RICE CONSTRUCTION &
DEVELOPMENT COMPANY,
Plaintiff,
v. Pitt County
No. 02CVS3489
BEAM CONSTRUCTION COMPANY,
INCORPORATED,
Defendant.
Brown & Bunch, PLLC, by Charles Gordon Brown, for plaintiff-
appellee.
Johnston, Allison & Hord, by Gary J. Welch, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant appeals from an order denying its motion to change
venue.
Plaintiff, a North Carolina corporation which maintains its
registered office at 702 G. Cromwell Drive in Greenville, Pitt
County, North Carolina, instituted this action in Pitt County
Superior Court on 11 December 2002. Plaintiff alleged that
defendant, a North Carolina corporation with an office and place of
business at 601 East Main Street in Cherryville, North Carolina,
negligently or in an unworkmanlike manner constructed a masonry
wall at plaintiff's storage facility in Mooresville, IredellCounty, North Carolina. In its answer defendant asserted a
counterclaim and moved to change venue to Iredell County,
contending that [t]he convenience of the witnesses, the location
of the Project, the location of the documents and the ends of
justice require that this cause of action be adjudicated in Iredell
County, North Carolina. In support of the motion, defendant
alleged that performance of the work occurred in Iredell County,
the majority of the potential witnesses reside nearer to Iredell
County than Pitt County, and documents pertinent to the project are
located nearer to Iredell County than Pitt County. The superior
court entered an order on 9 July 2003 denying the motion.
Defendant filed notice of appeal.
In its brief defendant acknowledges the existence of case law
holding that an order denying a motion to change venue on the
ground of convenience of witnesses is an interlocutory order from
which an immediate right of appeal does not lie. See, e.g., Kennon
v. Kennon, 72 N.C. App. 161, 164, 323 S.E.2d 741, 743 (1984);
Furches v. Moore, 48 N.C. App. 430, 269 S.E.2d 635 (1980).
Nonetheless, defendant contends the decisions are conflicting and
it cites the cases of United Services Automobile Assn. v. Simpson,
126 N.C. App. 393, 395, 485 S.E.2d 337, 339 (1997) and Centura Bank
v. Miller, 138 N.C. App. 679, 683, 532 S.E.2d 246, 249 (2000) as
instances in which this Court conducted immediate review of
interlocutory orders to change venue. Defendant's reliance upon
these cases is misplaced. In both of those cases, the appeal of
the order denying the change of venue for convenience of witnesseswas ancillary to an order from which the appellant had an immediate
right of appeal. This Court in the exercise of its discretion and
in the interest of judicial economy considered the issue of change
of venue because an appeal in the litigation was already properly
before the Court. That situation is not present in the case at
bar.
There being no immediate right of appeal, the appeal therefore
must be dismissed. Bailey v. Gooding, 301 N.C. 205, 208, 270
S.E.2d 431, 433 (1980).
Dismissed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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