{ "id": 8187860, "name": "BARRIER GEOTECHNICAL CONTRACTORS, INC., Plaintiff v. RADFORD QUARRIES OF BOONE, INC., Defendant", "name_abbreviation": "Barrier Geotechnical Contractors, Inc. v. Radford Quarries of Boone, Inc.", "decision_date": "2007-07-17", "docket_number": "No. COA06-1401", "first_page": "741", "last_page": "746", "citations": [ { "type": "official", "cite": "184 N.C. App. 741" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "612 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632906 ], "year": 2005, "pin_cites": [ { "page": "668", "parenthetical": "quoting N. C. Dept, of Transportation v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0664-01" ] }, { "cite": "616 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633611 ], "year": 2005, "pin_cites": [ { "page": "690", "parenthetical": "quoting Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980)" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0688-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-82", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "391 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "326 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307589 ], "year": 1990, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0552-01" ] }, { "cite": "481 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "353", "parenthetical": "\"[a] trial court's ruling on a Rule 42 motion will not be reversed on appeal absent a manifest abuse of discretion. Indeed, when the trial court's failure to consolidate is assigned as error, the appellant must establish that it was injured or prejudiced\"" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868603 ], "year": 1997, "pin_cites": [ { "page": "448", "parenthetical": "\"[a] trial court's ruling on a Rule 42 motion will not be reversed on appeal absent a manifest abuse of discretion. Indeed, when the trial court's failure to consolidate is assigned as error, the appellant must establish that it was injured or prejudiced\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0443-01" ] }, { "cite": "181 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554661 ], "year": 1971, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0320-01" ] }, { "cite": "112 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "737", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "252 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618049 ], "year": 1960, "pin_cites": [ { "page": "66", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0066-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "735-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "170 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005247 ], "year": 2005, "pin_cites": [ { "page": "328-29", "parenthetical": "quoting N. C. Dept, of Transportation v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0324-01" ] }, { "cite": "268 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "300 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564683 ], "year": 1980, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0715-01" ] }, { "cite": "172 N.C. App. 852", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321832 ], "year": 2005, "pin_cites": [ { "page": "854", "parenthetical": "quoting Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0852-01" ] } ], "analysis": { "cardinality": 490, "char_count": 9938, "ocr_confidence": 0.763, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.32855100818619154 }, "sha256": "955d0ff8857e91b0b8e6fac8d0d42d32f7316cbc4551bce202b38a96e4d2d8dc", "simhash": "1:8b24ca28594924c6", "word_count": 1658 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "BARRIER GEOTECHNICAL CONTRACTORS, INC., Plaintiff v. RADFORD QUARRIES OF BOONE, INC., Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nRadford Quarries of Boone, Inc. (\u201cdefendant\u201d) appeals from an order denying its motion for change of venue and motion to consolidate this action with another action pending against it in Watauga County. After careful review, we affirm.\nBarrier Geotechnical Contractors, Inc. (\u201cplaintiff\u2019), entered into a contract with Watauga County to perform stream channel and slope stabilization services to certain pieces of real property in the county. The individual owners of the pieces of property had granted easements to the county to facilitate the project. Plaintiff then entered into a contract as general contractor with defendant as subcontractor to provide dirt for the projects. The contract was executed on 13 October 2005.\nIn early 2006, a dispute arose between plaintiff and defendant as to payments made under the contract. On 24 February 2006, defendant filed claims of lien.in Watauga County against the real property; on 3 March 2006, plaintiff filed suit against defendant in Mecklenburg County alleging a variety of misdeeds, including breach of contract and fraud. Defendant filed an action to enforce its liens in Watauga County on 5 April 2006, and on 13 April 2006 filed motions in Mecklenburg County to, among other things, change venue and consolidate this action with its action for liens against plaintiff. These motions were denied, and defendant appeals.\nWe first note that one general exception to the rule that the denial of motions for change of venue and to consolidate is interlocutory and not generally immediately appealable is where such denial affects a substantial right. See N.C. Gen. Stat. \u00a7 7A-27(d)(l) (2005). \u201c[T]he \u2018right to venue established by statute is a substantial right,\u2019 the denial of which is \u2018immediately appealable.\u2019 \u201d Grant v. High Point Reg\u2019l Health Sys., 172 N.C. App. 852, 854, 616 S.E.2d 688, 690 (2005) (quoting Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980)). In addition, \u201c[a] substantial right is affected when \u2018(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists [,]\u2019 \u201d which appears to be the case here. In re Estate of Redding v. Welborn, 170 N.C. App. 324, 328-29, 612 S.E.2d 664, 668 (2005) (quoting N. C. Dept, of Transportation v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)). The appeal of the denial of these motions is therefore properly before us.\nI. Consolidation Motion\nDefendant made its motion to consolidate under Rule 42 of the North Carolina Rules of Civil Procedure, which states \u201cwhen actions involving a common question of law or fact are pending in one division of the court, the judge may order a joint hearing or trial of any or all the matters in issue in the actions; he may order all the actions consolidated^]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 42 (2005).\n\u201cWhether or not consolidation of cases for trial, where permissible, will be ordered is in the discretion of the court.\u201d Phelps v. McCotter, 252 N.C. 66, 66, 112 S.E.2d 736, 737 (1960) (per curiam). Thus, defendant must not only show a clear abuse of discretion by the trial court in denying its motion, but must also \u201cshow injury or prejudice arising therefrom.\u201d In re Moore, 11 N.C. App. 320, 322, 181 S.E.2d 118, 120 (1971); see also Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 448, 481 S.E.2d 349, 353 (1997) (\u201c[a] trial court\u2019s ruling on a Rule 42 motion will not be reversed on appeal absent a manifest abuse of discretion. Indeed, when the trial court\u2019s failure to consolidate is assigned as error, the appellant must establish that it was injured or prejudiced\u201d) (citation omitted).\nThe parties agree that the two actions concern the same subject matter. Plaintiff claims that the two actions cannot be consolidated because its action, filed in Mecklenburg County, predates defendant\u2019s action filed in Watauga County, and thus the latter action is abated. We agree.\nIn North Carolina, our courts have made it clear that \u201cwhere a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action.\u201d Eways v. Governor\u2019s Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990). The question before us, therefore, is whether defendant\u2019s action does in fact predate plaintiff\u2019s.\nDefendant filed its claim of lien in Watauga County on 24 February 2006. Plaintiff filed this action in Mecklenburg County on 3 March 2006. Defendant filed an action in Watauga County to enforce its liens on 5 April 2006. Defendant argues that the filing of the action in April relates back to the date of the filing of the claim of lien, and thus its action predates plaintiff\u2019s. This argument is without merit.\nDefendant\u2019s argument skews the meaning of N.C. Gen. Stat. \u00a7 44A-10 (2005), which states \u201c[a] claim of lien on real property . . . shall relate to and take effect from the time of the first furnishing of labor or materials at the site of the improvement by the person claiming the claim of lien on real property.\u201d Id. The statute thus causes the claim of lien (from 24 February) to relate back to the first date defendant provided materials, but has nothing to do with the effective date of the action to enforce the claim. A lien is not an action; that is why the lien must be enforced by the filing of an action.\nPlaintiffs action predates defendant\u2019s, and as such abates defendant\u2019s. The trial court was thus correct in denying defendant\u2019s motion to consolidate the two.\nII. Change of Venue Motion\nDefendant argues that venue should be changed to Watauga County because the county itself is a party to the lawsuit: The liens filed by defendant are filed against the county itself. This argument is without merit.\nPlaintiff argues that the liens were invalid from the beginning because they concerned a public project. Regardless of whether this is true, however, the liens have been discharged and cancelled by a 26 May 2006 order of a Watauga County Superior Court, pursuant to N.C. Gen. Stat. \u00a7 44A-16(6) (2005) (stating that a claim of lien can be discharged by posting of a surety bond for an amount one and one-fourth times the amount of the claim).\nThe only basis defendant claims for its argument to change venue is that Watauga County is a necessary party to its action to enforce its liens. Because, as discussed above, that action is abated, the county can no longer be deemed a necessary party to the action, and this argument fails.\nPer N.C. Gen. Stat. \u00a7 1-82 (2005), \u201cthe action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement[.]\u201d Id. In its complaint, plaintiff states that its principal place of business is in Mecklenburg County. Per statute, the residence of a domestic business for purposes of suing or being sued is the location of its principal place of business. N.C. Gen! Stat. \u00a7 l-79(a)(l) (2005). As such, Mecklenburg County was a proper venue, and the trial court\u2019s denial of the motion to change venue was not error.\nIII. Conclusion\nBecause defendant\u2019s .action initiated in Watauga County was abated and the county is not a necessary party to the action pending in Mecklenburg County, we affirm the trial court\u2019s order denying defendant\u2019s motions to consolidate and change venue.\nAffirmed.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Smith, Cooksey & Vickstrom, PLLC, by Neil C. Cooksey and Steven L. Smith, for plaintiff-appellee.", "Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by Warren A. Hutton and Nancy L. Huegerich, for defendant-appellant." ], "corrections": "", "head_matter": "BARRIER GEOTECHNICAL CONTRACTORS, INC., Plaintiff v. RADFORD QUARRIES OF BOONE, INC., Defendant\nNo. COA06-1401\n(Filed 17 July 2007)\n1. Appeal and Error\u2014 appealability \u2014 denial of change of venue \u2014 possibility of inconsistent verdicts \u2014 substantial rights\nAlthough the denial of motions for change of venue and to consolidate are generally not immediately appealable, the denials are immediately appealable in this case because: (1) the right to venue established by statute is a substantial right; and (2) a substantial right is affected in this case when the same factual issues would be present in both trials and the possibility of inconsistent verdicts on those issues exists.\n2. Abatement\u2014 motion to.consolidate actions \u2014 relation back rule\nThe trial court did not abuse its discretion by denying defendant subcontractor\u2019s motion under N.C.G.S. \u00a7 1A-1, Rule 42 to consolidate this action with its action against plaintiff general contractor in a different county to enforce its claim of lien, because: (1) in North Carolina, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action; (2) although N.C.G.S. \u00a7 44A-10 causes the claim of lien to relate back to the first date defendant provided materials, it has nothing to do with the effective date of the action to enforce the claim; and (3) plaintiffs action, filed in Mecklenburg County, predates defendant\u2019s action filed in Watauga County, and thus the latter action is abated.\n3. Venue\u2014 denial of motion to change \u2014 necessary party\u2014 principal place of business\nThe trial court did not err by denying defendant\u2019s motion for change of venue, because: (1) the only basis defendant claims for its basis to change venue is that Watauga County is a necessary party to its action to enforce its liens, and the county can no longer be deemed a necessary party to the action when that action has abated; and (2) Mecklenburg County was a proper venue under N.C.G.S. \u00a7 l-79(a)(l) when plaintiff stated its principal place of business is in Mecklenburg County.\nAppeal by defendant from an order entered 28 July 2006 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 May 2007.\nSmith, Cooksey & Vickstrom, PLLC, by Neil C. Cooksey and Steven L. Smith, for plaintiff-appellee.\nSigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by Warren A. Hutton and Nancy L. Huegerich, for defendant-appellant." }, "file_name": "0741-01", "first_page_order": 773, "last_page_order": 778 }