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Venue--denial of motion for change--relation back rule for plaintiffs
The trial court did not err by denying defendants' motion for change of venue from Wake
County even though none of the original parties to the action were residents of Wake County,
because: (1) plaintiffs filed an amended complaint adding plaintiffs as a matter of right prior to
any responsive pleadings filed by defendants and alleged they were residents of Wake County;
and (2) N.C.G.S. § 1A-1, Rule 15(c) allows the addition of plaintiffs in the amended complaint to
relate back to the filing of the original complaint when the claims are virtually identical to the
original plaintiffs' claims.
Roberts & Stevens, P.A., by Mark C. Kurdys; Marler Clark,
L.L.P., P.S., by William D. Marler, for plaintiff-appellees.
Young Moore and Henderson P.A., by Walter E. Brock, Jr., for
defendant-appellants.
WYNN, Judge.
Under Section 1-82 of the North Carolina General Statutes, an
“action must be tried in the county in which the plaintiffs or thedefendants . . . reside at its commencement[.]”
(See footnote 1)
Here, Defendants
argue that venue in Wake County was improper because none of the
original parties to the action were residents of Wake County.
Because the action was amended as a matter of right
(See footnote 2)
adding
Plaintiffs who are residents of Wake County, we hold the trial
court did not err in denying Defendants' motion to change venue.
On 17 December 2004, Plaintiffs Timothy and Kellie Baldwin,
individually and as Guardians ad Litem for Mathew Baldwin; Keith
and Jennifer Chauvin, individually and as Guardians ad Litem for
Cameron and Luke Chauvin; Jayson and Wendy Ennis, individually and
as Guardians ad Litem for Chad Ennis; filed a complaint against
Defendants Jason Wilkie and Crossroads Farm Petting Zoo.
(See footnote 3)
None of
the original Plaintiffs to the action were residents of Wake
County.
On 13 January 2005, Defendants filed a motion to change venue.
On 24 January 2005, Plaintiffs filed a first amended complaint
adding Chad and Amanda Church, individually and as Guardian ad
Litem for Carter Church, as plaintiffs. The first amended
complaint alleged that the Churches were residents of Wake County,
North Carolina.
Plaintiffs filed a second amended complaint adding
Todd and Jennifer Shy, individually and as Guardian ad Litem for
William Shy; Terry and Laura Perrigo, individually and as Guardianad Litem for Terra Perrigo; Mike and Vickie McGee, individually and
as Guardian ad Litem for Carson McGee; and Regenia Walden, as
Plaintiffs. The second amended complaint alleged the Shys and
McGees were residents of Wake County.
On 14 April 2005, Defendants filed their answer which
reiterated their motion for change of venue. By order entered 8
August 2005, the trial court denied Defendants' motion for change
of venue. Defendants appeal contending that the trial court erred
in denying its motion for change of venue as Chatham County is the
proper venue.
(See footnote 4)
We disagree.
Section 1-83 of the North Carolina General Statutes which
provides for a change of venue states in pertinent part:
If the county designated for that purpose in
the summons and complaint is not the proper
one, the action may, however, be tried
therein, unless the defendant, before the time
of answering expires, demands in writing that
the trial be conducted in the proper county,
and the place of trial is thereupon changed by
consent of parties, or by order of the court.
The court may change the place of trial in the
following cases:
(1) When the county designated for
that purpose is not the proper one.
N.C. Gen. Stat. § 1-83 (2005). “[T]he trial court has no
discretion in ordering a change of venue if demand is properly made
and it appears that the action has been brought in the wrong
county.” Swift & Co. v. Dan-Cleve Corp., 26 N.C. App. 494, 495,
216 S.E.2d 464, 465 (1975); see also Nello L. Teer Co. v. Hitchcock
Corp., 235 N.C. 741, 743, 71 S.E.2d 54, 55-56 (1952); Centura Bank
v. Miller, 138 N.C. App. 679, 681, 532 S.E.2d 246, 248 (2000);
Miller v. Miller, 38 N.C. App. 95, 97, 247 S.E.2d 278, 279 (1978)
(“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.'”).
Section 1-82 of the North Carolina General Statutes sets out
the method of determining the proper venue, stating in pertinent
part, “the action must be tried in the county in which the
plaintiffs or the defendants, or any of them, reside at its
commencement . . ..” N.C. Gen. Stat. § 1-82 (2005). “A civil
action is commenced by filing a complaint with the court. The
clerk shall enter the date of filing on the original complaint, and
such entry shall be prima facie evidence of the date of filing.”
N.C. Gen. Stat. § 1A-1, Rule 3(a) (2005) (emphasis added).
Therefore, this action was commenced on the date the original
complaint was filed, 17 December 2004.
Here, in the original complaint, Plaintiffs did not allege
that any of the parties to the action were residents of WakeCounty. Therefore, at the time of filing the original complaint,
venue in Wake County was improper. N.C. Gen. Stat. § 1-82.
However, Plaintiffs filed an amended complaint as a matter or
right, prior to any responsive pleadings filed by Defendants, which
included the Churches as Plaintiffs and alleged they were residents
of Wake County, North Carolina. See N.C. Gen. Stat. § 1A-1, Rule
15(a) (2005) (“A party may amend his pleading once as a matter of
course at any time before a responsive pleading is served[.]”).
Plaintiffs argue that Rule 15(c) of the North Carolina Rules of
Civil Procedure allows the addition of a Wake County resident as a
plaintiff to relate back to the filing of the original complaint,
thus making venue in Wake County proper. Rule 15(c) provides that:
A claim asserted in an amended pleading is
deemed to have been interposed at the time the
claim in the original pleading was interposed,
unless the original pleading does not give
notice of the transactions, occurrences, or
series of transactions or occurrences, to be
proved pursuant to the amended pleading.
N.C. Gen. Stat. § 1A-1, Rule 15(c) (2005).
Plaintiffs cite to Oak Manor, Inc. v. Neil Realty Co., 88 N.C.
App. 402, 363 S.E.2d 382 (1988), to support their contention that
Rule 15(c) allows the additional parties in the amended complaint
to relate back to the filing of the original complaint. In Oak
Manor, the plaintiff, a corporation whose principal place of
business was in Lenoir County, filed suit in Wake County against
Neil Realty, whose place of business was in Greene County. Id. at
403, 363 S.E.2d at 382. The plaintiff filed an amended complaint
prior to any responsive pleadings and added two additionaldefendants, one of whom had an office in Wake County. Id. Upon
the defendants' motion, the trial court removed the case from Wake
County to Greene County for improper venue. Id. This Court found
that venue in Wake County was proper, as Rule 15(c) allowed the
claims asserted in the amended complaint to be deemed “interposed
at the time the claim in the original pleading was interposed.”
Id., 363 S.E.2d at 383.
However, following Oak Manor, our Supreme Court in Crossman v.
Moore, 341 N.C. 185, 459 S.E.2d 715 (1995), held that Rule 15(c)
“does not apply to the naming of a new party-defendant to the
action. It is not authority for the relation back of a claim
against a new party.” Id. at 187, 459 S.E.2d at 717. While
Crossman clearly held that Rule 15(c) does not apply to the
addition of defendants, we must now examine whether Rule 15(c) will
allow additional plaintiffs to be related back to the original
complaint for purposes of determining proper venue.
In Crossman, our Supreme Court noted that North Carolina Rule
of Civil Procedure 15 “is drawn from the New York Civil Practice
Law and Rules, Rule 203(e).” Id.; accord Pierce v. Johnson, 154
N.C. App. 34, 39, 571 S.E.2d 661, 664 (2002). To support the
holding in Crossman, our Supreme Court noted that the
interpretation was “consistent with the interpretation given a
similar statute in New York.” 341 N.C. at 187, 459 S.E.2d at 717.
Likewise, we too look to the interpretation of the New York statute
on this issue for guidance. In Key Int'l Mfg., Inc. v. Morse/Diesel, Inc., 536 N.Y.S.2d
792, 798, 142 A.D.2d 448, 458 (1988), the court held that “when a
new party plaintiff is joined in order to allow it to assert a
claim on its behalf, its claim will be deemed to have been
interposed as of the time of the interposition by the preexisting
plaintiff of its similar or identical claim.” However, the court
emphasized,
that the rule permitting the claim of a newly
joined plaintiff to relate back to the earlier
claim of a preexisting plaintiff, does not
necessarily extend beyond those situations,
such as this case, [1] where the substance of
the claims of the newly joined plaintiff and
those of existing plaintiff are virtually
identical, [2] where the ad damnum clause is
thus the same in the proposed amended
complaint as in the original complaint, and
[3] where the newly joined plaintiff is
closely related to the original plaintiff.
536 N.Y.S.2d at 798-99, 142 A.D.2d at 458-59.
In this case, the substance of the claims of newly joined
Plaintiffs, the Churches, are virtually identical to original
Plaintiffs' claims. The Churches and original Plaintiffs are
similarly situated as all Plaintiffs were allegedly injured during
a one-week period at the same location. Accordingly, we hold that
the Churches claim are deemed to have been interposed as of the
time of the interposition by original Plaintiffs for purposes of
determining venue.
In sum, as the Churches claim is deemed interposed as of the
filing of the original complaint for purpose of determining venue,
venue in Wake County is proper as the Churches are residents of
Wake County. See N.C. Gen. Stat. § 1-82. We, therefore, affirmthe trial court's order denying Defendant's motion for change of
venue.
Affirmed.
Judges HUDSON and TYSON concur.
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