            IN THE COURT OF APPEALS OF NORTH CAROLINA

                              No. COA16-167

                          Filed: 15 November 2016

Edgecombe County, No. 15 CVS 228

JAEKWON WILLIAMS, a minor, by and through his Guardian Ad Litem, DAVID
JONES, DARRIUS WILLIAMS AND JASMINE WILLIAMS, Plaintiffs,

           v.

WOODMEN FOUNDATION d/b/a LIONS WATER ADVENTURE PARK, AKA
WOODMEN FOUNDATION, A Nebraska Not-For Profit Corporation;


CITY OF ROCKY MOUNT d/b/a CITY OF ROCKY MOUNT PARKS &
RECREATION DEPARTMENT d/b/a QUEST SUMMER DAY CAMP;


COUNTY OF LENOIR d/b/a CITY OF KINSTON/LENOIR COUNTY PARKS &
RECREATION DEPARTMENT and CITY OF KINSTON d/b/a CITY OF
KINSTON/LENOIR COUNTY PARKS & RECREATION DEPARTMENT;


O’NEAL, JORDAN SHEAR, HARRISON WIGGINS, Unnamed LIONS WATER
ADVENTURE PARK LIFEGUARDS and Unnamed PERSONS WITH
MANAGERIAL, OPERATIONAL AND SUPERVISORY RESPONSIBILITY FOR
LIONS WATER ADVENTURE PARK;


JARRON PARKER, MICHAEL DELOATCH, TINA MOORE, JUSTIN ATKINSON,
TIARA BATTLE and Unnamed QUEST SUMMER DAY CAMP EMPLOYEES;


Unnamed ROCKY       MOUNT      PARKS    &     RECREATION   DEPARTMENT
EMPLOYEES;


Unnamed KINSTON/LENOIR COUNTY PARKS & RECREATION DEPARTMENT
EMPLOYEES, Defendants.
                                WILLIAMS V. WOODMEN FOUND.

                                        Opinion of the Court



       Appeal by defendants from order entered 28 September 2015 by Judge Milton

F. Fitch, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 23

August 2016.


       Taft, Taft & Haigler, PA, by Thomas F. Taft, Sr. and Lindsey A. Bullard, and
       Richardson, Patrick, Westbrook & Brickman, LLC, by Terry E. Richardson, Jr.
       and Brady R. Thomas, pro hac vice, for plaintiff-appellees.

       Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jaye E. Bingham-Hinch,
       Meredith Taylor Berard, and Stephanie Gaston Poley, for defendant-appellants
       City of Kinston, Caroline Banks, Stephen Corbett Hall, Jordan Shear, and
       Harrison Wiggins.

       Cauley Pridgen PA, by James P. Cauley, III and David M. Rief, for defendant-
       appellants City of Kinston, Caroline Banks, Stephen Corbett Hall, Jordan
       O’Neal, Jordan Shear, and Harrison Wiggins.

       Teague Campbell Dennis & Gorham LLP, by Bryan T. Simpson and Natalia
       K. Isenberg, for defendant-appellant County of Lenoir.

       Allen Moore & Rogers LLP, by Jody Moore, and Williams Mullen, by Elizabeth
       D. Scott, for defendant-appellee Woodmen Foundation d/b/a Lions Water
       Adventure Park, aka Woodmen Foundation. No brief filed.1

       BRYANT, Judge.


       Where the only cause of action is against defendant-appellants who were not

voluntarily dismissed from the case and that cause of action is based solely on




       1 We note this unusual circumstance in which defendant-appellee Woodmen Foundation is not
a party to this appeal; however, since this Court granted a motion to substitute counsel on behalf of
defendant-appellee Woodmen Foundation during the pendency of this appeal, we list the above as
counsel for explanatory purposes.

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allegations of what occurred in Lenoir County, venue is improper in Edgecombe

County, and we reverse the order of the trial court.

      Jaekwon Williams, a minor, by and through his Guardian Ad Litem David

Jones, Darrius Williams, and Jasmine Williams (“plaintiffs”), filed a complaint on 17

March 2015 in Edgecombe County Superior Court asserting a negligence claim

against Woodmen Foundation, d/b/a Lions Water Adventure Park; City of Rocky

Mount, d/b/a City of Rocky Mount Parks & Recreation Department, d/b/a Quest

Summer Day Camp; County of Lenoir and City of Kinston, d/b/a City of

Kinston/Lenoir County Parks & Recreation Department; five lifeguards from Lions

Water Adventure Park; and five day camp employees from Quest Summer Day Camp

(collectively, “defendants”). Plaintiffs also asserted a negligence per se claim against

defendants Woodmen, County of Lenoir, and City of Kinston, after alleging that

Jaekwon suffered a “non-fatal drowning” on 11 August 2014. Plaintiffs filed an

Amended Complaint (also in Edgecombe County) on 20 March 2015, asserting the

same claims.

      Plaintiffs’ relevant factual allegations in the amended complaint are as follows:

               25. That on August 11, 2014, Jaekwon Williams was
               attending Quest Summer Day Camp, which was operated
               by Defendant Rocky Mount, d/b/a Rocky Mount Parks &
               Rec.

               26. That on August 11, 2014, Jaekwon Williams traveled
               with the Quest Summer Day Camp to Lions Water
               Adventure Park, a water park owned by Defendant


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            Woodmen and operated jointly by Defendants Woodmen,
            County of Lenoir and City of Kinston, both d/b/a
            Kinston/Lenoir Parks and Rec.

            27. That while at Lions Water Adventure Park, Jaekwon
            Williams, who, pursuant to N.C.G.S. § 8-46, has a future
            life expectancy of at least 67.6 years, entered the water of
            the lap pool owned by Defendant Woodmen and operated
            jointly by Defendants Woodmen, County of Lenoir and City
            of Kinston, both d/b/a Kinston/Lenoir Parks and Rec.

            28. That Defendants were informed and/or should have
            known that Jaekwon Williams was not able to swim, and
            should have used ordinary care in assuring his safety.

            29. That due to the negligence, carelessness, recklessness
            and/or wanton conduct with reckless indifference of all
            Defendants, Jaekwon Williams was found at the bottom of
            the lap pool of Lions Water Adventure Park with no pulse
            or respirations, and suffered severe and permanent
            physical and mental injuries as a result of said non-fatal
            drowning.

      In May and June of 2015, defendants filed their respective answers, amended

answers, and motions to dismiss. Defendant County of Lenoir and defendants City of

Kinston, Caroline Banks, Stephen Corbett Hall, Jordan O’Neal, Jordan Shear, and

Harrison Wiggins (collectively “Kinston defendants”) also filed motions to change

venue from Edgecombe County to Lenoir County. Plaintiffs filed replies to each of

defendants’ amended answers on 14 July and 22 July 2015.

      Prior to the hearing on the motion to change venue, plaintiffs settled their

claim against defendants City of Rocky Mount d/b/a City of Rocky Mount Parks &

Recreation Department d/b/a Quest Summer Day Camp, Jarron Parker, Tina Moore,


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                                   Opinion of the Court



Tiara Battle, Justin Atkinson, Michael DeLoatch, Unnamed Quest Summer Day

Camp Employees, and Unnamed Rocky Mount Parks & Recreation Department

employees (collectively, “Rocky Mount defendants”). However, it was not until 28

January 2016 that plaintiffs filed a voluntary dismissal as to the Rocky Mount

defendants.

      Meanwhile, on 8 September 2015, the Honorable Milton F. Fitch Jr., Judge

presiding, heard the Motions to Change Venue of the Kinston defendants and the

County of Lenoir (collectively “defendant-appellants”) in Edgecombe County Superior

Court. Plaintiffs submitted the affidavits of Jasmine Williams and Charles Wilson,

MD, in opposition to the motions to change venue, which both generally stated that

it would be in Jaekwon’s best medical interests to be transported the shorter distance

to the Edgecombe County Courthouse, rather than to the one in Lenoir County, for

purposes of this litigation. Plaintiffs’ counsel also argued it would be improper for the

trial court to make a venue decision at that time, because the issue “[would] not [be]

ripe to be heard . . . until discovery [had] been complete[d] and until factual

determinations ha[d] been made.” Counsel for defendant-appellants argued that

because the Rocky Mount defendants had been voluntarily dismissed from the action,

“there is no way that a cause of action or any part of a cause of action against

[defendant-appellants] took place in Edgecombe County[,]” as “[a]ny cause of action




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against [defendant-appellants] had to have taken place at that pool in Lenoir

County.”

      On 28 September 2015, Judge Fitch entered an order denying appellants’

motions to change venue, finding “that the cause or some part thereof arose in

Edgecombe County.” Defendant-appellants appeal.

      On 15 April 2016, defendant-appellants filed a motion to supplement the

record on appeal with this Court. Defendant-appellants intended that a filed copy of

the voluntary dismissal order dismissing the Rocky Mount defendants from this

matter be a file-stamped copy, but did not receive one prior to the record being filed

with this Court on 19 February 2016. Defendant-appellants did include a copy of the

voluntary dismissal order in the Rule 11(c) Supplement to the Printed Record on

Appeal, but it was not a file-stamped version. Defendant-appellants requested that a

file-stamped copy of the voluntary dismissal be included as a supplement to the record

on appeal pursuant to Rule 9(b)(5) of the North Carolina Rules of Appellate

Procedure. For the following reasons, we allow defendant-appellants’ motion.

      In opposition to defendant-appellants’ motion, plaintiffs claimed the filed-

stamped copy of the voluntary dismissal—dated 28 January 2016—should not be

included in the record on appeal as it was not “submitted for consideration” to the

trial court prior to the filing of the trial court’s order on 28 September 2015, which




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denied defendant-appellants’ motion to change venue, and which is the order from

which defendant-appellants now appeal.

      However, even if a file-stamped version of the voluntary dismissal could not

have been submitted to the trial court, practically speaking, plaintiffs cannot show

that they would be prejudiced were this Court to allow defendant-appellants’ motion

to include a file-stamped copy in the record. To the contrary, the transcript of the

hearing makes plain that the trial court and all parties present at the hearing were

aware or became aware that plaintiffs had settled their claims with the Rocky Mount

defendants, and certainly, plaintiffs themselves were aware of the settlement.

Indeed, counsel for plaintiffs, in response to the question from the court, “Is that true,

did Rocky Mount settle the claims?”, stated, “Yes, sir, they have, Your Honor. It

hadn’t been finally approved.” Accordingly, where plaintiffs cannot show that any

improper prejudice would result, we allow defendant-appellants’ motion to

supplement the record on appeal.

              _____________________________________________________

      Defendant-appellants’ sole argument on appeal is that the trial court erred in

denying defendants’ motion to change venue, as Edgecombe County is not a proper

venue for this action pursuant to N.C. Gen. Stat. §§ 1-77(2) and 1-83. Specifically,

defendant-appellants argue venue is improper in Edgecombe County because




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defendant-appellants are “public officers,” and each of defendant-appellants’ actions

or inactions alleged by plaintiffs occurred in Lenoir County. We agree.

      Defendant-appellants appeal from an interlocutory order denying their motion

to change venue from Edgecombe County to Lenoir County. “[I]mmediate appeal is

available from an interlocutory order . . . which affects a ‘substantial right.’ ” Sharpe

v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (citations omitted). This

Court has previously held that “a denial of a motion to transfer venue affects a

substantial right.” Hyde v. Anderson, 158 N.C. App. 307, 309, 580 S.E.2d 424, 425

(2000) (citation omitted). Accordingly, “[t]he trial court’s order is immediately

appealable and properly before [this Court].” Morris v. Rockingham Cnty., 170 N.C.

App. 417, 418, 612 S.E.2d 660, 662 (2005).

      “A determination of venue under N.C. Gen. Stat. § 1-83(1) is . . . a question of

law that [this Court] review[s] de novo.” TD Bank, N.A. v. Crown Leasing Partners,

LLC, 224 N.C. App. 649, 654, 737 S.E.2d 738, 741–42 (2012) (quoting Stern v.

Cinoman, 221 N.C. App. 231, 232, 728 S.E.2d 373, 374 (2012)).

      North Carolina General Statutes, section 1-83 provides, in relevant part, as

follows:

             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


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             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 proper one.

N.C. Gen. Stat. § 1-83 (2015).

             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) (internal citations

omitted). Accordingly, “the trial court has no discretion in ordering a change of venue

if it appears that the action has been brought in the wrong county.” Caldwell v. Smith,

203 N.C. App. 725, 729, 692 S.E.2d 483, 486 (2010) (citation omitted).

      The venue statute applicable to a “public officer,” N.C. Gen. Stat. § 1-77,

provides, in relevant part, as follows:

             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


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                                   Opinion of the Court



                        who by his command or in his aid does anything
                        touching the duties of such officer.

N.C.G.S. § 1-77 (2015). “The purpose of section 1-77 is to avoid requiring public

officers to ‘forsake their civic duties and attend the courts of a distant forum.’ ” Wells

v. Cumberland Cnty. Hosp. Sys., Inc., 150 N.C. App. 584, 587, 564 S.E.2d 74, 76 (2002)

(quoting Coats v. Sampson Cnty. Mem’l Hosp., Inc., 264 N.C. 332, 333, 141 S.E.2d

490, 491 (1965)).

      When considering an action against a “public officer,” “the following two

questions must be addressed: ‘(1) Is defendant a “public officer or person especially

appointed to execute his duties”? [and] (2) In what county did the cause of action in

suit arise?’ ” Morris, 170 N.C. App. at 418, 612 S.E.2d at 662 (alteration in original)

(quoting Coats, 264 N.C. at 333, 141 S.E.2d at 491). Regarding the first question,

“[a]n action against a municipality is an action against a public officer under N.C.

Gen. Stat. § 1-77(2) for purposes of venue.” Hyde, 158 N.C. App. at 309, 580 S.E.2d

at 425 (citations omitted). “Proper venue for municipalities is, therefore, usually the

county in which the cause of action arose.” Id. (citation omitted).

      Regarding the second question, “a cause of action may be said to accrue, within

the meaning of a statute fixing venue of actions, when it comes into existence as an

enforceable claim, that is, when the right to sue becomes vested.” Morris, 170 N.C.

App. at 420, 612 S.E.2d at 663 (quoting Smith v. State, 289 N.C. 303, 333, 222 S.E.2d

412, 432 (1976)). In a negligence action, the right to sue is vested when a person fails


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“to exercise that degree of care which a reasonable and prudent [person] would

exercise under similar conditions and which proximately cause injury or damage to

another.” Id. (alteration in original) (quoting Williams v. Trust Co., 292 N.C. 416, 422,

233 S.E.2d 589, 593 (1977)).

      “North Carolina venue is determined at the commencement of the action, as

denoted by the filing of the complaint.” Caldwell, 203 N.C. App. at 729, 692 S.E.2d at

486 (citation omitted). “When reviewing a decision on a motion to transfer venue, the

reviewing court must look to the allegations of the plaintiff’s complaint.” Town of

Maiden v. Lincoln Cnty., 198 N.C. App. 687, 690, 680 S.E.2d 754, 756 (2009) (quoting

Ford v. Paddock, 196 N.C. App. 133, 135–36, 674 S.E.2d 689, 691 (2009)). In

reviewing that complaint, this Court is “not required . . . to accept as true allegations

that are merely conclusory, unwarranted deductions of fact, or unreasonable

inferences.” Strickland v. Hedrick, 194 N.C. App. 1, 20, 669 S.E.2d 61, 73 (2008)

(alteration in original) (citation omitted).

      The plain language of N.C. Gen. Stat. § 1-77 states that actions “[a]gainst a

public officer or person especially appointed to execute his duties” “must be tried in

the county where the cause, or some part thereof, arose . . . .” N.C.G.S. § 1-77(2). If a

claim is not being made against a non-party or entity, no “cause, or [any] part thereof”

can be said to have arisen against them. See id. Indeed, where a party has been

dismissed, for purposes of venue, the matter “proceed[s] as if he had never been a



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                                   Opinion of the Court



party . . . .” Mitchell v. Jones, 272 N.C. 499, 502, 158 S.E.2d 706, 709 (1968).

Accordingly, any alleged acts or omissions by a non-party (here, the Rocky Mount

defendants) which occurred in Edgecombe County, would not and could not give rise

to a cause of action against the remaining defendant-appellants as no right to sue

defendant-appellants has become vested by the actions or inactions of the non-party,

Rocky Mount defendants. See Morris, 170 N.C. App. at 420, 612 S.E.2d at 663. The

only remaining cause of action in this case is the cause of action against defendant-

appellants, which is based solely on what allegedly occurred in Lenoir County.

      Plaintiffs do not assert that any of defendant-appellants’ alleged acts or

omissions took place in Edgecombe County. Rather, plaintiffs’ main argument on

appeal, and entire argument to the trial court, was that it would be improper to rule

on venue before plaintiffs could be permitted to conduct discovery and ascertain

whether or not there were any acts or omissions which occurred in Edgecombe

County, presumably by the remaining defendant-appellants. Plaintiffs’ counsel

argued to the trial court, in relevant part, as follows:

             Yes, we do need to do continuing discovery with Rocky
             Mount in order to determine where negligence acts did
             occur whether they were in Edgecombe County or Nash
             County.
                   For all we know they may have occurred in Pitt
             County or Edgecombe -- I mean, in Wayne when the bus
             was driving them to the swimming pool. We don’t know yet
             because we haven’t had that discovery.

             ...


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           We believe that discovery will show that some part of [the
           negligence] occurred in Edgecombe or in Nash or maybe
           some other county. . . .

           In our pleadings, Your Honor, against Rocky Mount, we
           allege that there would be an opportunity through
           discovery to determine what else, what other negligence
           may have occurred and where it occurred.

                 We don’t know that right now. . . .

                 We don’t know any of those things yet, Your Honor.
           And we have a right to discover that and then bring these
           matters before the Court to make an informed decision on
           venue.

           ...

           [W]e believe that that negligence occurred in Edgecombe or
           Nash County, but we don’t know yet. And so we couldn’t
           allege that in specificity . . . .
                  It is exactly the reason that we’re entitled to
           discovery before this matter is ri[pe] to be heard, Your
           Honor.

           ...

           [U]ntil we have a chance to conduct other discovery, we
           won’t know where that negligence occurred.

           ...

           [T]his is not ripe to be heard at this moment until discovery
           has been complete and until factual determinations have
           been made.

     Not surprisingly, plaintiffs have cited to no authority to support their

contention that a motion on venue cannot be heard until discovery has been


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completed, as this is not the law. The law is clear: venue is properly determined at

the commencement of the action by the factual allegations of the complaint. See

Caldwell, 203 N.C. App. at 729, 692 S.E.2d at 486 (holding venue improper in Dare

County where the plaintiffs’ complaint and the defendant’s affidavit indicated no

party resided in that county at the commencement of the action). Discovery is not a

tool for assessing where an action should ultimately proceed. And where, as here,

certain parties have been dismissed from the action, it is as though those parties were

never a part of the action. See Mitchell, 272 N.C. at 502, 158 S.E.2d at 709. Thus, as

plaintiffs have repeatedly admitted that at the commencement of this action they had

no facts which they could plead as to any acts or omissions by the remaining parties

occurring outside of Lenoir County, this matter should be transferred to Lenoir

County.

      Accordingly, the trial court’s order denying defendant-appellants’ motion to

change venue is

      REVERSED.

      Judges STEPHENS and DILLON concur.




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