Where to File: Venue in North Carolina Civil Cases
The county in which an action is filed and litigated is referred to as the venue. One of the initial determinations made by a plaintiff’s attorney is in which county to file. Where does the plaintiff want it to be filed? Where can it be filed? Where should it be filed? All of these are important questions. Likewise, defense attorneys must also determine whether the venue chosen by the plaintiff is proper.
The North Carolina General Statutes provide the proper venue for civil cases. Certain types of cases have specific venue rules that apply to them. For example:
*In cases concerning real property or in which the recovery of personal property is the primary relief sought, venue is proper in the county where the subject matter is located;
*In cases seeking to recover a deficiency remaining owed after secured personal property is sold to partially satisfy a debt, venue is proper in the county in which the debtor resides or the loan was negotiated;
*In cases seeking recovery of a penalty, a forfeiture imposed by statute, or damages against a public officer for acts done by him by virtue of his office, venue is proper in the county where cause of action arose;
* In cases for recovery on official bonds or against executors and administrators, venue is proper in county where the bond was given if the principal or a surety is located in that county, and if not, in the plaintiff’s county;
* In cases seeking to recover on a construction payment bond, venue is proper in the county where the prime construction contract is performed; and
* In cases filed against corporations formed in another state, venue is proper in any county in which the cause of action arose, or in which the corporation usually does business, or has property, or in which the plaintiffs reside in the following cases:
1. By a North Carolina resident, for any cause of action.
2. By a nonresident of North Carolina in any county where the plaintiff is regularly engaged in carrying on business.
3. By a plaintiff who is not a resident, where the cause of action arose or the subject of the action is situated in North Carolina.
In any other type of civil case, venue is proper in the county where the plaintiff or the defendant resides. If none of the parties resides in North Carolina, then any county the plaintiff chooses is proper. A North Carolina corporation resides wherever its registered or physical office is located, where it maintains a place of business, or if neither of these are applicable, anywhere the corporation regularly does business.
The defendant must raise the issue of improper venue, or it will be waived. In fact, the question of proper venue will be waived if not raised in the defendant’s answer or in a motion made by the defendant prior to filing an answer. When a proper motion to change venue is made by the defendant, the court cannot enter any order affecting the rights of the parties except for an order of removal to the proper county. If the plaintiff’s choice of venue is improper, the court may transfer the case to the proper county or dismiss the action. Courts typically remove the case to a proper county instead of dismissing the action.
The court may also change the venue when the convenience of witnesses and the ends of justice would be promoted by the change, even if the action is already situated in a proper county. If the current venue is proper but inconvenient, the court may transfer the case to a more convenient county. Furthermore, the court may change the venue if the judge has at any time been interested as a party or counsel in the action.
Any order made by the court regarding change of venue as a matter of right is immediately appealable to the Court of Appeals. A court order denying a motion to change venue for convenience is interlocutory and not immediately appealable.
Much thought needs to be put into the venue decision. In many cases, more than one venue is proper. Some cases may be more favorably litigated in one county rather than its next door neighbor. Plaintiffs may prefer one county, while defendants may prefer another. Factors to consider are the proximity to the county, the juror demographics in the county, recent judicial or jury verdicts from the county, and the judicial system’s efficiency in the county. A case can be won or lost before the complaint or answer is filed.