Osborne v. Redwood Mountain

• Court: Court of Appeals of North Carolina
• Decided: December 15, 2020
• Docket: 20-186
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA20-186

Filed: 15 December 2020

Wilkes County, No. 19 CVS 184

BROWN OSBORNE and wife, JENNIFER OSBORNE, Plaintiffs,

v.

REDWOOD MOUNTAIN, LLC, Defendant.

Appeal by defendant from order entered 18 October 2019 by Judge Michael D.

Duncan in Wilkes County Superior Court. Heard in the Court of Appeals 20 October

2020.

Joines & James, P.L.L.C., by Timothy B. Joines and Carmen James, for plaintiffs-appellees.

THB Law Group, by Brian W. Tyson, for defendant-appellant.

ZACHARY, Judge.

Defendant Redwood Mountain, LLC, appeals from an order denying its motion

for change of venue. After careful review, we affirm in part and dismiss in part.

I. Background

Plaintiffs Brown and Jennifer Osborne (“the Osbornes”) brought this action to

establish their right to use a roadway that crosses the property of Defendant Redwood

Mountain, LLC (“Redwood”) in order to access their property, and to enjoin Redwood

from further interfering with their use of the roadway. The Osbornes own land in

Wilkes and Alexander Counties; Redwood also owns land in Wilkes and Alexander OSBORNE V. REDWOOD MOUNTAIN, LLC

Opinion of the Court

Counties, adjacent to the Osbornes’. There is some dispute between the parties as to

whether the roadway at issue lies entirely in Wilkes County, or runs through Wilkes

and Alexander Counties.

A.

In 2002, the Osbornes filed suit against Almedia Myers and Darryl and Sharon

Little, seeking a declaratory judgment that the Osbornes had “an appurtenant

easement and right of way for ingress, egress, and regress over the existing roadway”

to the real property that they purchased in 1977 and 1978. The Osbornes then

amended their complaint to reflect that (1) the Littles had conveyed their interest in

the property to Charles and Blair Craven, who were the current record owners of the

portion of the land previously owned by the Littles; and (2) in 2003, the Cravens

granted the Osbornes an easement across their property over the existing roadway.

On 9 April 2003, the Osbornes filed a voluntary dismissal of the action against the

Littles and Cravens, leaving Myers as the sole defendant.

Myers failed to file any responsive pleadings, and on 10 April 2003, the Wilkes

County Clerk of Superior Court entered default against her. On 2 September 2003,

this matter came on for trial before the Honorable Andy Cromer. The trial court

entered judgment (the “2003 Judgment”) in favor of the Osbornes, setting forth the

metes and bounds description of the easement, and finding in part that the “roadway

[wa]s located entirely in Wilkes County, North Carolina.”

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B.

In June 2018, Redwood purchased real property adjacent to the Osbornes’, and

erected a gate across the roadway. After that gate was removed, Redwood erected a

second gate across the roadway. On 15 February 2019, the Osbornes filed a complaint

in Wilkes County Superior Court alleging that Redwood had obstructed their access

to the easement provided in the 2003 Judgment. The Osbornes asked that the court

enjoin Redwood from interfering with their use of the roadway, and enter “a

declaratory judgment that the [Osbornes] have . . . a valid prescriptive easement

across the” roadway, or, in the alternative, order that the Osbornes have the right to

use the roadway by virtue of a prescriptive easement, and enjoin Redwood from

interfering with their use of the roadway.

On 7 May 2019, Redwood filed a motion to change venue pursuant to Rule

12(b)(3) of the North Carolina Rules of Civil Procedure. Specifically, Redwood sought

to transfer the case from Wilkes County to Alexander County, where it alleges some

portion of the roadway is located, as well as much of Redwood’s 81-acre tract. On 7

October 2019, Redwood’s motion came on for hearing in Yadkin County Superior

Court before the Honorable Michael D. Duncan. By order entered 18 October 2019,

the trial court denied Defendant’s motion.

Redwood timely filed notice of appeal.

II. Interlocutory Jurisdiction

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Both parties recognize that the instant appeal is interlocutory, as it “does not

dispose of the case, but leaves it for further action by the trial court in order to settle

and determine the entire controversy.” Veazey v. Durham, 231 N.C. 357, 362, 57

S.E.2d 377, 381 (1950). The “[d]enial of a motion for change of venue as a matter of

right under N.C. Gen. Stat. § 1-76, although interlocutory, is directly appealable.”

Fox Holdings, Inc. v. Wheatly Oil Co., 161 N.C. App. 47, 51, 587 S.E.2d 429, 432

(2003); accord First S. Sav. Bank v. Tuton, 114 N.C. App. 805, 807, 443 S.E.2d 345,

346, disc. review denied, 338 N.C. 309, 452 S.E.2d 309 (1994); Pierce v. Associated

Rest & Nursing Care, Inc., 90 N.C. App. 210, 211, 368 S.E.2d 41, 42 (1988).

Accordingly, this appeal is properly before us.

III. Standard of Review

This Court has articulated a two-step analysis for review of issues of venue.

“The first step is determining the proper venue for a case, which is based upon the

substantive statute for the particular type of claim. This determination of proper

venue under the substantive statute presents a question of law which is reviewed de

novo.” Zetino-Cruz v. Benitez-Zetino, 249 N.C. App. 218, 225, 791 S.E.2d 100, 105

(2016) (italics omitted). The next step is “determining whether a change of venue is

appropriate under the procedural statute regarding changes of venue, which in this

instance appears to be N.C. Gen. Stat. § 1-83.” Id.

IV. Motion to Change Venue

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The sole issue on appeal is whether the trial court erred in denying Defendant’s

motion to change venue pursuant to Rule 12(b)(3) of our Rules of Civil Procedure.

Rule 12(b)(3) provides that “[e]very defense, in law or fact, to a claim for relief in any

pleading . . . shall be asserted in the responsive pleading thereto if one is required,

except that the following defenses may at the option of the pleader be made by motion:

. . . [i]mproper venue or division[.]” N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) (2019).

“Venue” is defined as “the proper or a possible place for a lawsuit to proceed,

usually because the place has some connection either with the events that gave rise

to the lawsuit or with the plaintiff or defendant.” Stokes v. Stokes, 371 N.C. 770, 773,

821 S.E.2d 161, 163 (2018) (quoting Venue, Black’s Law Dictionary (10th ed. 2014)).

It follows that “[t]he authority . . . to remove a cause instituted in a county which is

not the proper one . . . is the power to change the place of trial.” Lovegrove v.

Lovegrove, 237 N.C. 307, 309, 74 S.E.2d 723, 725 (1953) (internal quotation marks

omitted).

It has long been understood that venue is regulated by statute. See Interstate

Cooperage Co. v. Eureka Lumber Co., 151 N.C. 455, 456, 66 S.E. 434, 435 (1909) (“The

venue of civil actions is a matter for legislative regulation, and is not governed by

the rules of the common law.”). Indeed, for certain causes of action the appropriate

venue is designated by statute. See, e.g., N.C. Gen. Stat. § 1-78 (“All actions against

executors and administrators in their official capacity, except where otherwise

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provided by statute, and all actions upon official bonds must be instituted in the

county where the bonds were given, if the principal or any surety on the bond is in

the county; if not, then in the plaintiff’s county.”); Id. § 1-81 (“In all actions against

railroads the action must be tried either in the county where the cause of action arose

or where the plaintiff resided at that time or in some county adjoining that in which

the cause of action arose, subject to the power of the court to change the place of trial

as provided by statute.”).

However, there are specific venue statutes for only a limited number of actions;

thus, it is well established that “all civil actions are governed by venue statutes of

general application, see N.C. Gen. Stat. §§ 1-82 through 1-84, unless subject to a venue

statute of more specific application.” Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26,

31, 780 S.E.2d 175, 180 (2015) (emphasis added).

N.C. Gen. Stat. § 1-83, which serves as the procedural basis for Redwood’s

motion to change venue, addresses the trial court’s obligation to transfer an action to

the proper venue upon timely motion:

If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court.

The court may change the place of trial in the following cases:

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(1) When the county designated for that purpose is not the proper one.

N.C. Gen. Stat. § 1-83(1). If the county where the suit is filed is improper, “the trial

court does not have discretion, but must upon a timely motion and upon appropriate

findings transfer the case to the proper venue.” Cheek v. Higgins, 76 N.C. App. 151,

153, 331 S.E.2d 712, 714 (1985) (emphasis added).

Here, the issue presented involves the Osbornes’ access to a roadway easement.

Hence, the applicable specific substantive venue provision is N.C. Gen. Stat. § 1-76,

which provides:

Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by law:

(1) Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.

N.C. Gen. Stat. § 1-76(1).

After careful review, it is evident that Wilkes County is an appropriate venue

for this action. As written, the statute requires that particular real property actions

“must be tried in the county in which the subject of the action, or some part thereof,

is situated.” Id. The parties agree that either all or some portion of the roadway lies

in Wilkes County, and both parties’ properties lie in Wilkes and Alexander Counties.

Moreover, the 2003 Judgment, which was attached as Exhibit A to the Osbornes’

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complaint, found that the easement was located entirely in Wilkes County. The

“subject of the action” is located in Wilkes County, at least in part.

Redwood cites Rose’s Stores, Inc. v. Tarrytown Center for the principle that

“[w]hen the title to real estate may be affected by an action, this Court has

consistently held the action to be local and removable to the county where the land is

situate by proper motion made in apt time.” 270 N.C. 201, 203, 154 S.E.2d 320, 321

(1967). Redwood acknowledges in its brief that the instant action “directly affects [its]

title to the [p]roperty in its entirety.”

However, title to the real property in Wilkes County will also be affected by the

outcome of this case. N.C. Gen. Stat. § 1-76(1) does not provide that proper venue lies

in the county containing more of the subject real property, only that the case “be tried

in the county in which the [real property which is] the subject of the action, or some

part thereof, is situated[.]” (Emphasis added). Wilkes County is a proper county for

trial of this action. Accordingly, we affirm the trial court’s denial of Redwood’s motion.

V. Res Judicata and Collateral Estoppel

Redwood next posits that “[i]n addition to the other arguments as outlined

within this brief, . . . the [Osbornes’] action and Complaint are barred in Wilkes

County based on the doctrines of res judicata and collateral estoppel by judgment.”

However, “[a] contention not raised in the trial court may not be raised for the

first time on appeal.” Creasman v. Creasman, 152 N.C. App. 119, 123, 566 S.E.2d 725,

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728 (2002); see also Rheinberg-Kellerei GMBH v. Vineyard Wine Co., 53 N.C. App.

560, 566, 281 S.E.2d 425, 429 (“This issue was not presented in the pleadings nor

does the record reveal that the issue was raised at trial. [The p]laintiff cannot now

present this theory on appeal.”), disc. review denied, 304 N.C. 588, 289 S.E.2d 564

(1981).

Here, Redwood did not raise its contentions regarding res judicata and

collateral estoppel at the trial level, and they cannot be presented for the first time

on appeal. Because the trial court has not had an opportunity to rule on these

arguments, they are not properly before us, and we dismiss this portion of Redwood’s

appeal.

VI. Conclusion

“While a party has a right to a legally proper venue, a party does not have a

right to a preferred venue.” Stokes, 371 N.C. at 774, 821 S.E.2d at 164. Pursuant to

N.C. Gen. Stat. § 1-76(1), the Osbornes filed the instant action in a proper county.

Accordingly, we affirm the trial court’s order denying Redwood’s motion for change of

venue.

Redwood raises its arguments regarding res judicata and collateral estoppel

for the first time on appeal, and thus we dismiss that portion of its appeal.

AFFIRMED IN PART; DISMISSED IN PART.

Judges MURPHY and COLLINS concur.

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