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Holland v. Gryder

Filed: November 3, 1981.

JOE HOLLAND
v.
MATTHEW D. GRYDER AND DRYMATIC LUMBER SYSTEMS, INC.



Appeal by defendants from Davis, Judge. Judgment entered 14 January 1981 in District Court, Wilkes County. Heard in the Court of Appeals 20 October 1981.

Vaughn, Judge. Judges Hill and Whichard concur.

Vaughn

A ruling on a motion for change of venue is within the sound discretion of the trial judge and is not subjectto reversal absent a manifest abuse of discretion. Construction Co. v. McDaniel, 40 N.C. App. 605, 253 S.E.2d 359 (1979). The issue, therefore, is whether defendants have demonstrated such an abuse of discretion. We conclude they have not.

Although defendants moved for a change of venue pursuant to several provisions of law, the only applicable provision is G.S. 1-83. That statute states that 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.

(2) When the convenience of witnesses and the ends of justice would be promoted by the change.

(3) When the judge has, at any time, been interested as party or counsel.

(4) When motion is made by the plaintiff and the action is for divorce and the defendant has not been personally served with summons."

According to G.S. 1-82, the county in which either party resides is a proper place for the trial to occur. Since plaintiff resides in Wilkes County, G.S. 1-83(1) is inapplicable. G.S. 1-83(3) and (4) likewise fail to apply. There is no evidence that Judge Davis is interested as a party or counsel in this cause, nor is this an action for divorce. We assume, therefore, that defendants moved for a change of venue pursuant to G.S. 1-83(2).

At the hearing on their motion, defendants argued that the contract was formed in Buncombe County, that the alleged performance occurred in Buncombe County, that defendants at trial plan to call seven witnesses from Buncombe County whereas plaintiff plans to call five, and that defendants intend to request a "jury view" of the rejected lumber which is the subject of this controversy and which is located in Buncombe County. Defendants contend that the denial of their motion in the face of factors amounts to an abuse of discretion. We do not agree.

This Court has stated that a trial court does not manifestly abuse its discretion in refusing to change the venue for trial pursuant to G.S. 1-83(2) "unless it appears from the matters and things in evidence before the trial court that the ends of justice will not merely be promoted by, but in addition demand, the change of venue (G.S. 1-85) or that failure to grant the change of venue will deny the movant a fair trial (G.S. 1-84)." Construction Co., Inc. v. McDaniel, 40 N.C. App. at 608-609, 253 S.E.2d at 361. Defendants have failed to produce such evidence.

Defendants additionally argue that the order is an abuse of discretion because Judge Davis' judgment was "clouded" when he denied the motion. Defendants contend that knowledge of Judge Osborne's reason for recusing himself prejudiced Judge Davis against them and will likewise prejudice any ...


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