{ "id": 8521898, "name": "KENNETH E. ATKINS and wife, RUTH S. ATKINS v. ROSS W. NASH", "name_abbreviation": "Atkins v. Nash", "decision_date": "1983-04-05", "docket_number": "No. 8217SC346", "first_page": "488", "last_page": "495", "citations": [ { "type": "official", "cite": "61 N.C. App. 488" } ], "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": "11 S.E. 313", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "105 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652950 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/105/0440-01" ] }, { "cite": "259 S.E. 2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571139, 8571075, 8571173, 8571107, 8571195 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0298-03", "/nc/298/0298-01", "/nc/298/0298-04", "/nc/298/0298-02", "/nc/298/0298-05" ] }, { "cite": "256 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554883 ], "year": 1979, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0493-01" ] }, { "cite": "240 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1978, "pin_cites": [ { "page": "403" }, { "page": "403" }, { "page": "406" }, { "page": "403" } ], "opinion_index": 0 }, { "cite": "294 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571183 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0172-01" ] }, { "cite": "72 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "236 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625962 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0396-01" ] }, { "cite": "104 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626085 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0738-01" ] } ], "analysis": { "cardinality": 542, "char_count": 13591, "ocr_confidence": 0.812, "pagerank": { "raw": 4.720688631086923e-07, "percentile": 0.9292294647294108 }, "sha256": "f4411c0e9aeceb548d42e7f39f037f6e0101e547126e549ffcccc4359f788516", "simhash": "1:cb62d05aa8aebcd5", "word_count": 2272 }, "last_updated": "2023-07-14T21:13:54.976609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Braswell concur." ], "parties": [ "KENNETH E. ATKINS and wife, RUTH S. ATKINS v. ROSS W. NASH" ], "opinions": [ { "text": "WHICHARD, Judge.\nI.\nThe issues presented are whether the court erred in (1) denying defendant\u2019s motion to dismiss on grounds of a prior pending action, and (2) denying defendant\u2019s motion for a change of venue \u201cfor the convenience of parties and witnesses.\u201d Our holding, for reasons hereafter set forth, that the court should have granted the first motion, renders consideration of the second issue unnecessary.\nII.\nA threshold question of appealability is presented. Our Supreme Court has treated refusal to abate on grounds of a prior pending action as immediately appealable. E.g., Pittman v. Pittman, 248 N.C. 738, 104 S.E. 2d 880 (1958); McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E. 2d 860 (1952). Subsequent to the adoption of G.S. 1A-1, Rule 13(a), relating to compulsory counterclaims, that Court has treated denial of a motion to dismiss on the ground of a prior action pending as a motion pursuant to that rule, and has allowed immediate review. Gardner v. Gardner, 294 N.C. 172, 240 S.E. 2d 399 (1978). We therefore consider the appeal.\nIII.\nPlaintiffs and defendant agreed to \u201ca Section 1031 like kind tax-free exchange\u201d of two tracts of real property in Rockingham County. Plaintiffs were to construct a building on one tract for use by defendant. Upon completion thereof, they were to convey that tract to defendant in exchange for one owned by defendant.\nPlaintiffs alleged full performance on their part, including tender of all required documents, but wilful breach by defendant in refusing to accept the tender. They sought specific performance of the contract or, in the alternative, damages for breach, punitive damages, and treble damages with attorney\u2019s fees on the ground that defendant\u2019s conduct amounted to an unfair or deceptive act or practice affecting commerce.\nIV.\nDefendant filed a \u201cMotion to dismiss and motion to change venue\u201d alleging the following:\nHe is a resident of Mecklenburg County. Plaintiffs are residents of Rockingham County. The subject property is in Rock-ingham County.\nHe had filed \u201ca prior pending action in Mecklenburg County involving the same breach of contract\u201d on 31 July 1981. The action here was not commenced until 21 August 1981. Under G.S. 1A-1, Rule 3, a civil action is commenced by filing a complaint. By law this action is abated by the prior action in Mecklenburg County, and thus should be dismissed.\nBecause the action involves a contract which he executed, and because he presently resides in Mecklenburg County, that county is the proper venue. Plaintiffs\u2019 complaint raises the single issue of whether defendant\u2019s acts constituted a breach of contract, and \u201can identical law suit previously has been filed in Mecklen-burg County.\u201d It will involve great expense and inconvenience for his witnesses to require them to attend court in Rockingham County, and \u201cfor the convenience of the parties and witnesses and in the interests of justice and fairness, this matter should be removed from Rockingham County, under the provisions of . . . [G.S.] 1-83.\u201d\nOn the basis of these allegations, defendant moved for (1) an order dismissing this action on the basis of a prior pending action, and (2) an order removing the action for trial from Rockingham County to Mecklenburg County. Shortly after filing his motions, he filed an affidavit setting forth essentially the allegations contained in the motions, together with the complaint and summonses in the Mecklenburg County action.\nPlaintiffs, in response, denied that the Mecklenburg County action was a prior pending action, that this action was abated or should be dismissed, and that this action should be removed to Mecklenburg County \u201cfor the convenience of parties and witnesses.\u201d\nV.\nThe trial court denied defendant\u2019s motions. Its order recited the following:\nThe court being of the opinion that the Motion to dismiss on the grounds of a prior pending action should be denied for the fact that the Complaint in the Rockingham County action was served upon Nash as Defendant in Mecklenburg County, North Carolina prior to service of the Mecklenburg County action on the Atkins as Defendants (they being Plaintiffs in the Rockingham County action), the court being of the opinion that Rockingham County has jurisdiction due to the prior service.\nThe Defendant\u2019s Motion for change of venue is denied on the grounds that the subject case involves the specific performance of a contract involving the exchange of real estate located in Rockingham County and Rockingham County, therefore, is the proper venue for the action.\nDefendant appeals.\nVI.\nPrior to adoption of the Rules of Civil Procedure, a civil action was commenced by the issuance of summons. See former G.S. 1-14, 1-88 (repealed by 1967 N.C. Sess. Laws, ch. 954, s. 4 (amended by 1969 N.C. Sess. Laws, ch. 803, to extend effective date from 1 July 1969 to 1 January 1970)). \u201cUnder prior practice, former \u00a7\u00a7 1-14 and 1-88 combined to say that in most cases an action was commenced with the issuance of summons.\u201d G.S. 1A-1, Rule 3, Comment. Thus, \u201c[a]n action [was] pending for the purpose of abating a subsequent action between the same parties for the same cause from the time of the issuance of the summons until its final determination by judgment.\u201d McDowell, supra, 236 N.C. at 398-99, 72 S.E. 2d at 862.\nNow, however, a civil action is commenced by filing a complaint. G.S. 1A-1, Rule 3. In Mazzocone v. Drummond, 42 N.C. App. 493, 495, 256 S.E. 2d 843, 845, cert. denied, 298 N.C. 298, 259 S.E. 2d 300 (1979), this Court stated: \u201c[Plaintiff\u2019s decedent] filed her complaint on 24 August 1977. By doing so, she commenced this civil action as of that date. G.S. 1A-1, Rule 3. At all times thereafter, this action was a viable pending action.\u201d (Emphasis supplied.) It held that the action there, having been properly commenced by filing a complaint, was not abated by the plaintiff\u2019s death prior to service of summons on the defendant. The service date thus was not material to the viability of the action, which had been established by the filing of the complaint.\nService of summons was equally immaterial here. The earlier filing of the Mecklenburg complaint established the prior pend-ency of that action, and earlier service in this Rockingham action was not properly determinative of the issue. The expressed rationale for denial of defendant\u2019s motion to dismiss was thus incorrect.\nVII.\nDenial of the motion itself was also improper.\nG.S. 1A-1, Rule 13(a), provides:\nCompulsory counterclaims. \u2014 A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party\u2019s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if\n(1) At the time the action was commenced the claim was the subject of another pending action, or\n(2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this rule.\nIn Gardner v. Gardner, supra, our Supreme Court treated a motion to dismiss on grounds of a prior pending action as a motion pursuant to Rule 13(a); and held that the motion should have been allowed because the action there arose out of the same transaction or occurrence which formed the basis of the movant\u2019s prior action, and there was no reason not to apply the Rule.\nHere, as in Gardner, the subject matter of this action \u201cmay be denominated a compulsory counterclaim\u201d in the prior action filed in Mecklenburg County. 294 N.C. at 176, 240 S.E. 2d at 403. It clearly arose out of the same transaction or occurrence, viz., the contract for an exchange of real property. It was extant when a responsive pleading would have been due in the Mecklenburg action. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Plaintiffs\u2019 claims were not the subject of another pending action when defendant\u2019s Mecklenburg action was filed, and defendant did not bring suit upon his claim \u201cby attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim . . . .\u201d The exceptions to the compulsory counterclaim provisions of Rule 13(a) are thus inapplicable.\nAs noted in Gardner, \u201c[o]nce a claim has been denominated a compulsory counterclaim under Rule 13(a), the question what must be done with it if it is filed as a subsequent, independent claim is not answered by the rule itself.\u201d Id. at 176, 240 S.E. 2d at 403. The Supreme Court there held that any claim which is filed as an independent action during pendency of a prior claim, and which may be denominated a compulsory counterclaim in the prior action under Rule 13(a), must be dismissed with leave to file it as a counterclaim in the prior action or stayed until final judgment has been entered in that action. Id. at 181, 240 S.E. 2d at 406. It stated;\n. . . [I]n order to give effect to the purpose of Rule 13(a) [,] once its applicability to a second independent action has been determined, this second action must on motion be either (1) dismissed with leave to file it in the former case or (2) stayed until the former case has been finally determined.\nId. at 177, 240 S.E. 2d at 403. While that decision related to claims in marital disputes, we perceive no valid reason why the procedure there prescribed should not be of general applicability where the subject matter of the subsequent action was properly the subject of a compulsory counterclaim in the prior action.\nBecause plaintiffs\u2019 claims here clearly arose out of the same transaction or occurrence which formed the basis of defendant\u2019s prior action, Rule 13(a) required that they be alleged as counterclaims in that action. The trial court, pursuant to Gardner, supra, should have treated defendant\u2019s motion to dismiss on grounds of a prior pending action as a motion under Rule 13(a), and should have allowed the motion with leave to file the claims asserted here as counterclaims in that action.\nThe order denying the motion is therefore reversed. The cause is remanded with instructions to grant the motion, with leave to plaintiffs to assert the claims alleged here as counterclaims in the Mecklenburg action.\nVIII.\nG.S. 1-76, in pertinent part, provides:\nActions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by law:\n(1) Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest ....\nPlaintiffs contend this statute is \u201cfinally determinative\u201d in that their claim for specific performance is one for \u201crecovery of real property, or of an estate or interest therein,\u201d it thus \u201cmust be tried in the county in which the subject of the action ... is situated,\u201d and it is undisputed that the land which is the subject of both actions lies in Rockingham County.\nThat question was not before the trial court, however, and it thus is not before us. Pursuant to leave herein instructed to be granted, plaintiffs may choose to file their claim for specific performance as a counterclaim in defendant\u2019s Mecklenburg action. If so, they may then file a motion for change of venue pursuant to G.S. 1-76(1). See Manufacturing Co. v. Brower, 105 N.C. 440, 11 S.E. 313 (1890).\nReversed and remanded.\nJudges Hedrick and Braswell concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Hamel, Hamel & Pearce, P.A., by Edward D. Seltzer, for defendant appellant.", "Thomas S. Harrington for plaintiff appellees." ], "corrections": "", "head_matter": "KENNETH E. ATKINS and wife, RUTH S. ATKINS v. ROSS W. NASH\nNo. 8217SC346\n(Filed 5 April 1983)\n1. Appeal and Error \u00a7 6.6\u2014 prior action pending \u2014 denial of motion to dismiss \u2014 immediate appeal\nThe denial of a motion to dismiss on the ground of a prior action pending is immediately appealable.\n2. Abatement and Revival \u00a7 6; Rules of Civil Procedure \u00a7 3\u2014 commencement of action \u2014 prior action pending\nThe trial court erred in refusing to dismiss plaintiffs\u2019 Rockingham County action against defendant on the ground of a prior pending action by defendant against plaintiffs in Mecklenburg County because summons was first served in plaintiffs\u2019 Rockingham County action where the complaint was first filed in defendant\u2019s Mecklenburg County action, since under G.S. 1A-1, Rule 3 a civil action is commenced by filing a complaint, and the earlier service in the Rock-ingham County action was thus not determinative of the issue.\n3. Abatement and Revival \u00a7 3; Rules of Civil Procedure \u00a7 13\u2014 prior pending action-compulsory counterclaim \u2014 motion to dismiss treated as motion under Rule 13(a)\nWhere plaintiffs\u2019 claims clearly arose out of the same transaction or occurrence which formed the basis of defendant\u2019s prior pending action in another county, G.S. 1A-1, Rule 13(a) required that they be alleged as counterclaims in that action, and the trial court should have treated defendant\u2019s motion to dismiss plaintiffs\u2019 claims on the ground of a prior pending action as a motion under Rule 13(a) and should have allowed the motion with leave to file such claims as counterclaims in defendant\u2019s prior action.\nAPPEAL by defendant from Morgan, Judge. Order entered 8 January 1982 in Superior Court, ROCKINGHAM County. Heard in the Court of Appeals 8 March 1983.\nHamel, Hamel & Pearce, P.A., by Edward D. Seltzer, for defendant appellant.\nThomas S. Harrington for plaintiff appellees." }, "file_name": "0488-01", "first_page_order": 520, "last_page_order": 527 }