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The Labored Process of Determining Venue

Can a motion to change venue for convenience of the witnesses be filed along with an answer? The Court of Appeals said “yes” on Tuesday in a decision that helps practitioners navigate some confusing issues regarding questions of improper and inconvenient venue.

In a split decision in Stokes v. Stokes, the majority dismissed a plaintiff’s appeal from an order changing venue, while the dissent suggested that the court should have exercised its jurisdiction to reverse the order as untimely.  Yet, all three judges seemed to agree that a motion to change venue is timely if filed with an answer.

In Stokes, the plaintiff mother filed a custody, child support, and equitable distribution action in Union County, where she lived, on October 24, 2016.  Two days later, the defendant father filed his own custody action in Pitt County, where he and the children lived.  On November 9, 2016, the father filed a motion for an emergency ex parte custody order in the Union County action along with a motion to dismiss based on improper venue and, in the alternative, a motion to change venue based on convenience of the witnesses.  This motion contained factual allegations that related to issues other than venue.  The Union County trial court ruled that venue was proper in both Union County and Pitt County but nonetheless ordered that venue be transferred to Pitt County.  The mother sought to appeal from that order.

After resolving questions as to the basis for the order as well as the timeliness of the order, the majority dismissed the mother’s appeal as interlocutory. First, the court looked to see if the order was based on the motion to dismiss for improper venue or the motion to change venue based on convenience.  This distinction was critical because orders resolving assertions of a statutory right to a particular venue affect a substantial right and are immediately appealable.  On the other hand, orders resolving assertions that a venue is inconvenient do not affect a substantial right.  In Stokes, although the trial court’s order was not explicit as to the basis for the transfer of venue, the order did state that venue was proper in both Union County and Pitt County.  Thus, the court concluded that the only possible basis for the order was the convenience of the witnesses.

Second, the court addressed the mother’s claim that the motion was untimely. The change of venue statute provides that motions based on improper venue must be raised before the time of answering expires.  The courts have consistently held that motions to change venue based on convenience, on the other hand, are properly made only after an answer has been filed.  The court concluded that a motion to change venue filed contemporaneously with an answer satisfies this rule.  In doing so, it noted that the trial court’s discretion to change venue for convenience cannot arise until the issues that will be tried are known.  Because the issues become apparent when a party answers the allegations of the complaint, the court’s discretion has vested when a motion is filed contemporaneously with the answer.

The key question then became whether the father’s motion equated to an answer. The trial court had specifically found:

The Defendant filed a written response on November 9, 2016 that was filed within the time for answering and it is a written request of the court to change venue along with other relief requested. The Court finds this is a responsive pleading amounting to an answer and that was timely filed.

Noting that the motion contained “thirty-four allegations listed therein [that] address issues not relevant to the issue of venue,” the majority agreed with the trial court’s characterization of the motion as an answer. Accordingly, the order was timely and the appeal was interlocutory since it did not affect a substantial right.

It was on the question of whether the motion equated to an answer that Judge Murphy dissented, concluding that the motion was not a responsive pleading equating to an answer. He noted that the appellate courts have consistently exercised jurisdiction to reverse an untimely order related to the inconvenience of venue and concluded that the trial court’s order in Stokes must be vacated as untimely.

In evaluating this question, Judge Murphy looked to the Rules of Civil Procedure. He noted that Rule 7(a) defines responsive pleadings as an answer to the complaint, a reply to a counterclaim, an answer to a crossclaim, and similar third-party pleadings.  On the other hand, Rule 7(b)(1) defines a motion as an application to the court for an order.  Because the Rules specifically define the terms “pleading” and “motion” differently, Judge Murphy concluded that they cannot be used interchangeably.  He then pointed to Rule 8’s requirements that pleadings must include a demand for judgment and that parties must admit or deny the averments on which the adverse party relies.  He concluded that the father’s motion in Stokes did not respond to the allegations of the complaint and that this failure was more than a mere Rule 8(b) violation—it was a substantive failure, not a technical failure.

Judge Murphy’s dissent also provides some illustrative examples for the reasoning behind the rule that a motion to transfer for convenience cannot be addressed until the answer is filed and the issues become clear. Using a breach of contract as an example, he noted that the convenient venue could change if the defense were, for example, that there was no breach (place of performance), that there was no contract (place contract was executed), or some other affirmative defense (place where acts relevant to that defense took place).  Judge Murphy concluded:

The Majority’s decision allowing the trial court to transfer venue may eventually be the proper result after a timely consideration in the correct procedural context. However, it was not possible for the trial court to exercise discretion without Defendant first traversing the allegations in Plaintiff’s Complaint.  Admittedly this is a labored method of determining venue, and eventually may result in this case being transferred to Pitt County; but this is not an exercise in form over function, this is an exercise in the potential realities of litigation.

So, while the parties may fight another day regarding the trial court’s order in Stokes, the majority and dissent provide some useful takeaways regarding motions to change venue.  It seems apparent that a defendant can move to change venue for convenience of the witnesses at the same time he or she files the answer.  However, it is best if the motion accompanies an answer that is clearly denominated as such and directly addresses each allegation in the complaint.

–Liz Hedrick

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2 Responses to "The Labored Process of Determining Venue"

  • Jonathan McGirt
    February 24, 2018 - 12:31 pm Reply

    N.C. R. Civ. P. 8(d) provides in part that “[a]verments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” If the trial courts are sua sponte going to be “characterizing” motions to be responsive pleadings, then what happens when a responding party (as in Stokes) files a paper plainly denominated as a “motion,” yet characterized as an “answer,” and that paper fails to deny or otherwise address all of the averments in the initial pleading? An answer typically responds point-by-point to the allegations in a complaint. A review of the motion-answer in Stokes (R pp 8-11) reveals that the “thirty-four allegations” mentioned by the majority are made only in support of the motion for emergency ex parte child custody. While the substance of some of these thirty-four allegations in the motion-answer doubtless overlaps with the allegations relating to child custody claims in the plaintiff-mother’s complaint, defendant-father does not appear to have responded in substance to plaintiff-mother’s additional claims for child support or equitable distribution, (R pp 5-6), except insofar as they are mentioned in his motion to dismiss for improper venue. (R pp 11-13) May plaintiff-mother therefore make a motion for judgment on the pleadings, proceeding to judgment on the unanswered claims? The Stokes rule, then, would appear to be that any responsive motion that overlaps in substance with (or “traverses,” in the language of Stokes) any part of an initial pleading may without notice be deemed to be a responsive pleading, whether that was the filing party’s intent or not. Properly weaponized, this feat of prestidigitation would make a valuable addition to any litigator’s arsenal.–JMc

  • Becky Watts
    April 5, 2018 - 3:16 pm Reply

    For anyone who is interested in keeping up with what is going on here, we did file a notice of appeal to the Supreme Court based on the dissent.

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