{ "id": 8522579, "name": "WESLEY D. SNOW v. GWYN YATES and wife, ANITA YATES", "name_abbreviation": "Snow v. Yates", "decision_date": "1990-07-03", "docket_number": "No. 8921SC958", "first_page": "317", "last_page": "322", "citations": [ { "type": "official", "cite": "99 N.C. App. 317" } ], "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": "265 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 831", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554196 ], "year": 1980, "pin_cites": [ { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0831-01" ] }, { "cite": "209 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554288 ], "year": 1974, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0742-01" ] }, { "cite": "154 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "323", "parenthetical": "citation omitted" }, { "page": "324", "parenthetical": "plaintiff's suit for specific performance, asking the court to construe the terms of a lease agreement, is a transitory action" } ], "opinion_index": 0 }, { "cite": "270 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566561 ], "year": 1967, "pin_cites": [ { "page": "206", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0201-01" ] }, { "cite": "368 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "42", "parenthetical": "citation omitted" }, { "page": "42" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523424 ], "year": 1988, "pin_cites": [ { "page": "212", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0210-01" ] }, { "cite": "158 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "634" }, { "page": "635" } ], "opinion_index": 0 }, { "cite": "272 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573745, 8573711 ], "year": 1968, "pin_cites": [ { "page": "504-505" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0503-02", "/nc/272/0503-01" ] }, { "cite": "318 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "888" }, { "page": "889" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520869 ], "year": 1984, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0134-01" ] }, { "cite": "183 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549479 ], "year": 1971, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0353-01" ] }, { "cite": "268 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "471" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "300 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564683 ], "year": 1980, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0715-01" ] } ], "analysis": { "cardinality": 469, "char_count": 9514, "ocr_confidence": 0.749, "pagerank": { "raw": 3.387195426926869e-07, "percentile": 0.8767169437291518 }, "sha256": "5b86053eab3ee7dd867cc2b3ce9c23cc1dd8ff9a889ba4dcf62316b9455c1d7a", "simhash": "1:1e08c434354f0852", "word_count": 1575 }, "last_updated": "2023-07-14T22:38:52.620321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and EAGLES concur." ], "parties": [ "WESLEY D. SNOW v. GWYN YATES and wife, ANITA YATES" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff appeals the trial court\u2019s grant of defendants\u2019 motion for change of venue.\nPlaintiff brought an action in Forsyth County for declaratory relief regarding existence of a lease in which plaintiff is lessee and defendants are lessors. Plaintiff resides in Forsyth County and defendants reside in Ashe County. The lease was executed in Ashe County. The leased property is located in Ashe County. Plaintiff alleged:\nplaintiff met with the defendants and terminated the lease by notice of thirty days or more. . . . the defendants are claiming that the lease is in full force and effect and the defendants have not relet the premises, continuing to demand rent from the plaintiff. . . . An actual . . . controversy exists between the plaintiff and the defendants as to their legal relations in respect to the contract of lease and the rights of the parties can be determined only by a declaratory judgment. [Plaintiff prayed the court for the following relief:] [d]e[c]laring the rights of the plaintiff and the defendants under the contract of lease . . . [declaring that the defendants are not entitled to recover from plaintiff any amounts alleged to be due under the lease from the date of termination . . .\nEmphases added.\nDefendants filed a pre-answer motion to remove the action to Ashe County, pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b). The trial court granted defendants\u2019 motion.\nThe issues are (I) whether the interlocutory appeal of grant of defendants\u2019 motion for change of venue was permissible; (II) whether potential judgment on plaintiff\u2019s complaint directly affects an interest or estate in real property, so that venue is where the property is located; and (III) whether the clerk had authority to transfer the case pending appeal of the court\u2019s grant of the motion for proper venue.\nI\nAs a threshold matter, the parties do not address whether the trial court\u2019s grant of defendants\u2019 motion is immediately appealable. We determine that it is.\nA right to venue established by statute is a substantial right. Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980). When a defendant asserts improper venue in a timely writing, the question of removal is a matter of substantial right, and the court of original venue must consider and determine the motion before it takes any other action. Little v. Little, 12 N.C. App. 353, 355, 183 S.E.2d 278, 279 (1971). An appeal of an order disposing of such a motion is interlocutory because it \u201cdoes not dispose of the case.\u201d DesMarais v. Dimmette, 70 N.C. App. 134, 135, 318 S.E.2d 887, 888 (1984). However, grant or denial of a motion asserting a statutory right to venue affects a substantial right and is immediately appealable. Gardner, at 719, 268 S.E.2d at 471. Immediate appeal prevents \u201cinjury to the aggrieved party which could not be corrected if no appeal was allowed before the final judgment.\u201d DesMarais, at 136, 318 S.E.2d at 889.\nII\nPlaintiff contends that N.C.G.S. \u00a7 1-76 is inapplicable because the judgment to which he is entitled based on his complaint allegations operates in personam and therefore does not directly affect title to the land. We disagree.\nIn case law parlance, when N.C.G.S. \u00a7 1-76 controls an action\u2019s venue, the venue is considered \u201clocal\u201d because the action must be tried in the county which is the situs of land whose title is affected by the action. Thompson v. Horrell, 272 N.C. 503, 504-505, 158 S.E.2d 633, 634 (1968). Conversely, an action is \u201ctransitory\u201d when it does not directly affect title to land and it must be tried in the county in which at least one of the parties resides when plaintiff commences suit. Id., at 505, 158 S.E.2d at 635.\nAn action whose subject is \u201c[Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest . . .\u201d must \u201cbe tried in the county in which the subject of the action, or some part thereof, is situated.\u201d N.C.G.S. \u00a7 1-76(1) (Cum. Supp. 1989) (emphasis added); Pierce v. Associated Rest and Nursing Care, Inc., 90 N.C. App. 210, 212, 368 S.E.2d 41, 42 (1988) (citation omitted) (N.C.G.S. \u00a7 1-76 controls venue for an action whose judgment would affect title to land).\n\u201cIf the county designated ... is not the proper one\u201d defendant may demand in writing removal to the proper county before his time for answering expires. N.C.G.S. \u00a7 1-83 (Cum. Supp. 1989).\n\u201cIn determining whether the judgment sought by plaintiff would affect title to land, the court is limited to considering only the allegations of the complaint.\u201d Pierce, at 212, 368 S.E.2d at 42. To render an action local:\n[t]itle to property must be directly affected by the judgment. ... It is the principal object involved in the action which determines the question, and if the judgment or decree operates directly and primarily on the estate or title, and not alone in personam against the parties, the action will be held local.\nRose\u2019s Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 206, 154 S.E.2d 320, 323 (1967) (citation omitted) (emphasis added).\nA lease vests its lessors with \u201c \u2018an estate or interest\u2019 in real property.\u201d Sample v. Towne Motor Co., Inc., 23 N.C. App. 742, 743, 209 S.E.2d 524, 525 (1974). When a party brings an action that \u201cseeks to terminate [a vested estate or interest in real property] and will require the Court to determine the respective rights of the parties with respect to the leasehold interest,\u201d the action falls within the purview of N.C.G.S. \u00a7 1-76. Id. A suit to terminate a lease is subject to the local venue requirement regardless of whether the complainants are lessors or lessees. Gurganus v. Hedgepeth, 46 N.C. App. 831, 832, 265 S.E.2d 922, 923 (1980). When \u201c[t]he thrust of plaintiff[-lessee]s\u2019 action is to have the court declare that they still hold a leasehold interest in the property . . . such an action falls within [N.C.]G.S. 1-76.\u201d Id.\nWe determine that local venue is proper for this action, for two reasons. First, the \u2018principal object\u2019 of plaintiff\u2019s cause of action is a determination of leasehold estate or interest in real property. According to plaintiff\u2019s allegations, the parties dispute the existence of the lease, and plaintiff would be entitled to the court\u2019s judgment declaring termination of defendants\u2019 lessor interest. It is irrelevant that the thrust of plaintiff\u2019s action is to have the court declare the nonexistence of his leasehold interest, rather than its existence. Our focus is on the effect of the potential judgment on the estate or interest and not on the manner in which the parties achieve the effect. The court\u2019s judgment adjudicating the existence or nonexistence of the lease will directly and primarily affect defendant-lessors\u2019 vested interest in the leasehold. Dispute over the existence of a lease substantively differs from a case in which the parties request the court to sort out their obligations either pursuant to a continuing lease or after they terminate the lease. See Rose\u2019s Stores, at 206, 154 S.E.2d at 324 (plaintiff\u2019s suit for specific performance, asking the court to construe the terms of a lease agreement, is a transitory action). In such a case, title is not in question.\nSecond, it is irrelevant that judgment will operate in personam if judgment also directly affects title to the property. According to the criteria in our Supreme Court\u2019s Rose\u2019s Stores decision, an action will be transitory only if judgment operates \u201calone\u201d in per-sonam against the parties and not directly on an estate or title. Therefore, we determine that the court was correct in ordering removal to local venue.\nIll\nOur determination that the trial court correctly granted defendants\u2019 motion to remove for proper venue renders unnecessary our review of plaintiff\u2019s argument that plaintiff\u2019s appeal stayed the superior court clerk\u2019s transfer of the case to Ashe County pursuant to the trial court\u2019s order for removal. See N.C.G.S. \u00a7 1-87 (Cum. Supp. 1989).\nAffirmed.\nJudges WELLS and EAGLES concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Littlejohn & Dummit, by Karin Bruce Littlejohn, for plaintiff-appellant.", "Kilby & Hodges, by Sherrie R. Hodges, for defendant-appellees." ], "corrections": "", "head_matter": "WESLEY D. SNOW v. GWYN YATES and wife, ANITA YATES\nNo. 8921SC958\n(Filed 3 July 1990)\n1. Appeal and Error \u00a7 126 (NCI4th)\u2014 motion for change of venue \u2014 immediately appealable\nThe grant of defendants\u2019 motion for a change of venue was immediately appealable because the grant or denial of the motion asserting a statutory right to venue affects a substantial right.\nAm Jur 2d, Appeal and Error \u00a7 89.\n2. Venue \u00a7 5.1 (NCI3d)\u2014 action involving existence of lease-local venue proper\nThe trial court properly granted defendants\u2019 motion for a change of venue where plaintiff brought an action in Forsyth County for declaratory relief regarding the existence of a lease; plaintiff resides in Forsyth County and defendants reside in Ashe County; the lease was executed in Ashe County; the leased property is located in Ashe County; and the court moved the action to Ashe County. Local venue is proper for this action because the principal object of plaintiff\u2019s cause of action is a determination of leasehold estate or interest in real property; it is irrelevant that the thrust of plaintiff\u2019s action is to have the court declare the nonexistence of his leasehold interest rather than its existence. N.C.G.S. \u00a7 1-76.\nAm Jur 2d, Venue \u00a7 14.\nAppeal by plaintiff from order entered 2 June 1989 by Judge James A. Beaty, Jr. in FORSYTH County Superior Court. Heard in the Court of Appeals 13 March 1990.\nLittlejohn & Dummit, by Karin Bruce Littlejohn, for plaintiff-appellant.\nKilby & Hodges, by Sherrie R. Hodges, for defendant-appellees." }, "file_name": "0317-01", "first_page_order": 347, "last_page_order": 352 }