An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1176


Filed: 6 April 2004


         v.                        Pitt County
                                No. 02CVS3489

    Appeal by defendant from order entered 9 July 2003 by Judge Gary E. Trawick in Pitt County Superior Court. Heard in the Court of Appeals 22 March 2004.

    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).
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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