Opinion
No. COA04-1439.
Filed 16 August 2005.
Appeal and Error — appealability — interlocutory order — proper place of trial — substantial right not affected
Defendant's appeal from the trial court's denial without prejudice of its motion to transfer the case from one division to another in a county with two divisions of court is dismissed as an appeal from an interlocutory order, because: (1) the subject of the present appeal is the proper place of trial within a county under N.C.G.S. § 7A-4(c), and a trial court's denial of a motion to transfer proceedings to a proper place of trial within a county does not affect a substantial right when venue is proper in the county in which the action was filed; and (2) other than its argument that a venue ruling is immediately appealable, defendant has made no argument that the denial of its motion affected a substantial right.
Appeal by defendant from order entered 14 June 2004 by Judge Anderson Cromer in Guilford County Superior Court. Heard in the Court of Appeals 15 June 2005.
Kennedy, Kennedy, Kennedy Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff appellee. Sharpless Stavola, P.A., by Joseph P. Booth, III, for defendant appellant.
On 6 February 2004, plaintiff filed an action against defendant in Guilford County Superior Court. There are two divisions of the Guilford County Superior Court: the Greensboro Division and the High Point Division. Plaintiff filed her action in the Greensboro Division, and defendant filed a motion to transfer the case to the High Point Division. The trial court denied the motion without prejudice. The court specifically noted that defendant could renew the motion on the basis of justice and the convenience of witnesses pursuant to N.C. Gen. Stat. § 1-83(2) (2003) after the filing of its answer. From the denial of its motion, defendant now appeals. We conclude that the appeal must be dismissed as interlocutory.
An order "is either interlocutory or the final determination of the rights of the parties." N.C. Gen. Stat. § 1A-1, Rule 54(a) (2003). A final judgment "disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court[,]" while an interlocutory order "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 231 N.C. 744, 59 S.E.2d 429 (1950).
In general, there is no right to appeal from an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). There are two significant exceptions to this rule. First, an interlocutory order is immediately appealable "when the trial court enters `a final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal." Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (quoting Rule 54(b)). Second, an interlocutory order may be immediately appealed if "the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." Southern Uniform Rentals v. Iowa Nat'l Mutual Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988). Whether an interlocutory appeal affects a substantial right is determined on a case-by-case basis. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231, appeal dismissed, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). This Court has previously held that:
A substantial right is "one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." The right to immediate appeal is "reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed." Our courts have generally taken a restrictive view of the substantial right exception. The burden is on the appealing party to establish that a substantial right will be affected.
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted). "When an appeal is interlocutory, the statement [of the grounds for review in an appellant's brief] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4) (2005).
In the present case, defendant admits that the trial court's order is interlocutory, but insists that a substantial right is involved. Specifically, defendant contends that a venue determination is involved. It is true that the "right to venue established by statute is a substantial right," the denial of which is "immediately appealable." Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980). The applicable statutory right to venue provides that "the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement. . . ." N.C. Gen. Stat. § 1-82 (2003) (emphasis added). Quite differently, the subject of the present appeal is the " proper place of trial" within a county. See N.C. Gen. Stat. § 7A-42(c) (2003) (emphasis added).
The statute which governs the "proper place of trial" within a county states that "[a]ll laws, rules, and regulations . . . in force and effect in determining the proper venue as between the superior courts of the several counties of the State shall apply for the purpose of determining the proper place of trial as between . . . divisions within [a] county. . . ." Id. However, the statute does not go so far as to make venue proper only in the "proper place of trial."
We are unpersuaded that a trial court's denial of a motion to transfer proceedings to a "proper place of trial" within a county necessarily affects a substantial right if venue is proper in the county in which the action was filed. Moreover, other than its argument that a venue ruling is immediately appealable, defendant has made no argument that the denial of its motion affected a substantial right. As such, we conclude that defendant's appeal is interlocutory, does not affect a substantial right, and must be dismissed.
Dismissed as interlocutory.
Judges TYSON and BRYANT concur.
APPENDIX
I. Rule 3 of the North Carolina Rules of Appellate Procedure is amended as described below:
Rule 3(b) is amended to read:
(b) Special Provisions. Appeals in the following types of cases shall be taken in the time and manner set out in the General Statutes and appellate rules sections noted:
(1)Termination of Parental Rights, G.S. 7B 1113.Juvenile matters, G.S. 7B-2602.
(2)Juvenile matters, G.S. 7B 1001 or 7B 2602.Appeals pursuant to G.S. 7B-1001 shall be subject to the provisions of N.C. R. App. P. 3A.
For appeals filed pursuant to these provisions and for extraordinary writs filed in cases to which these provisions apply, the name of the juvenile who is the subject of the action, and of any siblings or other household members under the age of eighteen, shall be referenced by the use of initials only in all filings, documents, exhibits, or arguments submitted to the appellate court with the exception of sealed verbatim transcripts submitted pursuant to Rule 9(c). In addition, the juvenile's address, social security number, and date of birth shall be excluded from all filings, documents, exhibits, or arguments with the exception of sealed verbatim transcripts submitted pursuant to Rule 9(c). Appeals filed pursuant to these provisions shall specifically comply, if applicable, with Rules 9(b), 9(c), 26(g), 28(d), 28(k), 30, 37, 41 and Appendix B.
II. Rule 3A is added to the North Carolina Rules of Appellate Procedure as described below:
Rule 3A is added to read:
Rule 3A. APPEAL IN QUALIFYING JUVENILE CASES HOW AND WHEN TAKEN, SPECIAL RULES
(a) Filing the Notice of Appeal. Any party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to G.S. 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in the time and manner set out in Chapter 7B of the General Statutes of North Carolina. Trial counsel or an appellant not represented by counsel shall be responsible for filing and serving the notice of appeal in the time and manner required. If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal. All such appeals shall comply with the special provisions set out in subsection (b) of this rule and, except as hereinafter provided by this rule, all other existing Rules of Appellate Procedure shall remain applicable.
(b) Special Provisions. For appeals filed pursuant to this rule and for extraordinary writs filed in cases to which these provisions apply, the name of the juvenile who is the subject of the action, and of any siblings or other household members under the age of eighteen, shall be referenced only by the use of initials in all filings, documents, exhibits, or arguments submitted to the appellate court with the exception of sealed verbatim transcripts submitted pursuant to Rule 9(c). In addition, the juvenile's address, social security number, and date of birth shall be excluded from all filings, documents, exhibits, or arguments with the exception of sealed verbatim transcripts submitted pursuant to subdivision (b)(1) below or Rule 9(c).
In addition, appeals filed pursuant to these provisions shall adhere strictly to the expedited procedures set forth below:
(1) Transcripts. Within one business day after the notice of appeal has been filed, the clerk of superior court shall notify the court reporting coordinator of the Administrative Office of the Courts of the date the notice of appeal was filed and the names of the parties to the appeal and their respective addresses or addresses of their counsel. Within two business days of receipt of such notification, the court reporting coordinator shall assign a transcriptionist to the case. Within thirty-five days from the date of the assignment, the transcriptionist shall prepare and deliver a transcript of the designated proceedings to the office of the Clerk of the Court of Appeals and provide copies to the respective parties to the appeal at the addresses provided. Motions for extensions of time to prepare and deliver transcripts are disfavored and will not be allowed by the Court of Appeals absent extraordinary circumstances.
(2) Record on Appeal. Withintwentyten days afterthe notice of appeal has been filedreceipt of the transcript, the appellant shall prepare and serve upon all other parties a proposed record on appeal constituted in accordance with Rule 9.,except there shall be no requirement to set out references to the transcript under the assignments of error.Trial counsel for the appealing party,together withshall have a duty to assist appellate counsel, if separate counsel is appointed or retained for the appeal,shall have joint responsibility forin preparing and serving a proposed record on appeal. Within ten days after service of the proposed record on appeal upon an appellee, the appellee may serve upon all other parties: (1) a notice of approval of the proposed record; (2) specific objections or amendments to the proposed record on appeal, or (3) a proposed alternative record on appeal.
If the parties agree to a settled record on appeal withinthirtytwenty days afternotice of appeal has been filed, receipt of the transcript, the appellant shall file three legible copies of the settled record on appeal in the office of the Clerk of the Court of Appeals within five business days from the date the record was settled. If all appellees fail within the times allowed them either to serve notices of approval or to serve objections, amendments, or proposed alternative records on appeal, the appellant's proposed record on appeal shall constitute the settled record on appeal, and the appellant shall file three legible copies thereof in the office of the Clerk of the Court of Appeals within five business days from the last date upon which any appellee could have served such objections, amendments, or proposed alternative record on appeal. If an appellee timely serves amendments, objections, or a proposed alternative record on appeal and the parties cannot agree to the settled record within thirty days afternotice of appeal has been filed, receipt of the transcript, each party shall file three legible copies of the following documents in the office of the Clerk of the Court of Appeals within five business days after the last day upon which the record can be settled by agreement: (1) the appellant shall file his or her proposed record on appeal, and (2) an appellee shall file his or her objections, amendments, or proposed alternative record on appeal.
No counsel who has appeared as trial counsel for any party in the proceeding shall be permitted to withdraw, nor shall such counsel be otherwise relieved of any responsibilities imposed pursuant to this rule, until the record on appeal has been filed in the office of the Clerk of the Court of Appeals as provided herein.
(3) Briefs. Within thirty days after the record on appeal has been filed with the Court of Appeals, the appellant shall file his or her brief in the office of the Clerk of the Court of Appeals and serve copies upon all other parties of record. Within thirty days after the appellant's brief has been served on an appellee, the appellee shall file his or her brief in the office of the Clerk of the Court of Appeals and serve copies upon all other parties of record. Motions for extensions of time to file briefs will not be allowed absent extraordinary circumstances.
(c) Calendaring priority. Appeals filed pursuant to this rule will be given priority over other cases being considered by the Court of Appeals and will be calendared in accordance with a schedule promulgated by the Chief Judge. Unless otherwise ordered by the Court of Appeals, cases subject to the expedited procedures set forth in this rule shall be disposed of on the record and briefs and without oral argument.
These amendments to the North Carolina Rules of Appellate Procedure shall be effective on the 1st day of March May, 2006, and shall apply to cases appealed on or after that date.
Adopted by the Court in Conference this the 3rd 26th 28th 27th day ofNovember, 2005 January February ,April. 2006. These amendments shall be promulgated by publication in the Advance Sheets of the Supreme Court and the Court of Appeals. These amendments shall also be published as quickly as practical on the North Carolina Judicial Branch of Government Internet Home Page(http://www.nccourts.org). Lake Parker, C.J.
For the Court