Perkins v. CCH Computax, Inc.
| Decision Date | 05 May 1992 |
| Docket Number | No. 9110SC1257,9110SC1257 |
| Citation | 106 N.C.App. 210,415 S.E.2d 755 |
| Court | North Carolina Court of Appeals |
| Parties | Jack PERKINS, CPA, Appellee, v. CCH COMPUTAX, INC., Appellant. |
Clifton, Singer & Russell by J. Kenneth Edwards, Raleigh, for plaintiff-appellee.
Patton, Boggs & Blow by Kenneth J. Gumbiner and Julie A. Davis, Greensboro, for defendant-appellant.
The two pertinent clauses in the license agreement (contract) provide as follows:
29D. This Agreement shall be governed by and interpreted in accordance with the law of the State of California.
29E. This Agreement shall be treated as though it were executed in the County of Los Angeles, State of California, and were to have been performed in the County of Los Angeles, State of California. Any action relating to this Agreement shall only be instituted and prosecuted in courts in Los Angeles County, California. Customer/Licensee specifically consents to such jurisdiction and to extraterritorial Service of Process.
(Emphasis added). The first clause, 29D, is a choice of law provision. The second clause, 29E, contains both a forum selection provision (first underlined segment) and a consent to jurisdiction provision (second underlined segment). Contractual provisions purporting to govern the jurisdiction and applicable law are discussed in a recent North Carolina Supreme Court decision, Johnston County, N.C. v. R.N. Rouse & Co., Inc., 331 N.C. 88, 414 S.E.2d 30 (1992). In Rouse, our Supreme Court sets out the three types of contractual provisions: 1) choice of law, 2) consent to jurisdiction, and 3) forum selection provisions. The first type indicates which jurisdiction's substantive laws are to be used when construing the contract. This jurisdiction's laws are to apply no matter where the suit is filed. The second type sets out the name of the state in which the parties agree to submit to personal jurisdiction. Last, the forum selection provision indicates the only jurisdiction in which the parties will litigate an action arising out of the contract.
It is precisely this third type of provision which is at issue in the case at bar and is also the one type of provision which our Supreme Court clearly indicated was not involved in Rouse. Defendant argues on appeal that the trial court erred by refusing to enforce the exclusive venue clause in the contract, the forum selection provision. Specifically, defendant contends Wake County is not the proper venue in this case because the contract specifies Los Angeles County, California as the exclusive forum for any action instituted pursuant to the contract.
Defendant assigns as error the trial court's denial of his motion to dismiss based upon 1) failure to state a claim upon which relief may be granted, 2) lack of subject matter jurisdiction, and 3) improper venue. The denial of a 12(b)(6) motion to dismiss for failure to state a claim is interlocutory and not immediately appealable. See, Godley Auction Co., Inc. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). Defendant's brief on appeal does not argue lack of subject matter jurisdiction. Normally, an issue not argued in the brief is deemed abandoned. N.C.R.App.P. 28(b)(5). We exercise our discretion to consider this matter, but find this assignment of error to be without merit. See, Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), disc. rev. denied, 296 N.C. 583, 254 S.E.2d 32 (1979).
A motion for change of venue for the convenience of witnesses and the ends of justice is discretionary and its denial is not immediately appealable. Furches v. Moore, 48 N.C.App. 430, 269 S.E.2d 635 (1980). However, an immediate appeal is permitted where "an erroneous order denying a party the right to have the case heard in the proper court would work an injury to the aggrieved party which would not be corrected if no appeal was allowed before the final judgment." DesMarais v. Dimmette, 70 N.C.App. 134, 136, 318 S.E.2d 887, 889 (1984). Assuming arguendo that the denial of the motion to dismiss based upon improper venue is immediately appealable, we have examined defendant's argument and find it too to be without merit.
Our Supreme Court has addressed the question of whether parties may select the forum for an action by way of a contract provision:
The regulation of venue is a matter within the discretion of the Legislature.... To permit parties to a contract to enforce a stipulation which purports definitely to fix the forum long before there is a cause of action would be to nullify the law and to substitute the will of the parties in its stead.
Gaither v. Charlotte Motor Car Co., 182 N.C. 498, 499, 109 S.E. 362, 363 (1921). In this case, the contract provision specifying an exclusive forum was of no effect. Defendant has failed to show any other reason to support its contention that Wake County was the improper venue for this action, and the trial court's order is affirmed.
We have reviewed the authority cited by defendant, but find none to be controlling. The United States Supreme Court held that a forum-selection clause should be specifically enforced unless the resisting party could clearly show that enforcement would be unreasonable and unjust or that the clause was invalid for fraud or overreaching. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). The Court, however, clearly limited the holding to all federal district courts sitting in admiralty. In Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), the Court held...
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