An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-164


Filed: 1 November 2005


v .                         Nash County
                            No. 02 CVS 2041

    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.
    Judges HUDSON and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     The appendix to plaintiff's reply brief indicates that AmerLink's Illinois mechanic's lien claim against plaintiff has subsequently been dismissed for want of prosecution. Nevertheless, there is no indication that plaintiff's Illinois counterclaims, which are identical to his North Carolina claim, have also been dismissed.

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