Smith v. Mariner , 77 N.C. App. 589 ( 1985 )

335 S.E.2d 530 (1985)

Claude F. SMITH, Jr.
v.
Joseph Y. MARINER and Mary Anne B. Mariner.

No. 8520SC288.

Court of Appeals of North Carolina.

October 29, 1985.

Waggoner, Hamrick, Hasty, Monteith, Kratt, Cobb & McDonnell by James D. Monteith, Charlotte, for plaintiff.

Richard F. Harris, III, Charlotte, for defendant Mary Anne B. Mariner.

WELLS, Judge.

Preliminarily we note that appellant is appealing from an interlocutory order, but since she is appealing from the denial of a change of venue as a matter of right pursuant to G.S. 1-76(4), her appeal is not premature. Klass v. Hayes, 29 N.C.App. 658, 225 S.E.2d 612 (1976); see also DesMarais v. Dimmette, 70 N.C.App. 134, 318 S.E.2d 887 (1984).

G.S. 1-76 provides in pertinent part:

Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated ... (4) Recovery of personal property when the recovery of the property itself is the sole or primary relief demanded.

Appellant argues that the recovery of the stock certificates is the sole or primary relief demanded in plaintiff's complaint; therefore, under G.S. 1-76(4), the action must be tried in Mecklenburg County where the stock certificates are located. We disagree.

The facts of the present case are remarkably similar to those of Davis v. Smith, 23 N.C.App. 657, 209 S.E.2d 852 (1974). In that case, the plaintiff sought specific enforcement of an agreement in which the defendant was obligated to sell to the plaintiff his stock in a corporation if the defendant were discharged for unsatisfactory performance of his duties as president and general manager of the corporation. Defendant, contending that G.S. 1-76(4) required the action to be tried in the county where the stock certificates were located, filed a motion for a change of venue pursuant to G.S. 1-83(1). In affirming the denial of the motion, we observed that stock certificates, while tangible personal property, were merely tangible evidence, or symbols, of the shares they represent. For that reason and policy reasons, we concluded that stock certificates were not the kind of personal property which would require a change of venue under G.S. 1-76(4) and G.S. 1-83(1). We held that the action for the recovery of the stock certificates was incidental to the specific performance action for the recovery of the stock itself. Accord, Klass v. Hayes, supra. We agree with the reasoning of the opinion in Davis v. Smith and find it to be controlling in the present case.

Appellant also contends that the court erred in failing to remove the action to Mecklenburg County pursuant to G.S. 1-83(2). She argues that since all of the witnesses except plaintiff, and all of the attorneys reside in Mecklenburg County, the convenience of witnesses and the ends of justice would be better served if the matter were tried in Mecklenburg County rather than in Richmond County, one hour and thirty minutes away. It is well settled that a court's decision upon a motion for a change of venue pursuant to G.S. 1-83(2) will not be disturbed absent a showing of a manifest abuse of discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961); Construction Co. v. McDaniel, 40 N.C.App. 605, 253 S.E.2d 359 (1979). In the absence of a showing that the ends of justice demand a change of venue, or that the denial of the motion will deny appellant a fair trial, we find no abuse of discretion by the trial court.

Appellant lastly contends that the court erred in failing to make findings of fact in ruling upon the motion. A trial court, however, is required to make findings of fact in deciding a motion only when requested by a party. N.C.Gen.Stat. § 1A-1, Rule 52(a)(2) of the Rules of Civil Procedure. We can find no such request in this record.

The order appealed from is

Affirmed.

ARNOLD and MARTIN, JJ., concur.