The opinion of the court was delivered by: John, Judge.
Appeal by defendant from order entered 30 October 1996 by Judge Robert H. Hobgood in Chatham County Superior Court. Heard in the Court of Appeals 17 September 1997.
Defendant appeals denial of its motion to dismiss. We reverse the trial court.
Pertinent facts and procedural history are as follows: Plaintiff and defendant entered into an agreement entitled "Lease/Finance Proposal" (the agreement), signed by plaintiff on or about 5 December 1995. The agreement designated defendant, NAFCO Capital Corp. (NAFCO; defendant), as "Lessor/Lender" and plaintiff, L. C. Williams Oil Co. (Williams; plaintiff), as "Lessee/Borrower." Critical to the instant appeal is whether the agreement constituted a "lease" or a "loan."
The agreement contained the following pertinent provisions:
Equipment Cost: $850,000.00 Lease Term: 60 months
Monthly Rental: $18,445.00
Purchase Option: At the termination of the lease, upon such advance notice as the Lessor shall agree to, the Lessee shall have the option to purchase the leased equipment for ($1.00) one dollar.
In addition, pursuant to a clause of the agreement entitled "Collateral," the parties agreed that NAFCO would retain "free and clear title as well as a first lien position on all of the equipment encompassed under the [agreement]," and further agreed that the "quicksale value" of the equipment exceeded $1,000,000.00. A subsequent provision entitled "Additional Collateral" also required Williams to furnish NAFCO "an assignment of account receivables in the amount of $600,000.00" to secure timely lease payments. The "Default" clause provided that, in the event of default by either party, "any and all fees, deposits and advance rentals [paid by Williams] shall not be refunded and will be deemed liquidated damages."
The agreement concluded with the following statement:
All actions or disputes arising out of this agreement shall be tried in the State of New York and County of New York and the laws of the State of New York shall apply.
Plaintiff filed the instant complaint 20 August 1996, alleging, inter alia, breach of contract. Defendant's subsequent motion to dismiss, filed 27 September 1996, was denied by order entered 30 October 1996. Defendant gave timely notice of appeal.
Following hearing of oral argument herein, the parties jointly filed with this Court a request to "stay or hold this matter in abeyance" until resolution of a bankruptcy proceeding naming NAFCO as debtor which had been filed 25 September 1997 in the United States Bankruptcy Court for the Eastern District of New York. On 4 May 1998, counsel for NAFCO filed with this Court a copy of an order of the Bankruptcy Court dated 20 March 1998 closing the case.
Although defendant's appeal is interlocutory, see Burlington Industries, Inc. v. Richmond County, 90 N.C. App. 577, 579, 369 S.E.2d 119, 120 (1988)(denial of motion to dismiss for improper venue is an interlocutory order because it does not entirely dispose of case as to all parties and issues), this Court has recently held the denial of a motion to dismiss for improper venue based upon a forum selection clause to be properly appealable. See Cox v. Dine-A-Mate, Inc., Entertainment Publications, Inc., and CUC International, Inc., N.C. App. , S.E.2d (16 June 1998) (COA97-1157). The circumstances sub judice being indistinguishable from Cox, we therefore proceed to consider defendant's appeal.
Defendant argues the forum selection clause "requires that the claims contained in the Complaint be brought, if at all, in courts of New York County, New York," and that the courts of North Carolina therefore constitute an improper venue. The parties agree that N.C.G.S. § 22B-3 (1996) ...