Conclusion
The trial court did not err in denying defendants’ motion to change venue.
AFFIRMED.
Judges DAVIS and DIETZ concur.
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