Blizzard v. Miller

306 S.C. 373 (1991)

412 S.E.2d 406

Robert L. BLIZZARD, Appellant v. Donald E. MILLER, Respondent.

23530

Supreme Court of South Carolina.

Heard November 21, 1991.

Decided December 16, 1991.

*374 John E. Parker of Peters, Murdaugh, Parker, Eltzroth & Detrick, P.A., Hampton, for appellant.

Stephen F. DeAntonio and Stephen P. Groves, both of Young, Clement, Rivers & Tisdale, Charleston, for respondent.

Heard November 21, 1991.

Decided December 16, 1991.

CHANDLER, Justice:

Robert Blizzard (Blizzard) appeals a Circuit Court Order granting Respondent Donald Miller (Miller) a change of venue to Lexington County.

We affirm.

FACTS

Following a collision between his motorcycle and a vehicle driven by Miller, Blizzard filed a property damage claim in Hampton County for arbitration. See S.C. Code Ann. § 38-77-710 et seq.

The arbitration panel awarded Blizzard $2,201.

Pursuant to § 38-77-770 of the arbitration statute, Miller appealed for a de novo trial in Circuit Court, alleging that Lexington, his county of residence, was the proper county of venue. Subsequently, he filed a formal motion for change of venue under § 15-7-10 et seq.

*375 From the Circuit Court's Order granting the motion, Blizzard appeals. He contends § 38-77-710 et seq. mandates that de novo trials arising from appeals on arbitration awards be held in the county in which the arbitration was conducted.

ISSUE

The sole issue is whether Miller was entitled to change of venue to Lexington County.

DISCUSSION

Blizzard's contention that the arbitration statute mandates venue in Hampton County for Miller's de novo Circuit Court trial is without merit.

This Court has repeatedly held that the right of a defendant to be tried in the county of his residence is a substantial right. Our most recent re-emphasis of this holding was expressed in Chestnut v. Reid.[1]

[T]he right of a defendant to have a cause tried against him in the county of which he resides is a substantial right. Accordingly, this Court has held that when the motion to change venue is based on the ground that a particular county is the residence of the defendant, then a question of law is presented, rather than a matter of discretion.

As pointed out in Chestnut, "when a motion to change venue is brought pursuant to § 15-7-30 and the facts concerning the defendant's residence are uncontradicted, the trial court must change the venue to the county where the defendant resides." 299 S.C. at 307, 384 S.E. (2d) at 714. (Emphasis supplied.)

Nothing in § 38-77-770 diminishes this right. A trial de novo is one in which "the whole case is tried as if no trial whatsoever had been had in the first instance." National Health Corporation v. S.C. Dept. of Health, 298 S.C. 373, 378 n. 1, 380 S.E. (2d) 841, 844 n. 1 (Ct. App. 1989) [citing Black's Law Dicionary *376 (5th Ed. 1979)]. Essentially then, Miller's de novo trial negates the arbitration hearing, and he is entitled to trial in Lexington County as a matter of law.

Blizzard's recourse is to § 15-7-100, which vests the trial court with discretion to change venue on grounds of convenience of witnesses and promotion of justice.

Affirmed.

GREGORY, C.J., and HARWELL, FINNEY and TOAL, JJ., concur.

NOTES

[1] 299 S.C. 305, 306, 384 S.E. (2d) 713, 714 (1989).