Assure Re Intermediaries, Inc. v. Pyrtle

• Decision Date: 07 December 2021
• Docket Number: No. COA21-132,COA21-132
• Citation: 865 S.E.2d 902 (Table)
• Parties: ASSURE RE INTERMEDIARIES, INC. (f/k/a Assure Management Group, Inc. ), Plaintiff, v. C. Wayne PYRTLE; Guy Carpenter & Company, LLC ; Hudson Specialty Insurance Company; Platinum Managing General Agency, Inc.; and Streamline Insurance Services, Inc., Defendants.
• Court: North Carolina Court of Appeals

865 S.E.2d 902 (Table)

ASSURE RE INTERMEDIARIES, INC. (f/k/a Assure Management Group, Inc. ), Plaintiff,

v.C. Wayne PYRTLE; Guy Carpenter & Company, LLC ; Hudson Specialty Insurance Company; Platinum Managing General Agency, Inc.; and Streamline Insurance Services, Inc., Defendants.

No. COA21-132

Court of Appeals of North Carolina.

Filed December 7, 2021

Womble Bond Dickinson (US) LLP, by John E. Pueschel, Philip J. Mohr, and Patricia L. Holliman, for Plaintiff-Appellee.

Jackson Lewis P.C., by Robin Davis and Jonathan L. Crook, for Defendants-Appellants C. Wayne Pyrtle and Guy Carpenter & Company, LLC.

JACKSON, Judge.

¶ 1 Defendants C. Wayne Pyrtle and Guy Carpenter & Company, LLC appeal from an order denying their 12(b)(3) motion to dismiss for improper venue. We allow the interlocutory appeal and affirm the trial court's order.

I. Background

¶ 2 This action arises out of the dissolution of an employment relationship between Defendant C. Wayne Pyrtle and Plaintiff Assure Re Intermediaries, Inc. ("Plaintiff"). Defendant Pyrtle is a former Vice Chair of Plaintiff's Board of Directors and Plaintiff's former President and Chief Operating Officer.

¶ 3 In 2011, Defendant Pyrtle was employed by BMS Intermediaries, Inc. ("BMS"), whose primary place of business is in Texas.¹ At all relevant times, Defendant Pyrtle was a resident of Alamance County, North Carolina. On 17 October 2012, Defendant Pyrtle entered into an employment agreement ("Agreement") with BMS, which was assigned to Plaintiff on 1 January 2013. The Agreement contained a "Choice of Law and Forum" provision, which stated:

Choice of Law and Forum. The terms and enforcement of this Agreement are governed by the laws of the State of Texas, without regard to conflict of laws rules. Any legal action relating to or arising from this Agreement will be brought in a state court of competent jurisdiction in Dallas, Texas or in the United States District Court for the Northern District of Texas, each venue being where the Employer maintains it[s] principal place of business.

Defendant Pyrtle continued to work for Plaintiff until his resignation on 17 June 2019.

¶ 4 Plaintiff filed suit on 9 October 2019, alleging that Defendant Pyrtle, while still employed by Plaintiff, agreed to work for Plaintiff's competitor, Defendant Guy Carpenter & Company, LLC, and conspired to usurp Plaintiff's corporate opportunities, in breach of his fiduciary duties and the non-competition and non-solicitation provisions of the Agreement, among other claims.

¶ 5 Defendant Pyrtle and his new employer, Guy Carpenter & Company, LLC (hereinafter collectively referred to as "Defendants"), moved to dismiss all claims against them for improper venue under North Carolina Rule of Civil Procedure 12(b)(3), arguing that the forum provision of the Agreement required any litigation to take place in Texas. Before this motion was heard, Plaintiff filed a motion to amend its complaint.

¶ 6 On 17 February 2020, the Honorable Lora Cubbage conducted a hearing on these pending motions. At the hearing, Plaintiff's motion to amend was heard first. Defendants opposed the motion to amend, arguing that amending the complaint would be futile in light of the forum selection clause. Defendants acknowledged that this argument was the same argument supporting their 12(b)(3) motion to dismiss. Judge Cubbage also acknowledged that Defendants’ argument in opposition to the motion to amend blended into Defendants’ argument on the 12(b)(3) motion to dismiss:

THE COURT: ... This is plaintiff's motion to amend which the Court heard first. And in hearing the defendant's argument to that motion to amend, it transitioned into defendant's motion to dismiss the case citing number 16 of the employment contract that there was a forum that was chosen in 2012.

Judge Cubbage ultimately rejected Defendants’ argument and allowed Plaintiff to file an amended complaint.

¶ 7 In Judge Cubbage's order on 17 March 2020 ("March Order"), Judge Cubbage ruled that the forum selection clause in the Agreement was unenforceable, specifically finding the following:

The Court finds that, based upon the allegations and all reasonable inferences arising therefrom as contained in the original Complaint and the proposed Amended Complaint, that Assure Re alleged that at all relevant times, including at the time he agreed to the terms of the Agreement, that Defendant Pyrtle was a resident of Burlington, North Carolina.

The Court further finds that Assure Re alleged that: the Agreement was entered into in 2012 for an initial term of one year, and provided for a single, one-year renewal term; the Agreement was not expressly renewed by Assure Re or Pyrtle but remains in full force and effect, and the parties continued to operate pursuant to the terms of the Agreement and thereby created an implied in law contract which Defendant Pyrtle entered into while he was in North Carolina.

...

The Court further finds that the decision in SED Holdings, LLC v. 3 Star Props, LLC , 246 N.C. App. 632, 784 S.E.2d 627 (2016) controls and that the venue provision in the Agreement is against North Carolina public policy pursuant to N.C.G.S. § 22B-3 ....

Defendants did not appeal from the March Order.

¶ 8 After the amended complaint was filed, Defendants filed a second 12(b)(3) motion to dismiss. In the second motion, Defendants relied on the same forum selection clause argument previously rejected by Judge Cubbage. Judge Hanford conducted a hearing on the second motion to dismiss on 22 September 2020. At this hearing, Defendants acknowledged that Judge Hanford was likely bound by Judge Cubbage's previous finding that the forum selection clause was unenforceable.

¶ 9 Judge Hanford entered an order on 22 September 2020 ("September Order") denying Defendants’ 12(b)(3) motion to dismiss "[b]ased on the law of the case as stated in Judge Cubbage's March 17, 2020 Order[.]"

¶ 10 In the September Order, Judge Hanford specifically found the following:

The Court finds that the Honorable Lora C. Cubbage entered an Order in this action on or about March 17, 2020, which allowed Plaintiff's Motion to Amend, but did not enter a ruling as to Guy Carpenter Defendants’ Motion to Dismiss the original Complaint ("March 17 Order");

The Court finds that in the March 17 Order, Judge Cubbage did however conclude that Plaintiff alleged the contract between it and Defendant Pyrtle was not expressly renewed, but there was an implied in law contract which Defendant Pyrtle entered into while he was in North Carolina, and accordingly, that the decision in SED Holding, LLC v. 3 Star Props, LLC , 246 N.C. App. 632, 784 S.E.2d 627 (2016), controls and that the forum and venue provision in the contract is "against North Carolina public policy pursuant to N.C.G.S. § 22B-3."

¶ 11 Based on these findings, Judge Hanford concluded that

The Court ... is bound by the legal conclusions contained in the March 17 Order as the law of the case; and

The Court concludes that the pending Motion to Dismiss the Amended Complaint filed by the Guy Carpenter Defendants must be considered in light of the law of the case as stated in Judge Cubbage's March 17, 2020 Order.

¶ 12 Defendants timely filed notice of appeal from the September Order. Defendants also filed a conditional petition for writ of certiorari, asking this Court to review both the March Order and September Order. Plaintiffs filed a motion to dismiss the interlocutory appeal, which was referred to this panel.

II. Jurisdiction

A. Motion to Dismiss

¶ 13 We must first address Plaintiff's referred motion to dismiss and decide whether we have jurisdiction to hear this appeal. Because Defendants have demonstrated that the September Order affects a substantial right, we allow the appeal and deny Plaintiff's motion to dismiss the interlocutory appeal.

¶ 14 Interlocutory orders are generally not immediately appealable. Goldston v. Am. Motors Corp. , 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). However, an interlocutory order may be appealable when it affects a substantial right of the appellant that would be lost without immediate review. Id. ; N.C. Gen. Stat. § 1-277(a) (2019). Our Supreme Court created a two-part test for determining whether an interlocutory order can be immediately appealed due to a substantial right: "(1) the right itself must be substantial; and (2) the deprivation of that substantial right must potentially work injury to the appealing party if not corrected before appeal from final judgment." Builders Mut. Ins. Co. v. Meeting St. Builders , LLC , 222 N.C. App. 646, 649, 736 S.E.2d 197, 199 (2012) (citing Goldston, 326 N.C. at 726, 392 S.E.2d at 736 ) (internal marks omitted).

¶ 15 The appellant bears the burden to show a substantial right in each case. Jeffreys v. Raleigh Oaks Joint Venture , 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Our appellate courts have repeatedly held that whether an interlocutory appeal affects a substantial right is determined on a "case-by-case" basis. See Dewey Wright Well & Pump Co. v. Worlock, 243 N.C. App. 666, 669, 778 S.E.2d 98, 101 (2015). See also Waters v. Qualified Pers., Inc. , 294 N.C. 200, 208, 240 S.E. 2d 338, 343 (1978) ("It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.").

¶ 16 Generally, an order denying a motion to dismiss for improper venue affects a substantial right and is immediately appealable. Gardner v. Gardner , 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) ("Although the initial question of venue is a procedural one, there can be no doubt that a right to venue established by statute is a substantial right. Its grant or denial is immediately appealable.") (internal citations omitted); McClure Estimating Co. v. H.G. Reynolds Co. , 136 N.C. App. 176, 179, 523 S.E.2d 144, 146 (1999) ("[A]n order erroneously denying defendants’ Motion to Dismiss for Lack of Venue would [ ] work an...