Garner v Four Seas, Inc., (02-1603) 07/01/2003

Appeal by defendants from an order entered 11 September 2002 by W. Allen Cobb, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals 23 June 2003.

Gaylor, Edwards & Vatcher, for Jimmy F. Gaylor, for plaintiff- appellee.

Wheatly, Wheatly, Nobles, Weeks, Valentine & Lupton, P.A., by C. R. Wheatly, III, for defendant-appellants.

WYNN, Judge.

    “A motion for change of venue for the convenience of witnesses and the ends of justice is discretionary and its denial is not immediately appealable.” Perkins v. CCH Computax, 106 N.C. App. 210, 212, 415 S.E.2d 755, 757 (1992), rev'd on other grounds by 333 N.C. 140, 423 S.E.2d 780 (1992); see also Kennon v. Kennon, 72 N.C. App. 161, 164, 323 S.E.2d 741, 743 (1984). The defendants present the following issue for our consideration: Did the trial court erroneously deny its motion to change venue. Because thedefendants' appeal is interlocutory, we dismiss their appeal.
    Plaintiff, defendants' former employee, filed this action stating claims of negligence, wrongful discharge, and violation of 42 U.S.C. § 2000e, et seq., alleging that she had been sexually harassed by one of defendants' employees, that defendants had failed to prevent the harassment and had condoned it, and that she had been forced to resign from her employment. Defendants answered the complaint and moved the court for a change of venue from Onslow to Carteret County. Defendants argued that all the corporate and individual defendants and the witnesses were residents of Carteret County, all the incidents complained of occurred in Carteret County, and at the time of her employment with defendants, plaintiff resided in Carteret County. Accordingly, defendants asked for removal for “[t]he convenience of witnesses and the ends of justice.” N.C. Gen. Stat. § 1-83(2)(2001). After the trial court's denial, defendants appeal.
    “An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.” N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). This Court has stated:
        There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) 'if the trial court's decision deprives the appellant of a substantial right which wouldbe lost absent immediate review.'

Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000)(quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997)); see also N.C. Gen. Stat. § 1-277(a) (1999); see also N.C. Gen. Stat. § 7A-27(d)(1) (1999).
    Here, defendants appeal from an order denying their motion to change venue. “[A]n order denying a motion for a change of venue, . . . based upon the convenience of witnesses and the ends of justice, is an interlocutory order and not immediately appealable.” Kennon v. Kennon, 72 N.C. App. 161, 164, 323 S.E.2d 741, 743 (1984)(citing Furches v. Moore, 48 N.C. App. 430, 269 S.E.2d 635 (1980); N.C. Gen. Stat. § 7A-27(c) (1983)).
    Accordingly, because there was no final judgment in this case, nor were there any substantial rights of the parties affected, we hold that this appeal is premature, and therefore, dismiss it as interlocutory.
    Appeal dismissed.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).