Allen v. Wachovia Bank & Trust Co., NA

241 S.E.2d 123 (1978) 35 N.C. App. 267

Buell Thomas ALLEN
v.
WACHOVIA BANK & TRUST COMPANY, N.A., Robert Wallace Howard and J. Reid Hooper.

No. 773SC199.

Court of Appeals of North Carolina.

February 7, 1978.

Howard, Vincent & Duffus, by Malcolm J. Howard, Greenville, for plaintiff-appellee.

Smith, Anderson, Blount & Mitchell by James D. Blount, Jr. and Michael E. Weddington, Raleigh, for defendants-appellants.

ARNOLD, Judge.

Defendants' first and third assignments of error, that the court erred by failing to dismiss this action on grounds of a prior pending action and by failing to rule on defendants' alternative motions to dismiss, are subject to dismissal by this Court. The order of the trial court refusing to dismiss is an interlocutory order from which no right of immediate appeal lies. See Acorn v. Knitting Corp., 12 N.C.App. 266, 182 S.E.2d 862, cert. denied 279 N.C. 511, 183 S.E.2d 686 (1971), which, while interpreting the prior Court of Appeals Rule No. 4, is still good law and is followed by this Court.

Defendants' other argument, that it was improper and erroneous for the trial court to grant plaintiff's motion for a stay of the proceedings, is not well taken. G.S. 1-75.12(a) states:

"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."

Defendants argue that the trial court abused its discretion in staying the proceedings without finding (1) that it would work substantial injustice and (2) that some other jurisdiction provides "a convenient, reasonable and fair place of trial." However, absent a request for findings of fact to support his decision on a motion, the judge is not required to find facts, G.S. 1A-1, Rule 52(a)(2), and it is "presumed that the Judge, upon proper evidence, found facts to support this judgment." Haiduven v. Cooper, 23 N.C.App. 67, 208 S.E.2d 223 (1974). See also Williams v. Bray, 273 N.C. 198, 159 S.E.2d 556 (1968). We can, therefore, find no abuse of the trial court's discretion.

Dismissed in part and affirmed in part.

PARKER and MARTIN, JJ., concur.