{
  "id": 8524473,
  "name": "CLAUDE F. SMITH, JR. v. JOSEPH Y. MARINER and MARY ANNE B. MARINER",
  "name_abbreviation": "Smith v. Mariner",
  "decision_date": "1985-10-29",
  "docket_number": "No. 8520SC288",
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  "casebody": {
    "judges": [
      "Judges Arnold and Martin concur."
    ],
    "parties": [
      "CLAUDE F. SMITH, JR. v. JOSEPH Y. MARINER and MARY ANNE B. MARINER"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nPreliminarily we note that appellant is appealing from an interlocutory order, but since she is appealing from the denial of a change of venue as a matter of right pursuant to G.S. 1-76(4), her appeal is not premature. Klass v. Hayes, 29 N.C. App. 658, 225 S.E. 2d 612 (1976); see also DesMarais v. Dimmette, 70 N.C. App. 134, 318 S.E. 2d 887 (1984).\nG.S. 1-76 provides in pertinent part:\nActions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated ... (4) Recovery of personal property when the recovery of the property itself is the sole or primary relief demanded.\nAppellant argues that the recovery of the stock certificates is the sole or primary relief demanded in plaintiffs complaint; therefore, under G.S. 1-76(4), the action must be tried in Mecklenburg County where the stock certificates are located. We disagree.\nThe facts of the present case are remarkably similar to those of Davis v. Smith, 23 N.C. App. 657, 209 S.E. 2d 852 (1974). In that case, the plaintiff sought specific enforcement of an agreement in which the defendant was obligated to sell to the plaintiff his stock in a corporation if the defendant were discharged for unsatisfactory performance of his duties as president and general manager of the corporation. Defendant, contending that G.S. 1-76(4) required the action to be tried in the county where the stock certificates were located, filed a motion for a change of venue pursuant to G.S. 1-83(1). In affirming the denial of the motion, we observed that stock certificates, while tangible personal property, were merely tangible evidence, or symbols, of the shares they represent. For that reason and policy reasons, we concluded that stock certificates were not the kind of personal property which would require a change of venue under G.S. 1-76(4) and G.S. 1-83(1). We held that the action for the recovery of the stock certificates was incidental to the specific performance action for the recovery of the stock itself. Accord, Klass v. Hayes, supra. We agree with the reasoning of the opinion in Davis v. Smith and find it to be controlling in the present case.\nAppellant also contends that the court erred in failing to remove the action to Mecklenburg County pursuant to G.S. 1-83 (2). She argues that since all of the witnesses except plaintiff, and all of the attorneys reside in Mecklenburg County, the convenience of witnesses and the ends of justice would be better served if the matter were tried in Mecklenburg County rather than in Richmond County, one hour and thirty minutes away. It is well settled that a court\u2019s decision upon a motion for a change of venue pursuant to G.S. 1-83(2) will not be disturbed absent a showing of a manifest abuse of discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E. 2d 438 (1961); Construction Co. v. McDaniel, 40 N.C. App. 605, 253 S.E. 2d 359 (1979). In the absence of a showing that the ends of justice demand a change of venue, or that the denial of the motion will deny appellant a fair trial, we find no abuse of discretion by the trial court.\nAppellant lastly contends that the court erred in failing to make findings of fact in ruling upon the motion. A trial court, however, is required to make findings of fact in deciding a motion only when requested by a party. N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) of the Rules of Civil Procedure. We can find no such request in this record.\nThe order appealed from is\nAffirmed.\nJudges Arnold and Martin concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Waggoner, Hamrick, Hasty, Monteith, Kratt, Cobb & McDonnell, by James D. Monteith, for plaintiff.",
      "Richard F. Harris, III for defendant Mary Anne B. Mariner."
    ],
    "corrections": "",
    "head_matter": "CLAUDE F. SMITH, JR. v. JOSEPH Y. MARINER and MARY ANNE B. MARINER\nNo. 8520SC288\n(Filed 29 October 1985)\n1. Appeal and Error \u00a7 6.3; Venue \u00a7 9\u2014 denial of venue change as matter of right \u2014 appeal not premature\nAppeal from the denial of a motion for change of venue as a matter of right pursuant to G.S. 1-76(4) was not premature.\n2. Venue \u00a7 5\u2014 recovery of stock certificates \u2014change of venue not required\nStock certificates are not the kind of personal property which would require a change of venue under G.S. 1-76(4) and G.S. 1-83(1) to the county where the certificates are located.\n3. Venue \u00a7 8\u2014 change for convenience of witnesses and ends of justice \u2014 insufficient showing\nDefendant failed to show that the convenience of the witnesses and the ends of justice required the trial court to change venue from Richmond County where plaintiff resided to Mecklenburg County where all the attorneys and all the witnesses except plaintiff resided. G.S. 1-83(2).\n4. Rules of Civil Procedure \u00a7 52\u2014 ruling on motion \u2014necessity for findings\nThe trial court is required to make findings of fact in ruling upon a motion only when requested by a party. G.S. 1A-1, Rule 52(a)(2).\nAppeal by defendant Mary Anne B. Mariner from Helms, Judge. Order entered 8 October 1984 in RICHMOND County Superior Court. Heard in the Court of Appeals 17 October 1985.\nPlaintiff instituted this action alleging that he entered into an agreement with defendant Joseph Y. Mariner in which they agreed that plaintiff would provide funds to defendant Joseph Mariner to enable Mariner to purchase stock in Ruddick Corporation. He also alleged that the stock was to be registered in the name of defendant Joseph Mariner, subject to an agreement that the stock would be transferred to plaintiff or his nominees on demand or upon the termination of the employment of Mariner by Ruddick Corporation or its subsidiaries. Plaintiff further alleged that defendants have refused his demand for the stock certificates. In his prayer for relief, he sought to recover stock certificates purchased by defendants under the terms of the agreement; to require defendants to render an accounting; to recover the fair market value of any shares of Ruddick Corporation stock purchased pursuant to the agreement and sold or otherwise disposed of by defendants; and to restrain defendants from disposing of the stock.\nDefendants filed separate answers and separately moved, pursuant to N.C. Gen. Stat. \u00a7\u00a7 1-76(4), 1-83(1) & (2) (1983), and N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) of the Rule.s of Civil Procedure, for a change of venue to Mecklenburg County, where both defendants resided and where the stock certificates were located. The court denied the motions for change of venue. From the denial of her motion, defendant Mary Anne B. Mariner, the wife of defendant Joseph Mariner, appealed.\nWaggoner, Hamrick, Hasty, Monteith, Kratt, Cobb & McDonnell, by James D. Monteith, for plaintiff.\nRichard F. Harris, III for defendant Mary Anne B. Mariner."
  },
  "file_name": "0589-01",
  "first_page_order": 621,
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}