Lawyers Mutual Liability Insurance v. Pollard , 112 N.C. App. 353 ( 1993 )

435 S.E.2d 571 (1993) 112 N.C. App. 353

LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Plaintiff,
v.
NEXSEN PRUET JACOBS & POLLARD, Moore & Van Allen and the Home Insurance Company, Defendants.

No. 9210SC991.

Court of Appeals of North Carolina.

October 19, 1993.

Young, Moore, Henderson & Alvis, P.A. by Walter E. Brock, Jr., Raleigh, for plaintiff-appellant.

Smith, Helms, Mullis & Moore by Martin N. Erwin, Greensboro, for defendant-appellee, The Home Ins. Co.

Manning, Fulton & Skinner by Howard E. Manning, Jr., Raleigh, for defendant-appellee, Nexsen Pruet Jacobs & Pollard.

Yates, McLamb & Weyher by Joseph W. Yates, III, and Barbara B. Weyher, Raleigh, for defendant-appellee, Moore & Van Allen.

ARNOLD, Chief Judge.

In its first of two assignments of error, Lawyers Mutual contends the trial court abused its discretion in staying the North Carolina declaratory judgment action. The trial court granted the stay pursuant to N.C.Gen.Stat. § 1-75.12 (1983), which provides as follows:

(a) When Stay May Be Granted.—If, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State. A moving party under this subsection must stipulate his consent to suit in another jurisdiction found by the judge to provide a convenient, reasonable and fair place of trial.

Lawyers Mutual first argues this Court must reassess the standard by which orders under G.S. § 1-75.12 are reviewed. In Home Indemnity Co. v. Hoechst-Celanese Corp., 99 N.C.App. 322, 393 S.E.2d 118, appeal dismissed and disc. review denied, 327 N.C. 428, 396 S.E.2d 611 (1990), this Court refused to adopt a de novo standard of review, stating that "[e]ntry of an order under G.S. 1-75.12 is a matter within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Id. 99 N.C.App. at 325, 393 S.E.2d at 120. We decline to change that standard.

Lawyers Mutual also argues that, even under an abuse of discretion standard, the trial court committed error. In determining whether to grant a stay under G.S. § 1-75.12, the trial court may consider the following factors: (1) the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations. Motor Inn Management, Inc. v. Irvin-Fuller Dev. Co., Inc., 46 N.C.App. 707, 713, 266 S.E.2d 368, 371, appeal dismissed and disc. review denied, 301 N.C. 93, 273 S.E.2d 299 (1980).

We have reviewed the trial court's order. The trial court found that the underlying actions seeking damages from Nexsen Pruet and Moore & Van Allen arise solely out of Nexsen Pruet's representation of Charping and the Charping companies in South Carolina. North Carolina has no connection to these claims. The trial court also found that Lawyers Mutual insured South Carolina lawyers against professional liability, thereby insuring South Carolina residents. Moreover, it found that the convenience of the witnesses and the availability of compulsory process to obtain witnesses clearly weighed in favor of staying the North Carolina action. The trial court also found that the facts and circumstances surrounding Lawyers Mutual's defense to coverage occurred in South Carolina and that South Carolina law applied to the coverage issues. Finally, the trial court found the South Carolina court currently handling the malpractice claims to be a more convenient forum for handling the declaratory judgment as well. The trial court then concluded that it would work a substantial injustice for the action to be tried in a North Carolina court and granted Nexsen Pruet's motion to stay. We hold that the facts of this case support this conclusion and find no abuse of the court's discretion.

Lawyers Mutual also assigns as error the failure of the trial court to consider each and every factor listed above. We disagree, noting that the Court in Motor Inn Management stated "relevant factors, among others, that may be considered...." Motor Inn Management Inc., 46 N.C.App. at 713, 266 S.E.2d at 371 (emphasis added). This language is permissive, not mandatory. A court will not have abused its discretion in failing to consider each enumerated factor. We decline to bind the trial courts to a rigid checklist in determining whether to grant a stay, preferring to maintain the flexibility advocated in Motor Inn Management. A court will have abused its discretion, however, if it abandons any consideration of these factors which this Court has deemed relevant in determining whether a stay is warranted. Further, in determining whether to grant a stay, it is not necessary that the trial court find that all factors positively support a stay, as long as it is able to conclude that (1) a substantial injustice would result if the trial court denied the stay, (2) the stay is warranted by those factors present, and (3) the alternative forum is convenient, reasonable, and fair.

In its second assignment of error, Lawyers Mutual contends the trial court's application of G.S. § 1-75.12 violated the North Carolina Constitution's "open courts" provision. This provision reads as follows:

All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial or delay.

N.C. Const., Art. I, § 18. Lawyers Mutual argues the stay both (1) deprives a North Carolina plaintiff of real access to our courts, and (2) prevents the administration of justice without delay, as required by our Constitution. We are bound by, and agree with, this Court's decision in Home Indemnity, where this Court stated "the stay statute does not deny litigants access to North Carolina courts, but merely postpones litigation here pending the resolution of the same matter in another sovereign court." Home Indemnity Co., 99 N.C.App. at 326, 393 S.E.2d at 121. We also fail to see how Lawyers Mutual is being delayed justice where an identical action is proceeding in South Carolina.

Accordingly, the order staying the North Carolina proceeding to permit trial in South Carolina is

Affirmed.

WYNN and JOHN, JJ., concur.