Se. Caissons, LLC v. Choate Constr. Co.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-1284

Filed: 19 April 2016

Forsyth County, No. 15 CVS 668

SOUTHEAST CAISSONS, LLC, Plaintiff,

CHOATE CONSTRUCTION COMPANY, CHOATE CONSTRUCTION GROUP,
LLC, FALCON ENGINEERING, INC., BBH DESIGN, P.A., and KIMLEY-HORN
AND ASSOCIATES, INC., Defendants.

Appeal by defendants from order entered 11 August 2015 by Judge William Z.

Wood in Forsyth County Superior Court. Heard in the Court of Appeals 31 March

2016.

Randolph M. James P.C., by Randolph M. James, for plaintiff-appellee.

Johnston, Allison & Hord, P.A., by Robert L. Burchette, Michael J. Hoefling,
and David V. Brennan, for Choate Construction Company and Choate
Construction Group, LLC, defendants-appellants.

TYSON, Judge.

Defendants Choate Construction Company and Choate Construction Group,

LLC (collectively, “Choate”) appeal from order denying Choate’s motion to dismiss, or

alternatively, for change of venue pursuant to Rule 12(b)(3). We affirm.

I. Factual Background

On 28 July 2011, the trustees of Wake Technical Community College entered

into a prime contract with Choate for the construction of the Northern Wake Campus
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Parking Deck, located in Raleigh, Wake County, North Carolina. The parking deck

construction (hereinafter, “the project”) was a public project, and subject to a

comprehensive set of statutes and regulations regarding the procurement of services

and materials and the performance of the project. The project was overseen by the

North Carolina Department of Administration and the State Construction Office.

Choate solicited bids for drilled shafts and concrete piers for the project.

Southeast Caissons, LLC (“SEC”) submitted two bid proposals to Choate. Brian

Kinlaw (“Mr. Kinlaw”) served as Choate’s project manager for the construction of the

parking deck. After SEC submitted its second bid proposal, Mr. Kinlaw corresponded

via a series of emails with Keisha West (“Ms. West”), a managing member of SEC,

regarding the terms of the proposed subcontract with SEC for the drilling of shafts

and the installation of concrete caissons and piers to support the weight and structure

of the project.

On 6 October 2011, Mr. Kinlaw emailed Ms. West an electronic copy of Choate’s

proposed subcontract and informed her she would also receive two hard copies by

mail. The subcontract offered a lump sum payment of $438,000.00 to SEC for its

work on the project, subject to contingencies, and incorporated the terms of the prime

contract between Choate and Wake Technical Community College. The subcontract

also contained a clause in Article X, Section 3(b) entitled “Additional Dispute

Resolution Provisions.” This clause stated: “Venue for any arbitration, settlement

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meetings or any subsequent litigation whatsoever shall be in the city of Contractor’s

office as shown on page 1 of the Subcontract.” Choate’s office was shown on page 1 of

the subcontract as being located in Raleigh, Wake County, North Carolina.

Mr. Kinlaw subsequently requested that Ms. West sign and return the

proposed subcontract. He explained that Choate required a signed subcontract before

it would allow SEC to begin work on the project. Ms. West informed Mr. Kinlaw that

SEC “had some small changes to the subcontract but generally found the subcontract

agreeable.” Ms. West emailed the changes to Mr. Kinlaw and he discussed the

changes with his superiors.

On 24 October 2011, Choate and SEC held a “pre-drill” meeting on-site, where

the parties reached an oral agreement on where “rock payment would begin in a

drilled shaft.” On 26 October, Ms. West emailed Mr. Kinlaw SEC’s “Proposed

Addendum” to the subcontract. The “Proposed Addendum” stated “[SEC] hereby

accepts the terms of the attached Subcontract, subject to and conditioned upon

[Choate’s] acceptance of the terms set forth in this Addendum[.]” (emphasis supplied).

On 27 October, Mr. Kinlaw and Ms. West engaged in a two-hour-long telephone

call, during which they discussed the subcontract and the “Proposed Addendum.”

Following this telephone call, Mr. Kinlaw and Ms. West continued to exchange emails

and telephone calls, in which they sought to reach an agreement on and finalize the

terms contained in the subcontract and “Proposed Addendum.” The correspondences

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included an email from Mr. Kinlaw on 2 November, in which he indicated the parties

“got closer” to reaching a final agreement on the additional issues and he “hope[d] to

have this resolved with [Ms. West] ASAP.” Ms. West replied with an email on 7

November which read: “I just wanted to touch base with you to check the status of

the Subcontract Agreement. I would like to get this contract nailed out [sic] today

prior to drilling, if possible.” SEC began drilling the first shaft that same day, while

the amended subcontract and “Proposed Addendum” remained unsigned by both SEC

and Choate.

Despite SEC beginning to drill on-site on 7 November 2011 without a signed

written subcontract, Choate and SEC, through Mr. Kinlaw and Ms. West, continued

to discuss the terms of the subcontract. On 15 November, Mr. Kinlaw sent an email

to Ms. West, which read: “I tried calling yesterday and today . . . to speak further

about the Subcontract. . . . Sending this just in case it’s not reaching you.” Mr. Kinlaw

sent another email to Ms. West on 18 November seeking to discuss “further definition

and clarification” of certain terms in the proposed subcontract.

The parties continued discussing the terms of the proposed subcontract into

December 2011. In an email dated 19 December 2011, Mr. Kinlaw wrote to Ms. West:

Further to my email below from 12/1/11 following the
collaborative effort by both of our offices to reach
concurrence on Contract terms, no further response has
been received from Southeast Caissons — namely, a signed
and executed copy of the Subcontract. In making another
attempt, attached you will find a revision to the

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Subcontract that includes all modifications agreed-upon as
clarified and documented previously.

In her supplemental affidavit, Ms. West stated she “could not sign the proposed

subcontract because we were not in agreement.”

Mr. Kinlaw sent a follow-up email to Ms. West on 30 December, in which he

stated he wanted to “discuss several urgent paperwork issues[.]” Mr. Kinlaw also

reminded Ms. West he had re-sent the proposed subcontract document for her to

execute and return to Choate.

Mr. Kinlaw emailed to SEC another modified proposed subcontract on 12

January 2012. He stated in the email: “I am re-sending the subcontract to you that

includes all modifications agreed-upon as clarified and documented previously and

has been cleaned up to remove the handwritten notes on Exhibits B and C. Please

execute and return this document immediately.” Ms. West averred in her

supplemental affidavit that Mr. Kinlaw considered this a “finalized subcontract,” but

it contained “modifications which were not acceptable to [SEC].” Ms. West did not

respond to Mr. Kinlaw’s correspondence, and SEC continued to perform work on the

construction project. SEC drilled the last shaft on the project on 27 January 2012.

The proposed “finalized subcontract,” as modified and sent by Mr. Kinlaw on 12

January 2012, remained unexecuted by both parties.

On 23 February 2012, Ms. West mailed Mr. Kinlaw a letter to notify him SEC’s

work had been completed and to request payment from Choate. Acknowledging she

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had not signed the proffered subcontract as yet, Ms. West stated: “We understand

Choate has maintained that a contract must be signed prior to any payment to [SEC],

but it is undeniable that no matter what our disagreement might be on the amount

due to [SEC] there is some amount due.” In his response letter to Ms. West, Mr.

Kinlaw informed her Choate would be unable to pay SEC until someone from SEC

submitted a payment application to Choate.

SEC filed a complaint on 23 February 2015 against Choate, Falcon

Engineering, Inc. (“Falcon”), BBH Design, P.A. (“BBH”), and Kimley-Horn and

Associates, Inc. (“Kimley-Horn”) in Forsyth County. Defendants Falcon, BBH, and

Kimley-Horn are not parties to this appeal, and the allegations asserted in SEC’s

complaint pertaining to these defendants are not addressed. SEC’s complaint against

Choate alleged claims for: (1) breach of contract; (2) quantum meruit; (3) fraud in the

inducement; (4) unfair and deceptive trade practices; and (5) punitive damages.

Choate responded and filed an answer, motion to dismiss, counterclaims, and

crossclaims. Choate asserted four separate bases for the trial court to grant its

motion to dismiss: (1) motion to dismiss for breach of a condition precedent to

maintain a claim/or waiver of the right to maintain a claim and for failure to state a

claim for relief, i.e. compliance with the condition precedent; (2) motion to dismiss for

failure to state a claim pursuant to Rule 12(b)(6); (3) motion to dismiss or

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alternatively for change of venue; and (4) motion to dismiss for failure to establish

that “rock” was encountered beyond bearing elevation.

Choate’s motion for change of venue was based upon the language contained

in Article X, Section 3(b) of the unsigned subcontract, which provided: “Venue for any

arbitration, settlement meetings or any subsequent litigation whatsoever shall be in

the city of Contractor’s office as shown on page 1 of the Subcontract.”

SEC voluntarily dismissed without prejudice its claims against defendants

BBH and Kimley-Horn on 30 July 2015. Choate’s motion to dismiss or alternatively

for change of venue was heard in Forsyth County Superior Court on 27 July 2015.

Both Mr. Kinlaw and Ms. West submitted affidavits, which were filed in anticipation

of this hearing.

The trial court entered a written order denying Choate’s motion for change of

venue on 11 August 2015. The trial court’s order stated, in part:

IT APPEARS to the Court from Brian Kinlaw’s affidavit
filed by movants and the Affidavit of Keisha West and
Supplemental Affidavit of Keisha West filed by plaintiff
Southeast Caissons, LLC (SEC), a managing member of
SEC, that the Subcontract attached to defendants [sic]
Choate’s Answer as Exhibit A was never executed by SEC
or Choate . . . and is therefore not binding on the plaintiff,
and in particular the venue selection clause of Article X of
the unexecuted Subcontract; and,

IT FURTHER appears to the Court . . . that [SEC] is
a Forsyth County, Kernersville, North Carolina
Corporation and venue is proper in Forsyth County . . . as
the plaintiff maintains its principal office in Forsyth

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County and maintains a place of business in Forsyth
County[.]

Choate gave timely notice of appeal to this Court.

II. Issues

Defendant Choate argues the trial court erred by: (1) entering an order, which

was fatally overbroad; and (2) denying Choate’s motion for change of venue pursuant

to Rule 12(b)(3).

III. Standard of Review

“[Q]uestion[s] of venue . . . [rest] within the sound discretion of the trial judge,

and [are] not subject to review except for manifest abuse of such discretion.” Farmers

Coop. Exch., Inc. v. Trull, 255 N.C. 202, 204, 120 S.E.2d 438, 439 (1961) (citations

omitted). Under an abuse of discretion standard, this Court reviews the trial court

“to determine whether a decision is manifestly unsupported by reason, or so arbitrary

that it could not have been the result of a reasoned decision.” Printing Servs. of

Greensboro, Inc. v. Am. Capital Grp., Inc., 180 N.C. App. 70, 74, 637 S.E.2d 230, 232

(2006) (citation omitted), aff’d per curiam, 361 N.C. 347, 643 S.E.2d 586 (2007).

IV. Analysis

A. Jurisdiction

Defendant Choate’s appeal is interlocutory. An order or judgment is

interlocutory if it does not settle all the pending issues and “directs some further

proceeding preliminary to the final decree.” Heavner v. Heavner, 73 N.C. App. 331,

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332, 326 S.E.2d 78, 80 (citation omitted), disc. review denied, 313 N.C. 601, 330 S.E.2d

610 (1985). The trial court’s order denying Choate’s motion for change of venue is

interlocutory, because it does not dispose of all issues of the case and is not a final

disposition for any party.

An interlocutory order is generally not immediately appealable. An exception

to this rule exists if the appellant shows the order affects a substantial right, which

will be lost if the case is not reviewed prior to the issuance of a final judgment. N.C.

Gen. Stat. §§ 1-277(a) (2015), 7A-27(b)(1) (2015); Guilford Cnty. ex rel. Gardner v.

Davis, 123 N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996).

This Court has held “where the issue pertains to applying a forum selection

clause, our case law establishes that [a party] may nevertheless immediately appeal

the order because to hold otherwise would deprive him of a substantial right.” Hickox

v. R&G Grp. Int’l, Inc., 161 N.C. App. 510, 511, 588 S.E.2d 566, 567 (2003) (citation

omitted); see also Parson v. Oasis Legal Fin., LLC, 214 N.C. App. 125, 128, 715 S.E.2d

240, 242 (2011) (citation omitted); Mark Grp. Int’l, Inc. v. Still, 151 N.C. App. 565,

566 n.1, 566 S.E.2d 160, 161 n.1 (2002); L.C. Williams Oil Co. v. NAFCO Capital

Corp., 130 N.C. App. 286, 288, 502 S.E.2d 415, 417 (1998) (citation omitted). The trial

court’s denial of Choate’s motion for change of venue affects a substantial right, and

we proceed to the merits of Choate’s claims.

B. Order Denying Choate’s Motion for Change of Venue

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Choate argues the trial court erred by entering an order denying Choate’s

motion for change of venue because: (1) the trial court’s order was fatally overbroad;

and (2) the order was based upon a misapprehension of law.

1. Venue Selection Clauses

“Generally in North Carolina, when a jurisdiction is specified in a provision of

contract, the provision generally will not be enforced as a mandatory selection clause

without some further language that indicates the parties’ intent to make jurisdiction

exclusive.” Cable Tel Servs., Inc. v. Overland Contracting, Inc., 154 N.C. App. 639,

644, 574 S.E.2d 31, 34-35 (2002) (citation and internal quotation marks omitted)

(noting mandatory venue selection clauses have contained words such as “exclusive,”

“sole,” or “only” to indicate that the contracting parties intended to make jurisdiction

exclusive).

Here, the venue selection clause stated: “Venue for any arbitration, settlement

meetings or any subsequent litigation whatsoever shall be in the city of Contractor’s

office as shown on page 1 of the Subcontract.” The clause at bar does not contain any

words to indicate a mandatory venue selection clause. The clause is clearly non-

mandatory. Id. The trial court correctly determined venue was proper in Forsyth

County, where SEC “maintains its principal office[.]”

2. Choate and SEC Subcontract

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The well-settled elements of a valid contract are offer, acceptance,

consideration, and mutuality of assent to the contract’s essential terms. Snyder v.

Freeman, 300 N.C. 204, 218, 266 S.E.2d 593, 602 (1980) (“The essence of any contract

is the mutual assent of both parties to the terms of the agreement so as to establish

a meeting of the minds.”). “Generally, a party seeking to enforce a contract has the

burden of proving the essential elements of a valid contract[.]” Orthodontic Ctrs. of

Am., Inc. v. Hanachi, 151 N.C. App. 133, 135, 564 S.E.2d 573, 575 (2002) (citation

omitted).

The parties agreed at oral argument this contract is not subject to the statute

of frauds. Although only those contracts subject to the statute of frauds are required

to be in writing and signed by the party to be charged, see N.C. Gen. Stat. § 22-2

(2015), this Court held the absence of a signed, written instrument is evidence of the

parties’ intentions not to be bound by the proposed contract. Zinn v. Walker, 87 N.C.

App. 325, 332, 261 S.E.2d 314, 318 (1987) (citations omitted), disc. review denied, 321

N.C. 747, 366 S.E.2d 871 (1988).

“If mutual assent is purportedly manifested in a written instrument but a

question arises as to whether there was a genuine meeting of the minds, the court

must first examine the written instrument to ascertain the parties’ true intentions.”

JOHN N. HUTSON, JR. & SCOTT A. MISKIMON, NORTH CAROLINA CONTRACT LAW § 2-4,

at 61, § 2-7-1, at 68 (2001) (“Failing to memorialize an oral contract does not

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invalidate the agreement but instead merely affects the mode of proving the terms of

the contract.”).

Choate argues the trial court was only authorized to make a limited

determination on whether the venue selection clause was enforceable when ruling on

its motion for change of venue. Choate contends the trial court’s order exceeded the

scope of this authority, and is fatally overbroad, because the order is “not limited to

whether the parties agreed to select a venue for adjudication of [p]roject-related

disputes.” Choate also asserts the trial court abused its discretion by basing its order

on a “misapprehension of law.” We disagree.

The trial court’s order denied Choate’s motion for change of venue based, in

part, on the finding that “the Subcontract . . . was never executed by SEC or Choate

. . . and is therefore not binding on the plaintiff, and in particular the venue selection

clause of Article X of the unexecuted Subcontract[.]” Choate argues this “blanket

proclamation” effectually “removes the matter of contract formation from the finder

of fact, [and] at a minimum it will result in prejudice to [Choate] at trial on the

underlying actions.” We do not interpret the trial court’s language to be as sweeping

or draconian as Choate suggests. As explained below, the trial court’s order does not

resolve the underlying issues alleged in SEC’s complaint, nor does it define the terms

of the agreement between Choate and SEC.

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“The heart of a contract is the intention of the parties, which is ascertained by

the subject matter of the contract, the language used, the purpose sought, and the

situation of the parties at the time.” Pike v. Wachovia Bank & Trust Co., 274 N.C. 1,

11, 161 S.E.2d 453, 462 (1968) (citations omitted). “It is a general rule of contract law

that the intent of the parties, where not clear from the contract, may be inferred from

their actions.” Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 9,

332 S.E.2d 186, 192 (1985), appeal withdrawn, 316 N.C. 192, 341 S.E.2d 587 (1986).

See Zinn, 87 N.C. App. at 332, 261 S.E.2d at 318 (citations omitted) (“[T]he parties’

intentions[,] which are controlling in contract construction, may be construed from

the terms of the writings and the parties’ conduct.” (citations omitted)).

“One of the most fundamental principles of contract interpretation is that

ambiguities are to be construed against the party who prepared the writing.” Chavis

v. S. Life Ins. Co., 318 N.C. 259, 262, 347 S.E.2d 425, 427 (1986) (citations omitted).

Here, Choate prepared the proposed subcontract using its own form. Any ambiguities

in the proposed subcontract are to be construed against Choate. Id.

Our Supreme Court has long held “[f]or an agreement to constitute a valid

contract, the parties’ minds must meet as to all the terms. If any portion of the

proposed terms is not settled, or no mode agreed on by which they may be settled,

there is no agreement.” Chappell v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 500

(citations and internal quotation marks omitted), reh’g denied, 354 N.C. 75, 553

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S.E.2d 75 (2001). See also Creech v. Melnik, 347 N.C. 520, 527, 495 S.E.2d 907, 912

(1998); Normile v. Miller, 313 N.C. 98, 108, 326 S.E.2d 11, 18 (1985); Croom v.

Goldsboro Lumber Co., 182 N.C. 217, 220, 108 S.E. 735, 737 (1921).

“[I]n order that there may be a valid and enforceable contract between parties,

there must be a meeting of the minds of the contracting parties upon all essential

terms and conditions of the contract.” Quantum Corporate Funding, Ltd. v. B.H.

Bryan Bldg. Co., Inc., 175 N.C. App. 483, 490, 623 S.E.2d 793, 798-99 (2006) (citations

and quotation marks omitted) (holding defendant company did not agree to

jurisdiction in New York when it submitted a counteroffer of the amount owed to

plaintiff because there was no acceptance of counteroffer).

Here, the trial court’s order merely, and correctly, reflects a quintessential

tenet of contract law in North Carolina and elsewhere — contract interpretation is

governed by mutual assent and the intent of the parties. Bueltel v. Lumber Mut. Ins.

Co., 134 N.C. App. 626, 631, 518 S.E.2d 205, 209, disc. review denied, 351 N.C. 186,

541 S.E.2d 709 (1999). The trial court properly concluded the parties did not reach

mutual assent on, and did not intend to be bound by, the terms of Choate’s proposed

subcontract, including the venue selection clause, based on their conduct, including:

(1) Mr. Kinlaw continued to modify the terms of the proposed subcontract through

January 2012, while SEC’s work was underway; (2) Choate, via its representatives,

articulated numerous times it required a signed subcontract from SEC, yet allowed

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SEC to begin and complete the work without the proposed agreement being signed;

(3) in December 2011, Ms. West refused to sign the proposed subcontract because

SEC and Choate had not yet reached a mutual agreement on the final terms of the

subcontract; (4) Mr. Kinlaw sent to Ms. West a purported “finalized subcontract,” but

this document contained additional modifications; (5) at a 1 February 2012 meeting,

after the work had been completed and Choate had received the benefits of SEC’s

work, Mr. Kinlaw informed Ms. West that Choate could not pay any money to SEC

“until a contract was agreed to and executed[;]” (6) Ms. West averred in her affidavit

“the written subcontract document was never agreed to by the parties [and] there was

no meeting of the minds between the parties as to the written subcontract;” and, (7)

the proposed subcontract was never signed by either party, despite numerous ongoing

correspondences over many months between Ms. West and Mr. Kinlaw regarding the

importance of reaching a final agreement on the terms of the subcontract in order for

SEC and Choate to sign the subcontract as a written memorialization of the parties’

agreement.

Although the purpose of a signature is to show assent,
assent may be shown where the party who failed to sign
the writing accepted its terms and acted upon those terms.
. . . However, if under the circumstances the parties are
merely negotiating while trying to agree on certain terms
and the parties are looking to a writing to embody their
agreement, no contract is formed until the writing is
executed and . . . the offeree’s acceptance is properly
communicated to the offeror.

HUTSON, JR. & MISKIMON, supra, § 2-7-1, at 68-69.

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Other jurisdictions have similarly held evidence of the parties’ intent to enter

into a “final definitive agreement” may be utilized to determine the extent of the

parties’ agreement. See Empro Mfg. Co., Inc. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425

(7th Cir. 1989) (holding “as a matter of law parties who make their pact ‘subject to’ a

later definitive agreement have manifested an objective intent not to be bound”);

Knight v. Sharif, 875 F.2d 516, 525 (5th Cir. 1989) (holding “[t]he parties’ use of the

term ‘final definitive agreement’ also leads to the distinct conclusion that what came

before . . . was neither final nor definitive”); Conley v. Whittlesey, 888 P.2d 804, 811

(Idaho Ct. App. 1995) (holding “agreement in principle” language did not irrevocably

commit parties to settlement where parties agreed to memorialize intentions and

mutual assent in a formal written contract).

The trial court’s order denying Choate’s motion for change of venue does not

preclude either SEC or Choate from subsequently showing the parties had a contract

implied in fact to the jury at trial on the underlying actions. Snyder, 300 N.C. at 217,

266 S.E.2d at 602 (“An implied contract is valid and enforceable as if it were express

or written. . . . Whether mutual assent is established and whether a contract was

intended between parties are questions for the trier of fact.” (citations omitted)). “A

valid contract may be implied in light of the conduct of the parties and under

circumstances that make it reasonable to presume the parties intended to contract

with each other.” HUTSON, JR. & MISKIMON, supra, § 2-5, at 61-63 (noting “[w]hether

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a party’s conduct is a manifestation of assent is ordinarily a question of fact to be

resolved by the trier of fact[]” and “[o]nly rarely do courts rule as a matter of law that

the parties’ course of conduct created an implied contract[]”).

The trial court’s order simply concludes Choate’s proffered written subcontract

was never executed by either party and its terms contained therein are not binding

on the parties. Both parties’ conduct demonstrates their intent not to be bound by

the proposed written subcontract. As such, the venue selection clause is

unenforceable against SEC. Walker v. Goodson Farms, Inc., 90 N.C. App. 478, 488,

369 S.E.2d 122, 126 (citations omitted) (noting “the parties’ intentions control, and

their intentions may be discerned from both their writings and actions[]”), disc.

review denied, 323 N.C. 370, 373 S.E.2d 556 (1988).

The trial court considered the evidence, including the extensive written

correspondences between the parties, the unexecuted subcontract, the affidavits of

Mr. Kinlaw and Ms. West, and the conduct of the parties in order to determine

whether the parties had manifested a mutual assent and intent to be bound by the

terms of the unsigned subcontract. The trial court ultimately, and correctly,

determined there was no aggregatio mentium, or “meeting of the minds,” on the

proposed agreement, and the parties did not intend to be bound by the terms of the

unexecuted subcontract, and its venue selection clause. Choate has failed to carry its

burden to show the trial court abused its discretion by denying its motion for change

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of venue. Choate’s argument is overruled. The trial court’s order denying Choate’s

motion for change of venue is affirmed.

V. Conclusion

The trial court’s order denying Choate’s motion for change of venue is not

fatally overbroad. The trial court reviewed the extensive evidence and arguments

presented by Choate and SEC to decipher the intent of the parties. The trial court

concluded the parties did not intend to be bound by Choate’s unsigned proposed

subcontract. Even if the clause were applicable, the venue selection clause contained

within the unsigned subcontract prepared by Choate is not a mandatory venue

selection clause to make Wake County the sole proper venue. The trial court did not

abuse its discretion by denying Choate’s motion for change of venue.

This interlocutory appeal of a discretionary ruling by the trial court on a non-

mandatory venue provision contained within an unexecuted subcontract prepared by

Choate is reviewed under an abuse of discretion standard on appeal. The trial court’s

order is affirmed. This case is remanded for further proceedings on the merits.

AFFIRMED.

Chief Judge McGEE and Judge INMAN concur.

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