An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-530

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2003

KAPLAN COMPANIES, INC., and
GUIDECRAFT USA, INC.,
    Plaintiffs

v .                         Forsyth County
                            No. 01 CVS 3447
STILES MACHINERY, INC., and
ROBERT J. KOSTELNIK,
    Defendants

    Appeal by plaintiffs from order entered 3 January 2002 by Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 30 January 2003.

    Robinson & Lawing, L.L.P., by Norwood Robinson, C. Ray Grantham, Jr., and James R. Theuer, for plaintiffs-appellants.

    Brooks, Pierce, McLendon, Humphrey, & Leonard, L.L.P., by James C. Adams, II, and Elizabeth V. LaFollette, and Moss, Mason & Hill, by Matthew L. Mason, for defendants-appellees.

    CALABRIA, Judge.

    This case arises from the failure of furniture finishing equipment to finish furniture satisfactorily. Kaplan Companies, Inc. (“Kaplan”), a North Carolina corporation, sells furniture to schools. Guidecraft USA, Inc. (“Guidecraft”)   (See footnote 1)  , a New Yorkcorporation, finishes furniture. Stiles Machinery, Inc. (“Stiles”), a Michigan corporation, sells equipment. Before June of 1998, Guidecraft, Kaplan, and Stiles discussed a possible purchase of furniture finishing equipment by Guidecraft from Stiles through its representative Robert J. Kostelnik (“Kostelnik”).
    Pursuant to their negotiations, Guidecraft signed and returned two documents to Stiles entitled “Sales Agreement.” Sales agreement 8691 (“SA 8691") described a Butfering Wide Belt Sander, and sales agreement 8692 (“SA 8692") described a Cefla Ultra Violet Spray Line. Both agreements contained a number of standard terms and conditions, and Guidecraft included the required down payment.
    Guidecraft subsequently entered into a lease with First Union Commercial Corporation (“First Union”) guaranteed by Kaplan for the equipment. Thereafter, First Union sent a letter to Stiles announcing its intention to fund the purchase and requesting that Stiles reflect First Union as the owner/purchaser.
     In December 1998, the equipment used to finish furniture was delivered to and installed at Guidecraft's facilities in Minnesota. Unfortunately, the finishing process resulted in de-lamination and rendered the furniture unfit for sale. Despite a series of over fifteen trips by Stiles' employees from North Carolina to the Guidecraft facility in Minnesota for service between January 1999 and September 2000, efforts to correct the defects were unsuccessful.    On 30 March 2001, Kaplan and Guidecraft (collectively “plaintiffs”) filed a complaint against Stiles and Kostelnik (collectively “defendants”) in the Superior Court of Forsyth County alleging breach of express warranty based on the representations of defendants before the sale and during the period of time the equipment was being serviced; misrepresentation; fraud; negligent repair; wrongful interference with contract; and unfair and deceptive trade practices. Plaintiffs sought punitive, treble, and special damages. Defendants answered on 1 June 2001, defending on numerous grounds, including failure to state a claim upon which relief could be granted and contractual provisions for forum selection   (See footnote 2)  and disclaimer of warranty. On 21 June 2001, defendants moved for judgment on the pleadings or to stay the claims on the grounds that maintenance of the suit in the present forum would work a substantial injustice pursuant to N.C. Gen. Stat. § 1-75.12. Defendants also moved for dismissal on the grounds of improper venue pursuant to North Carolina Rule of Civil Procedure 12(b)(3). On 2 August 2001, the trial court denied the motion to dismiss and converted the motion for judgment on the pleadings to a summaryjudgment motion on the following claims: breach of express warranty, fraud, misrepresentation, and unfair and deceptive trade practices. Summary judgment was denied without prejudice. The trial court granted defendants' motion for judgment on the pleadings as to negligent repair and wrongful interference with contract. Defendants' motion to stay the claims was continued for sixty days. On 3 January 2002, the trial court granted summary judgment for Stiles as to all remaining claims asserted by Guidecraft based upon the forum selection clause in the agreement and granted the motion to stay all of Kaplan's remaining claims against Stiles and all remaining claims of plaintiffs against Kostelnik based upon the finding that maintenance of the suit in North Carolina would work a substantial injustice. Plaintiffs appeal.
    The issues presented to this Court are whether the trial court (I) erred in granting the motion for summary judgment; (II) abused its discretion by granting the motion to stay the claims; (III) erred in granting the motion for judgment on the pleadings for the claims of negligent repair and wrongful interference with contract; and (IV) erred in granting the motion to dismiss on the grounds of the forum selection clause.
I. Summary Judgment
    Plaintiffs assert the trial court erred in granting summary judgment to Stiles on Guidecraft's claims of breach of express warranty, fraud, misrepresentation, and unfair and deceptive tradepractices   (See footnote 3)  because there were material issues of genuine fact as to whether the parties intended the sales agreements to operate as contracts. Plaintiffs contend the sales agreements between Stiles and Guidecraft were merely a means to identify the equipment to be sold to First Union and leased to Guidecraft. Plaintiffs alternatively argue Stiles abandoned any contract executed with Guidecraft. Plaintiffs further argue summary judgment was inappropriate because the trial court had previously denied summary judgment on these causes of action.
    Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). “The rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed.” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). The party moving for summary judgment has the burden of showing that there is no genuine issue as to anymaterial fact. Dixie Chemical Corp. v. Edwards, 68 N.C. App. 714, 715, 315 S.E.2d 747, 749 (1984) (citation omitted).
A. Contract Formation
    Plaintiffs assert the parties did not intend the sales agreements to be contracts. Before we determine whether the parties intended to contract, we must decide which state law controls the issue of contract formation since three states have an interest in this transaction. The trial court determined Minnesota law controlled the issue of contract formation, applied that law, and concluded the sales agreements were contracts between Stiles and Guidecraft.
    The Uniform Commercial Code (“UCC”) provides its own choice of law rule, commonly referred to as the “appropriate relation” test, which modifies the traditional place-of-contractor-performance rule previously applied in this State. Boudreau v. Baughman, 322 N.C. 331, 336, 368 S.E.2d 849, 854 (1988).
        [M]any jurisdictions hold that the appropriate relation test is essentially the same as modern "interest analysis" or "grouping of contacts," which requires the forum to determine which state has the most significant relationship to the case. This approach is most consistent with N.C.G.S. § 25-1-105 Official Comment 3, which seems to contemplate a comparison of "significant contacts" among jurisdictions connected to the case, and . . . a shift away from rigid rules toward a more flexible analysis. We therefore interpret "appropriate relation" to mean "most significant relationship."
Id., 322 N.C. at 338, 368 S.E.2d at 855 (citations omitted).
    In the case at bar, Guidecraft executed the agreements in Minnesota. The equipment was delivered, installed, and intended tobe used in Minnesota. The equipment was, in fact, used in Minnesota at all times. The finishing process and the resulting damage occurred in Minnesota. While North Carolina and Michigan have significant contact with the contract and its subject matter, Minnesota has the “most significant” contact. Therefore, we conclude the trial court correctly determined Minnesota law should be applied to contractual intent at the time of the transaction.
    “In determining contractual intent, the ultimate test or standard of construction is the reasonable meaning of the language used, considered in the light of the surrounding circumstances, and what the parties must reasonably have contemplated.” Hartung v. Billmeier, 243 Minn. 148, 151, 66 N.W.2d 784, 788 (1954).
        A proper administration of justice does not permit an overzealous quest for subtle ambiguity to destroy the intent of the parties when the court, despite some incompleteness and imperfection of expression, can reasonably find that intent by applying the words used, with all their reasonable implications, to the subject matter as the parties themselves, under all the surrounding circumstances, must have applied, used, and understood them.

Id. See also, Cederstrand v. Lutheran Brotherhood, 263 Minn. 520, 533, 117 N.W.2d 213, 222 (1962).
    In the present case, the words used and the surrounding circumstances indicate an intent to form a contract. Pursuant to previous negotiations, Guidecraft completed and returned two sales agreements. These agreements bore Stiles' letterhead, contact information, terms of payment, and a legend stating, “YOUR ORDER IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THE REVERSE SIDE.” The back of both agreements listed a number of clauses entitled“STANDARD TERMS AND CONDITIONS OF SALE,” which included “offer,” “acceptance,” “agreement,” and “contract.” On SA 8691, both the billing and shipping portions were filled out with Guidecraft's information. On the line designated for the customer signature, Kevin Caldwell, the General Manager for Guidecraft, signed and dated the agreement. SA 8692 was substantially identical to SA 8691 and was signed by Stuart Nelson, Vice President of Guidecraft. Handwritten on the face of both agreements were the following directives: “See Notes” and “See Attached Notes;” and Guidecraft enclosed identical separate notes dated 4 June 1998, entitled “Notes for contracts 8691 and 8692" and referring to the “Contract with Stiles Machinery.” These attached notes set out terms additional to the standard provisions in the agreements for the equipment negotiated between Stiles and Guidecraft. Guidecraft mailed the sales agreements and notes to Stiles on 6 June 1998 with a cover letter signed by Caldwell and Nelson and enclosed a 30% down payment according to the payment terms contained in the agreements. Since the expressions and the actions of the parties are fully consistent with the intent to enter a binding contract, Guidecraft cannot argue that the sales agreements are anything other than what they purport to be.
    Plaintiffs point to subsequent invoices listing First Union as the customer; however, those invoices continued to designate Guidecraft as the customer by using Guidecraft's customer number. Moreover, complying with a third-party request made months after the execution of the agreement has no bearing on the intent of theparties at the time of contract formation. The circumstances surrounding the execution of the sales agreements give sufficient indicia of an intent to contract.
B. Abandonment
    Plaintiffs also argue there was a material issue of genuine fact as to whether Stiles abandoned the contract either by the substitution of a contract between Stiles and First Union or by subsequent agreement or conduct following the execution of the agreement. Because we find the sales agreements are valid contracts with terms providing “any action arising out of [the contract] shall be governed by the law of the State of Michigan[,]” the issue of abandonment must be determined by reference to Michigan law. Under Michigan law, “[t]he rights of either party under a contract of sale may be lost by abandonment and become extinguished thereby. A relinquishment in writing is not necessary, as abandonment may be deduced from circumstances or course of conduct clearly evincing an abandonment thereof, or the abandonment may be by parol.” Nelson v. Hacker, 278 Mich. 383, 270 N.W. 720 (1936) (citation omitted) (emphasis added).   (See footnote 4) 
    The evidence of abandonment presented by plaintiffs may be summarized as follows: (1) Stiles substituted First Union forGuidecraft in the “Sold to” portion of later invoices pursuant to a letter from First Union to Stiles dated 12 August 1998 announcing First Union's intent to fund the invoices and requesting the invoices reflect First Union as the owner and purchaser; (2) a UCC- 1 financing statement filed by First Union stating that Guidecraft was without the power of sale; and (3) negotiations concerning a possible lease and inclusion of lease pricing information put Stiles on notice that First Union was going to purchase the equipment and lease it to Guidecraft.
    Such forecasted evidence does not “clearly evinc[e]” abandonment by Stiles of the contracts. While invoices bore First Union's information in the “Sold to” portion, Stiles, at all times, designated Guidecraft as the customer both in their internal records and on the invoices themselves through the continued use of Guidecraft's customer number. Moreover, the contract numbers on all invoices (designating the transaction to which the invoices pertain), unequivocally reference the sales agreements in which Guidecraft was the owner and purchaser. In addition, Stiles never contracted with First Union for the sale of any equipment. The lease information provided accompanied the purchase information actually used in the sales agreements. Finally, Guidecraft does not contend that Stiles leased the equipment to First Union or the lease pricing information was used by anyone at any point. Any lease pricing information provided by Stiles would pertain to a leasing transaction between Stiles and Guidecraft. Why Stiles would quote lease pricing information for a lease betweenGuidecraft and First Union has not been adequately addressed. Because there is no genuine issue concerning the lack of evidence “clearly evincing” abandonment of the contracts, this assignment of error is overruled.
C. Previous Summary Judgment Ruling
    Plaintiffs assert the trial court was prohibited from granting summary judgment on claims already considered and denied in a previous summary judgment proceeding by the same judge. “An order denying summary judgment is not res judicata and a judge is clearly within his rights in vacating such denial.” Miller v. Miller, 34 N.C. App. 209, 212, 237 S.E.2d 552, 555 (1977). “Miller presented the question whether a judge who rules on a motion for summary judgment may thereafter strike the order, rehear the motion for summary judgment, and allow the motion. Such procedure does not involve one judge overruling another, and is proper.” Carr v. Carbon Corp., 49 N.C. App. 631, 635, 272 S.E.2d 374, 377 (1980). Accordingly, this assignment of error is overruled.   (See footnote 5) 
II. Motion to Stay
    After granting summary judgment for all remaining claims of Guidecraft as against Stiles on the basis of the forum selection clause, the trial court then stayed all other remaining claims of plaintiffs against defendants on the grounds that it would be “substantially unjust” to require defendants to litigate the sameissues in two places. In so deciding, the trial court relied on a number of factors traditionally used in a forum non conveniens determination. Because we believe the trial court did not abuse its discretion in reaching this decision, we affirm.
    A trial court may stay a proceeding to permit trial in a foreign jurisdiction:
        If, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State.
N.C. Gen. Stat. § 1-75.12(a) (2001). Forum non conveniens factors are used in deciding whether to grant a stay:
        [T]he doctrine of forum non conveniens should be applied with flexibility depending upon the facts and circumstances of each case, with the view of achieving substantial justice between the parties. Relevant facts, among others, that may be considered are: convenience and access to another forum; nature of case involved; relief sought; applicable law; possibility of jury view; convenience of witnesses; availability of compulsory process to produce witnesses; cost of obtaining attendance of witnesses; relative ease of access to sources of proof; enforceability of judgment; burden of litigating matters not of local concern; desirability of litigating matters of local concern in local courts; choice of forum by plaintiff; all other practical considerations which would make the trial easy, expeditious and inexpensive.
Management, Inc. v. Development Co., 46 N.C. App. 707, 713, 266 S.E.2d 368, 371 (1980). When the motion is granted, the nonmoving party has the right of immediate appeal. N.C. Gen. Stat. § 1- 75.12(c) (2001). “Entry of an order under G.S. 1-75.12 is a matterwithin the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion.” Home Indemnity Co. v. Hoechst-Celanese Corp., 99 N.C. App. 322, 325, 393 S.E.2d 118, 120 (1990).
    In granting the motion to stay the proceedings, the trial court set forth and applied the appropriate standards. The trial court then examined the interests of Michigan, North Carolina, and Minnesota in the litigation and determined correctly that while all three states have an obvious interest in the litigation, no one state has a substantially outweighing interest. In considering witness based factors, the trial court correctly noted the parties will not be able to compel the attendance of some necessary out-of- state witnesses regardless of the forum state. Finally, because the claims asserted all involve a “common core [of operative] facts” and because the trial court dismissed the claims against Stiles by Guidecraft due to the forum selection clause, the trial court correctly concluded it would be “substantially unjust” to require Stiles to continue litigating against Kaplan in North Carolina while litigating against Guidecraft in Michigan. Further, since the claims asserted against Kostelnik are identical to those against Stiles and because those claims require the same evidence, the trial court held it would be substantially unjust to require Kostelnik to litigate in North Carolina while identical issues were being litigated against Stiles elsewhere. We agree. Holding otherwise would subject the judicial process and the parties to needless burden, hardship, and expense. The trial court followedthe factors set forth in Management, and granting the stay was not an abuse of discretion. Accordingly, the order is affirmed.
III. Judgment on the Pleadings
    A motion for judgment on the pleadings functions to “dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit[]” and operates as a final judgment. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974); N.C. Gen. Stat. § 1A-1, Rule 12(c) (2001). A trial court must carefully scrutinize the pleadings, “view[ing] the facts and permissible inferences in the light most favorable to the nonmoving party.” Id. The moving party admits “[t]he truth of all well-pleaded facts in the [non-movant's] pleadings . . . and the untruth of his own allegations in so far as they are controverted by the [non- movant's] pleading.” Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413 (1995). “A motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain.” Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499.
A. Negligent Repair
    Plaintiffs first assert Stiles negligently performed the repairs of the equipment and plaintiffs were damaged as a proximate result of that negligence.
        [A] breach of contract does not give rise to damages based on a negligence method of recovery even where the breach “was due to negligence or lack of skill.” However, such damages are appropriate for a breach of contract . . . [, and a] promisee may sue a promisor for the negligent performance of a contract where injury (1) occurs “to theperson or property of someone other than the promisee,” [or] (2) occurs “to property of the promisee other than the property which was the subject of the contract, or was a personal injury to the promisee[.]”
Mason v. Yontz, 102 N.C. App. 817, 818, 403 S.E.2d 536, 538 (1991) (quoting Ports Authority v. Roofing Co., 294 N.C. 73, 240 S.E.2d 345 (1978)). Kaplan claims the first exception, and Guidecraft claims the second.
    The first exception requires the injury resulting from negligent performance of a contract to be inflicted on the property of someone other than the promisee. In the instant case, Kaplan contends defendants' repairs failed to prevent defective application of the finish, which ruined the furniture. However, because the injury is the improper adherence of the lamination to the furniture surface at the time of application and because both the equipment and the furniture belonged to Guidecraft (the promisee) at that time, Kaplan cannot claim the first exception.
    The second exception requires the property damaged by the negligent act to be property other than the subject matter of the contract. Guidecraft claims the second exception because the subject matter of the contract is the equipment, yet the damage involved the equipment and the furniture it finished.
            The duty to use due care, the breach of which gives rise to a tort action for negligence in favor of one injured thereby in his person or property, may arise out of a contract. A breach of a contract, nothing else appearing, does not give rise to an action in tort.Insurance Co. v. Sprinkler Co., 266 N.C. 134, 141, 146 S.E.2d 53, 60 (1966). “[N]o case . . . [however] has held a tort action lies against a promisor for his simple failure to perform his contract, even though such failure was due to negligence or lack of skill.” Ports Authority, 294 N.C. 73, 83, 240 S.E.2d 345, 351 (1978). In the present case, according to the complaint, Stiles had a contractual duty to Guidecraft (1) to build a system that would consistently apply a UV finish to the furniture in accordance with the required characteristics and (2) to repair and properly install the equipment. If that be true, it is immaterial whether the failure was due to its negligence or occurred notwithstanding the exercise of reasonable or even great care because such failure sounds in contract and not in tort, and Stiles is liable for damages. Conversely, if the repairs had resulted in the equipment conforming to produce the required finish, Stiles would not be liable in damages even if Stiles failed to use the degree of care customarily used. The allegation of negligent repair by plaintiffs is surplusage and should be disregarded. The basis for recovery against Stiles is breach of contract, and the trial court correctly granted the motion for judgment on the pleadings.
B. Wrongful Interference with Contractual Relations
            The tort of interference with contract has five elements: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff.
United Laboratories, Inc. v. Kuykendall
, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Justification of the actor's conduct depends upon “the circumstances surrounding the interference, the actor's motive or conduct, the interests sought to be advanced, the social interest in protecting the freedom of action of the actor and the contractual interests of the other party.” Peoples Security Life Ins. Co. v. Hooks, 322 N.C. 216, 221, 367 S.E.2d 647, 650 (1988). “[W]here the act is done other than as a reasonable and bona fide attempt to protect the interest of the [actor] which is involved[,]” the actor's conduct is not justified. Smith v. Ford Motor Co., 289 N.C. 71, 91, 221 S.E.2d 282, 294 (1976). If the actor's conduct is done for a “legitimate business purpose, [the act] is privileged.” Hooks, 322 N.C. at 221, 367 S.E.2d at 650 (citation omitted).
    Kaplan asserts Stiles knew of the contract existing between Kaplan and Guidecraft and that Stiles intended to induce Guidecraft to breach and alter the performance of its contract with Kaplan based on two grounds: (1) that Stiles misrepresented the equipment would produce the required finish, knowing it would not and (2) that Stiles misrepresented the equipment had been repaired and would produce the required finish, knowing it would not. Because Stiles and Guidecraft jointly tested similar equipment with favorable results prior to the sale, it is difficult to construe subsequent representations based thereon as misrepresentations intended to induce Guidecraft to breach its contract with Kaplan. No facts pled in the complaint support the inference that Stiles,based on the results of the tests conducted, misrepresented the expected performance, much less an intent on the part of any party to induce nonperformance of the contract. Similarly, there is no evidence that Stiles improperly represented their beliefs as to the capabilities of the machines after attempts to repair it, and assuming arguendo there were, no facts pled support construing such action to be intended to induce nonperformance of the contract between Kaplan and Guidecraft. The attempted repairs were reasonable and bona fide attempts to protect Stiles' own interests. In short, all uncontroverted facts indicate Stiles took precautions to test similar equipment in similar circumstances and, based on the favorable results, represented they would be able to furnish Guidecraft with equipment meeting the required specifications. Stiles further undertook repairs to bring the equipment to the level required by the contract. Taking all material allegations of fact by Guidecraft as true, Stiles' actions do not amount to tortious interference with contractual relations as a matter of law, and the holding of the trial court is affirmed.
IV. Motion to Dismiss
    Plaintiffs assert the validity of the forum selection clause in the sales agreements is irrelevant because Stiles waived any right to assert it by failing to raise improper venue or Rule 12(b)(3) as a defense in their answer. We disagree.
    “[A] forum selection clause designates the venue[.]” Corbin Russwin, Inc. v. Alexander's Hdwe., Inc., 147 N.C. App. 722, 726, 556 S.E.2d 592, 596 (2001). Improper venue may be raised either inthe responsive pleading (where one is required) or by motion. N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) (2001). “A defense of . . . improper venue . . . is waived . . . (ii) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2001).
    In the answer, Stiles pled the following as their third defense:
        Plaintiffs' claims should be dismissed in favor of an action to be brought by Plaintiffs in a state or federal court sitting in the County of Kent in the State of Michigan pursuant to a forum selection clause continued [sic] in the Sales Agreement between Stiles and [Guidecraft] or stayed, pursuant to N.C. Gen. Stat. § 1-75.12, in favor of an action to be brought by Plaintiffs in the courts of Minnesota or some other state for the convenience of the parties and witnesses and because Defendants will suffer substantial injustice by litigating the case in North Carolina. Defendants consent to suit in the state or federal courts encompassing the County of Kent, Michigan and/or Winthrop, Minnesota.
Neither the words “venue” nor “Rule 12(b)(3)” are talismans necessary to raise improper venue as a defense. Stiles expressly raised the forum selection clause in their answer. Because we reject plaintiffs' formulaic method of raising venue as a defense, this assignment of error is overruled.
    Plaintiffs have also submitted a memorandum of additional authority concerning the validity of the forum selection clause itself. The record does not reflect the issue of the validity of the forum selection clause was raised before the trial court; wasraised as an assignment of error or was addressed either in oral arguments before or in their brief to this Court. The law on changing legal theories on appeal is clear: “parties [may not] swap horses between courts in order to get a better mount in the Supreme Court, nor is [the Court of Appeals] a remount station.” Horton v. New South Ins. Co., 122 N.C. App. 265, 270, 468 S.E.2d 856, 859 (1996) (citations omitted). Therefore, this issue is not properly before this Court.
    Finally, defendants appeal the denial of the motion for judgment on the pleadings concerning plaintiffs' claims of breach of express warranty, fraud, and unfair and deceptive trade practices. Looking at the pleadings and giving all inferences to the plaintiffs as the non-moving party, the plaintiffs' complaint, taken as true, contains sufficient allegations as to all elements of these claims, rendering judgment on the pleadings inappropriate.
    We have carefully considered the remaining claims and issues before this Court and find them to be without merit. The order of the trial court is affirmed.
    Affirmed.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).
    


Footnote: 1
    Guidecraft was the surviving corporation in a merger between Guidecraft and Richcraft Wood Products, Inc. (“Richcraft”), a wholly owned subsidiary of Kaplan. Richcraft ceased to exist as a legal entity; however, the sales agreements central to the issues of this case were entered into between Richcraft and Stiles Machinery, Inc. Guidecraft, as the surviving corporation, is the successor in interest to those contracts and is bound by the terms contained therein. Guidecraft will be used throughout to designate both Richcraft and Guidecraft.
Footnote: 2
    The sales agreements contained a term entitled “Governing Law, Venue, Service of Process,” which reads as follows:
        This contract shall be deemed to have been made in the State of Michigan, and any action arising out of it shall be governed by the law of the State of Michigan. Any action arising out of this contract may be brought only in a state or federal court sitting in the County of Kent, State of Michigan. Buyer consents that such courts shall have personal jurisdiction over Buyer with respect to any such action.

Footnote: 3
    Originally, Stiles moved for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) (2001) or, in the alternative, for dismissal for failure to state a claim upon which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001). The trial court converted the motion for dismissal for failure to state a claim for these causes of action to a summary judgment motion because matters outside the pleadings were not excluded by the court. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, appeal dismissed and cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982).

Footnote: 4
    We note Nelson v. Hacker involved a land sales contract; however, because the Michigan Supreme Court employed expansive language appropriate to encompass all sales contracts, we find the application of this language to the case at bar appropriate. This understanding is further bolstered by case law for rescission by mutual abandonment, which requires the parties to “clearly evidenc[e] their intention to treat the contract at an end.” Young v. Rice, 234 Mich. 697, 701, 209 N.W. 43, 44 (1926).
Footnote: 5
    We note the trial court did not formally strik e or vacate the previous denial of the summary judgment motion; however, the trial court's granting of the subsequent summary judgment motion was functionally equivalent to vacating the previous denial.

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