Landvest Associates v. Owens, 21159

• Decision Date: 26 February 1980
• Docket Number: No. 21159,21159
• Citation: 263 S.E.2d 646,274 S.C. 334
• Court: South Carolina Supreme Court
• Parties: LANDVEST ASSOCIATES, Respondent, v. Marion B. OWENS, Jr., Appellant. LANDVEST II, Respondent, v. Marion B. OWENS, Jr., Appellant.

Page 646

263 S.E.2d 646

274 S.C. 334

LANDVEST ASSOCIATES, Respondent, v. Marion B. OWENS, Jr., Appellant.

LANDVEST II, Respondent, v. Marion B. OWENS, Jr., Appellant.

No. 21159.

Supreme Court of South Carolina.

Feb. 26, 1980.

Coming B. Gibbs, Jr., of Gibbs, Gaillard, Rowell & Tanenbaum, Charleston, for appellant.

Theodore B. Guerard, of Guerard & Applegate, Charleston, for respondents.

GREGORY, Justice:

This is an appeal from an order of the lower court denying appellant Owens' motions for changes of venue. We affirm.

Respondents Landvest Associates and Landvest II brought these separate actions, combined on appeal, against appellant seeking an accounting under the South Carolina Limited Partnership Act and for alleged fraud and deceit. At the time these actions were commenced appellant was a resident of Beaufort County, where he was served. The lawsuits, however, were filed in the Court of Common Pleas for Charleston County.

Before moving for changes of venue to the county of his residence pursuant to Section 15-7-30, Code of Laws of South Carolina (1976), appellant answered, counterclaimed, participated in extensive discovery proceedings, successfully opposed respondents' motions for summary judgment, and moved that respondents be required to elect between their causes of action. It was only thereafter that appellant asserted his right to be tried in the county of his residence. The lower court ruled appellant had by the foregoing actions waived his right to changes of venue.

The evolution of the prevailing law pertaining to a defendant's right to be tried in the county of his residence was succinctly tracked by Mr. Justice Rhodes in his recent opinion in Triangle Auto Spring Company v. Gromlovitz, 270 S.C. 386, 242 S.E.2d 430 (1978):

Although never expressly overruled, it is clear that Ex Parte Ware Furniture (49 S.C. 20, 27 S.E. 9) and Nixon & Danforth (v. Piedmont Mutual Ins. Co., 74 S.C. 438, 54 S.E. 657 (1960)), insofar as they hold the right to be tried in the county of one's residence is a non-waivable limitation on subject matter jurisdiction, are no longer the prevailing law. In 1933, Lillard v. Searson, 170 S.C. 304, 170 S.E. 449, held that the right of a defendant to be tried in the county of his residence was not a limitation of subject matter jurisdiction and could be waived. This holding was reaffirmed a few years later in Rosamond v. Lucas-Kidd Motor Co., 182 S.C. 331, 189 S.E. 641 (1937) and has been the law of this State since. Under the present state of the law, it is clear that the right to be tried in the county of one's residence, while it is a "substantial and valuable right", e. g. Lucas v. Atlantic Greyhound Federal Credit Union, 268 S.C. 30, 231 S.E.2d 302 (1977), relates only to the question of venue and can be waived.

242 S.E.2d at 432.

While many jurisdictions have adopted the rule that pleading to an action itself evokes a waiver of a defendant's right to be tried in the county of his residence, 77 Am.Jur.2d, Venue, § 47; 92 C.J.S. Venue § 216, appellant correctly argues that the filing of an answer to an action in this State does not constitute such a waiver. Brown v. Palmetto Baking Co., 220 S.C. 38, 66 S.E.2d 417 (1951); Witherspoon v. Spotts and Company, 227 S.C. 209, 87...