{ "id": 8352798, "name": "DOROTHY HAWLEY, Plaintiff v. JAMES HOBGOOD, Defendant", "name_abbreviation": "Hawley v. Hobgood", "decision_date": "2005-11-15", "docket_number": "No. COA05-115", "first_page": "606", "last_page": "611", "citations": [ { "type": "official", "cite": "174 N.C. App. 606" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "318 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "889", "parenthetical": "\"[A]n erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which could not be corrected if no appeal was allowed before the final judgment.\"" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520869 ], "year": 1984, "pin_cites": [ { "page": "136", "parenthetical": "\"[A]n erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which could not be corrected if no appeal was allowed before the final judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0134-01" ] }, { "cite": "561 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. 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Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "247 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "279", "parenthetical": "\"The provision in N.C.G.S. \u00a7 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.' \"" }, { "page": "279", "parenthetical": "internal cites omitted" }, { "page": "280" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 95", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11238878 ], "year": 1999, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0176-01" ] }, { "cite": "74 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "pin_cites": [ { "page": "2" } ], "opinion_index": 0 }, { "cite": "158 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "year": 1912, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2004, "pin_cites": [ { "page": "(1)" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "260 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "323 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526372 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0161-01" ] }, { "cite": "269 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551088 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0430-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "216 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1975, "pin_cites": [ { "page": "465" }, { "page": "465" }, { "page": "465" }, { "page": "465" }, { "page": "465" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553688 ], "weight": 5, "year": 1975, "pin_cites": [ { "page": "495" }, { "page": "495" }, { "page": "495" }, { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0494-01" ] } ], "analysis": { "cardinality": 513, "char_count": 10860, "ocr_confidence": 0.752, "pagerank": { "raw": 1.432185742702084e-07, "percentile": 0.6514947396547057 }, "sha256": "6abb281c055b425a8584b9ab0b0d9699fde34dd62f427f0f48fb7830cb0cb086", "simhash": "1:a728dc6f0d2dfa5e", "word_count": 1905 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "DOROTHY HAWLEY, Plaintiff v. JAMES HOBGOOD, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\n\u201c[T]he 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.\u201d Swift & Co. v. Dan-Cleve Corp., 26 N.C. App. 494, 495, 216 S.E.2d 464, 465 (1975). In this case, Defendant timely filed his written Motion for Change of Venue on the basis that the action was filed in the wrong county. As we agree with Defendant, we reverse and remand this case to the trial court.\nOn 14 October 2003, Plaintiff Dorothy Hawley filed a Complaint in Wake County, North Carolina alleging assault, battery, and intentional infliction of emotional distress against Defendant James Hobgood. Ms. Hawley declared in the Complaint that she was a resident of Vance County, North Carolina, and that Mr. Hobgood was a resident of Granville County, North Carolina. All of the events alleged in the Complaint occurred in Granville County, North Carolina.\nOn 18 December 2003, Mr. Hobgood filed his Answer and Motion for Change of Venue. Mr. Hobgood\u2019s third defense was for removal of the action due to improper venue as neither party was a resident of Wake County.\nMs. Hawley submitted requests for discovery, to which Mr. Hobgood partially answered. On 21 July 2004, Ms. Hawley filed a Motion to Compel. On 22 September 2004, Mr. Hobgood filed a Notice of Hearing for Motion to Change Venue. Following the hearing, by Order filed 30 September 2004, the trial court denied Mr. Hobgood\u2019s Motion to Change Venue concluding that \u201cDefendant has waived his right to change venue by his failure to press his Motion[.]\u201d From this Order, Mr. Hobgood appeals.\nPreliminarily, we address Ms. Hawley\u2019s motion to dismiss this appeal because it is interlocutory. Indeed, an order denying change of venue is interlocutory as it does not dispose of the case. See Veazey, 231 N.C. at 361-62, 57 S.E.2d at 381; Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513. But while in general there is no right to appeal from an interlocutory order, there are two exceptions to that rule: (1) when there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, or (2) if delaying the appeal would prejudice a substantial right. See N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2004); Veazey, 231 N.C. at 362, 57 S.E.2d at 381; Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993).\nHere, the trial court made no such certification so we address the question of whether \u201cthe trial court\u2019s decision deprives the appellant of a substantial right which would be lost absent immediate review.\u201d N.C. Dep\u2019t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). In such cases, we may review the appeal under sections 1-277(a) and 7A-27(d)(l) of the North Carolina General Statutes. See id. \u201cThe moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party.\u201d Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513.\nIn her Motion to Dismiss Appeal, Ms. Hawley, cites to Furches v. Moore, 48 N.C. App. 430, 269 S.E.2d 635 (1980) and Kennon v. Kennon, 72 N.C. App. 161, 323 S.E.2d 741 (1984), to support her argument that the denial of a motion to change venue does not affect a substantial right. Both Furches and Kennon addressed motions for change of venue under section 1-83(2) of the North Carolina General Statutes, for the convenience of witnesses. Kennon, 72 N.C. App. at 164, 323 S.E.2d at 743; Furches, 48 N.C. App. 430, 260 S.E.2d 635. Here, Mr. Hobgood\u2019s Motion for Change of Venue was under section 1-83(1) of the North Carolina General Statutes, county designated not proper. N.C. Gen. Stat. \u00a7 1-83(1) (2004). Therefore, Furches and Kennon are inapplicable.\nMotions for change of venue because the county designated is not proper affect a substantial right and are immediately appeal-able. Dixon v. Haar, 158 N.C. 286, 288, 74 S.E. 1, 2 (1912); McClure Estimating Co. v. H. G. Reynolds Co., Inc., 136 N.C. App. 176, 178-79, 523 S.E.2d 144, 146 (1999); DesMarais v. Dimmette, 70 N.C. App. 134, 136, 318 S.E.2d 887, 889 (1984) (\u201c[A]n erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which could not be corrected if no appeal was allowed before the final judgment.\u201d). Accordingly, Ms. Hawley\u2019s Motion to Dismiss Appeal is denied.\nIn his appeal, Mr. Hobgood argues that the trial court erred in denying his Motion for Change of Venue as he did not waive his objection to venue. We agree.\nSection 1-83 of the North Carolina General Statutes provides for a change of venue. Section 1-83 states in pertinent part:\nIf 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 of the court.\nThe court may change the place of trial in the following cases:\n(1) When the county designated for that purpose is not the proper one.\nN.C. Gen. Stat. \u00a7 1-83. \u201c[T]he 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.\u201d Swift & Co., 26 N.C. App. at 495, 216 S.E.2d at 465; see also Nello L. Teer Co. v. The Hitchcock Corp., 235 N.C. 741, 743, 71 S.E.2d 54, 55-56 (1952); Centura Bank v. Miller, 138 N.C. App. 679, 681, 532 S.E.2d 246, 248 (2000); Miller v. Miller, 38 N.C. App. 95, 97, 247 S.E.2d 278, 279 (1978) (\u201cThe provision in N.C.G.S. \u00a7 1-83 that the court \u2018may change\u2019 the place of trial when the county designated is not the proper one has been interpreted to mean \u2018must change.\u2019 \u201d).\n\u201cEvery defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:... (3) Improper venue or division[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (2004). Here, Mr. Hobgood made a written motion in conjunction with his answer to change venue. Therefore, he timely made a written motion to change venue. N.C. Gen. Stat. \u00a7 1-83(1).\n\u201cHowever, since venue is not jurisdictional it may be waived by express or implied consent, and a defendant\u2019s failure to press his motion to remove has been found to be a waiver.\u201d Miller, 38 N.C. App. at 97, 247 S.E.2d at 279 (internal cites omitted). The question then is whether Mr. Hobgood\u2019s nine month delay between filing his Motion to Change Venue and filing Notice of Hearing, is a failure to pursue his motion sufficient to constitute a waiver.\nIn Miller, this Court held that the defendant waived her right to change venue when after a year long delay before the first hearing, she requested a continuance, and then failed to appear at the second hearing. Miller, 38 N.C. App. at 98, 247 S.E.2d at 280.\nIn Swift & Go., this Court held that the defendant did not waive its right to change of venue. Swift & Co., 26 N.C. App. at 495, 216 S.E.2d at 465. The defendant did not pursue its motion for change of venue until the plaintiff filed a motion for sanctions, a delay of four months. Id.\nLike in Swift & Co., Mr. Hobgood timely filed his Motion for Change of Venue, but did not pursue his motion until Ms. Hawley filed a Motion to Compel. But \u201c[t]he fact that it was plaintiffs motion which prodded defendant[] into action is immaterial.\u201d Swift & Co., 26 N.C. App. at 495, 216 S.E.2d at 465. The nine month delay, standing alone, does not constitute an implied waiver by Mr. Hobgood. This case is not analogous to Miller, where the defendant waited a year, filed a motion for a continuance with the court, and then failed to appear. Miller, 38 N.C. App. at 98, 247 S.E.2d at 280. Here, from the record it does not appear that Mr. Hobgood filed any additional motions or requests for continuances with the trial court before filing his Notice of Hearing. As Mr. Hobgood timely filed a demand for change of venue, he was entitled to show that venue was improper. See Swift & Co., 26 N.C. App. at 495, 216 S.E.2d at 465.\nSection 1-82 of the North Carolina General Statutes sets out the method of determining the proper venue, stating in pertinent part, \u201cthe action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement . . . .\u201d N.C. Gen. Stat. \u00a7 1-82 (2004). Ms. Hawley declared in the Complaint that she was a resident of Vance County, North Carolina, and that Mr. Hobgood was a resident of Granville County, North Carolina. Therefore, Wake County was not the proper venue.\nAs 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, here, on remand the trial court must remove the action to the proper county. See Nello L. Teer Co., 235 N.C. at 743, 71 S.E.2d at 55-56.\nReversed and remanded.\nJudges McGEE and GEER concur.\n. An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy. See Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950); Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Allen & Pinnix, P.A., by M. Jackson Nichols and Angela Long Carter, for plaintiff-appellee.", "Lig\u00f3n and Hinton, by George Lig\u00f3n, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "DOROTHY HAWLEY, Plaintiff v. JAMES HOBGOOD, Defendant\nNo. COA05-115\n(Filed 15 November 2005)\n1. Appeal and Error\u2014 appealability \u2014 change of venue for incorrect county denied \u2014 substantial right\nThe denial of a motion for change of venue for filing the action in an incorrect county affects a substantial right and is immediately appealable.\n2. Venue\u2014 nine-month delay between motion to change and hearing \u2014 no waiver\nA motion for a change of venue was not waived by a nine-month delay between the motion and the notice of hearing where plaintiff did not file additional motions or requests for continuances before filing his notice of hearing.\n3. Venue\u2014 action not in county of either party \u2014 improper\nVenue was not proper where neither party was a resident of the county where the action was filed. On remand, the trial court has no discretion; the action must be moved to the proper county.\nAppeal by Defendant from order entered 30 September 2004 by Judge Narley Cashwell in Superior Court, Wake County. Heard in the Court of Appeals 11 October 2005.\nAllen & Pinnix, P.A., by M. Jackson Nichols and Angela Long Carter, for plaintiff-appellee.\nLig\u00f3n and Hinton, by George Lig\u00f3n, Jr., for defendant-appellant." }, "file_name": "0606-01", "first_page_order": 636, "last_page_order": 641 }