This аppeal requires the construction of N.C.G.S. l-75.12(a) under the facts and circumstances of this case. The statute follows:
Stay of proceeding to permit trial in a foreign jurisdiction. — (a.) When Stay May be Granted. — 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 а convenient, reasonable and fair place of trial.
. . . .
(c) Review of Rulings on Motion. — Whenever a motion for a stay made pursuant to subsection (a) above is granted, any nоnmoving party shall have the right of immediate appeal.
Plaintiff first contends the statute violates Article I, Section 18, of the North Carolina Constitution:
Courts shall be open. All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.
Plaintiff argues it is а “person” within the meaning of the section and has a right to have its claims tried in the courts of North
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Carolina. However, we are not required to construe this section of the constitutiоn, which is now a popular pastime in North Carolina, because it does not affirmatively appear from the record on appeal that this question was presented tо or passed upon in the superior court. The appellate courts will not pass upon a constitutional question unless it affirmatively appears that the question was raised and passed upon in the trial court.
City of Durham v. Manson,
We are left with the question whether the court’s findings of fact and conclusions of law support the order staying the proceedings in this action. Plaintiff did not except to any of the findings оf fact or conclusions of law found by the court. Where findings of fact are not challenged by exceptions in the record, they are presumed to be supported by competent evidence and are binding upon appeal.
Phillips v. Alston,
The court found as facts that plaintiff is a North Carolina corporation with its principal place of business in Cumberland County, North Carolina, and dеfendant is a South Carolina corporation with its principal place of business in South Carolina, not authorized to do business in North Carolina. This action is for *711 breach of a management contract between plaintiff and defendant, in which plaintiff agreed to perform management and supervisory services for defendant in the operation of the Cаrolina Inn, owned by defendant in Columbia, South Carolina. The contract provided that it was made in South Carolina and was to be construed and interpreted in accordance with the laws of South Carolina. Although defendant has not filed answer, counsel intend to file a counterclaim based on plaintiff’s alleged failure to provide the services it was obligatеd to perform under the contract. The principal witnesses defendant proposes to call, sixty-nine in number, are primarily residents of South Carolina engaged in various profеssions, government employment, or firms other than defendant or plaintiff and not subject to the subpoena powers of the North Carolina courts and the cost of obtaining witnesses wоuld be unduly or intolerably burdensome for defendant. Plaintiff plans to call nine witnesses, eight who reside in North Carolina and one in South Carolina, all of whom are or have been emplоyed by plaintiff. There is no other action pending between the parties and defendant has stipulated and consented to the trial of this action in South Carolina 1 and has waived any defense of the statute of limitations.
Upon these fаcts the court made the conclusion of law that it would work a substantial injustice to defendant for the action to be tried in North Carolina and that South Carolina is the proper рlace for trial of the action on its merits.
This Court held in
Acorn v. Knitting Corp.,
Looking to other sources, we find some assistance in interpreting our statute. With respect to the Wisconsin statute which *712 was the first statute of this type enacted, the Supreme Court of Wisconsin stated:
The genеral purpose of the law is discussed by Professor G. W. Foster, Jr., of the University of Wisconsin Law School, who served as the reporter for the Judicial Council in the preparation of the revisions to ch. 262, Stats. In reference to sec. 262.19, he states in the revision notes to 30 Wis. Stats. Annot. (1972 pocket parts):
“This section is new. Its purpose is to permit trial of a cause in anоther state upon a convincing showing that trial of the cause in Wisconsin is so inconvenient that substantial injustice is likely to result. . . .”
. . . .
Dean Robert Leñar points out that forum non conven-iens is a necessary response to the expanding basis for in personam jurisdiction and the proliferation of “long-arm statutes,” which make it likely that courts will be faced with imported lawsuits having little or no connection with the forum. He recommends that courts have discretion to refuse to hear such transient lawsuits and to require the parties to litigate their differences in a more convenient forum. . . .
The doctrinal background of forum non conveniens is discussed by Ehrenzweig and Louisell in Jurisdiction in a Nutshell (2d ed. 1968). They point out that the doctrine is invoked when a court has unquestioned jurisdiction but, for policy reasons, declines to exercise it. The text points out, at page 84, citing Goodwine v. Superior Court (1965),63 Cal. 2d 481 , 485,47 Cal. Rptr. 201 , 203, 204,407 Pac. 2d 1 , 4, that:
“In determining the applicability of the doctrine, the court must consider the public interest as well as the private interests of the litigants. The court must consider such factors as the ease of access of proof, the availability and cost of obtaining witnesses, the possibility of harassment of the defendant in litigating in an inconvenient forum, the enforceability of the judgment, the burden on the community in litigating matters not of local concern, and the desirability of litigating local matters in local courts.”
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Littmann v. Littmann,
In New York, the court held the doctrine of
forum non con-veniens
was developed to justify stay of cases where it is found, on balancing the interest and convenience of the parties, that the action could be bеtter adjudicated in another forum. The application of the rule should turn upon considerations of justice, fairness and convenience. When it plainly appears that the initial forum is an inconvenient forum and that another is available which would better serve the ends of justice and the convenience of parties, a stay should be entered.
Silver v. Great Amer. Ins. Co.,
We hold the doctrine of
forum non conveniens
should be applied with flexibility depending upon the facts and circumstances of each case, with the view of achieving substantial justice between the parties. Relevant facts, among others, that may be considered are: convenience and access to another forum; nature of case involved; relief sought; applicable law; possibility оf jury view; convenience of witnesses; availability of compulsory process to produce witnesses; cost of obtaining attendance of witnesses; relative ease оf access to sources of proof; enforceability of judgment; burden of litigating matters not of local concern; desirability of litigating matters of local concern in loсal courts; choice of forum by plaintiff; all other practical considerations which would make the trial easy, expeditious and inexpensive. These, and other factors, have been considered by other courts in making the determination of motions under such statutes.
Gulf Oil Corp. v. Gilbert,
In applying these rules to the instant case, we hold the facts found by the court support the conclusion that it would work a substantial injustice to defendant for this case to be tried in North Carolina and that the court of South Carolina is the proper, *714 convenient, reаsonable and fair place for the trial of this action. No error of law appears on the face of the judgment. We find no abuse of the court’s discretion in the entry of the order. It is, therefore,
Affirmed.
Notes
. In oral argument, counsel for defendant stipulated that plaintiff would be entitled to remain as the plaintiff in any action between the parties brought in South Carolina on the contract.