Appeal by plaintiff from order entered 12 November 2004 by
Judge Quentin Sumner in Nash County Superior Court. Heard in the
Court of Appeals 22 September 2005.
Barry Nakell for plaintiff-appellant.
YATES, McLAMB & WEYER, L.L.P., by Rodney E. Pettey, Esq., and
Jason D. Newton, for defendant-appellee.
SMITH, Judge.
Joseph Kintz (“plaintiff”) appeals the trial court order
staying further proceedings in his action against AmerLink, Ltd.
(“AmerLink”) and Richard Spoor (“Spoor”) (collectively,
“defendants”). For the reasons discussed herein, we affirm.
The facts and procedural history pertinent to the instant
appeal are as follows: In 2000, plaintiff, a resident of Illinois,
entered into two contracts with AmerLink, a New York Corporation
headquartered in Nash County, North Carolina. In the first
contract, AmerLink agreed to sell plaintiff a package of materials
for the construction of a log home. In the second contract,
AmerLink agreed to build the log home on property owned byplaintiff in Illinois. Both contracts provided that they would be
governed and construed in accordance with North Carolina law.
In February 2001, following substantial completion of the
home's construction, a dispute arose between the parties regarding
the quality of the home's craftsmanship and materials. Plaintiff
thereafter refused to make payments to AmerLink, and AmerLink
subsequently removed its employees and materials from the worksite.
On 10 July 2001, plaintiff sent AmerLink a letter demanding
that it a commence suit to enforce an Illinois-filed mechanic's
lien on plaintiff's property. On 11 October 2001, AmerLink filed
a complaint in Illinois alleging that it had a valid mechanic's
lien of $14,656.00 on the property and requesting that the Illinois
trial court award it damages or foreclose upon the lien. On 28
December 2001, plaintiff filed an answer denying the material
allegations of AmerLink's complaint and asserting, inter alia,
counterclaims for AmerLink's alleged failure to comply with the
contract and its construction of a “defective, dangerous and
faulty” home.
On 1 October 2002, while the litigation was proceeding in
Illinois, plaintiff filed an action against AmerLink in Nash
County, North Carolina. Plaintiff's North Carolina action asserted
claims for breach of contract, breach of express and implied
warranties, fraud, and unfair and deceptive trade practices.
AmerLink thereafter filed a motion to stay the proceedings pending
the litigation in Illinois. On 4 December 2002, plaintiff filed an
amended complaint in North Carolina, adding Spoor, a resident ofNorth Carolina and President and Chief Operating Officer of
AmerLink, as a defendant. On 27 December 2002, defendants filed an
amended motion to stay, citing the “common nucleus of operative
facts” involved in the North Carolina and Illinois suits, the
“substantial injustice” which would arise from being forced to
defend a suit in two jurisdictions, and the “possibility of
inconsistent results” in the two suits.
In an order filed 6 February 2003, the trial court granted
defendants' motion to stay the proceedings, concluding that
“substantial injustice would occur [were] the action to continue in
a court of this state (North Carolina).” Plaintiff thereafter
appealed, and in an unpublished opinion filed 20 April 2004, this
Court vacated the stay order and remanded to the trial court, with
instructions to enter an order with the necessary findings of fact
and conclusions of law. Kintz v. AmerLink, Ltd., 163 N.C. App.
783, 595 S.E.2d 239 (2004) (unpublished). On remand, the trial
court made detailed findings of fact and concluded in pertinent
part as follows:
1) substantial injustice would result if this
Court denied the stay;
2) the stay is warranted by those factors
present; and
3) the alternative forum (Illinois) is
convenient, reasonable and fair.
Based upon these conclusions, the trial court granted defendants'
motion and ordered the proceedings be stayed. It is from this
order that plaintiff appeals.
The issue on appeal is whether the trial court erred.
Plaintiff argues that because the evidence introduced at the
hearing supported denial of the motion to stay, the trial court
committed reversible error by granting defendants' motion. We
disagree.
N.C. Gen. Stat. § 1-75.12(a) (2003) provides in pertinent part
as follows:
If, in any action pending in any court of this
State, the judge shall find that it would work
substantial injustice for the action to be
tried in a court of this State, the judge on
motion of any party may enter an order to stay
further proceedings in the action in this
State. A moving party under this subsection
must stipulate his consent to suit in another
jurisdiction found by the judge to provide a
convenient, reasonable and fair place of
trial.
Although N.C. Gen. Stat. § 1-75.12 does not offer a definition
for the term “substantial injustice,” this Court has previously
noted that
In determining whether to grant a stay under
G.S. § 1-75.12, the trial court may consider
the following factors: (1) the nature of the
case, (2) the convenience of the witnesses,
(3) the availability of compulsory process to
produce witnesses, (4) the relative ease of
access to sources of proof, (5) the applicable
law, (6) the burden of litigating matters not
of local concern, (7) the desirability of
litigating matters of local concern in local
courts, (8) convenience and access to another
forum, (9) choice of forum by plaintiff, and
(10) all other practical considerations.
Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112
N.C. App. 353, 356, 435 S.E.2d 571, 573 (1993). These
factors are
only “'[r]elevant fact[or]s, among others, that
may beconsidered[,]'” and “in determining whether to grant a stay, it is
not necessary that the trial court find that
all factors positively
support a stay . . . .”
Id. at 357, 435 S.E.2d at 573-74 (quoting
Management, Inc. v. Development Co., 46 N.C. App. 707, 713, 266
S.E.2d 368, 371,
disc. review denied, 301 N.C. 93, 273 S.E.2d 299
(1980)) (emphasis in original). Furthermore, “[e]ntry of an order
under G.S. 1-75.12 is a matter within the sound discretion of the
trial judge and will not be disturbed on appeal absent an abuse of
that discretion.”
Home Indemnity Co. v. Hoechst-Celanese Corp., 99
N.C. App. 322, 325, 393 S.E.2d 118, 120,
disc. review denied, 327
N.C. 428, 396 S.E.2d 611 (1990).
In the instant case, after reviewing the record as a whole, we
are not persuaded nor do we believe the trial court abused its
discretion in reaching its decision. The trial court's order
offers a detailed examination of each factor of the
Lawyers Mutual
analysis, along with “other practical considerations” the trial
court deemed pertinent to its decision.
Lawyers Mut. Liab. Ins.
Co., 112 N.C. App. at 356, 435 S.E.2d at 573. Although the trial
court recognized that AmerLink was a corporation headquartered in
North Carolina, that Spoor was a North Carolina resident, and that
the contracts between AmerLink and plaintiff provided that they
would be governed by North Carolina law, the trial court's order
demonstrates that it based its ultimate determination on the fact
that plaintiff's home was situated in Illinois, that witnesses who
may be relevant to the suit lived in Illinois, that AmerLink chose
Illinois as the forum state for the initial litigation, and thatthe Illinois litigation was on-going and further along when
compared to the North Carolina litigation.
(See footnote 1)
The trial court cited
these facts in its analysis of the pertinent
factors, including
convenience of witnesses, availability of compulsory process to
produce witnesses, relative ease of access to sources of proof,
plaintiff's choice of forum, and the desirability of litigating
only matters of local concern in local courts.
The majority of plaintiff's appellate assertions challenge the
ultimate decision by the trial court and raise again those
arguments advanced by plaintiff during the motion hearings.
However, as detailed above, our review on appeal of an order
granting a stay is abuse of discretion, not
de novo. Thus, where
the trial court's findings of fact are sufficient to uphold its
conclusion and “[n]o error of law appears on the face of the
judgment[,]”
Management, Inc.,
46 N.C. App. at 714, 266 S.E.2d at
372, we need only examine the trial court's findings of fact to
ensure they are supported by competent evidence.
Home Indemnity
Co., 99 N.C. App. at 326, 393 S.E.2d at 120.
In the case
sub judice, plaintiff contends that there is no
evidence in the record to support the trial court's findings of
fact that relevant witnesses to the suit, including government
building inspectors, live in Illinois, and that AmerLink offered tomake its employees available for deposition in Illinois at its own
cost. However, we note that it is undisputed that plaintiff's home
was constructed in Illinois and inspected by Illinois authorities.
Although we recognize that defendants have not specifically listed
those Illinois witnesses it might call in a North Carolina-situated
trial, we do not believe their failure to do so precluded the trial
court from finding that the case “potentially involves numerous
witnesses who live in Illinois” and “[w]itnesses who may be
relevant to the suit, including but not limited to those who
examined the house in Illinois (e.g. governmental building
inspectors), live in Illinois.” Furthermore, as to plaintiff's
challenge of the finding regarding AmerLink's offer to pay for the
Illinois deposition of its employee witnesses, we note that at the
6 January hearing, defendant's counsel made the following
assertion:
Any other witnesses that AmerLink may call
would be AmerLink employees, but again, we
would bear that cost and not the Plaintiff.
After reviewing the record, we conclude the trial court's
findings of fact are supported by competent evidence. Furthermore,
when considered in its entirety, the record indicates that the
trial court reviewed the arguments and pleadings of the parties and
made a reasonable and rational decision in light of all of the
evidence before it. Although the trial court noted that AmerLink
was a North Carolina-headquartered corporation, that Spoor was a
North Carolina resident, and that the contracts between the parties
indicated that North Carolina law would be applied in disputes, thetrial court concluded that a substantial injustice would occur were
it to allow litigation in North Carolina to proceed where the same
parties had proffered the same claims during on-going litigation in
Illinois. This determination was not an abuse of the trial court's
discretion. Accordingly, we affirm the trial court order granting
defendants' motion to stay.
Affirmed.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).
Footnote: 1