Appeal by defendants City of Concord and Concord Regional
Airport from orders filed 8 January 2002 and 15 February 2002 by
Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard
in the Court of Appeals 16 April 2003.
Mineo & Crouse, by Robert A. Mineo, for plaintiff appellee.
Robert D. Potter, Jr. for defendant-appellants City of Concord
and Concord Regional Airport.
Cozen O'Connor, by Michael L. Minsker, for defendant-appellee
Robert E. Anderson.
BRYANT, Judge.
The City of Concord and the Concord Regional Airport
(collectively defendants) appeal from orders filed (1) 8 January
2002 denying a motion to transfer this action from Mecklenburg
County to Cabarrus County and (2) 15 February 2002 denying a motion
to reconsider the motion to transfer.
(See footnote 1)
On 10 May 2001, Barry Hulon Hyde (plaintiff) filed a complaintagainst defendants in Mecklenburg County Superior Court, which was
later amended on 6 June 2001. Plaintiff alleged he had suffered
damages from injuries sustained in a plane crash caused by
defendants' negligence. The aircraft in which plaintiff was flying
crashed due to a lack of fuel. Plaintiff alleged defendants had a
duty to refuel the aircraft daily but had failed to do so on the
day of the crash.
Defendants filed their answer on 6 August 2001 and included a
motion to transfer the case to Cabarrus County, the county in which
defendants are located. Defendants argued Cabarrus County was the
proper venue for this action either as a matter of right or, in the
alternative, as a matter of convenience to the witnesses and the
parties. Following a hearing, the trial court denied this motion
and subsequently denied reconsideration of the motion.
_________________________
The dispositive issue is whether defendants, as municipal
entities, are entitled to have this case transferred to Cabarrus
County as a matter of right.
(See footnote 2)
Defendants contend that the trial court erred in denying their
motion to transfer venue. As an initial matter, we note that
although this appeal is interlocutory, it is properly before this
Court as a denial of a motion to transfer venue affects a
substantial right.
Thompson v. Norfolk S. Ry. Co., 140 N.C. App.
115, 121-22, 535 S.E.2d 397, 401 (2000). Actions against publicofficers for acts done by virtue of their office “must be tried in
the county where the cause, or some part thereof, arose.” N.C.G.S.
§ 1-77 (2001);
see Thompson, 140 N.C. App. at 122, 535 S.E.2d at
401. An action against a municipality is an action against a
public officer under N.C. Gen. Stat. § 1-77(2) for purposes of
venue.
Thompson, 140 N.C. App. at 122, 535 S.E.2d at 401;
see
N.C.G.S. § 1-77(2) (2001). Proper venue for actions against
municipalities is, therefore, usually the county in which the cause
of action arose.
See Jarrell v. Town of Topsail Beach, 105 N.C.
App. 331, 332, 412 S.E.2d 680, 680 (1992). Under N.C. Gen. Stat.
§ 1-83(1), the trial court has the power to transfer a trial to
another venue “[w]hen the county designated for that purpose is not
the proper one.” N.C.G.S. § 1-83(1) (2001). “[O]nce [a] defendant
has made a timely motion requesting a change of venue, upon making
the appropriate findings, the [trial] court lacks discretion to
resolve the issue and must transfer the case to the place of proper
venue.”
Thompson, 140 N.C. App. at 122, 535 S.E.2d at 401-02
(citing
Cheek v. Higgins, 76 N.C. App. 151, 153, 331 S.E.2d 712,
714 (1985)).
In this case, plaintiff does not argue either that defendants
are not municipal entities, and thus, section 1-77 does not apply,
see Lee v. Poston, 233 N.C. 546, 547, 64 S.E.2d 835, 836 (1951), or
that venue is controlled by other statutory authority even though
the suit is against a municipality,
see Jarrell, 105 N.C. App. at
333, 412 S.E.2d at 681. Instead, plaintiff contends that refueling
aircraft is a proprietary function and not a governmental function. As such, plaintiff maintains, defendants were not executing the
duties of “a public officer done by him by virtue of his office.”
Plaintiff's position is that the correct test for determining if
section 1-77(2) applies should be whether a municipality is engaged
in a proprietary function or a governmental function. Although we
acknowledge this is the proper test for determining whether a
governmental actor is entitled to sovereign immunity,
see Pierson
v. Cumberland County Civic Ctr. Comm'n., 141 N.C. App. 628, 631,
540 S.E.2d 810, 813 (2000), we discern no basis for applying it to
determinations of venue in suits against a municipality.
North Carolina courts have, in fact, long recognized that by
definition:
since a municipality may act only through its
officers and agents, an action against a
municipality is an action against “a public
officer” within the meaning of the provisions
of [N.C. Gen. Stat. §] 1-77 (2), . . . and
that a proper venue against a municipality is
the county where the cause of action, or some
part thereof, arose, and that if an action
against a municipality be instituted in any
other county the municipality has the right,
upon motion aptly made, to have the action
removed to the proper county.
Godfrey v. Power Co., 224 N.C. 657, 659, 32 S.E.2d 27, 29 (1944);
see Thompson, 140 N.C. App. at 122, 535 S.E.2d at 401-02;
Pitts
Fire Safety Serv., Inc. v. City of Greensboro, 42 N.C. App. 79, 80,
255 S.E.2d 615, 616 (1979);
see also Light Co. v. Commissioners,
151 N.C. 558, 560, 66 S.E. 569, 569-70 (1909) (in reviewing a
denial of a removal motion, it is unnecessary to determine whether
a defendant's actions are administrative or technically
governmental in nature). Because North Carolina case law definesany action against a municipality as an action against a public
officer falling under section 1-77, it is unnecessary to inquire
into whether the municipality was engaged in a proprietary or
governmental function. This reaffirms the general rule that in
actions against municipal defendants, venue exists, as a matter of
right, in the county where the cause of action, or any part
thereof, arose. In the case
sub judice, the cause of action arose
in Cabarrus County, and thus, defendants have a right to have this
action transferred to that venue. Accordingly, the trial court
erred in denying defendants' motion to transfer, and we must
reverse the orders of the trial court and remand this case to be
transferred from Mecklenburg County Superior Court to Cabarrus
County Superior Court.
(See footnote 3)
Reversed and remanded.
Judges TIMMONS-GOODSON and GEER concur.
Footnote: 1