SHELLEY BLUM AND DEBORAH BLUM,
Plaintiff-Appellants
v. Mecklenburg County
No. 00 CvD 2982 RMM
JENNIFER ERIN VICENZ
(formerly Blum) and
MARK WILLIAM DEMERITT,
Defendants-Appellees
Deborah Blum and Shelley Blum, pro se, plaintiff-appellants.
Casstevens, Hanner, Gunter & Riopel, by Mark D. N. Riopel, for
defendant-appellees.
MARTIN, Chief Judge.
Plaintiffs are the maternal grandparents of a female child
born in Mecklenburg County on 23 August 1995. Plaintiffs were
granted custody of the child by a consent order entered on or about
31 May 2000 in Mecklenburg County District Court. At that time
plaintiffs resided both in Mecklenburg and Mitchell Counties, the
child's natural mother, defendant Jennifer Erin Vincez, resided in
Mitchell County, and the father of the child, defendant Mark
William DeMeritt, resided in Mecklenburg County. On or about 28
April 2004 defendant DeMeritt filed a motion in Mecklenburg County
District Court seeking transfer of custody to defendants DeMerittand Vincenz. Plaintiffs filed a motion to change venue from
Mecklenburg County to Mitchell County contending that the majority
of plaintiffs' witnesses resided either in Mitchell County or
neighboring Yancey County within the 24th Judicial District and that
it would be more convenient for these witnesses to have the matter
heard in Mitchell County. After hearing the motion at the 28 July
2004 session of court, the court entered an order on 1 September
2004 denying plaintiffs' motion to change venue. Plaintiffs appeal
from the order denying their motion to change venue.
As the order denying the motion to change venue is
interlocutory, the underlying motion to change custody not having
been heard or decided, we must first determine whether the order is
immediately appealable. This Court has previously held that an
interlocutory order denying a motion to change venue for the
convenience of witnesses is not immediately appealable. Kennon v.
Kennon, 72 N.C. App. 161, 164, 323 S.E.2d 741, 743 (1984). [A]
panel of the Court of Appeals is bound by a prior decision of
another panel of the same court addressing the same question, but
in a different case, unless overturned by an intervening decision
from a higher court. In re: Appeal from Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989). These decisions have not been
overruled by a higher court. They are, therefore, binding and
controlling.
Plaintiffs reliance upon the cases of United Services
Automobile Assn. v. Simpson, 126 N.C. App. 393, 485 S.E.2d 337
(1997), Holland v. Gryder, 54 N.C. App. 490, 283 S.E.2d 792 (1981),and Broyhill v. Broyhill, 81 N.C. App. 147, 343 S.E.2d 605 (1986)
is misplaced because this Court did not consider the issue of
whether the order ruling upon the motion for change of venue in
each of those case was immediately appealable. Each of those cases
is authority only for what it decides. In re West, 212 N.C. 189,
193, 193 S.E. 134, 136 (1937).
Because there is no right of immediate appeal, we dismiss the
appeal.
Appeal dismissed.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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