Chapter 89 Venue

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 89 Venue

A. Introduction

The venue statutes determine the particular county in the state where an action should be litigated.¹ The venue statutes are flexible, and statutory venue may be modified by agreement of the parties, or it may be changed by the court under certain conditions.²

The question of proper venue arises after a court has subject matter jurisdiction over the dispute and personal jurisdiction over the parties. Subject matter jurisdiction, personal jurisdiction, and venue must be carefully distinguished because each has different procedural consequences.³ Subject matter jurisdiction may be raised at any time, even on appeal.⁴ A challenge to personal jurisdiction or improper venue is waived if not asserted within the time limits of Rule 12.⁵ Also, a lack of subject matter or personal jurisdiction over a party voids the judgment.⁶ Improper venue does not.⁷ However, preliminary decisions on subject matter jurisdiction, personal jurisdiction, and venue are not immediately appealable.

B. The General Venue Statute

S.C. Code Ann. § 15-7-30 (Supp. 2018) is the general venue statute for "transitory actions" or those causes of action that can accrue anywhere in the state.⁸ The General Assembly amended Section 15-7-30 in 2005 for causes of action that arise after that date.⁹

There are four major changes to the general venue statute. First, the statute adds an additional venue, the county in which the "most substantial part of the alleged act of omission giving rise to the action occurred."¹⁰ Second, the statute defines and describes the procedure for determining the "principal place of business" for foreign and domestic corporations, limited partnerships, limited liability companies, or limited liability partnerships.¹¹ Third, non-resident individuals and non-resident business enterprises who are not licensed to do business in South Carolina may be sued in the county of plaintiff's residence or principal place of business.¹² Finally, venue is determined at the time the cause of action arose rather than at the time the action is commenced.¹³

As under prior practice, when there are multiple defendants, venue is appropriate in any county where venue is proper as to any defendant.¹⁴ A defendant may move to transfer the matter to the proper venue. The plaintiff then has the right to move to retransfer the matter to a different venue if necessary for the convenience of witnesses and in the interests of justice.¹⁵ Any party may move to transfer venue for the convenience of the parties and witnesses.¹⁶ The parties may also agree to a different venue.¹⁷

1. Entities Subject to the Venue Statute

The venue statute applies to resident individuals, domestic corporations, domestic limited partnerships, domestic limited liability companies, and domestic limited liability partnerships, as defined in the South Carolina Code.¹⁸ In addition, the statute also applies to non-resident individuals, foreign corporations, foreign limited partnerships, foreign limited liability companies, and foreign domestic limited liability partnerships, as defined in the South Carolina Code.¹⁹

The statute does not necessarily list all business organizations. For example, venue for a partnership or an unincorporated association is the county of residence of any one of the named defendant partners.²⁰

2. County Where the Most Substantial Events Took Place

The 2005 venue statute expanded the choice of venue by permitting venue in the county in which the "most substantial part of the alleged act or omission giving rise to the action occurred."²¹ The phrase "most substantial" implies that there is only one such county. The choice is obvious when a single incident gives rise to the cause of action as in an automobile accident, but it may present problems when a business transaction is made in one county and breached in another or the negligence took place in a county different from where a party suffered the injury. Even under this section, a trial court's decision to grant or deny a change of venue remains within the court's sound discretion.²²

3. Definition of "Principal Place of Business"

The "principal place of business" for purposes of establishing the appropriate venue for the specified business enterprises is determined by examining, in sequence, the four types of facilities listed in the statute, and the first statutory definition that matches the defendant's facilities determines the venue. The goal of the statute is to identify the county in which the business entity has the most significant impact.

The first option is the entity's home office or location from which the officers direct or control the business.²³ The emphasis is on operational control by the officers, so it is the executive office rather than where the board of directors meets that is the key element. In the absence of a home office in the state, venue is appropriate at the manufacturing, sales, or purchasing facility in the state.²⁴ This assumes that there is only one such facility. In the event that there are several facilities in the state, the statute seeks to identify the location where the majority of corporate activity takes place. The specific factors to be evaluated in choosing a particular county are the number of employees, the authority of the employees, and the tangible assets.²⁵ The statute specifically states that "owning property and transacting business in a county" is insufficient, by itself, to establish a principal place of business.²⁶ That provision eliminated an expansive basis for venue under the prior statute and case law.²⁷

4. Venue for Individual Defendants - Residents and Non-Residents

Individuals domiciled in South Carolina may be sued in the county of their residence at the time the cause of action arose or in the county where the most substantial events creating the cause of action occurred.²⁸ The choices are in the alternative, so the plaintiff may select either location.

Residence depends upon the intention of the individual and is determined by the facts and circumstances of each case. Residence means the individual's domicile rather than a temporary dwelling place.²⁹ It is determined at the time the cause of action arose.³⁰ Residence is a question of fact, and the trial court's decision is conclusive on appeal unless without supporting evidence. Some of the indicia of residence are the information in a marriage license, supporting affidavits, local tax records, and automobile registration.³¹ Length of time in the new residence is not determinative, provided there is evidence that the individual intended to establish a new residence, moved there, and intended to reside there, even though he returned shortly after the action was commenced.³²

Non-resident individuals may be sued in either the county where the most substantial part of the act or omission giving rise to the claim arose, or, at the plaintiff's option, at the county of residence of the individual plaintiff, or the principal place of business of the listed enterprises.³³ This statute changes the prior rule which permitted a non-resident to be sued in any county.³⁴ In addition, non-resident defendants sued under the long arm statute may now move to transfer venue to a more convenient forum.³⁵

5. Venue for Specified Business Entities

The most significant change in the 2005 venue statute is that it limits the choices of venue for the listed domestic corporations and limited liability partnerships, as well as foreign corporations and limited liability enterprises who are licensed to do business in the state to two locations: the principal place of business and the county where the most significant acts giving rise to the corporation took place.³⁶ Under prior law, a business entity could be sued where it owned property and conducted business.³⁷

Those specified business entities that are foreign and who are required to be licensed in South Carolina, but who do not possess the license, may be sued in three locations: (1) the county where the most significant events leading to liability took place, (2) the principal place of business of the plaintiff at the time the cause of action arose, or (3) the defendant's principal place of business in the state at the time the cause of action arose.³⁸ In all cases, the options for foreign or domestic, licensed or unlicensed enterprises are options from which the plaintiff may choose. Non-resident defendants, including those sued under the long arm statute, however, may move to transfer venue to a more convenient forum.

6. Multiple Defendants

When there are multiple defendants, venue is appropriate in the county of residence of any of the defendants under the statute.³⁹ The statute does not express a preference for the individual's residence over that of the corporation's, and as under the prior statute, either may be selected,⁴⁰ that is, the plaintiff may choose between appropriate venues.⁴¹ Once an action has been properly commenced in an appropriate venue, a defendant does not have the right to move for a transfer under § 15-7-100(A)(1) to his county of residence.⁴² If the defendant in whose county the action is brought is dismissed, the remaining co-defendant may move for a transfer to the county of the remaining defendant's residence.⁴³

There is a preferred venue for some multiparty cases. A resident's venue controls over that of a non-resident defendant or a non-resident corporation that has no officer or agent in the state who may be sued in any county.⁴⁴ Similarly, when a known defendant and an unknown "John Doe" defendant⁴⁵ are joined, the appropriate venue is the residence of the known defendant.⁴⁶ A defendant does not lose the right to venue in the county of residence when the action is consolidated with other related cases pursuant to Rule 42.⁴⁷

The court may disregard a co-defendant's residence for purposes of venue if it finds that the party is a sham defendant named solely to fix venue.⁴⁸ The same principle applies if an...