How to access the above link?
Return to nccourts.org
Return to the Opinions Page
1. Appeal and Error--appealability_denial of change of venue--possibility of inconsistent verdicts_substantial rights
Although the denial of motions for change of venue and to consolidate are generally not immediately appealable, the denials are immediately appealable in this case because: (1) the right to venue established by statute is a substantial right; and (2) a substantial right is affected in this case when the same factual issues would be present in both trials and the possibility of inconsistent verdicts on those issues exists.
2. Abatement--motion to consolidate actions_-relation back rule
The trial court did not abuse its discretion by denying defendant subcontractor's motion under N.C.G.S. § 1A-1, Rule 42 to consolidate this action with its action against plaintiff general contractor in a different county to enforce its claim of lien, because: (1) in North Carolina, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action; (2) although N.C.G.S. § 44A-10 causes the claim of lien to relate back to the first date defendant provided materials, it has nothing to do with the effective date of the action to enforce the claim; and (3) plaintiff's action, filed in Mecklenburg County, predates defendant's action filed in Watauga County, and thus the latter action is abated.
3. Venue--denial of motion to change_-necessary party--principal place of business
The trial court did not err by denying defendant's motion for change of venue, because: (1) the only basis defendant claims for its basis to change venue is that Watauga County is a necessary party to its action to enforce its liens, and the county can no longer be deemed a necessary party to the action when that action has abated; and (2) Mecklenburg County was a proper venue under N.C.G.S. § 1-79(a)(1) when plaintiff stated its principal place of business is in Mecklenburg County.
Smith, Cooksey & Vickstrom, PLLC, by Neil C. Cooksey and
Steven L. Smith, for plaintiff-appellee.
Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by Warren A. Hutton and Nancy L. Huegerich, for defendant- appellant.
Radford Quarries of Boone, Inc. (defendant) appeals from an order denying its motion for change of venue and motion to consolidate this action with another action pending against it in Watauga County. After careful review, we affirm.
Barrier Geotechnical Contractors, Inc. (plaintiff), entered into a contract with Watauga County to perform stream channel and slope stabilization services to certain pieces of real property in the county. The individual owners of the pieces of property had granted easements to the county to facilitate the project. Plaintiff then entered into a contract as general contractor with defendant as subcontractor to provide dirt for the projects. The contract was executed on 13 October 2005.
In early 2006, a dispute arose between plaintiff and defendant as to payments made under the contract. On 24 February 2006, defendant filed claims of lien in Watauga County against the real property; on 3 March 2006, plaintiff filed suit against defendant in Mecklenburg County alleging a variety of misdeeds, including breach of contract and fraud. Defendant filed an action to enforce its liens in Watauga County on 5 April 2006, and on 13 April 2006 filed motions in Mecklenburg County to, among other things, change venue and consolidate this action with its action for liens against plaintiff. These motions were denied, and defendant appeals.
 We first note that one general exception to the rule that the denial of motions for change of venue and to consolidate is interlocutory and not generally immediately appealable is wheresuch denial affects a substantial right. See N.C. Gen. Stat. § 7A- 27(d)(1) (2005). [T]he 'right to venue established by statute is a substantial right,' the denial of which is 'immediately appealable.' Grant v. High Point Reg'l Health Sys., 172 N.C. App. 852, 854, 616 S.E.2d 688, 690 (2005) (quoting Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980)). In addition, [a] substantial right is affected when '(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists[,]' which appears to be the case here. In re Estate of Redding v. Welborn, 170 N.C. App. 324, 328-29, 612 S.E.2d 664, 668 (2005) (quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)). The appeal of the denial of these motions is therefore properly before us.
*** Converted from WordPerfect ***