Appeal by defendants from order entered 7 March 2006 by Judge
Jack A. Thompson in Robeson County Superior Court. Heard in the
Court of Appeals 7 February 2007.
Becton, Slifkin & Bell, by Charles L. Becton and Judith M.
Pope; and Thigpen, Blue, Stephens & Fellers, by Daniel T.
Blue, for plaintiffs-appellees.
Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis, for
defendants-appellants Chris Batten, Columbus County, Alexander
Singletary, and Billy Joe Farmer.
Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Scott C.
Hart, for defendants-appellees Kenneth Sealey, Robeson County,
Terry Harris, Tammy Britt, and Connie Hall.
Defendants Columbus County, Chris Batten (the Columbus County
Sheriff), Alexander Singletary (the Columbus County Jail
Administrator), and Billy Joe Farmer (the Columbus County
Administrator) (collectively, the "Columbus County defendants")
appeal the denial of their motion to transfer venue. This action
arises out of the suicide of Dewayne Devon Frink, which plaintiffs
allege was the result of acts and omissions of the Columbus County
defendants and the defendants employed by Robeson County
(collectively, the "Robeson County defendants").
Under N.C. Gen. Stat. § 1-77 (2005), actions against public
officers "must be tried in the county where the cause, or some part
thereof, arose . . . ." (Emphasis added.) Significantly, in this
case, the defendants come from two counties. As a result, one of
the sets of defendants will be required to litigate the case
outside their home county. While plaintiffs could have filed suit
in Columbus County, we agree with the trial court that plaintiffs'
causes of action arose at least in part in Robeson County and venue
is, therefore, proper in that county. Accordingly, we affirm the
denial of the Columbus County defendants' motion to transfer venue
to Columbus County Superior Court.
Plaintiffs brought this action in Robeson County Superior
Court to recover for the alleged wrongful death of Dewayne Devon
Frink. The named defendants include Robeson County, Columbus
County, and various public officials and employees of therespective counties. In the complaint, plaintiffs allege that the
following events took place.
On 21 April 2003, Frink, the decedent, was taken into custody
at the Columbus County jail and, shortly afterwards, was
transferred to the Robeson County Detention Center pursuant to an
agreement between the two counties. In approximately June 2003,
while housed at the Robeson County facility, Frink began
complaining that his "mind [was] just not right." Over the course
of several weeks, Frink made apparent attempts to commit suicide by
trying to hang himself. Plaintiffs allege that in early July 2003,
officials at the Robeson County facility contacted the Columbus
County jail, explained to their Columbus County counterparts that
Frink was suicidal, and indicated that they wished to return Frink
to Columbus County's custody.
On 7 July 2003, Frink was transported back to the Columbus
County jail by a Columbus County official without his medical
records also being transferred. Upon his arrival at the jail, he
was placed within the general inmate population, which, at that
time, exceeded the jail's capacity by 40 inmates. Frink hung
himself and died in the early morning hours of 9 July 2003.
The Columbus County defendants filed a motion to transfer
venue to Columbus County Superior Court or, in the alternative, to
sever plaintiffs' claims. In a written order, Judge Jack A.
Thompson denied the motion, concluding that severance of the action
was not warranted and that "Robeson County is a proper venue for
the claims asserted against all defendants in this action, pursuantto N.C.G.S. §§ 1-77(2) and 1-83 . . . ." The Columbus County
defendants have appealed the denial of their motion to change
Since the Columbus County defendants argue only that the
motion to transfer venue was wrongly denied and present no argument
regarding their alternative motion to sever plaintiffs' claims, the
sole matter before us is the question of venue. Although the order
denying the motion to change venue is an interlocutory order,
defendants are entitled to immediate appellate review because "a
denial of a motion to transfer venue affects a substantial right."
Hyde v. Anderson
, 158 N.C. App. 307, 309, 580 S.E.2d 424, 425,
disc. review denied
, 357 N.C. 459, 585 S.E.2d 759 (2003).
On appeal, the Columbus County defendants assert a right to
remove the trial to Columbus County under N.C. Gen. Stat. § 1-
Actions for the following causes must be
tried in the county where the cause, or some
part thereof, arose,
subject to the power of
the court to change the place of trial, in the
cases provided by law:
. . . .
(2) Against a public officer or person
especially appointed to execute his
duties, for an act done by him by
virtue of his office; or against a
person who by his command or in his
aid does anything touching the
duties of such officer.
(Emphasis added.) Where, as here, a "defendant, before the time of
answering expires, demands in writing that the trial be conductedin the proper county," N.C. Gen. Stat. § 1-83 (2005), "the court is
given the authority to change the place of trial if 'the county
designated for that purpose is not the proper one.'" Thompson v.
Norfolk S. Ry. Co.
, 140 N.C. App. 115, 122, 535 S.E.2d 397, 401
(2000) (quoting N.C. Gen. Stat. § 1-83(1)).
The Columbus County defendants argue that plaintiffs' causes
of action arose solely in Columbus County because the only tangible
injury in this case _ namely, Frink's death _ occurred in Columbus
County. Not surprisingly, the Robeson County defendants object to
having "the entirety of this case . . . moved to Columbus County."
They contend that "actionable conduct took place in two specific
locations at two specific times i.e., Plaintiff claims the Robeson
County Defendants acted wrongfully while Plaintiff's decedent was
an inmate in the Robeson County Jail, and that the Columbus County
Defendants acted wrongfully while he was an inmate in the Columbus
County Jail." Because "all of the actions alleged against [the
Robeson County defendants] by Plaintiff[s] took place in the course
of their official duties in Robeson County," they argue that venue
is proper in Robeson County.
The Columbus County defendants' argument rests solely on their
contention that an action arises, for purposes of venue, where the
injury occurred. Our courts have, however, long recognized, in
applying § 1-77, a general rule that "'the cause of action arises
in the county where the acts or omissions
constituting the basis of
the action occurred.'" Wells v. Cumberland County Hosp. Sys.,
, 150 N.C. App. 584, 589, 564 S.E.2d 74, 77 (2002) (emphasisadded) (quoting Coats v. Sampson County Mem'l Hosp., Inc.
, 264 N.C.
332, 334, 141 S.E.2d 490, 492 (1965)).
The Columbus County defendants' contention was specifically
rejected in Cecil v. City of High Point
, 165 N.C. 431, 433, 81 S.E.
616, 617 (1914), in which our Supreme Court construed a predecessor
version of N.C. Gen. Stat. § 1-77 that included the same phrase at
issue here: "where the cause of action or some part thereof
The plaintiff in Cecil
was a Davidson County landowner who brought
suit in Davidson County against the City of High Point, a Guilford
County municipality, for the city's sewage discharges in Guilford
County that ultimately injured the plaintiff's lands downstream in
Davidson County. In holding that Guilford County was the proper
venue because that county was where the city's harmful conduct took
place, the Court recognized "that where the cause of an alleged
grievance is situate or exists in one State or county and the
injurious results take effect in another, the courts of the former
have jurisdiction." Id. See also Murphy v. City of High Point
218 N.C. 597, 600, 12 S.E.2d 1, 3 (1940) (where the "alleged
negligent and wrongful acts" of the Guilford County-based
municipality "were committed by the city through its officers and
employees within Davidson County[,] . . . . the cause of action, if
any, 'arose' in [Davidson] [C]ounty"); Wells
, 150 N.C. App. at 589,
564 S.E.2d at 78 (where "plaintiff alleged no acts or omissions in
other locations" except Cumberland County, transfer of venue to
Cumberland County was proper). The Columbus County defendants cite only Morris v. Rockingham
, 170 N.C. App. 417, 612 S.E.2d 660 (2005), in support of
their position. Morris
involved a plaintiff who had sued
Rockingham County and two emergency medical technicians ("EMTs") in
Forsyth County for injuries suffered when the Rockingham County
EMTs negligently unloaded the plaintiff from an ambulance at a
Forsyth County hospital. Consistent with the longstanding rule,
this Court stressed: "The paramedics' official duties brought them
to Forsyth County, and their acts or omissions gave rise to a cause
of action in Forsyth County." Id.
at 420, 612 S.E.2d at 663.
The Columbus County defendants, however, seize on the Court's
further observation in Morris
that any negligence was not
actionable until plaintiff was injured, and the plaintiff's "injury
occurred and the cause of action arose in Forsyth County." Id.
do not believe that the Morris
panel intended to alter the "general
rule" set forth in Wells
especially since the Court stated:
"Moreover, '[a] broad, general rule . . . is that the cause of
action arises in the county where the acts or omissions
constituting the basis of the action occurred.'" Id.
, 264 N.C. at 334, 141 S.E.2d at 492). Indeed, the actual
holding of the Court was: "The cause of action arose in Forsyth
County because 'the acts [and] omissions constituting the basis of
the action occurred' in Forsyth County." Id.
at 421, 612 S.E.2d at664 (alteration in original) (quoting Coats
, 264 N.C. at 334, 141
S.E.2d at 492).
(See footnote 1)
In accordance with the longstanding general rule, the
pertinent question under N.C. Gen. Stat. § 1-77 is the geographical
location of the acts and omissions giving rise to plaintiffs' cause
of action. Moreover, § 1-77, by providing that venue exists "where
the cause, or some part thereof, arose," acknowledges that those
acts and omissions may arise in multiple counties.
Here, the Columbus County defendants do not seriously dispute
that plaintiffs have alleged acts and omissions by the Robeson
County defendants that occurred in Robeson County. Although the
Columbus County defendants contend that the trial court made
inadequate findings of fact, we believe that the court's finding
that acts of negligence began while Mr. Frink was incarcerated in
Robeson County is sufficient to support its ultimate determination
that venue existed in Robeson County under N.C. Gen. Stat. § 1-
(See footnote 2)
In short, even though the complaint also alleges acts and
omissions that occurred in Columbus County, since "some part" of
plaintiffs' cause of action arose in Robeson County, the trial
court appropriately found venue to be proper in Robeson County.
We, therefore, affirm the order denying the motion to change venue.
Judges TYSON and ELMORE concur.