NO. COA13-1471

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

WALLACE SCOTT KIKER,

 Plaintiff,

 

v. Harnett County

No. 13 CVS 162

CEDRIC JELANI WINFIELD,

 Defendant.

Appeal by defendant from order entered 18 November 2013 by 

Judge James M. Webb in Harnett County Superior Court. Heard in 

the Court of Appeals 22 April 2014.

Bain, Buzzard & McRae, LLP, by Robert A. Buzzard, for 

plaintiff-appellee.

Robert E. Ruegger for defendant-appellant.

STEELMAN, Judge.

Where there was no evidence in the record that plaintiff 

was a resident of Harnett County at the time of the filing of 

this action, the trial court erred in denying defendant’s motion 

for change of venue.

I. Factual and Procedural Background

On 29 March 2010, Wallace Scott Kiker (plaintiff) was a 

passenger in a motor vehicle operated by Cedric Jelani Winfield 

(defendant) in Union County, North Carolina. According to 
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plaintiff’s complaint, defendant was negligent in causing a 

single vehicle collision, which resulted in personal injury to 

plaintiff. On 31 January 2013, plaintiff filed this action, 

seeking monetary damages and attorney’s fees. On 12 August 

2013, defendant filed an answer and motion for change of venue 

pursuant to Rule 12(b)(3) of the North Carolina Rules of Civil 

Procedure, and N.C. Gen. Stat. §§ 1-82 and 1-83. Defendant 

contended that he was a citizen of Union County, and that 

plaintiff was incarcerated in a prison located in Spruce Pine. 

Defendant asserted that since neither party resided in Harnett 

County, that venue in Harnett County was improper, and that the 

case had to be transferred from Harnett County. Defendant also 

moved that the case be transferred from the district court 

division to the superior court division, based upon plaintiff’s 

prayer for monetary relief.

Plaintiff served verified responses to defendant’s First 

Set of Interrogatories. Plaintiff was asked to list his present 

address, along with each address where he had lived for the last

five years. Four of the five addresses listed were in Monroe, 

in Union County, and the fifth was the Mountain View 

Correctional Institution in Spruce Pine. None of these 

addresses were in Harnett County.
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On 18 November 2013, the trial court granted defendant’s 

motion to transfer this action from district court to superior 

court. The trial court denied, without prejudice, defendant’s 

motion for a change of venue from Harnett County.

From the order denying his motion for change of venue, 

defendant appeals.

II. Standard of Review

“The general rule in North Carolina, as elsewhere, is that 

where a demand for removal for improper venue is timely and 

proper, the trial court has no discretion as to removal. The 

provision in N.C.G.S. § 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.’” Miller v. Miller, 

38 N.C. App. 95, 97, 247 S.E.2d 278, 279 (1978) (citations 

omitted).

III. Analysis

Defendant contends that the trial court erred in denying 

his motion for change of venue. We agree.

N.C. Gen. Stat. § 1-82 provides that, in cases such as 

this:

the action must be tried in the county in 

which the plaintiffs or the defendants, or 

any of them, reside at its commencement, or 

if none of the defendants reside in the 
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State, then in the county in which the 

plaintiffs, or any of them, reside; and if 

none of the parties reside in the State, 

then the action may be tried in any county 

which the plaintiff designates in the 

plaintiff's summons and complaint, subject 

to the power of the court to change the 

place of trial, in the cases provided by 

statute[.]

N.C. Gen. Stat. § 1-82 (2013). N.C. Gen. Stat. § 1-83 further 

clarifies that, upon the timely motion of defendant, the trial 

court may transfer venue where it is improper. See N.C. Gen. 

Stat. § 1-83 (2013). We have held that this change of venue is 

not discretionary, but rather is mandatory. Miller, 38 N.C. 

App. at 97, 247 S.E.2d at 279. Where venue is improper, the 

trial court must grant a motion for change of venue.1

In the instant case, the only evidence in the record that 

would suggest that either party was a resident of Harnett County 

was plaintiff’s allegation in his complaint that he was a 

citizen and resident of Harnett County. The complaint in this 

action was not verified. We have previously held that “[a]n 

unverified complaint is not an affidavit or other evidence.” 

 

1 We distinguish this motion for change of venue, based upon the 

residency of the parties, from a discretionary motion for change 

of venue, based upon the convenience of the witnesses. We have 

held that the latter form of the motion for change of venue is 

subject to the trial court’s discretion, and reviewable only for 

an abuse of discretion. See Phillips v. Currie Mills, Inc., 24 

N.C. App. 143, 144, 209 S.E.2d 886, 886 (1974).
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Hill v. Hill, 11 N.C. App. 1, 10, 180 S.E.2d 424, 430 (1971). 

The fact that plaintiff’s complaint was signed by counsel does 

not render it a verified complaint. There is therefore no 

evidence in the record that plaintiff was a resident of Harnett 

County at the commencement of the underlying lawsuit.

Further, in his verified answers to defendant’s 

interrogatories, plaintiff stated the following:

1. State the date and place of your birth, 

your present address, the length of time you 

have lived there, and each address you have 

used for the last five (5) years.

ANSWER: August 4, 1970

Monroe, Union County, North Carolina

Mountain View Correctional Institution, 

Spruce Pine, NC

1814 John Moore Road, Monroe, NC;

1813 Timberlane Drive, Monroe, NC;

2512 Doster Road, Monroe, NC

Plaintiff’s verified responses do not assert that at any 

time in the past five years (which covers the period of time 

going back to the accident) did plaintiff reside in Harnett 

County.

We hold that, in the absence of any evidence that plaintiff 

resided in Harnett County, the trial court erred in denying 

defendant’s motion for change of venue. We vacate the trial 

court’s order denying the motion, and remand with instructions 

for the trial court to transfer this action to Union County.
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VACATED AND REMANDED.

Judge HUNTER, Robert C., concurs.

Judge BRYANT dissents in separate opinion.
NO. COA13-1471

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

WALLACE SCOTT KIKER,

Plaintiff,

v. Harnett County

No. 13 CVS 162

CEDRIC JELANI WINFIELD,

Defendant.

BRYANT, Judge, dissenting.

The majority vacates the trial court’s order denying 

defendant’s motion for change of venue and remands with 

instructions for the trial court to transfer this action to 

Union County. Because I believe the trial court did not abuse 

its discretion in denying defendant’s motion, I must 

respectfully dissent.

North Carolina General Statutes, section 1-82, holds that 

where an action is not based upon real property, “the action 

must be tried in the county in which the plaintiff[] . . . 

reside[s] at its commencement . . . .” N.C. Gen. Stat. § 1-82 

(2013). A motion for change of venue must be granted where it 

is clear that the action has been brought in the wrong county. 

Nello L. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 743, 71 

S.E.2d 54, 55—56 (1952). Where venue is appropriate under 
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N.C.G.S. § 1-82, a trial court’s decision as to whether to 

permit a non-mandatory transfer is reviewed for abuse of 

discretion. Centura Bank v. Miller, 138 N.C. App. 679, 683—84, 

532 S.E.2d 246, 249—50 (2000).

The majority contends the trial court erred in denying 

defendant’s motion because plaintiff failed to provide evidence 

of his residency for venue purposes. Specifically, defendant 

contends, and the majority agrees, that plaintiff failed to 

provide evidence that plaintiff resided in Harnett County at the 

time of filing his complaint. I respectfully disagree. 

The majority reasons that based on Hill v. Hill, 11 N.C. 

App. 1, 10, 180 S.E.2d 424, 430 (1971) (noting that “[a]n 

unverified complaint is not an affidavit or other evidence”), 

there is no evidence in the record that plaintiff resided in 

Harnett County. The majority fails to recognize that the 

complaint was signed by plaintiff’s Harnett County attorney. 

The first allegation in the complaint is: “1. That Plaintiff is 

a citizen and resident of Harnett County.” Pursuant to Rule 11 

of our Rules of Civil Procedure, “[t]he signature of an attorney 

or party constitutes a certificate by him that he has read the 

pleading, motion, or other paper; that to the best of his 

knowledge, information, and belief formed after reasonable 
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inquiry it is well grounded in fact and is warranted by existing 

law[.]” N.C. Gen. Stat. § 1A-1, Rule 11(a) (2013). Further, 

plaintiff’s attorney signed the affidavit of service indicating 

his representation of plaintiff and that service of summons and 

complaint had been completed upon defendant. Although the 

majority is technically correct in describing plaintiff’s 

complaint as “unverified,” the fact remains that plaintiff’s 

counsel signed the complaint indicating that plaintiff’s 

attorney believed plaintiff was a resident of Harnett County at 

the time the complaint was filed and filed an affidavit of 

service as to the complaint. Therefore, the record contains 

some evidence that was before the trial court as to plaintiff’s 

residency at the commencement of the action.2

In its order denying defendant’s motion for change of 

venue, the trial court made no findings of fact, noting only 

that: “The Court having reviewed the Defendant’s motion, 

applicable law and after hearing arguments of counsel, HEREBY 

ORDERS that Defendant’s motion is denied, without prejudice.” 

 

2 Defendant points to an interrogatory in which plaintiff lists 

four Union County addresses, and a present location at the 

Mountain View Correctional Institution in Spruce Pine, as proof 

that venue in Harnett County is inappropriate. However, 

plaintiff answered defendant’s interrogatory on 29 October 2013, 

almost ten months after plaintiff filed his complaint. 
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The record does not contain a transcript of the hearing before 

the trial court. Without a transcript of the hearing, we cannot 

know what transpired during that hearing and it would be 

inappropriate to speculate as to the factors that led to the 

decision of the trial court. 

It is well-established that “an appellate court accords 

great deference to the trial court . . . because it is entrusted 

with the duty to hear testimony, weigh and resolve any conflicts 

in the evidence, find the facts, and, then based upon those 

findings, render a legal decision[.]” State v. Cooke, 306 N.C. 

132, 134, 291 S.E.2d 618, 619—20 (2011). Further, a trial 

court’s decision on whether to permit transfer of venue is 

reviewed for abuse of discretion where it appears that venue is 

appropriate. Centura Bank, 138 N.C. App. at 683—84, 532 S.E.2d 

at 249—50. 

As such, based on the record we do have before this Court, 

where there does exist evidence of plaintiff’s residency in 

Harnett County, I cannot hold that the trial court abused its 

discretion and erred in denying defendant’s motion for change of 

venue. For the reasons stated herein, I would affirm the order 

of the trial court.
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