Neil Realty Co., Inc. v. Medical Care, Inc.

• Decision Date: 06 July 1993
• Docket Number: No. 928SC811,928SC811
• Citation: 110 N.C.App. 776,431 S.E.2d 225
• Parties: NEIL REALTY COMPANY, INC. v. MEDICAL CARE, INC., and J. Kenneth Lee.
• Court: North Carolina Court of Appeals

Page 225

431 S.E.2d 225

110 N.C.App. 776

NEIL REALTY COMPANY, INC. v. MEDICAL CARE, INC., and J. Kenneth Lee.

No. 928SC811.

Court of Appeals of North Carolina.

July 6, 1993.

Ward and Smith, P.A. by John M. Martin, Ryal W. Tayloe, and Andrew H.D. Wilson, Greenville, for plaintiff-appellant.

Becton, Slifkin & Fuller, P.A. by Charles L. Becton and Asa L. Bell, Jr., Raleigh, for defendants-appellees.

GREENE, Judge.

Plaintiff appeals from an order filed 11 June 1992, granting defendants' motion for change of venue to Guilford County, North Carolina.

Plaintiff Neil Realty Company, Inc. (Neil Realty) instituted this action on 8 April 1992, seeking declaratory relief. In its complaint, Neil Realty alleges that on 26 January 1990, it purchased the assets, including the real property, of the St. James Nursing Center, Inc. (St. James), a nursing home facility located in Greensboro, North Carolina. St. James had previously purchased the real property on which the nursing home is located from defendant Medical Care, Inc. (Medical Care), subject to a promissory note and purchase money deed of trust held by Medical Care's trustee. St. James then defaulted on the note. Pursuant to the purchase agreement between Neil Realty and St. James, Neil Realty assumed the debt owed by St. James to Medical Care. Neil Realty simultaneously entered into an agreement with Medical Care, pursuant to which Neil Realty, at any time from 26 January 1990 until 26 January 1992, would have an option to purchase from Medical Care the note and deed of trust outright at a substantial discount. For every month that Neil Realty did not exercise the option, Neil Realty's monthly payments on the St. James promissory note were to be $7,650.31.

Neil Realty alleges that it attempted to exercise the option prior to the expiration date of 26 January 1992, but did not because of representations made by defendant J. Kenneth Lee, sole shareholder of Medical Care. Medical Care subsequently informed Neil Realty that the option was no longer in effect. Neil Realty filed a complaint in Lenoir County, North Carolina, its principal place of business, seeking a judgment declaring that the option "was extended by valid oral agreement, and that as a result of the extension, [Neil Realty] may exercise" the option. Medical Care filed a motion on 5 May 1992 pursuant to N.C.G.S. § 1-76 to remove the action to Guilford County, North Carolina, on the ground that the action seeks determination of rights or interests in real property located there. From an order granting Medical Care's motion, Neil Realty appeals. See Snow v. Yates, 99 N.C.App. 317, 319, 392 S.E.2d 767, 768 (1990) (grant of a motion asserting a statutory right to venue, though interlocutory, affects a substantial right and is therefore immediately appealable).

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The sole issue presented is whether the trial court properly determined that Neil Realty's pursuit of a judgment declaring the option agreement still in effect constitutes an action for the "[r]ecovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest" pursuant to N.C.G.S. § 1-76 and therefore requires that the action be tried in Guilford County.

An action for the "[r]ecovery of real property, or of an estate or interest therein, or for the determination in any form of such...