Klass v. Hayes , 29 N.C. App. 658 ( 1976 )

225 S.E.2d 612 (1976) 29 N.C. App. 658

Jack E. KLASS, Administrator, c. t. a. of the Estate of James L. Moore, Deceased,
v.
Robert G. HAYES and Kannapolis Publishing Company.

No. 7522SC988.

Court of Appeals of North Carolina.

June 16, 1976.

Walser, Brinkley, Walser & McGirt by Gaither S. Walser, Lexington, and Jordan, Wright, Nichols, Caffrey & Hill by Welch Jordan and G. Marlin Evans, Greensboro, for plaintiff-appellee.

E. T. Bost, Jr., and Williams, Willeford, Boger & Grady by John Hugh Williams, Concord, for defendants-appellants.

PARKER, Judge.

Defendants, contending that G.S. 1-76 applies, made their motion as a matter of right. Appeal from a ruling on a motion for a change of venue as a matter of right is not premature. Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965); Cedar Works v. Lumber Co., 161 N.C. 603, 77 S.E. 770 (1913).

Insofar as pertinent to this appeal, G.S. 1-76 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:

* * * * * *

(4) Recovery of personal property when the recovery of the property itself is the sole or primary relief demanded."

Defendants contend that this is an action for recovery of personal property in which recovery of the property itself is the primary relief demanded, that the property is situated in Cabarrus County, and that under G.S. 1-76(4) they are entitled to have the action removed to Cabarrus County. We do not agree.

In Davis v. Smith, 23 N.C.App. 657, 209 S.E.2d 852 (1974), we held that an action for specific performance of a contract to sell plaintiff certain corporate stock was not removable as a matter of right under G.S. 1-76(4) to the county where the stock certificates were located, since the primary relief sought was specific performance of contract rights and recovery of the stock certificates was only incidental to that relief. We find that decision controlling on the present appeal.

Analysis of plaintiff's complaint reveals that this is primarily an action for rescission of a contract, brought on the grounds of mental incapacity of one of the parties and breach of fiduciary obligation on the part of the other. In the alternative, plaintiff seeks damages for breach of the fiduciary duty. The subject of this action, therefore, is a contract which plaintiff seeks to set aside, or, in the alternative, it is a fiduciary relationship which plaintiff alleges existed and was breached and for which he seeks monetary damages. Primarily, plaintiff seeks rescission of the contract, with all that rescission entails by way of placing the parties back into the position they would occupy had the contract never been made. Only if plaintiff establishes his right to rescission will he be entitled to have the estate which he represents restored to a position as stockholder in the defendant corporation, and only then will he be entitled, as an incident to the primary relief sought, to recover shares of stock in defendant corporation and to receive the physical certificates evidencing those shares. Thus, recovery of personal property is neither the sole nor is it the primary relief demanded, and G.S. 1-76(4) is not here controlling.

Venue in this case is controlled by G.S. 1-82 which provides, in pertinent part: "In all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement . ." Under this statute an action by an administrator is property brought in the county where the administrator resides rather than in the county where the decedent lived or in which the administrator qualified. Trust Co. v. Finch, 232 N.C. 485, 61 S.E.2d 377 (1950).

The order appealed from is

Affirmed.

BRITT and CLARK, JJ., concur.