Kiker v. Winfield , 234 N.C. App. 363 ( 2014 )

NO. COA13-1471
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
WALLACE SCOTT KIKER,
Plaintiff,
v. Harnett County
No. 13 CVS 162
CEDRIC JELANI WINFIELD,
Defendant.
Appeal by defendant from order entered 18 November 2013 by
Judge James M. Webb in Harnett County Superior Court. Heard in
the Court of Appeals 22 April 2014.
Bain, Buzzard & McRae, LLP, by Robert A. Buzzard, for
plaintiff-appellee.
Robert E. Ruegger for defendant-appellant.
STEELMAN, Judge.
Where there was no evidence in the record that plaintiff
was a resident of Harnett County at the time of the filing of
this action, the trial court erred in denying defendant’s motion
for change of venue.
I. Factual and Procedural Background
On 29 March 2010, Wallace Scott Kiker (plaintiff) was a
passenger in a motor vehicle operated by Cedric Jelani Winfield
(defendant) in Union County, North Carolina. According to
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plaintiff’s complaint, defendant was negligent in causing a
single vehicle collision, which resulted in personal injury to
plaintiff. On 31 January 2013, plaintiff filed this action,
seeking monetary damages and attorney’s fees. On 12 August
2013, defendant filed an answer and motion for change of venue
pursuant to Rule 12(b)(3) of the North Carolina Rules of Civil
Procedure, and N.C. Gen. Stat. §§ 1-82 and 1-83. Defendant
contended that he was a citizen of Union County, and that
plaintiff was incarcerated in a prison located in Spruce Pine.
Defendant asserted that since neither party resided in Harnett
County, that venue in Harnett County was improper, and that the
case had to be transferred from Harnett County. Defendant also
moved that the case be transferred from the district court
division to the superior court division, based upon plaintiff’s
prayer for monetary relief.
Plaintiff served verified responses to defendant’s First
Set of Interrogatories. Plaintiff was asked to list his present
address, along with each address where he had lived for the last
five years. Four of the five addresses listed were in Monroe,
in Union County, and the fifth was the Mountain View
Correctional Institution in Spruce Pine. None of these
addresses were in Harnett County.
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On 18 November 2013, the trial court granted defendant’s
motion to transfer this action from district court to superior
court. The trial court denied, without prejudice, defendant’s
motion for a change of venue from Harnett County.
From the order denying his motion for change of venue,
defendant appeals.
II. Standard of Review
“The general rule in North Carolina, as elsewhere, is that
where a demand for removal for improper venue is timely and
proper, the trial court has no discretion as to removal. The
provision in N.C.G.S. § 1-83 that the court ‘may change’ the
place of trial when the county designated is not the proper one
has been interpreted to mean ‘must change.’” Miller v. Miller,
38 N.C. App. 95, 97, 247 S.E.2d 278, 279 (1978) (citations
omitted).
III. Analysis
Defendant contends that the trial court erred in denying
his motion for change of venue. We agree.
N.C. Gen. Stat. § 1-82 provides that, in cases such as
this:
the action must be tried in the county in
which the plaintiffs or the defendants, or
any of them, reside at its commencement, or
if none of the defendants reside in the
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State, then in the county in which the
plaintiffs, or any of them, reside; and if
none of the parties reside in the State,
then the action may be tried in any county
which the plaintiff designates in the
plaintiff's summons and complaint, subject
to the power of the court to change the
place of trial, in the cases provided by
statute[.]
N.C. Gen. Stat. § 1-82 (2013). N.C. Gen. Stat. § 1-83 further
clarifies that, upon the timely motion of defendant, the trial
court may transfer venue where it is improper. See N.C. Gen.
Stat. § 1-83 (2013). We have held that this change of venue is
not discretionary, but rather is mandatory. Miller, 38 N.C.
App. at 97, 247 S.E.2d at 279. Where venue is improper, the
trial court must grant a motion for change of venue.1
In the instant case, the only evidence in the record that
would suggest that either party was a resident of Harnett County
was plaintiff’s allegation in his complaint that he was a
citizen and resident of Harnett County. The complaint in this
action was not verified. We have previously held that “[a]n
unverified complaint is not an affidavit or other evidence.”
1
We distinguish this motion for change of venue, based upon the
residency of the parties, from a discretionary motion for change
of venue, based upon the convenience of the witnesses. We have
held that the latter form of the motion for change of venue is
subject to the trial court’s discretion, and reviewable only for
an abuse of discretion. See Phillips v. Currie Mills, Inc., 24
N.C. App. 143, 144, 209 S.E.2d 886, 886 (1974).
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Hill v. Hill, 11 N.C. App. 1, 10, 180 S.E.2d 424, 430 (1971).
The fact that plaintiff’s complaint was signed by counsel does
not render it a verified complaint. There is therefore no
evidence in the record that plaintiff was a resident of Harnett
County at the commencement of the underlying lawsuit.
Further, in his verified answers to defendant’s
interrogatories, plaintiff stated the following:
1. State the date and place of your birth,
your present address, the length of time you
have lived there, and each address you have
used for the last five (5) years.
ANSWER: August 4, 1970
Monroe, Union County, North Carolina
Mountain View Correctional Institution,
Spruce Pine, NC
1814 John Moore Road, Monroe, NC;
1813 Timberlane Drive, Monroe, NC;
2512 Doster Road, Monroe, NC
Plaintiff’s verified responses do not assert that at any
time in the past five years (which covers the period of time
going back to the accident) did plaintiff reside in Harnett
County.
We hold that, in the absence of any evidence that plaintiff
resided in Harnett County, the trial court erred in denying
defendant’s motion for change of venue. We vacate the trial
court’s order denying the motion, and remand with instructions
for the trial court to transfer this action to Union County.
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VACATED AND REMANDED.
Judge HUNTER, Robert C., concurs.
Judge BRYANT dissents in separate opinion.
NO. COA13-1471
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
WALLACE SCOTT KIKER,
Plaintiff,
v. Harnett County
No. 13 CVS 162
CEDRIC JELANI WINFIELD,
Defendant.
BRYANT, Judge, dissenting.
The majority vacates the trial court’s order denying
defendant’s motion for change of venue and remands with
instructions for the trial court to transfer this action to
Union County. Because I believe the trial court did not abuse
its discretion in denying defendant’s motion, I must
respectfully dissent.
North Carolina General Statutes, section 1-82, holds that
where an action is not based upon real property, “the action
must be tried in the county in which the plaintiff[] . . .
reside[s] at its commencement . . . .” N.C. Gen. Stat. § 1-82(2013). A motion for change of venue must be granted where it
is clear that the action has been brought in the wrong county.
Nello L. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 743, 71
S.E.2d 54, 55—56 (1952). Where venue is appropriate under
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N.C.G.S. § 1-82, a trial court’s decision as to whether to
permit a non-mandatory transfer is reviewed for abuse of
discretion. Centura Bank v. Miller, 138 N.C. App. 679, 683—84,
532 S.E.2d 246, 249—50 (2000).
The majority contends the trial court erred in denying
defendant’s motion because plaintiff failed to provide evidence
of his residency for venue purposes. Specifically, defendant
contends, and the majority agrees, that plaintiff failed to
provide evidence that plaintiff resided in Harnett County at the
time of filing his complaint. I respectfully disagree.
The majority reasons that based on Hill v. Hill, 11 N.C.
App. 1, 10, 180 S.E.2d 424, 430 (1971) (noting that “[a]n
unverified complaint is not an affidavit or other evidence”),
there is no evidence in the record that plaintiff resided in
Harnett County. The majority fails to recognize that the
complaint was signed by plaintiff’s Harnett County attorney.
The first allegation in the complaint is: “1. That Plaintiff is
a citizen and resident of Harnett County.” Pursuant to Rule 11
of our Rules of Civil Procedure, “[t]he signature of an attorney
or party constitutes a certificate by him that he has read the
pleading, motion, or other paper; that to the best of his
knowledge, information, and belief formed after reasonable
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inquiry it is well grounded in fact and is warranted by existing
law[.]” N.C. Gen. Stat. § 1A-1, Rule 11(a) (2013). Further,
plaintiff’s attorney signed the affidavit of service indicating
his representation of plaintiff and that service of summons and
complaint had been completed upon defendant. Although the
majority is technically correct in describing plaintiff’s
complaint as “unverified,” the fact remains that plaintiff’s
counsel signed the complaint indicating that plaintiff’s
attorney believed plaintiff was a resident of Harnett County at
the time the complaint was filed and filed an affidavit of
service as to the complaint. Therefore, the record contains
some evidence that was before the trial court as to plaintiff’s
residency at the commencement of the action.2
In its order denying defendant’s motion for change of
venue, the trial court made no findings of fact, noting only
that: “The Court having reviewed the Defendant’s motion,
applicable law and after hearing arguments of counsel, HEREBY
ORDERS that Defendant’s motion is denied, without prejudice.”
2
Defendant points to an interrogatory in which plaintiff lists
four Union County addresses, and a present location at the
Mountain View Correctional Institution in Spruce Pine, as proof
that venue in Harnett County is inappropriate. However,
plaintiff answered defendant’s interrogatory on 29 October 2013,
almost ten months after plaintiff filed his complaint.
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The record does not contain a transcript of the hearing before
the trial court. Without a transcript of the hearing, we cannot
know what transpired during that hearing and it would be
inappropriate to speculate as to the factors that led to the
decision of the trial court.
It is well-established that “an appellate court accords
great deference to the trial court . . . because it is entrusted
with the duty to hear testimony, weigh and resolve any conflicts
in the evidence, find the facts, and, then based upon those
findings, render a legal decision[.]” State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619—20 (2011). Further, a trial
court’s decision on whether to permit transfer of venue is
reviewed for abuse of discretion where it appears that venue is
appropriate. Centura Bank, 138 N.C. App. at 683—84, 532 S.E.2d
at 249—50.
As such, based on the record we do have before this Court,
where there does exist evidence of plaintiff’s residency in
Harnett County, I cannot hold that the trial court abused its
discretion and erred in denying defendant’s motion for change of
venue. For the reasons stated herein, I would affirm the order
of the trial court.
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