{ "id": 8525301, "name": "TRAVELERS INDEMNITY COMPANY v. BOBBY ALAN MARSHBURN", "name_abbreviation": "Travelers Indemnity Co. v. Marshburn", "decision_date": "1988-09-06", "docket_number": "No. 8710DC1208", "first_page": "271", "last_page": "274", "citations": [ { "type": "official", "cite": "91 N.C. App. 271" } ], "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": "51 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "229 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167805 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/229/0728-01" ] }, { "cite": "108 S.E. 2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1959, "pin_cites": [ { "page": "125" }, { "page": "126" }, { "page": "127" }, { "page": "127" } ], "opinion_index": 0 }, { "cite": "250 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620476 ], "weight": 4, "year": 1959, "pin_cites": [ { "page": "111" }, { "page": "112" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0106-01" ] }, { "cite": "141 S.E. 2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572871 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0332-01" ] }, { "cite": "71 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626827 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0741-01" ] }, { "cite": "346 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358929 ], "year": 1986, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0358-01" ] } ], "analysis": { "cardinality": 406, "char_count": 7495, "ocr_confidence": 0.817, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36691637234448804 }, "sha256": "c967f5e2c176f482051c8d6ea41fa063d758224359529670a19046d68655a4c0", "simhash": "1:032df078667b7c72", "word_count": 1231 }, "last_updated": "2023-07-14T21:33:36.579827+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and JOHNSON concur." ], "parties": [ "TRAVELERS INDEMNITY COMPANY v. BOBBY ALAN MARSHBURN" ], "opinions": [ { "text": "GREENE, Judge.\nThis is an appeal from the trial court\u2019s denial of defendant\u2019s motion for a change of venue pursuant to N.C.G.S. Sec. 1-83 (1983). Plaintiff is a Connecticut Insurance Corporation licensed to do business in North Carolina by the North Carolina Insurance Commission. Defendant is a citizen and resident of Duplin County. Plaintiff filed this action in Wake County.\nPlaintiff presented evidence by affidavit in which its resident supervisor in Raleigh stated that plaintiff \u201cmaintains offices and does business in the State of North Carolina, with a regional office at 3716 National Drive, Raleigh, N.C. 27612.\u201d After hearing the arguments of the parties, the trial judge found that plaintiff did conduct business in Wake County and had a regional office in Raleigh. Therefore, he concluded venue was proper in Wake County and denied defendant\u2019s motion. Defendant appeals.\nThe sole issue before us is whether the trial judge erred in denying defendant\u2019s motion for a change of venue where there was no showing that Wake County was defendant\u2019s principal place of business.\nAs a preliminary matter, we note defendant-appellant did not set out in the record an exception immediately following the judicial action to which his exception was addressed, i.e., the order denying his motion. \u201cExceptions appearing only under purported assignments of error, and not duly noted in the record as required by [Rule 10 of the North Carolina Rules of Appellate Procedure] are ineffective.\u201d State v. White, 82 N.C. App. 358, 360, 346 S.E. 2d 243, 245 (1986). We nevertheless choose to exercise the discretion granted in Rule 2 of our Appellate Rules and consider defendant\u2019s assignment of error because of a change in the applicable venue statute, N.C.G.S. Sec. 1-79, since the appellate courts last addressed this issue. We hold the trial judge did not err in denying defendant\u2019s motion.\nWhen an action is not brought in a proper county the question of removal is not one left to the trial court\u2019s discretion. Nello L. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E. 2d 54 (1952). Rather, upon motion of a party, the action must be removed where it has not been brought in the proper county. Id. Furthermore, an appeal from the refusal of a judge to remove a case to the proper county is not premature. Coats v. Sampson County Mem. Hosp., 264 N.C. 332, 141 S.E. 2d 490 (1965).\nDefendant cites the case of Crain and Denbo, Inc. v. Harris and Harris Const. Co., 250 N.C. 106, 108 S.E. 2d 122 (1959) for the proposition that venue was improper in Wake County. In Crain, our Supreme Court spoke to the issue of the proper county for venue purposes in an action between a resident of North Carolina and a domesticated foreign insurance company. The Court first noted that by complying with the provisions of N.C.G.S. Sec. 58-150, the insurance company acquired the right to sue and be sued in state court under the same rules and statutes applicable to domestic corporations. Id. at 110, 108 S.E. 2d at 125; see also Hill v. Atlantic Greyhound Corp., 229 N.C. 728, 51 S.E. 2d 183 (1949). In determining how to apply this rule, the Court quoted the then applicable version of Section 1-79 which concerns the residencies of domestic corporations for venue purposes:\nFor the purpose of suing and being sued, the residence of a domestic corporation is as follows: (1) Where the registered office of the corporation is located. (2) If the corporation having been formed prior to July 1, 1957 does not have a registered office in this State, but does have a principal office in this State, its residence is in the county where such principal office is said to be located by its certificate of incorporation, or amendment thereto, or legislative charter.\nCrain, 250 N.C. at 111, 108 S.E. 2d at 126.\nThe Court found the insurance company did not fall within either subdivision of Section 1-79. The insurance company did not maintain a registered office in Wake County nor was it required under Section 58-150 to file a statement with the Commissioner of Insurance setting forth its \u201cprincipal or registered office\u201d or \u201cprincipal place of business.\u201d The Court concluded that because the insurance company had no registered or principal office in Wake County, N.C.G.S. Sec. 1-79 did not entitle it as a matter of right to have the action removed to Wake County. Crain, 250 N.C. at 112, 108 S.E. 2d at 127.\nTherefore, the Court relied on the residual venue statute, N.C.G.S. Sec. 1-82, which provides: \u201cIn all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement.\u201d The Court then recognized the general common law rule that in the absence of express statutory authority fixing the residence of a corporation within the State, the residence of a corporation is where its principal office or place of business is located. Crain, 250 N.C. at 112, 108 S.E. 2d at 127. The Court found that since the insurance company had not shown its principal office or place of business was in Wake County, it was further not entitled to have the action tried in Wake County under Section 1-82.\nHowever, since the Crain decision, our General Assembly has amended N.C.G.S. Sec. 1-79. Effective 1 January 1976, the statute now provides:\nFor the purpose of suing and being sued the residence of a domestic corporation is as follows:\n(1) Where the registered or principal office of the corporation is located, or\n(2) Where the corporation maintains a place of business.\n(3) If no registered or principal office is in existence, and no place of business is currently maintained and can reasonably be found, the term \u201cresidence\u201d shall include any place where the corporation is regularly engaged in carrying on business.\nN.C.G.S. Sec. 1-79 (emphasis supplied).\nUnder the amended statute, determining the residence of a domestic corporation no longer includes only the application of the two provisions present in the version that existed when the Supreme Court decided Crain. As noted above, the general rule is that a domesticated foreign corporation is treated like a domestic corporation for venue purposes. Defendant does not dispute that plaintiff is a domesticated foreign insurance corporation by virtue of plaintiffs compliance with N.C.G.S. Sec. 58-150. Therefore, plaintiff is treated as a domestic corporation for venue purposes and Section 1-79 applies.\nThe trial judge specifically found that plaintiff was conducting business-and was maintaining a regional office in Wake County. Defendant did not except to these findings. Plaintiff comes within the provisions of Section 1-79(2) and therefore is a resident of Wake County. Accordingly, venue was proper in Wake County and the trial judge\u2019s decision is\nAffirmed.\nJudges BECTON and JOHNSON concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Gene Collinson Smith, Esq., for plaintiff-appellee.", "Rivers D. Johnson, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "TRAVELERS INDEMNITY COMPANY v. BOBBY ALAN MARSHBURN\nNo. 8710DC1208\n(Filed 6 September 1988)\nVenue \u00a7 2.1\u2014 foreign corporation \u2014 business conducted and office maintained in Wake County \u2014 proper venue\nWake County was the proper venue for an action between plaintiff foreign corporation and defendant resident of Duplin County where plaintiff conducted business and maintained a regional office in Wake County. N.C.G.S. \u00a7 1-79.\nAppeal by defendant from Creech (William, A.), Judge. Judgment entered 17 August 1987 in District Court, WAKE County. Heard in the Court of Appeals 7 April 1988.\nGene Collinson Smith, Esq., for plaintiff-appellee.\nRivers D. Johnson, Jr., for defendant-appellant." }, "file_name": "0271-01", "first_page_order": 299, "last_page_order": 302 }