An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1624


Filed: 2 August 2005


         v.                        Mecklenburg County
                                No. 00 CvD 2982 RMM
(formerly Blum) and

    Appeal by plaintiffs from order entered 1 September 2004 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 18 July 2005.

    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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