IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-79
Filed 7 October 2026
Mecklenburg County, No. 25CV017575-590
SUPERIOR CRANES, INC., Plaintiff,
v.
NEW-INDY CATAWBA LLC, Defendant.
Appeal by Defendant from order entered 25 September 2025 by Judge Sherri
Wilson Elliott in Mecklenburg County Superior Court. Heard in the Court of Appeals
17 September 2026.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Anna C. Majestro,
David N. Allen, Benjamin S. Chesson, and Christopher B. Dodd, for
Plaintiff-Appellee.
Burr & Forman, LLP, by Ellen T. Mathews and Mason Veal, for
Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from the trial court’s order denying its motion to dismiss
for improper venue. For the reasons stated herein, we affirm.
I. Background
Superior Cranes, Inc. (“Plaintiff”) is a North Carolina corporation engaged in
crane rental, rigging, and heavy hauling services. New-Indy Catawba, LLC
(“Defendant”) owns and operates a linerboard and pulp manufacturing mill in
SUPER. CRANES, INC. V. NEW-INDY CATAWBA LLC
Opinion of the Court
Catawba, South Carolina. Plaintiff provided crane services to Defendant’s South
Carolina mill starting in May 2022.
Defendant discovered a significant crack in its lime kiln and contacted Plaintiff
on 7 January 2025 seeking emergency crane support. Plaintiff emailed Defendant an
estimate for a one-week rental of a 600-ton crane, a 1300-ton crane, and an
around-the-clock crew, totaling $695,387. After Defendant verbally approved the
project scope and terms, Plaintiff began supplying cranes and personnel to
Defendant’s mill in South Carolina. Defendant sent Plaintiff a purchase order for
$695,387 the following day.
After the kiln cracked further, Defendant requested that Plaintiff extend the
rental period and provide an additional 120-ton crane and around-the-clock crew.
Plaintiff sent Defendant two additional invoices: $609,037 for the extended rental
period and $151,019 for the 120-ton crane and crew. Defendant issued a purchase
order for $760,056, which included both estimates. Plaintiff sent multiple invoices to
Defendant’s accounting department for the services performed between 7 January
2025 and 4 February 2025, totaling $1,482,254.13. Defendant did not pay any of
these invoices, nor did it pay several other outstanding invoices for past rentals.
Plaintiff filed suit in Mecklenburg County Superior Court on 7 April 2025,
asserting claims for breach of contract and open account, and seeking a declaratory
judgment that Defendant is obligated to pay Plaintiff for the services provided.
Defendant moved to dismiss for improper venue under Rule 12(b)(3) on the grounds
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that the purchase orders incorporated a South Carolina forum selection clause
contained in the “Standard Terms and Conditions” on its website. Plaintiff opposed
the motion, arguing that Defendant’s website contained four different sets of
“Standard Terms and Conditions,” each with different venue provisions, and that
Plaintiff never received or assented to any of them. Following a hearing, the trial
court entered an order denying Defendant’s motion to dismiss. Defendant appealed.
II. Discussion
A. Appellate Jurisdiction
As a threshold issue, we must determine whether we have jurisdiction to
review the appeal of this interlocutory order.
“An interlocutory order is one made during the pendency of an action, which
does not dispose of the case, but leaves it for further action by the trial court in order
to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C.
357, 362 (1950) (citation omitted). “As a general rule, there is no right of appeal from
an interlocutory order.” Larsen v. Black Diamond French Truffles, Inc., 241 N.C.
App. 74, 76 (2015) (citation omitted). “There is a statutory exception to this general
rule when the challenged order affects a substantial right.” Cape Homeowners Ass’n,
Inc. v. S. Destiny, LLC, 292 N.C. App. 374, 378 (2024) (quotation marks and citations
omitted). “Although a denial of a motion to dismiss is an interlocutory order, where
the issue pertains to applying a forum selection clause, our case law establishes that
[a] defendant may nevertheless immediately appeal the order because to hold
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otherwise would deprive [it] of a substantial right.” Hickox v. R&G Grp. Int’l, 161
N.C. App. 510, 511 (2003) (citation omitted).
Here, the trial court’s order denying Defendant’s rule 12(b)(3) motion to
dismiss is interlocutory. See Veazey, 231 N.C. at 362. Although such orders are
generally not appealable, Larsen, 241 N.C. App. at 76, an immediate appeal lies when
a substantial right is affected. Cape Homeowners Ass’n, 292 N.C. App. at 378.
Because the denial of a motion to dismiss based on a forum selection clause affects a
substantial right, Hickox, 161 N.C. App. at 511, we have jurisdiction to review this
appeal.
B. Standard of Review
“The disposition of a case involving a forum selection clause is highly
fact-specific.” SED Holding, LLC v. 3 Star Props., LLC, 246 N.C. App. 632, 636 (2016)
(quotation marks and citation omitted). We thus review a trial court’s order denying
a motion to dismiss for improper venue in cases involving a forum selection clause for
abuse of discretion. Wall v. Automoney, Inc., 284 N.C. App. 514, 529 (2022). “Under
the abuse-of-discretion standard, we review to determine whether a decision is
manifestly unsupported by reason, or so arbitrary that it could not have been the
result of a reasoned decision.” Mark Grp. Int’l, Inc. v. Still, 151 N.C. App. 565, 566
(2002) (citation omitted).
To the extent an appeal requires interpretation of a forum selection clause or
determination of the place of contract formation, those issues are questions of law,
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reviewed de novo. US Chem. Storage, LLC v. Berto Constr., Inc., 253 N.C. App. 378,
382 (2017); Schwarz v. St. Jude Med., Inc., 254 N.C. App. 747, 754 (2017). Under de
novo review, this Court considers the matter anew and freely substitutes its own
judgment for that of the trial court. Sony Ericsson Mobile Commc’ns. U.S.A., Inc. v.
Agere Sys., Inc., 195 N.C. App. 577, 579 (2009).
C. Standard Terms and Conditions
Defendant first argues that the trial court erred by denying its motion to
dismiss because “the parties’ contract validly incorporates [Defendant’s] Standard
Terms and Conditions” and the forum selection clause “is mandatory and requires
litigation in South Carolina.” (capitalization altered).
This Court generally interprets a contract according to the intent of the parties
to the contract. Peter Millar, LLC v. Shaw’s Menswear, Inc., 274 N.C. App. 383, 390
(2020). “When a contract expressly incorporates a document by reference, . . . that
document becomes a part of the parties’ agreement.” Montessori Children’s House of
Durham v. Blizzard, 244 N.C. App. 633, 637 (2016) (citation omitted).
Here, the purchase order provides:
THE PURCHASE OF PRODUCTS AND/OR SERVICES
HEREUNDER IS EXPRESSLY CONDITIONED UPON
AND SUBJECT TO SELLER’S ASSENT TO ALL TERMS
AND CONDITIONS SET FORTH HEREIN AND IN
BUYER’S STANDARD TERMS AND CONDITIONS OF
PURCHASE ORDER ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE. BUYER’S
STANDARD TERMS AND CONDITIONS OF PURCHASE
ORDER ARE ALSO AVAILABLE AT
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https://newindycontainerboard.com/terms-conditions/.
(emphasis added). The “Standard Terms and Conditions” were not attached to the
purchase order. Furthermore, the linked website where Defendant’s “Standard
Terms and Conditions of Purchase are also available” contains four different links to
four different documents titled “Standard Terms and Conditions,” each containing a
different forum selection clause—California, Illinois, Indiana, and South Carolina.
(capitalization altered). The purchase order does not identify which of the four forum
selection clauses apply, and the website does not provide any guidance for selecting
amongst them.
On this record, the trial court could reasonably conclude that the purchase
order did not expressly incorporate Defendant’s “Standard Terms and Conditions”
containing the South Carolina forum selection clause. Accordingly, we cannot say
that the trial court’s decision to deny enforcement of the South Carolina forum
selection clause was manifestly unsupported by reason.
The trial court thus did not abuse its discretion by denying Defendant’s motion
to dismiss. Although this conclusion is dispositive, we address Defendant’s argument
that N.C. Gen. Stat. § 22B-3 does not bar enforcement of the contract.
D. Last Act
Defendant argues that N.C. Gen. Stat. § 22B-3 does not bar enforcement of the
contract because the last act necessary to form the contract occurred in South
Carolina.
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N.C. Gen. Stat. § 22B-3 provides, “Except as otherwise provided in this section,
any provision in a contract entered into in North Carolina that requires the
prosecution of any action . . . that arises from the contract to be instituted or heard
in another state is against public policy and is void and unenforceable.” N.C. Gen.
Stat. § 22B-3 (2025). This section does not apply to any action “that is commenced in
another state pursuant to a forum selection provision with the consent of all parties
to the contract at the time that the dispute arises.” Id. “Under North Carolina law,
a contract is made in the place where the last act necessary to make it binding
occurred.” Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 365 (1986) (citation
omitted). “The last act necessary to contract formation usually occurs at the place of
acceptance.” Schwarz, 254 N.C. App. at 756.
Even if the South Carolina forum selection clause had been expressly
incorporated into the parties’ agreement, N.C. Gen. Stat. § 22B-3 bars enforcement
because the contract was entered into in North Carolina. Defendant initiated the
transaction by contacting Plaintiff’s representative in North Carolina for emergency
crane support after discovering a significant crack in its lime kiln. Plaintiff then
emailed Defendant an estimate for a one-week rental of a 600-ton crane, a 1300-ton
crane, and an around-the-clock crew, totaling $695,387. Plaintiff began supplying
cranes and personnel to Defendant’s mill in South Carolina after Defendant verbally
approved the project scope and terms. The following day, Defendant emailed the
purchase order to Plaintiff’s representative in North Carolina. Plaintiff’s North
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Carolina representative approved the purchase order, and that approval constituted
the last act necessary to make the contract binding. Because the contract was entered
into in North Carolina, the South Carolina forum selection clause is unenforceable as
a matter of law under N.C. Gen. Stat. § 22B-3.
III. Conclusion
As the trial court did not err by denying Defendant’s motion to dismiss for
improper venue, we affirm the trial court’s order.
AFFIRMED.
Judges STADING and MURRY concur.
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