Godley Const. Co., Inc. v. McDaniel

253 S.E.2d 359 (1979)

40 N.C. App. 605

GODLEY CONSTRUCTION CO., INC. v. L. Bruce McDANIEL and Sheldon L. Fogel d/b/a McDaniel and Fogel, attorneys at Law.

No. 7826SC581.

Court of Appeals of North Carolina.

April 3, 1979.

*360 Bailey, Brackett & Brackett, P. A. by Martin L. Brackett, Jr., Charlotte, for plaintiff-appellee.

Boyce, Mitchell, Burns & Smith by Robert E. Smith, Raleigh, for defendants-appellants.

MITCHELL, Judge.

The defendants assign as error the trial court's denial of their motion for a change of venue to promote the convenience of witnesses and the ends of justice and contend that it constituted an abuse of discretion. The defendants made their motion for change of venue pursuant to G.S. 1-83(2) after they had filed their answer. Unlike motions for change of venue based upon allegations of improper venue, which must be made a part of the answer or filed as separate motions prior to answering, motions for change of venue made pursuant to G.S. 1-83(2) are properly made only after an answer has been filed. Compare Thompson *361 v. Horrell, 272 N.C. 503, 158 S.E.2d 633 (1968), with, Swift and Co. v. Dan-Cleve Corp., 26 N.C.App. 494, 216 S.E.2d 464 (1975). As the defendants had filed their answer in the present case prior to making their motion for change of venue pursuant to G.S. 1-83(2), the trial court had authority to entertain the motion. Poteat v. Railway Co., 33 N.C.App. 220, 234 S.E.2d 447 (1977).

The defendants' motion for change of venue pursuant to G.S. 1-83(2) to promote the convenience of witnesses and the ends of justice presented a question of venue and not jurisdiction. Rulings on such questions are within the sound discretion of the trial court and are not subject to reversal except for manifest abuse of such discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961).

The defendants contend that the ruling of the trial court constituted a manifest abuse of discretion, as their affidavits presented overwhelming evidence clearly indicating that both the convenience of the witnesses and the ends of justice would be promoted by a change of venue to Wake County. The defendants further contend that their affidavits made out a prima facie showing that these interests would be promoted and shifted the burden to the plaintiff to go forward with evidence to the contrary. The plaintiff having introduced no affidavits or other evidence tending to contradict the affidavits of the defendants, the defendants argue that the trial court was compelled to find that both the convenience of witnesses and the ends of justice would be promoted by the requested change of venue. We do not agree.

We find that the rule which has been long followed in this jurisdiction still prevails and that the 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. See State v. Smarr, 121 N.C. 669, 28 S.E. 549 (1897). But see, e. g., Harper v. Insurance Co., 244 S.C. 282, 136 S.E.2d 711 (1964). Further, we do not think the defendants' affidavits showing that one witness and one party reside in Mecklenburg County, while the other parties and witnesses reside in Wake County, necessarily required a finding that a change of venue in the present case would promote the convenience of witnesses and the ends of justice. Even if the affidavits should be construed in the manner the defendants wish, we would remain unable to determine whether other facts brought to the court's attention or otherwise available indicated that the hardship to the witness and the party residing in Mecklenburg County arising from a change of venue would outweigh any hardship to the defendants and the witnesses from Wake County arising from denial of the change of venue.

Additionally, had the trial court been compelled to accept as fact all of the matters asserted in the defendants' affidavits and to find that the convenience of witnesses and the ends of justice would be promoted by a change of venue, we do not think it would have been required to order a change of venue. In our view, when the trial court finds that the convenience of witnesses and the ends of justice would be promoted by a change of venue, G.S. 1-83(2) permits but does not require the trial court in its discretion to order such change of venue. See Craven v. Munger, 170 N.C. 424, 87 S.E. 216 (1915). The long-standing rule in this jurisdiction remains undiminished and, in such situations, the trial court's decision to deny the motion for change of venue in its discretion still may be reversed only upon a showing of a manifest abuse of such discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961). The existing case precedent tends to indicate that the trial court has not manifestly abused its discretion in refusing to change the venue for trial of an action pursuant to G.S. 1-83(2) unless it appears from the matters and things in evidence before the trial court that the ends of justice will not merely be promoted by, but in addition demand, the change of venue (G.S. 1-85) or that failure to grant the change of venue will deny the movant a fair trial (G.S. 1-84).

*362 It may well be that the prevailing rules applying to motions for change of venue, as previously set forth herein, are not the best which could be devised. See generally, e. g., Annot., 74 A.L.R.2d 16 (1960). Nevertheless, we believe them to apply in this jurisdiction. The fact that our research does not readily lead to any case in which a trial court in this jurisdiction ever has been reversed in the exercise of the discretion conferred upon it by G.S. 1-83(2) tends to offer additional support to the view that the former rules remain unchanged. Unlike the Supreme Court of North Carolina and the General Assembly of North Carolina, we are never free to alter or reject rules which have been established in cases previously decided by the supreme judicial authority of this State.

The order of the trial court denying the defendant's motion for change of venue is

Affirmed.

ROBERT M. MARTIN and WEBB, JJ., concur.