Motor Inn Management, Inc. v. Irvin-Fuller Development Co., Inc.

• Decision Date: 09 May 1980
• Docket Number: No. 7912SC1002,IRVIN-FULLER,7912SC1002
• Parties: MOTOR INN MANAGEMENT, INC. v.DEVELOPMENT CO., INC.
• Court: North Carolina Court of Appeals

Page 368

266 S.E.2d 368

46 N.C.App. 707

MOTOR INN MANAGEMENT, INC. v. IRVIN-FULLER DEVELOPMENT CO., INC.

No. 7912SC1002.

Court of Appeals of North Carolina.

May 9, 1980.

McCoy, Weaver, Wiggins, Cleveland & Raper by John E. Raper, Jr. and Reginald M. Barton, Jr., Fayetteville, for plaintiff-appellant.

Anderson, Broadfoot & Anderson by Henry L. Anderson, Fayetteville, for defendant-appellee.

HARRY C. MARTIN, Judge.

This appeal requires the construction of N.C.G.S. 1-75.12(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 a 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 nonmoving 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 a "person" within the meaning of the section and has a right to have its claims tried in the courts of North Carolina. However, we are not required to construe this section of the constitution, 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 to 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, 285 N.C. 741, 208 S.E.2d 662 (1974); Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E.2d 435 (1971); Boehm v. Board of Podiatry Examiners, 41 N.C.App. 567, 255 S.E.2d 328, cert. denied, 298 N.C. 294, 259 S.E.2d 298 (1979). This is in accord with decisions of the Supreme Court of the United States. Edelman v. California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387 (1953). Appellant contended at oral argument that the constitutional question was presented to the trial court. Nevertheless, we are bound by the record on appeal. Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48 (1965); In re Sale of Land of Warrick, 1 N.C.App. 387, 161 S.E.2d 630 (1968). Appellant has the duty to see that the record on appeal is properly made up. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965); State v. Byrd, 4 N.C.App. 672, 167 S.E.2d 522 (1969). The record fails to show that the constitutional question was presented to and passed upon by the trial court; therefore, it is not properly before us.

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 of 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, 257 N.C. 255, 125 S.E.2d 580 (1962); Jackson v. Collins, 9 N.C.App. 548, 176 S.E.2d 878 (1970). There remains for determination the issue whether the facts found support the judgment and whether error of law appears on the face of the judgment. Brown v. Board of Education, 269 N.C. 667, 153 S.E.2d 335 (1967); Durland v. Peters, Comr. of Motor Vehicles, 42 N.C.App. 25, 255 S.E.2d 650 (1979).

The court found as facts that plaintiff is a North Carolina corporation with its principal place of business in Cumberland County, North Carolina, and defendant 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 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 Carolina 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 obligated 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 professions, 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 would 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 employed 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 facts 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 place for trial of the action on its merits.

This Court held in Acorn v. Knitting Corp., 12 N.C.App. 266, 182 S.E.2d 862, cert. denied, 279 N.C. 511, 183 S.E.2d 686 (1971), that the trial court could enter a stay pursuant to N.C.G.S. 1-75.12(a) upon a finding that it would work a substantial injustice for the action to be tried in North Carolina. The entry of an order under N.C.G.S. 1-75.12(a) is a matter within the sound discretion of the trial judge. Allen v. Trust Co., 35 N.C.App. 267, 241 S.E.2d 123 (1978). It appears these are the only North Carolina cases involving this statute.

Looking to other sources, we find some assistance in interpreting our statute. With respect to the Wisconsin statute which was the first statute of this type enacted, the Supreme Court of Wisconsin stated:

The general 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 another state upon a convincing showing that trial of the cause in Wisconsin is so inconvenient that substantial injustice is likely to result. . . ."

Dean Robert Leflar points out that forum non conveniens 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...