Caldwell v. Smith
| Decision Date | 04 May 2010 |
| Docket Number | No. COA09-1040.,COA09-1040. |
| Citation | 692 S.E.2d 483 |
| Parties | Joseph CALDWELL and wife, Suzanne Caldwell, Plaintiffs,v.Dennis G. SMITH, and wife, Shirley Smith, Duanne Tinsley and wife, Wendy Tinsley, and Enviro-Med Industries, LLC, d/b/a Sunshield Coatings USA, Defendants. |
| Court | North Carolina Court of Appeals |
692 S.E.2d 483
Joseph CALDWELL and wife, Suzanne Caldwell, Plaintiffs,
v.
Dennis G. SMITH, and wife, Shirley Smith, Duanne Tinsley and wife, Wendy Tinsley, and Enviro-Med Industries, LLC, d/b/a Sunshield Coatings USA, Defendants.
No. COA09-1040.
Court of Appeals of North Carolina.
May 4, 2010.
Dixon & Dixon, PLLC, Law Offices, by David R. Dixon, Avon, for plaintiff-appellees.
Patrick, Harper & Dixon, LLP, by David W. Hood, Hickory, for defendant-appellants.
ROBERT N. HUNTER, JR., Judge.
Defendants appeal from the trial court's order denying their motion for change of venue as of right. Defendants timely filed their motion for change of venue in their answer on the basis that the action was filed by plaintiffs in the wrong county, as no party resided in Dare County at the commencement of the civil action. With regard to defendants' appeal, our Court has held that “the trial court has no discretion in ordering a change of venue if demand is properly made and it appears that the action has been brought in the wrong county.” Swift & Co. v. Dan-Cleve Corp., 26 N.C.App. 494, 495, 216 S.E.2d 464, 465 (1975). As we agree
On 13 August 2008, plaintiffs, Joseph and Suzanne Caldwell, filed a complaint against defendants in Dare County alleging six causes of action including: (1) three violations of Chapter 66 of the North Carolina General Statutes under N.C. Gen.Stat. §§ 66-95, 66-98, and 66-99 (2009); (2) a violation of Chapter 75 under the Unfair and Deceptive Trade Practices Act; (3) unjust enrichment; and (4) fraud.
Plaintiffs declared in their complaint that they are currently citizens of St. Meinard, Indiana, but allege that they were formerly residents of Dare County, North Carolina. Plaintiffs also declared that defendant Sunshield Coatings USA is a North Carolina Limited Liability Company located in Rutherford County, North Carolina. Plaintiffs do not make any allegations regarding the county of residency of defendants Dennis G. Smith, Shirley Smith, Duanne Tinsley, and Wendy Tinsley. However, in paragraph 3 of the complaint, plaintiff alleges that the cause of action arose in Dare County by alleging that:
Defendants, Dennis G. Smith and wife, Shirley Smith, and Duanne Tinsley and wife, Wendy Tinsley, are citizens of North Carolina and during relevant times contacted the Plaintiffs in Dare County, in person, by telephone, and through other means of communication.
On 24 October 2008, defendants, Dennis and Shirley Smith and Sunshield Coatings USA,1 filed an answer and motion for change of venue to Rutherford County. Defendants' second defense was for removal of the civil action due to improper venue on the grounds that none of the parties are residents of Dare County. In support of the motion to change venue, on 23 April 2009 defendant Duanne Tinsley submitted an affidavit wherein he provided a sworn statement that “Dennis G. Smith and Shirley Smith live in Rutherford County, North Carolina, defendants Duanne Tinsley and Wendy Tinsley live in Burke County, North Carolina, and defendant Enviro-Med Industries, LLC, d/b/a Sunshield Coatings USA is a North Carolina Limited Liability Company with its principal place of business in Rutherford County, North Carolina.”
Defendants' motion to change venue was heard on 27 April 2009 by the Dare County Superior Court. Superior Court Judge Walter H. Godwin, Jr., denied defendants' motion in an order filed 4 May 2009. Defendants properly filed notice of appeal from the superior court's order with the Clerk of Dare County on 22 May 2009.
On appeal, defendants contend that venue is improper in Dare County, North Carolina, because N.C. Gen.Stat. §§ 1-77 and 1-79...
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...court's decision affects a substantial right of the appellant which would be lost absent immediate review." Caldwell v. Smith , 203 N.C.App. 725, 727, 692 S.E.2d 483, 484 (2010) (citing Boynton v. ESC Med. Sys., Inc. , 152 N.C.App. 103, 105–06, 566 S.E.2d 730, 731 (2002) ). "Our courts have......
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