SEABOARD CONTAINER CLEANING, LLC,
Plaintiff,
v. Guilford County
No. 02 CVS 10097
FOUR SEASONS ENVIRONMENTAL, INC.,
Defendant.
Forman, Rossabi, Black, P.A., by James H. Slaughter and Jason
M. Goins, for plaintiff-appellee.
Nexen, Pruet, Adams, Kleemeier, P.L.L.C. by J. Alexander S.
Barrett and Brooks F. Bossong, for defendant-appellant.
HUDSON, Judge.
On 12 September 2002, plaintiff Seaboard Container Cleaning,
LLC, filed a complaint against defendant Four Seasons
Environmental, Inc. On 12 November 2002, defendant filed a motion
to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure. After discovery, plaintiff obtained an order to compel
on 22 April 2003. On 27 May 2003, defendant re-served its motion
to dismiss with supporting affidavits. On 27 May 2003, plaintiff
filed a motion for an order to show cause. On 10 June 2003,
following a hearing, the court denied defendant's motion to dismiss
and granted plaintiff's motion to show cause. Defendant appeals.
For the reasons discussed below, we affirm the denial of
defendant's motion to dismiss, and dismiss as interlocutory
defendant's appeal of the order to show cause.
On 7 August 2001, the parties entered into an agreement
entitled, Acknowledgment of Debt and Repayment Agreement (the
agreement). The agreement provided that defendant would forbear
from attempting to collect a debt from plaintiff in exchange for
plaintiff's agreement to repay that debt. The agreement contained
a forum selection clause which states, In the event that either
party initiates any legal action or proceeding that relates to this
Agreement in any manner whatsoever . . . it is agreed that venue
for such legal action or proceeding shall be in a court of
competent jurisdiction located in Hamilton County, Tennessee.
In January 2002, the parties entered into a separate and
unrelated contract in which defendant agreed to provide wastewater
treatment services to plaintiff in Guilford County, North Carolina.
In negotiating the contract, defendant's general manager
represented to plaintiff that defendant was capable of performing
under the contract, but plaintiff contends that defendant was not
so capable. Plaintiff brought this action against defendant for
breach of the January 2002 contract.
The order denying defendant's motion is interlocutory.
Ordinarily, there is no right of immediate appeal from an
interlocutory order. Travco Hotels, Inc. v. Piedmont Natural Gas
Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). However, an
order is immediately appealable if the order affects a substantial
right and the loss of that right will injure the party appealing if
not corrected prior to final judgment. Travco Hotels, Inc. v.
Piedmont Natural Gas Co., 102 N.C. App. 659, 661, 403 S.E.2d 593,
594 (1991), affirmed, 332 N.C. 288, 420 S.E.2d 426 (1992). Where,
as here, a party has appealed more than one order, we must consider
the interlocutory nature of each order separately. Id.
An appeal from the denial of a motion to dismiss is ordinarily
not appealable. Mark Group Int'l, Inc. v. Still, 151 N.C. App.
565, 566, 566 S.E.2d 160, 161 n.1 (2002). However, as defendant
points out, our State's case law establishes firmly that an appeal
from a motion to dismiss for improper venue based upon a
jurisdiction or venue selection clause dispute deprives the
appellant of a substantial right that would be lost. Id. In its
motion to dismiss here, defendant alleges lack of jurisdiction,
contending that the agreement between the parties contained a
binding forum selection clause, and thus, this interlocutory appeal
is properly before us.
In addition, defendant attempts to bring forward on appeal the
denial of its motion to dismiss plaintiff's fraud claim. This part
of the order is also interlocutory. Thompson v. Norfolk S. Ry.
Co., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000). However,
an appeal from such an order is allowed if it effects a substantial
right. N.C. Gen. Stat. §§ 1-277, 7A-27(d)(1) (2001); see N.C. R.
App. P. 28 (b)(4) (2001) (stating that appellant's brief must
include statement of grounds for appellate review, which must
sufficiently show that the challenged order affects a substantial
right). It is the appellant's burden to present appropriate
grounds for this Court's acceptance of an interlocutory appeal, .
. . and not the duty of this Court to construct arguments for or
find support for appellant's right to appeal[.] Thompson, 140
N.C. App. at 121, 535 S.E.2d at 401 (internal citations and
quotation marks omitted).
In its statement of grounds for appellate review, defendant
does not address what substantial right might be lost if this
appeal does not lie. Thus, we dismiss defendant's appeal of the 3
July 2003 order to the extent it denied defendant's motion to
dismiss plaintiff's fraud claim.
Defendant also appeals the 10 June 2003 order requiring
defendant to appear on a specific date and show cause, if any, why
it should not be held in contempt. This Court has held that a show
cause order is interlocutory and does not affect a substantial
right. Huguelet v. Huguelet, 113 N.C. App. 533, 537, 439 S.E.2d
208, 210 (1994). Defendant contends in its statement of grounds
for appellate review that the trial court lacked jurisdiction
because no affidavit was filed pursuant to N.C. Gen. Stat. § 5A-23.
This assertion addresses the substance of defendant's assignment of
error 4 and in no way addresses whether this issue affects a
substantial right as required by Rule 28(b)(4). Further, defendant
does not address assignment of error 3 at all in the statement of
grounds for appellate review. Defendant's assignments of error 3
and 4 addressing the order to show cause pertain to the substance
of the interlocutory order, and defendant has not explained how
they affect a substantial right. Thus, we conclude that they are
not properly before this Court and we dismiss them.
Turning to the substantive arguments, we note that in the only
assignment of error which is properly before this Court, defendant
contends that the court erred in denying its motion to dismiss
because of the forum selection clause in the agreement. We
disagree.
We review a trial court's decision concerning a venue
selection clause for abuse of discretion. Mark Group Int'l, Inc.,
151 N.C. App. at 566, 566 S.E.2d at 161. Under the
abuse-of-discretion standard, we review to determine whether a
decision is manifestly unsupported by reason, or so arbitrary that
it could not have been the result of a reasoned decision. Id.
Here, the trial court declined to dismiss plaintiff's claims or to
stay the proceedings on the basis of the forum selection clause in
the 2001 agreement. Insofar as this lawsuit involves the 2002
agreement, not the 2001 agreement which contains the disputed forum
selection clause, that clause has no application here. Thus, the
court did not abuse its discretion in denying defendant's motion to
dismiss.
Affirmed in part, dismissed in part.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).