 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Thompson v. Norfolk Southern Railway Co.9/19/2000
Appeal by plaintiff from orders entered 20 July 1999 and 3 August 1999, and cross-appeal by defendant city of Salisbury from order entered 3 August 1999 by Judge James L. Baker in Superior Court, Mecklenburg County. Heard in the Court of Appeals 8 June 2000.
Plaintiff, Alfred Lee Thompson, appeals from orders of the trial court denying his motions to compel arbitration and to dismiss the counterclaim raised by defendant Norfolk Southern Railway Company ("Norfolk Southern") against plaintiff for property damage. Defendant City of Salisbury ("Salisbury") cross-appeals from an order denying its motion for removal asserting that venue was improper. Based upon our examination of the record, we affirm the court's order denying plaintiff's motion to compel arbitration and reverse the court's order denying Salisbury's motion for removal. We further dismiss plaintiff's appeal of the court's order denying its motion to dismiss.
The pertinent factual and procedural background is as follows: On 17 February 1999, plaintiff, a resident of Mecklenburg County, filed an action for damages against Norfolk Southern and Salisbury in Superior Court, Mecklenburg County. Plaintiff alleged that on 19 February 1996, a Norfolk Southern train collided with his vehicle as he attempted to cross a negligently maintained railway crossing in Salisbury. Salisbury is located in Rowan County, North Carolina. Plaintiff stated that as a result of the collision, he suffered bodily injury , loss of earnings and earning capacity, and pain and suffering.
Norfolk Southern moved for an extension of time to file an answer, which was granted by the trial court on 15 April 1999. Norfolk Southern subsequently answered on 17 May 1999 and included a counterclaim alleging that it had suffered property damage due to plaintiff's negligence.
In response, plaintiff filed a motion to dismiss Norfolk Southern's counterclaim, asserting that the claim was filed beyond the three-year statute of limitations. The trial court summarily denied plaintiff's motion on 20 July 1999.
On 1 April 1999, Salisbury filed a separate answer and motion for removal, pursuant to Rule 12(b)(3) of the North Carolina Rules of Civil Procedure, arguing that venue was improper in Mecklenburg County. Salisbury further requested that the court remove the case from Mecklenburg County to the county in which it alleged venue was proper, Rowan County.
Plaintiff responded and asserted that venue was proper in Mecklenburg County under sections 1-83(2) and 1-81 of the General Statutes. See N.C. Gen. Stat. ยงยง 1-81 & 1-83(2) (1999). Primarily, plaintiff argued that removing the case to Rowan County would pose an undue burden on him and his caregiver. Plaintiff explained that he was a paraplegic as a result of the collision and both he and his caregiver would be inconvenienced if the court transferred the case to Rowan County. Plaintiff also noted that his many doctors were in Charlotte, Mecklenburg County, and that it would be cost prohibitive to require them to travel to Rowan County to testify.
Following a hearing, the court denied Salisbury's motion to remove. In pertinent part, the court's order provided the following:
And it appearing to the Court, and the Court so finding, that the convenience of witnesses and the ends of justice would be promoted pursuant to N.C.G.S. 1-83(2) and that the proviso to N.C.G.S. 1- 77(2) gives the Court the power to change the place of trial from the county where the cause of action arose, the Court is of the opinion that defendant City of Salisbury's motion to remove should, in the Court's discretion, be denied[.]"
Salisbury provided plaintiff with
Page 1 2 3 4 5 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|