Citicorp Person-To-Person Financial Center, Inc. v. Stallings 601 Sales, Inc., 49 N.C. App. 187 (1980)

Oct. 7, 1980 · North Carolina Court of Appeals · No. 8019SC301; No. 8019SC302

49 N.C. App. 187

CITICORP PERSON-TO-PERSON FINANCIAL CENTER, INC. v. STALLINGS 601 SALES, INC. and BORG-WARNER ACCEPTANCE CORPORATION v. STALLINGS 601 SALES, INC.

No. 8019SC301

No. 8019SC302

(Filed 7 October 1980)

1. Venue § 9- motion for change of venue pending - ruling on other motion proper

The trial court was not required to rule on defendant’s motion for change of venue prior to granting plaintiffs’ motions for possession of collateral, since an ancillary order of attachment had already been entered and granting possession of the collateral to plaintiffs did not affect defendant’s ultimate rights, and since the motion for change of venue involved a change within the district.

2. Appeal and Error § 6.2- appeal from interlocutory order dismissed

The trial court’s order giving to plaintiffs immediate possession of collateral as described in certain orders of attachment previously issued was an interlocutory order which did not affect a substantial right of defendant, and defendant’s appeal is therefore dismissed.

Appeal by defendant from Albright, Judge. Orders entered 21 January 1980 in Superior Court, Rowan County. Heard in the Court of Appeals 18 September 1980.

Plaintiffs instituted these actions in accord with Rule 8 of the North Carolina Rules of Civil Procedure. Orders extending time to file complaints were entered, and, in addition, orders of attachment of certain personal property were entered pursuant to plaintiffs’ application. Thereafter plaintiffs filed their complaints alleging that defendant had executed a “Recreational Vehicle Dealer Agreement without Recourse” along with security agreements in which plaintiffs agreed to finance defendant’s inventory, and that defendant breached the agreement and refused to surrender possession of the secured property. Plaintiffs sued for money damages and immediate possession of the collateral, the personal property attached by the Sheriff of Cabarrus County. Simultaneously with their complaints plaintiffs filed motions pursuant to N.C.R.C.P. 64 and the U.C.C. seeking immediate possession of the collateral. Three days later defendant filed a motion for change of venue and a motion for stay of proceedings pending determination of the motion for change of venue.

On 21 January the trial court entered orders giving each plaintiff immediate possession of the collateral, and on 24 January the court allowed defendant’s motion to change venue from Cabarrus to Rowan County.

Defendant appeals from the orders granting plaintiffs immediate possession of the collateral.

Wesley B. Grant, by Randell F. Hastings, for defendant appellant.

Larry E. Harris for plaintiff Borg-Warner Acceptance Corporation.

Woodson, Hudson, Busby & Sayers, by Benjamin H. Bridges, III, for plaintiff Citicorp Person-To-Person Financial Center, Inc.

ARNOLD, Judge.

Although these two cases were considered separately by the trial court they are consolidated for our appraisal on appeal.

[1] First, we reject defendant’s argument that the judge was required first to rule on its motion for change of venue (under Rule 12(b) (3)) and that by allowing that motion the court was then without authority to grant plaintiffs’ motions for immediate possession of the collateral. Relying on Little v. Little, 12 N.C. App. 353, 183 S.E. 2d 278 (1971), defendant asserts that once a motion for change of venue is aptly made the court cannot thereafter enter any order affecting the rights of the parties until the venue motion is determined.

The record reveals that the trial judge granted plaintiffs’ motions for possession on 21 January, prior to allowing defendant’s motion for change of venue. Allowing plaintiffs’ motions in no way affected any substantive rights of defendant. An ancillary order of attachment already had been entered, and granting possession of this collateral to plaintiffs does not affect defendant’s ultimate rights. Moreover, we note that Cabarrus County and Rowan County are in the same judicial district. The motion for change of venue involved a change within the district, unlike the Little case, and we call attention to the limited holding as stated in Little v. Little, supra, at pp. 354, 355.

[2] Finally, there is no appeal from an interlocutory ruling of a trial court unless such ruling deprives the appellant of a substantial right which he would otherwise lose unless the ruling is reviewed on appeal prior to final judgment. G.S. 7A-27 and G.S. 1-277; Funderburk v. Justice, 25 N.C. App. 655, 214 S.E. 2d 310 (1975).

The trial court found that the plaintiffs were entitled, pursuant to the Uniform Commercial Code as enacted in this State, to immediate possession of the collateral as described in the certain orders of attachment previously issued. This Court will not hear appeals from interlocutory orders which do not affect a substantial right. Wachovia Bank & Trust Co. v. Smith, 24 N.C. App. 133, 210 S.E. 2d 212 (1974), cert. denied 286 N.C. 420, 211 S.E. 2d 801 (1975). The interlocutory order giving immediate possession of the collateral to plaintiffs has affected no substantial right of defendant. The appeal is therefore

Dismissed.

Judges Erwin and Wells concur.