Mid-South Construction Co. v. Wilson

71 N.C. App. 445 | N.C. Ct. App. | 1984

WEBB, Judge.

We held in DesMarais v. Dimmette, 70 N.C. App. 134, 318 S.E. 2d 887 (1984) that the denial of a motion for change of venue as a matter of right is immediately appealable. The order denying a change of venue in this case is appealable.

Although the record does not show that an order was signed transferring the case from District Court to Superior Court, we hold that by ruling on the motion for change of venue the Superi- or Court assumed jurisdiction. This transferred the case from District Court to Superior Court. Neither party has assigned error to the Court’s failure to rule on this motion to remove to the Superior Court and we take this as assent by both parties to the transfer.

The defendant first argues that pursuant to the terms of the performance bond and the bond to discharge the lien the plaintiff consented to the jurisdiction of the Superior Court of Mecklenburg County and waived its right to bring the action for breach of contract against the defendant in Harnett County. We do not so read either bond. As we read the bonds the plaintiff assented to being sued in Mecklenburg County on its contract with the Housing Authority and for any claims of subcontractors, laborers, or materialmen. This does not affect an action by the plaintiff for breach of contract by a subcontractor. Assuming that the plaintiff consented to its breach of contract action being brought in Mecklenburg County it did not by the terms of the bond make Mecklenburg the only county in which its action could be brought. The bonds do not say the plaintiff consented to the exclusive jurisdiction of the courts of Mecklenburg County.

The defendant argues further that he is required by G.S. 44A-28 to bring his claim against the plaintiff in Mecklenburg County and that he must under G.S. 1A-1, Rule 13(a) assert it as a counterclaim in the plaintiffs action. He says that for this reason the plaintiffs action must be brought in Mecklenburg County. We do not believe that the requirement that the defendant assert his claim as a counterclaim in the action brought by the plaintiff deprives the plaintiff of its right to assert its claim in Harnett County. The defendant will not be prejudiced if the counterclaim is tried before his action in Mecklenburg County. If he gets a judgment in Harnett County on the counterclaim it will be res judicata as to the action in Mecklenburg County.

The defendant argues finally that the Court abused its discretion by denying the motion for change of venue. He bases this contention principally on the first two arguments he advanced. We hold that the Court did not abuse its discretion in denying the motion.

Affirmed.

Judges Hedrick and Hill concur.