WILSON MYERS, Administrator of
The ESTATE OF TIMOTHY JAMES
TICKLE, and CYNTHIA MYERS,
vs. Lee County
No. 05 CVS 01092
BILLY BRYANT, Sheriff of Lee
County, North Carolina, and LEE
COUNTY, NORTH CAROLINA,
West & Smith, LLP, by Stanley W. West, for plaintiffs-
Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan and Bradley O. Wood, for defendant-appellant.
A judge of superior court has the inherent discretionary power to order a change of venue ex mero motu when, because of existing circumstances, a fair and impartial trial cannot be had in the county in which the action is pending. (See footnote 1) Here, defendant argues that the trial court erred in granting plaintiffs' motion for change of venue. Because the trial court did not abuse its inherent discretion to order a change of venue, we affirm. On 18 January 2004, Timothy Tickle, age 34, left a half way house in Dunn, North Carolina, and returned to his parents' home in Broadway, North Carolina. On the evening of 19 January 2004, Mr. Tickle's mother, Cynthia Myers, picked her son up from a local service station and took him to the Lee County Jail, which she was obligated to do because his bond required him to be at a treatment facility or in custody. Ms. Myers surrendered her son between 11:30 p.m. and 12:00 a.m. At approximately 2:35 p.m. on 20 January 2004, Mr. Tickle was found not breathing. At 3:45 p.m., Mr. Tickle was pronounced dead as the result of a cardiac arrest while sleeping.
On 19 December 2005, Mr. Tickle's parents, Wilson Myers and Cynthia Myers (Plaintiffs) brought actions for wrongful death and negligent infliction of emotional distress against Billy Bryant (Defendant), formerly the elected Sheriff of Lee County, in his official capacity. Plaintiffs also brought suit against Lee County, but voluntarily dismissed their claims against Lee County on 22 November 2006. On 15 December 2006, the trial court granted Plaintiffs' motion for change of venue and ordered that the case be transferred to Superior Court, Harnett County, North Carolina.
On appeal, Defendant argues that the trial court improperly granted Plaintiffs' motion for change of venue. We disagree. (See footnote 2) In determining venue for an action against a public officer, section 1-77 of our General Statutes provides that:
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:
N.C. Gen. Stat. § 1-77 (2005). Our courts have recognized that
both sheriffs and deputy sheriffs are public officers. Summey v.
Barker, 142 N.C. App. 688, 691, 544 S.E.2d 262, 265 (2001). It is
also well established that a cause of action for wrongful death
arises in the county where the acts or omissions constituting the
basis of the action occurred. Frink v. Batten, _ N.C. App. _, _,
646 S.E.2d 809, 811 (2007).
Thus, section 1-77 establishes Lee County as a proper venue for this action; however, section 1-77 is subject to the power of the court to change the place of trial, in the cases provided by law. (See footnote 3) N.C. Gen. Stat. § 1-77. To that end, Plaintiffs arguethat the trial court had authority to change venue based on N.C. Gen. Stat. §§ 1-83(2) and 1-84, and the trial court's inherent authority to change venue.
Indeed, we have previously held that [i]n addition . . . to the express statutory authority granted in G.S. 1-84, the judge of superior court has the inherent discretionary power to order a change of venue ex mero motu when, because of existing circumstances, a fair and impartial trial cannot be had in the county in which the action is pending. Everett v. Robersonville, 8 N.C. App. 219, 224, 174 S.E.2d 116, 119 (1970) (emphasis added). A motion for change of venue . . . on the ground that a fair and impartial trial cannot be obtained in the county in which the action is pending, is addressed to the sound discretion of the trial court. Id. at 222, 174 S.E.2d at 118.
Defendant argues that there is a lack of existing circumstances on which to base the trial court's transfer of venue. We disagree.
Here, the trial judge made the following findings of fact:
2. Plaintiff Wilson Myers, Administrator of the Estate of Timothy James Tickle, was formerly employed by Lee County Sheriff's Department. As an employee of the Lee County Sheriff's Office, Wilson Myers was assigned duties as a court bailiff. Mr. Myers last worked for the Lee County Sheriff's Office in 2004.
3. Plaintiff Cynthia Myers, mother of Timothy James Tickle and a Plaintiff in this matter, was formerly an employee for a number of years in the Office of the Lee County Clerk of Superior Court, where she served as an Assistant Clerk dealing primarily with Superior Court matters. Mrs. Myers last worked for the Office of the Lee County Clerk of Superior Court in 2003.
4. If this case was tried in Lee County, with the Lee County Sheriff as Defendant, the Lee County Sheriff's Department would be functioning as security and bailiff service to the Court. The bailiffs would have direct contact with potential juror and jurors in the case on a daily basis.
5. The potential jury pool could be prejudicially biased against or for Sheriff of the County if the jurors were summoned from Lee County.
6. Obtaining a jury of twelve (12) fair and impartial people would be difficult, given the parties involved in the case.
The trial court concluded that based on pleadings, deposition testimony, and argument of counsel . . . it would be in the interest of justice and for the benefit of the parties that venue be changed. The trial court then noted that [t]o the extent that Plaintiffs' Motion is inadequately supported, the Court concludes under its inherent discretionary power that a change of venue is appropriate.
In support of their motion to change venue, Plaintiffs presented evidence that Defendant had been the elected Sheriff of Lee County since 1986. Plaintiffs contend that as the former elected Sheriff, it is probable that a jury pool from Lee County would be biased for or against Defendant. Additionally, Plaintiffsnote that the case involves negligence of Lee County Sheriff's Department employees and the Sheriff's Department would be in charge of maintaining the courtroom. Finally, the record shows that Mr. Myers previously worked for the Sheriff's Office and Ms. Myers worked for the Lee County Clerk of Court for twenty years. In light of this evidence, we cannot say that the trial court abused its discretion by changing venue from Lee County to Harnett County. Therefore, we affirm. (See footnote 4)
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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