                              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
                                             -2-
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.
                                      -3-
      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
                                   -4-
           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).
                                        -5-
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.
                          -6-
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
                                                      -2-

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
                                          -3-

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.
                                            -4-

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.
-5-
