DesMARAIS v. DIMMETTE

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Docket Number

No. 8326SC666

Attorney(S)

Helms, Mulliss and Johnston, by Norvin K. Dickerson, III, for plaintiff appellees. West, Bingham, Delk and Swanson, by Ted G. West, David A. Swanson, and Joseph C. Delk, III, for defendant appellants.

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Smart Summary

Factual and Procedural Background

The plaintiffs filed suit against defendants, including Joel H. Dimmette, individually and in his capacities as executor and trustee of two estates, as well as officers of two corporations. The plaintiffs alleged seven causes of action with ten claims arising from Joel H. Dimmette's conduct as an officer of the corporations and as executor of the estates. They sought money judgments, corporate decrees, an accounting from Joel H. Dimmette as executor of the two estates, and his removal as executor. Joel H. Dimmette had been appointed executor of the two estates in Caldwell County. The plaintiffs obtained a preliminary injunction to maintain the status quo of the corporations, which was extended by consent until trial. The defendants moved to change venue to Caldwell County before filing an answer; the motion was denied. Defendants appealed the denial of their motion for change of venue.

Legal Issues Presented

Whether an interlocutory order denying a change of venue is appealable before final judgment.
Whether an action against an executor in his official capacity must be instituted in the county where the executor qualified, mandating a change of venue to that county.
Whether the defendant waived the right to a change of venue by consenting to a preliminary injunction.

Arguments of the Parties

Plaintiffs' Arguments

The court did not abuse its discretion in denying the motion for change of venue.
The court was not required under G.S. 1-83 to transfer the case to Caldwell County.
Relied on Pushman v. Dameron to argue that an action against an executor may be moved after filing in the county of qualification.
Argued that the defendant waived the right to change venue by consenting to the preliminary injunction.

Defendants' Arguments

The motion for change of venue was timely made before filing an answer, thus no waiver of the defense of improper venue occurred.
Under G.S. 1-78, the case must be instituted in Caldwell County where the executor qualified, so the trial court erred in denying the motion to transfer venue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979)	Interlocutory orders that cause injury if not corrected before final judgment are appealable under G.S. 1-277.	Supported the court's determination that the interlocutory order denying change of venue was appealable.
Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967)	Interlocutory orders causing irreparable injury are appealable.	Reinforced the appealability of the interlocutory order denying change of venue.
Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965)	Erroneous orders denying venue change are appealable.	Confirmed the court's view that the denial of change of venue was appealable.
Klass v. Hayes, 29 N.C. App. 658, 225 S.E.2d 612 (1976)	Appealability of interlocutory orders denying venue changes.	Supported the court's conclusion on appealability.
Stanley v. Miller, 42 N.C. App. 232, 256 S.E.2d 308 (1979)	Actions against executors in official capacity must be instituted in the county of executor's qualification per G.S. 1-78.	Applied to hold that the action should have been filed in Caldwell County.
Pushman v. Dameron, 208 N.C. 336, 180 S.E. 578 (1935)	Actions against executors may be moved to another county after filing in the county of qualification.	Distinguished by the court as inapplicable since the action here was not filed in the proper county.

Court's Reasoning and Analysis

The court first addressed whether the interlocutory order denying the change of venue was appealable. Citing established precedent and statutory authority (G.S. 1-277), the court held that such an order is appealable because denying the right to have the case heard in the proper court causes irreparable injury that cannot be remedied after final judgment.

Next, the court examined the statutory venue requirement under G.S. 1-78, which mandates that actions against executors in their official capacity be brought in the county where the executor qualified. Since Joel H. Dimmette qualified as executor in Caldwell County, the action should have been instituted there. The plaintiffs' attempt to rely on Pushman v. Dameron was rejected because that case involved a motion to transfer after filing in the proper county, whereas here the suit was initially filed in the wrong county.

The court also considered the plaintiffs' waiver argument regarding the preliminary injunction consent. Under Rule 12 of the North Carolina Rules of Civil Procedure, the defense of improper venue is waived if not raised before or with the answer. Because the defendants moved for change of venue before filing their answer, they did not waive the defense.

Consequently, the court concluded that the trial court erred in denying the motion for change of venue and that the case must be transferred to Caldwell County.

Holding and Implications

The court reversed the trial court's denial of the motion for change of venue and remanded the case with instructions to transfer the proceedings to Caldwell County.

The direct effect of this decision is to require that the action against the executor, in his official capacity, be heard in the county where he qualified, as mandated by statute. The decision does not establish new precedent beyond reaffirming existing venue statutes and appealability principles. It clarifies that failure to file in the proper county cannot be cured by subsequent motions to transfer venue and that timely motions preserve venue defenses.

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REBECCA DIMMETTE DesMARAIS, EXECUTRIX AND TRUSTEE OF THE ESTATE OF NANNIE H. DIMMETTE AND EXECUTRIX OF THE ESTATE OF L. E. DIMMETTE AND DULCIE DIMMETTE BARLOW, EXECUTRIX AND TRUSTEE OF THE ESTATE OF NANNIE H. DIMMETTE AND EXECUTRIX OF THE ESTATE OF L. E. DIMMETTE, PLAINTIFFS v. JOEL H. DIMMETTE, INDIVIDUALLY AND AS EXECUTOR AND TRUSTEE OF THE ESTATE OF NANNIE H. DIMMETTE AND AS EXECUTOR OF THE ESTATE OF L. E. DIMMETTE, GREEN MOUNTAIN DEVELOPMENT CORPORATION, FIDELITY INSURANCE AGENCY, INC., AND DIMMETTE REALTY CORPORATION, DEFENDANTS

1. Appeal and Error 6.3 — change of venue denied — order appealable An order denying change of venue was appealable, since an erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which could not be corrected if no appeal were allowed before the final judgment.

2. Executors and Administrators 39 — proper venue in actions against executor — place of executor's appointment Where plaintiffs sought an accounting by defendant as executor of two estates in which he had qualified in Caldwell County, and plaintiffs also sought to have defendant removed as executor of both estates, the trial court erred in denying defendant's motion for change of venue to Caldwell County, since G.S. 1-78 provides that an action against an executor in his official capacity must be instituted in the county in which he qualified.

The defendants appeal from an order denying a change of venue. The plaintiffs alleged seven causes of action composed of ten claims against the defendants. The claims allegedly arose from Joel H. Dimmette's actions as an officer in two corporations and as executor of two estates. The plaintiffs prayed for money judgments and various decrees involving the corporations. They also prayed that Joel H. Dimmette be required to account for his actions as executor of the two estates and that he be removed as executor of the two estates. Defendant Joel Dimmette had been appointed executor of the two estates in Caldwell County.

The plaintiffs filed a motion for a preliminary injunction and defendant Dimmette entered into a consent order in which he agreed to maintain the status quo of the two corporations for a period of 60 days. This order was later extended by consent to the time of trial. Prior to filing an answer, the defendants made a motion to move the case to Caldwell County. After making the motion for a change of venue, defendant Dimmette filed an answer.

The motion for a change of venue was denied. Defendant Dimmette appealed.

WEBB, Judge.

The order denying the motion for change of venue does not dispose of the case. It is an interlocutory order and the first question we face is whether the appeal should be dismissed as premature. See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). Under G.S. 1-277, an interlocutory order which will work injury if not corrected before final judgment is appealable. See Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967). We hold that an erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which could not be corrected if no appeal was allowed before the final judgment. The order in this case denying a change in venue is appealable. Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965) and Klass v. Hayes, 29 N.C. App. 658, 225 S.E.2d 612 (1976).

G.S. 1-78 provides:

"All actions against executors and administrators in their official capacity, except where otherwise 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."

Under this section of the statute, if an action is against an executor in his official capacity, it must be instituted in the county in which he qualified. See Stanley v. Miller, 42 N.C. App. 232, 256 S.E.2d 308 (1979). A part of the relief sought in this case was an accounting by the defendant as executor in two estates in which he had qualified in Caldwell County. The plaintiffs also sought to have the defendant removed as executor of both estates. The action is against the defendant in his official capacity in both estates and it was error not to allow his motion that it be transferred to Caldwell County.

The plaintiffs argue that there has been no abuse of discretion and the court was not required under G.S. 1-83 to remove the matter to Caldwell County. The court in this case had no discretion. G.S. 1-78 says the case "must be instituted" in Caldwell County and the court was required to remove the case to that county. The plaintiffs rely on Pushman v. Dameron, 208 N.C. 336, 180 S.E. 578 (1935), which holds that an action against an executor may be moved to another county after it has been filed in the county in which he was qualified. We do not believe Dameron is precedent for this case. In this case the action was not filed in the county in which the statute requires it to be filed.

The plaintiffs argue that the defendant waived his right to a change of venue by consenting to a preliminary injunction. G.S. 1A-1, Rule 12(b), (g) and (h) provide that a defense of improper venue is waived if it is not made before or as part of a responsive pleading. In this case, the motion for a change of venue was made before the answer was filed. The defendant did not waive this defense.

Reversed and remanded.

Judges HILL and WHICHARD concur.