{ "id": 4159620, "name": "PRICE AND PRICE MECHANICAL OF N.C., INC., a North Carolina Corporation, Plaintiff v. THE MIKEN CORPORATION, Defendant", "name_abbreviation": "Price & Price Mechanical of N.C., Inc. v. Miken Corp.", "decision_date": "2008-06-17", "docket_number": "No. COA07-932", "first_page": "177", "last_page": "181", "citations": [ { "type": "official", "cite": "191 N.C. App. 177" } ], "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": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136", "parenthetical": "where the language of a statute is clear and unambiguous, we apply its plain meaning" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209", "parenthetical": "where the language of a statute is clear and unambiguous, we apply its plain meaning" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "201 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "510", "parenthetical": "where two statutes could apply, the more specific statute is viewed as an exception to the general statute" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552479 ], "year": 1974, "pin_cites": [ { "page": "350", "parenthetical": "where two statutes could apply, the more specific statute is viewed as an exception to the general statute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0347-01" ] }, { "cite": "588 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "568-69" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958864 ], "year": 2003, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0510-01" ] }, { "cite": "534 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "654" }, { "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9498023 ], "year": 2000, "pin_cites": [ { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0827-01" ] }, { "cite": "428 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546306, 2547331, 2545603, 2548111, 2548528 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0461-01", "/nc/333/0461-02", "/nc/333/0461-05", "/nc/333/0461-03", "/nc/333/0461-04" ] }, { "cite": "423 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523125 ], "year": 1992, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0158-01" ] } ], "analysis": { "cardinality": 431, "char_count": 7930, "ocr_confidence": 0.731, "pagerank": { "raw": 2.0502216786272094e-07, "percentile": 0.755274535310746 }, "sha256": "27eda52025f2a9b177833fbfb0ac40724dfc0f394607061811a93d98a1dacccd", "simhash": "1:0b2a7928426f1374", "word_count": 1260 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and JACKSON concur." ], "parties": [ "PRICE AND PRICE MECHANICAL OF N.C., INC., a North Carolina Corporation, Plaintiff v. THE MIKEN CORPORATION, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nThis cause of action arose after Price and Price Mechanical of N.C., Inc. (\u201cplaintiff\u2019) and The Miken Corporation (\u201cdefendant\u201d) entered into a contract for the improvement of real property in the state of North Carolina. The contract contained choice of law and forum selection clauses. Plaintiff sued defendant alleging breach of contract. Plaintiff appeals from an order dismissing its complaint for improper venue pursuant to Rule (12)(b)(3) of the North Carolina Rules of Civil Procedure. After careful consideration, we reverse.\nPlaintiff is a mechanical subcontractor with an office and principal place of business in Buncombe County, North Carolina. Defendant is a Florida Corporation with its principal place of business in Tampa, Florida. Defendant is in the business of building shopping centers and other retail infrastructure.\nOn or about 21 October 2003, plaintiff, as a subcontractor, provided defendant with a proposal to perform mechanical and HVAC work during the construction of the \u201cRoss Dress for Less\u201d retail outlet in Overlook Village shopping center, Asheville, North Carolina. On or about 7 November 2003, plaintiff received a faxed subcontract work offer from defendant acknowledging the agreed-upon price and authorization for plaintiff to schedule work and order materials.\nDefendant\u2019s president signed on the line provided for his signature under the heading \u201cSubcontract Work Order\u201d on 7 November 2003. On 14 November 2003, the vice president and project manager of plaintiff also signed the document.\nThereafter, defendant mailed a document titled \u201cThe Miken Corporation Contractor/Subcontractor Agreement\u201d (\u201cthe agreement\u201d) to plaintiff. Paragraph 24 of the document reads: \u201cGOVERNING LAW: This Agreement shall be interpreted under and its performance governed by the laws of the State of Florida. Any suit or action relating to or arising out of the Agreement shall be brought in the appropriate Florida State Court in and for Hillsborough County, Florida.\u201d\nFour days after plaintiff\u2019s officers had signed the document, defendant\u2019s president sent a letter to plaintiff\u2019s project manager cancelling the agreement between the parties for the work order. Plaintiff then filed a complaint against defendant alleging breach of contract and seeking recovery in excess of $10,000.00. On 30 April 2007, the trial court granted defendant\u2019s motion to dismiss for improper venue. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) (2007).\nThe issue in this case is whether N.C. Gen. Stat. \u00a7 22B-2 (2007) voids the contract\u2019s provisions providing for any suit regarding the contract to be brought in the State of Florida and to be interpreted under the laws of Florida. We hold that those provisions are void.\nQuestions regarding statutory interpretation are reviewed de novo under an error of law standard. Best v. N.C. State Board of Dental Examiners, 108 N.C. App. 158, 161, 423 S.E.2d 330, 332 (1992), disc, review denied, 333 N.C. 461, 428 S.E.2d 184 (1993). In addition, questions of contract interpretation are reviewed as a matter of law and the standard of review is de novo. Harris v. Ray Johnson Constr. Co., 139 N.C. App. 827, 829, 534 S.E.2d 653, 654 (2000).\nI.\nPlaintiff argues that the trial court erred by dismissing plaintiff\u2019s complaint because defendant\u2019s choice of law and forum selections clauses are invalid. We agree.\nN.C. Gen. Stat. \u00a7 22B-2 addresses how choice of law and choice of forum provisions are to be regarded when the subject matter of the contract involves improvement to realty located in North Carolina. N.C. Gen. Stat. \u00a7 22B-2 in pertinent part states:\nA provision in any contract, subcontract, or purchase order for the improvement of real property in this State, or the providing of materials therefor, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process is located in another state.\nId. (emphasis added).\nDefendant, however, relies on case law interpreting N.C. Gen. Stat. \u00a7 22B-3 (2007). This statute contains the following language:\nExcept as otherwise provided in this section, any provision in a contract entered into in North Carolina that requires the prosecution of any action or the arbitration of any dispute that arises from the contract to be instituted or heard in another state is against public policy and is void and unenforceable. This prohibition shall not apply to non-consumer loan transactions or to any action or arbitration of a dispute that is commenced in another state pursuant to a forum selection, provision with the consent of all parties to the contract at the time that the dispute arises.\nId. (emphasis added).\nCases interpreting N.C. Gen. Stat. \u00a7 22B-3 have examined the place of execution of the contract to decide whether the statute applies. See Hickox v. R&G Grp. Int\u2019l, Inc., 161 N.C. App. 510, 513, 588 S.E.2d 566, 568-69 (2003). Section 22B-2, however, provides that the place of execution is irrelevant to contract interpretation when real property located in the state of North Carolina is the issue of the contract and the place of performance is of paramount concern. While both sections relate to contract interpretation, section 22B-2 applies in the instant case because it deals specifically with contracts relating to real property in North Carolina. See Electric Service v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974) (where two statutes could apply, the more specific statute is viewed as an exception to the general statute).\nIn this case, real property located in North Carolina is the subject matter of the contract. Specifically, the contract at issue pertains to: (1) the improvement of real property; (2) which is located in North Carolina; and (3) plaintiff contracted to provide labor and materials. Thus, section 22B-2 applies. See Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) (where the language of a statute is clear and unambiguous, we apply its plain meaning).\nUnder section 22B-2, forum selection clauses contained within contracts involving improvements to real property located in North Carolina are voided as a matter of public policy. Thus, the contract provisions that Florida law applies and that contract litigation is to occur only in Hillsborough County, Florida, are void.\nII.\nIn summary, we hold that the trial court erred by dismissing plaintiffs complaint because defendant\u2019s choice of law and forum selection clauses are invalid in light of N.C. Gen. Stat. \u00a7 22B-2, rendering venue proper in Buncombe County, North Carolina. Accordingly, the ruling of the trial court is reversed and this case is remanded to the Superior Court of Buncombe County.\nReversed and remanded.\nJudges BRYANT and JACKSON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Ferikes & Bleynat, PLLC, by Edward L. Bleynat, Jr. and Mary March Exum, for plaintiff-appellant.", "Roberts & Stevens, P.A., by Ann-Patton Nelson and Wyatt S. Stevens, for defendant-appellee." ], "corrections": "", "head_matter": "PRICE AND PRICE MECHANICAL OF N.C., INC., a North Carolina Corporation, Plaintiff v. THE MIKEN CORPORATION, Defendant\nNo. COA07-932\n(Filed 17 June 2008)\nContracts\u2014 forum selection clause \u2014 improvement to N.C. real property \u2014 void\nThe trial court erred -by granting defendant\u2019s motion to dismiss for improper venue an action arising from cancellation of a contract for work on a retail outlet in Asheville, N.C. The contract contained a clause indicating that any action was to be brought in Florida, but, under N.C.G.S. \u00a7 22B-2, forum selection clauses contained within contracts involving improvements to real property located in North Carolina are void as a matter of public policy.\nAppeal by plaintiff from an order entered 30 April 2007 by Judge Mark E. Powell in Buncombe County Superior Court. Heard in the Court of Appeals 6 February 2008.\nFerikes & Bleynat, PLLC, by Edward L. Bleynat, Jr. and Mary March Exum, for plaintiff-appellant.\nRoberts & Stevens, P.A., by Ann-Patton Nelson and Wyatt S. Stevens, for defendant-appellee." }, "file_name": "0177-01", "first_page_order": 209, "last_page_order": 213 }