{
  "id": 8552795,
  "name": "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC.",
  "name_abbreviation": "Harrington Manufacturing Co. v. Powell Manufacturing Co.",
  "decision_date": "1979-12-18",
  "docket_number": "No. 796SC295",
  "first_page": "347",
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  "casebody": {
    "judges": [
      "Judges MARTIN (Robert M.) and WELLS concur."
    ],
    "parties": [
      "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant Powell contends that the trial court erred in denying its motion for a change of venue for the reason that it has been \u201cconverted\u201d into the plaintiff in this lawsuit since its counterclaim is the only claim left to be adjudicated, and, therefore, as a matter of right and \u201chistorical choice\u201d, it should choose the forum in which to try its claim. Powell concedes that it has been unable to find any authority to support its position.\nWe turn, then, to an examination of the pertinent sections of our venue statute and find that, at the outset, G.S. \u00a7 1-82 is applicable to this action. It provides in part:\nVenue in all other cases. \u2014In all other cases the action must be tried in the county in which the plaintiffs or the defendants, . . . reside at its commencement, . . .\nClearly, Bertie County, the home of the plaintiff Harrington, is proper for venue, and defedant Powell frankly admits that fact. But, based upon its view of its present position in the suit, Powell argues that it is entitled to a change of venue pursuant to G.S. \u00a7 1-83, which in relevant part provides:\nChange of venue. \u2014If 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, . . .\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 use.\n(2) When the convenience of witnesses and the ends of justice would be promoted by the change.\n(3) When the judge has, at any time, been interested as party or counsel.\n(4) When the motion is made by the plaintiff and the action is for divorce and the defendant has not been personally served with, summons.\n[Emphasis added.]\nDefendant has neither alleged nor argued grounds for removal based on the interest of the judge, or the convenience of witnesses, and, obviously, defendant could not proceed under subsection (4) of \u00a7 1-83. Moreover, in ruling on defendant\u2019s motion below, the judge expressly excluded \u201cany consideration of change of venue for convenience of witnesses and ends of justice, those grounds not being presented by Affidavit or argument.\u201d Even assuming, arguendo, that defendant had based its motion upon such grounds, removal on those grounds is addressed to the sound discretion of the trial judge. Patrick v. Hurdle, 6 N.C. App. 51, 169 S.E. 2d 239 (1969). His decision thereon is not reviewable, except upon a showing of abuse of discretion. Causey v. Morris, 195 N.C. 532, 142 S.E. 783 (1928); Phillips v. Currie Mills, Inc., 24 N.C. App. 143, 209 S.E. 2d 886 (1974).\nThere are no other grounds under the statute upon which defendant can base a successful argument for a change of venue. It concedes that Bertie County is proper under G.S. \u00a7 1-82. Thus, removal as a matter of right from an improper county as provided for in \u00a7 1-83 is not at issue. If defendant\u2019s contention at this time is that Bertie is not proper, a position which could not be sustained, failure to follow the mandates of \u00a7 1-83, by not making such a motion \u201cbefore the time of answering expires,\u201d results in a waiver of defendant\u2019s \u201cright\u201d to a change. Collyer v. Bell, 12 N.C. App. 653, 184 S.E. 2d 414 (1971). Defendant made no motion to remove prior to filing an answer to plaintiff\u2019s complaint. It has, therefore, waived whatever \u201cright\u201d it now seeks to assert. Any motion for change thereafter is addressed to the sound discretion of the court. Defendant does not allege, much less prove, that the court abused its discretion in denying the motion.\nDefendant\u2019s argument that it \u201cshould not be penalized because of the venue statutes\u2019 failure to address venue of compulsory counterclaims in such remote circumstances\u201d is unsupported in law and in logic. Yet, the resolution of this \u201cextraordinarily circuitous\u201d case has been delayed for almost another year. We hold that Bertie County is the proper venue.\nTherefore, the Order of the trial judge denying defendant\u2019s motion for change is\nAffirmed.\nJudges MARTIN (Robert M.) and WELLS concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Pritchett, Cooke & Burch, by W. W. Pritchett, Jr. and Stephen R. Burch, for the plaintiff appellee.",
      "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and William P. Farthing, Jr., for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "HARRINGTON MANUFACTURING COMPANY, INC. v. POWELL MANUFACTURING COMPANY, INC.\nNo. 796SC295\n(Filed 18 December 1979)\nVenue \u00a7 7\u2014 counterclaim only unadjudicated claim \u2014 no removal as a matter of right\nWhere defendant\u2019s compulsory counterclaim is the only claim left to be adjudicated, defendant is not entitled under G.S. 1-83 to a change of venue as a matter of right from the county of plaintiff\u2019s residence to the county of defendant\u2019s residence, since the county of plaintiff\u2019s residence is a proper venue under G.S. 1-82. Furthermore, defendant waived objection to venue by failing to make a motion to remove prior to filing an answer to plaintiff\u2019s complaint.\nAPPEAL by defendant from Peel, Judge. Order entered 26 February 1979 in Superior Court, BERTIE County. Heard in the Court of Appeals on 15 November 1979.\nThis is the third appeal to this Court in this action which was filed, originally, on 12 September 1974 in the Superior Court of Bertie County, whereby plaintiff Harrington sought damages for alleged unfair trade practices by defendant. On 4 November 1974, prior to answering the plaintiff\u2019s complaint, defendant Powell filed an action in the Superior Court of Mecklenburg County asserting a claim against Harrington for unfair trade practices. On 10 January 1975, Powell filed an answer to the Bertie County complaint which it was allowed to amend on 4 November 1975, and in which it asserted numerous defenses and added a counterclaim based on \u201cunfair trade competition.\u201d Thereafter, pursuant to various Orders of the Court of Appeals and the Supreme Court, the complaint filed by Powell in Mecklenburg County was dismissed, with leave to Powell to assert the claims contained therein as a \u201ccompulsory counterclaim\u201d in the Bertie County action. This Powell did on 29 September 1976.\nOn 5 October 1976 plaintiff moved to dismiss defendant\u2019s counterclaims pursuant to Rule 12(b)(6), G.S. \u00a7 1A-1. On 28 January 1977 defendant moved for summary judgment against plaintiff. By a judgment dated 11 May 1977, the trial court allowed both motions, and both parties appealed to this Court. In an opinion reported at 38 N.C. App. 393, 248 S.E. 2d 739 (1978), cert, denied, 296 N.C. 411, 251 S.E. 2d 469 (1979), Judge Parker for the Court affirmed the order granting summary judgment against plaintiff, affirmed the dismissal of three of defendant\u2019s counterclaims and reversed the dismissal of the remaining counterclaim.\nThereafter, on 16 January 1979 (amended 12 February 1979), defendant moved for a change of venue of its counterclaim from Bertie County to Mecklenburg County, contending that it was entitled to the transfer \u201cas a matter of right and . . . within the equitable powers of the Court . . . .\u201d Upon the denial of the motion on 26 February 1979, defendant appealed.\nPritchett, Cooke & Burch, by W. W. Pritchett, Jr. and Stephen R. Burch, for the plaintiff appellee.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and William P. Farthing, Jr., for the defendant appellant."
  },
  "file_name": "0347-01",
  "first_page_order": 375,
  "last_page_order": 378
}
