Fox Holdings, Inc. v. Wheatly Oil Co.

EAGLES, Chief

Judge, dissenting.

I respectfully dissent. In light of this Court’s decision in Bishop v. Lattimore, 137 N.C. App. 339, 530 S.E.2d 554 (2000), I vote to affirm the trial court.

To determine whether an action is removable as a matter of right to the county where the land is situated

[t]he test is this: If the judgment to which plaintiff would be entitled upon the allegations of the complaint will affect the title to land, the action is local and must be tried in the county where the land lies unless defendant waives the proper venue; otherwise, the action is transitory and must be tried in the county where one or more of the parties reside at the commencement of the action.

Thompson v. Horrell, 272 N.C. 503, 504-05, 158 S.E.2d 633, 634-35 (1968). Title to real property must be directly affected by a judgment

“to render the action local, and an action is not necessarily local because it incidentally involves the title to land or a right or interest therein, ... It is the principal object involved in the action which determines the question, and if title is principally involved or if the judgment or decree operates directly and primarily on the estate or title, and not alone in personam against the parties, the action will be held local.” 92 C.J.S., Venue, § 26, pp. 723, 724.

Rose’s Stores v. Tarrytown Center, 270 N.C. 201, 206, 154 S.E.2d 320, 323 (1967) (emphasis added).

In its complaint, plaintiff sought specific performance of the Asset Purchase Agreement, monetary damages for defendant’s alleged breach of the Asset Purchase Agreement, monetary damages for defendant’s alleged interference with plaintiff’s contracts, monetary damages for defendant’s alleged unfair and deceptive trade practices, and monetary damages for defendant’s alleged breach of warranty. First, we note that if the trial court were to grant plaintiff’s request for monetary damages only, the judgment would not affect title or interest in any land. This Court has held that actions in which the principal object of recovery is monetary damages are not local actions within the meaning of G.S. § 1-76(1). See Wise v. Isenhour, 9 N.C. App. 237, 240, 175 S.E.2d 772, 774 (1970).

*59Additionally, we note that if the trial court were to grant plaintiffs request for specific performance of the Asset Purchase Agreement, the trial court would have to require defendant to convey, transfer, and deliver to plaintiff (i) its sublease to Store #3, “(ii) all Personal Property Leases; (iii) all machinery, furniture, fixtures, improvements and equipment, including any maintenance or service contracts thereon; (iv) any agreements, contracts, deposits or commitments; (v) all store inventory, opened or unopened, and all fuel inventory; and (vi) all of assets of [defendant] used or useful in the operation of Store #3.” Here, I believe that “[a]ny effect that [plaintiff’s] claim has on real property is simply incidental rather than direct.” Bishop, 137 N.C. App. 339, 345, 530 S.E.2d 554, 559.

In Bishop, this Court, quoting our Supreme Court in Rose’s, 270 N.C. 201, 204, 154 S.E.2d 320, 322, stated that “ ‘[t]o carry out the idea of a decree acting in personam, it may be necessary to consider a suit for specific performance as being transitory instead of local[.]’ ” 137 N.C. App. at 345, 530 S.E.2d at 559. In denying the plaintiffs claim that his action must be tried in the county where the affected property is located, this Court held that the plaintiffs claim for specific performance of a settlement agreement, which incidentally involved a transfer of rental property, did not directly affect an interest in land requiring the action be removed as a matter of right under G.S. § 1-76. Id. Bishop is analogous to the present case. “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).

I believe that the majority’s reliance on Snow v. Yates, 99 N.C. App. 317, 392 S.E.2d 767 (1990), is misplaced. Unlike the instant case, the plaintiff and the defendants in Snow were lessee and lessors respectively. Id. In initiating his claim, the plaintiff brought a declaratory action to determine the existence or non-existence of a lease. Id. Unlike our present case, the principal object involved in Snow was title or interest in real property, and the trial court’s determination would directly and primarily affect the parties’ title or interest in that property. Id.

Accordingly, I conclude that plaintiff’s principal objective in this action was not resolving a dispute over an interest in real property, but rather, plaintiff’s principal objective was the resolution of the Asset Purchase Agreement — which incidentally affected title or inter*60est in Store #3. For the foregoing reasons, I would hold that plaintiffs claims are transitory and not removable as a matter of right to the county in which the land incidentally affected is situated.