IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-422

Filed 20 June 2023

Johnston County, No. 21-CVS-568

THOMAS JARMAN and JESSICA VAUGHN, individually and as administrators of 

the ESTATE OF GRESSY THOMAS JARMAN, Plaintiffs,

v.

TWIDDY AND COMPANY OF DUCK, INC., ROGER STRICKER and PATRICIA 

STRICKER, Defendants and Third-Party Plaintiffs,

 v.

GEORGIA MAY, Third-Party Defendant.

Appeal by Defendant/Third-Party Plaintiff Twiddy and Company of Duck, Inc.

from Order entered 15 December 2021 by Judge John W. Smith in Johnston County 

Superior Court. Heard in the Court of Appeals 16 November 2022.

Fox Rothschild LLP, by Matthew Nis Leerberg, Henson Fuerst, PA, by Carma 

L. Henson, and Silverman Thompson Slutkin & White, by Andrew George 

Slutkin and Ethan Shale Nochumowitz admitted pro hac vice, for PlaintiffsAppellees Thomas Jarman and Jessica Vaughn. 

Poyner Spruill LLP, by Dylan J. Castellino and Timothy W. Wilson, for 

Defendant/Third-Party Plaintiff-Appellant Twiddy and Company of Duck, 

Inc.

HAMPSON, Judge.

Factual and Procedural Background
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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Twiddy and Company of Duck, Inc. (Twiddy) appeals from an Order entered 

15 December 2021 denying its Motion to Change Venue of an action brought by 

Thomas Jarman and Jessica Vaughn, individually and as administrators of the 

Estate of Gressy Thomas Jarman (Plaintiffs). The Record before us tends to reflect 

the following:

On 3 June 2019, Plaintiffs’ minor child died after drowning in a pool at a 

vacation home in Corolla, North Carolina owned by Roger and Patricia Stricker (the 

Strickers).1 At the time, the vacation home was rented by Georgia May (May)2 under 

a Vacation Rental Agreement with Twiddy, a realty company located in Duck, North 

Carolina that served as the agent for the Strickers. Plaintiffs were not parties to the 

Vacation Rental Agreement but were staying at the vacation home with May and 

other family members. 

Relevant to this case, the Vacation Rental Agreement between Twiddy and 

May provided:

Twiddy . . . is the Agent for a VACATION HOME . . . . The 

owner . . . has given Agent the authority to enter into this 

Agreement . . . . This Agreement sets forth the terms under 

which You will lease the Premises through the Agent.

. . . .

1. THIS IS A VACATION RENTAL AGREEMENT 

UNDER THE NORTH CAROLINA VACATION RENTAL 

ACT . . . .

1 The Strickers are residents of Pennsylvania.

2 May is the grandmother of the minor child and a resident of Maryland.
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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2. Agent, as agent of the Owner, hereby rents to You and 

You hereby rent from the Agent, the Premises in 

accordance with the terms and conditions contained in this 

Agreement . . . .

. . . .

4. Use and Tenant Duties. The use of the Premises is 

restricted to use by You and Your family . . . . The term 

“family” as used herein means parents, grandparents, 

children and extended family members vacationing at the 

Premises. 

. . . .

17. Indemnification and Hold Harmless. You agree to 

indemnify and save harmless the Owner and Agent from 

any liabilities . . . arising from or related to any claim or 

litigation which may arise out of or in connection with Your 

use and occupancy of the Premises including but not 

limited to any claim or liability. . . which is caused, made, 

incurred or sustained by You as a result of any cause, 

unless caused by the grossly negligent or willful act of 

Agent or the Owner, or the failure of Agent or the Owner 

to comply with the Vacation Rental Act. . . . The terms 

“Tenant,” “You,” and “Your” as used in this Agreement 

shall include Tenant’s heirs, successors, assigns, guests, 

invitees, representatives and other persons on the 

Premises during Your occupancy (without regard to 

whether such persons have authority under this 

Agreement to be upon the Premises), where the context 

requires or permits.

. . . .

21. Disputes: This Agreement shall be governed by and 

interpreted in accordance with the laws of the State of 

North Carolina, and shall be treated as though it were 

executed in the County of Dare, State of North Carolina. 

Any action relating to this Agreement shall be instituted 
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Opinion of the Court

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and prosecuted only in the Dare County Superior Court, 

North Carolina. You specifically consent to such 

jurisdiction and to extraterritorial service of process. You 

shall be responsible for all legal fees and court costs 

incurred by Agent and Owner in the enforcement of their 

rights or Your obligations under this Agreement.

22. Miscellaneous: You agree and have verified that for 

purposes of this vacation rental agreement that Your 

confirmation number shall serve as Your electronic 

signature and to be bound by same and in the same manner 

as if You had otherwise ordinarily executed the document. 

. . . Each section, subsection or paragraph of this 

Agreement shall be deemed severable . . . .

May electronically signed each individual paragraph of the Vacation Rental 

Agreement.

On 18 February 2021, Plaintiffs filed a Complaint against Twiddy and the 

Strickers (collectively, Defendants) in Superior Court in Johnston County, North 

Carolina, where Plaintiffs reside. The Complaint alleged claims of negligence, 

wrongful death, negligent infliction of emotional distress, and punitive damages. 

Defendants both filed responsive pleadings generally denying liability in the form of 

Motions, Answers, and Third-Party Complaints. The Third-Party Complaints joined 

May as Third-Party Defendant alleging the Plaintiffs’ Complaint falls within the 

Indemnification and Hold Harmless provision of the Vacation Rental Agreement. 

In their responsive pleadings, Defendants both included Motions to Change 

Venue. The Motions alleged the terms of the Vacation Rental Agreement included a 

mandatory forum-selection clause requiring this action be brought by Plaintiffs in 
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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Dare County, North Carolina. Defendants’ Motions were heard on 28 October 2021 

in Johnston County Superior Court. Defendants contended Plaintiffs should be 

bound by the Vacation Rental Agreement—specifically, the provision requiring “Any 

action relating to this Agreement shall be instituted and prosecuted only in the Dare 

County Superior Court, North Carolina”—as third-party beneficiaries to the Vacation 

Rental Agreement or by the doctrine of equitable estoppel. Defendants further 

contended the language of the Vacation Rental Agreement is broad enough to cover 

Plaintiffs’ claims for negligence, wrongful death, negligent infliction of emotional 

distress, and punitive damages.

On 15 December 2021, the trial court entered its Order Denying Defendants’ 

Motions to Change Venue. In its Order, the trial court included Findings of Fact:

14. Thomas Jarman did not sign the Vacation Rental Agreement.

15. Jessica Vaughn did not sign the Vacation Rental Agreement.

16. No evidence has been presented that Thomas Jarman ever 

read, or was aware, of the terms of the Vacation Rental 

Agreement.

17. No evidence was presented that Jessica Vaughn ever read, or 

was aware, of the terms of the Vacation Rental Agreement.

18. Plaintiffs were not parties to the Vacation Rental Agreement. 

19. The signatories to the Vacation Rental Agreement did not 

intend to confer a direct benefit on Plaintiffs, and there was never 

a meeting of the minds that the plaintiffs would become parties 

or third[-]party beneficiaries to the contract. 
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20. Plaintiffs were not actively nor directly involved in the 

formation of the Vacation Rental Agreement. 

21. Plaintiff[s’] causes of action are only based upon duties 

imposed on Defendants by North Carolina common law and North 

Carolina statutory law. 

22. Plaintiffs’ causes of action do not arise out of or relate to the 

Vacation Rental Agreement. 

23. The Plaintiffs are not seeking the benefit of the Vacation 

Rental Agreement. Plaintiffs’ causes of action exist separate and 

apart from the Vacation Rental Agreement entered into between 

Defendant Twiddy and Third-Party Defendant . . . May, and do 

not arise out of or relate to the Vacation Rental Agreement. 

24. The Court distinctly makes no findings of fact regarding 

whether the forum-selection clause of the Vacation Rental 

Agreement should, or should not, be enforced against . . . May. 

That issue is not presently before this Court.

The trial court then concluded: Plaintiffs were not third-party beneficiaries of the 

Vacation Rental Agreement; Plaintiffs were not equitably estopped from denying the 

applicability of the forum-selection clause; and Plaintiffs’ causes of action did not 

arise out of or relate to the Vacation Rental Agreement. Finally, the trial court 

concluded Johnston County was a proper venue for this action pursuant to N.C. Gen. 

Stat. § 1-82. Twiddy timely filed written Notice of Appeal from the Order Denying 

Defendants’ Motions to Change Venue on 10 January 2022.3

Appellate Jurisdiction

3 The Strickers did not separately appeal. Neither the Strickers nor May have made any appearance 

in this Court.
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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The trial court’s Order Denying Defendants’ Motions to Change Venue is an 

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.” McClennahan v. N.C. 

School of the Arts, 177 N.C. App. 806, 807-08, 630 S.E.2d 197, 199 (2006) (citation 

and quotation marks omitted). “Generally, a party has no right to appeal an 

interlocutory order.” Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 775, 501 S.E.2d 

353, 354 (1998) (citing N.C. Dep’t of Transportation v. Page, 119 N.C. App. 730, 733, 

460 S.E.2d 332, 334 (1995)). “However, ‘an appeal is permitted . . . if the trial court’s 

decision deprives the appellant of a substantial right [that] would be lost absent 

immediate review.’ ” Id. (citing Page, 119 N.C. App at 734, 460 S.E.2d at 334). “ ‘[A]n 

immediate appeal is permitted where an erroneous order denying a party the right 

to have the case heard in the proper court would work an injury to the aggrieved 

party [that] would not be corrected if no appeal was allowed before the final 

judgment.’ ” Id. at 775-76, 501 S.E.2d 354-55 (quoting Perkins v. CCH Computax, 

Inc., 106 N.C. App. 210, 212, 415 S.E.2d 755, 757, reviewed on other grounds, 332 

N.C. 149, 419 S.E.2d 574, decision reversed, 333 N.C. 140, 423 S.E.2d 780 (1992)).

This Court has recognized an order denying a motion based on improper venue,

which asserts venue is proper elsewhere, affects a substantial right because it 

“ ‘would work an injury to the aggrieved party which could not be corrected if no 

appeal was allowed before the final judgment.’ ” Thompson v. Norfolk S. Ry. Co., 140 
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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N.C. App. 115, 121-22, 535 S.E.2d 397, 401 (2000) (quoting DesMarais v. Dimmette, 

70 N.C. App. 134, 136, 318 S.E.2d 887, 889 (1984)). Likewise, orders addressing the 

validity of a forum-selection clause also affect a substantial right. US Chem. Storage, 

LLC v. Berto Constr., Inc., 253 N.C. App. 378, 381, 800 S.E.2d 716, 719 (2017). Thus, 

Twiddy’s appeal from the trial court’s denial of Defendants’ Motions to Change Venue

is properly before us as the trial court’s Order denying Defendants’ Motions affects a 

substantial right.

Issues

The key issues on appeal are whether, on the facts of this case, Plaintiffs—as 

non-signatories to the Vacation Rental Agreement—may be bound by the forumselection clause contained in the Vacation Rental Agreement as (I) third-party 

beneficiaries or (II) by equitable estoppel.

Analysis

As a preliminary matter, the parties disagree on the standard of review we 

should apply to the trial court’s Order in this case. Twiddy contends we should 

employ a de novo review. Plaintiffs assert our review is limited to whether the trial 

court abused its discretion in denying the change of venue.

“Generally, a trial court’s denial of a motion to change venue ‘will not be 

disturbed absent a showing of a manifest abuse of discretion.’ ” LendingTree, LLC v. 

Anderson, 228 N.C. App. 403, 407, 747 S.E.2d 292, 296 (2013) (quoting Carolina 

Forest Ass’n, Inc. v. White, 198 N.C. App. 1, 10, 678 S.E.2d 725, 732 (2009) (citation 
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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and quotation marks omitted)). Likewise, as a general proposition, “[w]e employ the 

abuse-of-discretion standard to review a trial court’s decision concerning clauses on 

venue selection.” Mark Grp. Int’l, Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 

160, 161 (2002) (citation omitted). In particular, we apply an abuse of discretion 

standard when the trial court issues an order regarding the enforceability of a venueselection clause under a Rule 12(b)(3) motion. See Wall v. Automoney, Inc., 284 N.C. 

App. 514, 529, 877 S.E.2d 37, 51 (2022), rev. denied ___ N.C. ___, 884 S.E.2d 739 

(2023); see also SED Holdings, LLC v. 3 Star Props., LLC, 246 N.C. App. 632, 636, 

784 S.E.2d 627, 630 (2016); Davis v. Hall, 223 N.C. App. 109, 110, 733 S.E.2d 878, 

880 (2012); Cable Tel. Servs., Inc. v. Overland Contr’g., Inc., 154 N.C. App. 639, 645, 

574 S.E.2d 31, 35 (2002); Mark Grp. Int’l, Inc., 151 N.C. App. at 568, 566 S.E.2d at 

162; Appliance Sales & Serv., Inc. v. Command Elecs. Corp., 115 N.C. App. 14, 21, 

443 S.E.2d 784, 789 (1994). We apply the abuse of discretion standard in these cases 

because the disposition of these cases is “highly fact-specific.” Cox, 129 N.C. App. at 

776, 501 S.E.2d at 355 (citation omitted). On the other hand, when a trial court is 

called upon to interpret a forum- or venue-selection clause as a matter of law, we 

review the trial court’s decision de novo. US Chem. Storage, LLC, 253 N.C. App. at

382, 800 S.E.2d at 720. 

In this case, we broadly apply an abuse of discretion standard to the trial 

court’s Order because the central determination made by the trial court was whether 

to enforce the forum-selection clause in the Vacation Rental Agreement between 
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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Twiddy and May as against Plaintiffs.4 However, the trial court’s decision not to 

enforce the forum-selection clause stemmed from its legal conclusions Plaintiffs were 

not third-party beneficiaries or estopped from denying the applicability of the forumselection clause.5 “[T]he trial court’s articulation and application of the relevant legal 

standard is a legal question that is reviewed de novo.” Miller v. Carolina Coast 

Emergency Physicians, LLC, 382 N.C. 91, 104, 876 S.E.2d 436, 447 (2022) (citation 

omitted). “And, whatever the standard of review, ‘an error of law is an abuse of 

discretion.’ ” Id. (quoting Da Silva v. WakeMed, 375 N.C. 1, 5 n.2, 846 S.E.2d 634, 

638 (2020)); cf. LendingTree, LLC , 228 N.C. App. at 407, 747 S.E.2d at 296 

(“Therefore, although we apply abuse of discretion review to general venue decisions, 

we apply de novo review to waiver arguments.” (citation omitted)).

I. Third-Party Beneficiaries

On appeal, Twiddy first contends the trial court erred by failing to apply the 

third-party beneficiary doctrine to bind Plaintiffs to the forum-selection clause. The 

4 Indeed, the parties agree the forum-selection clause itself is properly interpreted as mandatory and 

not permissive. The parties do, however, disagree as to whether—if the forum-selection clause was 

deemed enforceable as to Plaintiffs—Plaintiffs’ claims in this case would otherwise fall within the 

scope of the forum-selection clause’s language.

5 The trial court included these determinations as both findings of fact and conclusions of law. We 

view the trial court’s application of the third-party beneficiary and equitable estoppel doctrines to be 

in the nature of conclusions of law. See Phelps Staffing, LLC v. S.C. Phelps, Inc., 217 N.C. App. 403, 

412, 720 S.E.2d 785, 792 (2011) (“Generally, any determination requiring the exercise of judgment or 

the application of legal principles is more properly classified a conclusion of law.” (citation and 

quotation marks omitted)).
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third-party beneficiary doctrine usually applies to allow a third-party to enforce a 

contract executed for their direct benefit. See Raritan River Steel Co. v. Cherry, 

Bekaert & Holland, 329 N.C. 646, 650, 407 S.E.2d 178, 181 (1991). A party “is a thirdparty beneficiary if she can show (1) that a contract exists between two persons or 

entities; (2) that the contract is valid and enforceable; and (3) that the contract was 

executed for the direct, and not incidental, benefit of the plaintiff.” Holshouser v. 

Shaner Hotel Grp. Properties One Ltd. P’ship, 134 N.C. App. 391, 399-400, 518 S.E.2d 

17, 25 (1999), aff’d, 351 N.C. 330, 524 S.E.2d 568 (2000). Here, however, Twiddy 

contends that the Vacation Rental Agreement—existing between Twiddy and May 

and as otherwise generally enforceable—was executed for the direct benefit of 

Plaintiffs, and, thus, Plaintiffs—as third-party beneficiaries—should be bound by its 

provisions.

In support of its position, Twiddy relies in large part on our decision in LSB 

Fin. Servs., Inc. v. Harrison, 144 N.C. App. 542, 548 S.E.2d 574 (2001). There, this 

Court affirmed a trial court’s decision enforcing an arbitration clause in an agreement 

against a third-party to the agreement. Id. at 543, 548 S.E.2d 575. In that case, the 

plaintiff was a banking institution and the defendant was a former employee of the 

plaintiff. Under then-existing law, the plaintiff was not permitted to become a 

member of the National Association of Securities Dealers, Inc. (NASD) and, 

consequently, could not engage in the business of securities transactions unless it 

partnered with a NASD member. Id. The plaintiff partnered with a registered 
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Opinion of the Court

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brokerage and the defendant served as a “dual employee” of the plaintiff and the 

securities brokerage. Id. at 543, 584 S.E.2d at 576. This allowed the defendant to 

serve as a broker under the supervision and control of the plaintiff. Id. The plaintiff 

was then permitted to share in the profits derived from the defendant’s securities 

brokerage work. Id. In order to perform the securities brokerage work, the defendant 

was required to apply and register with NASD using a U-4 form. Id. at 543-44, 584 

S.E.2d at 576. The U-4 registration form with NASD included an arbitration clause. 

Id. at 544, 584 S.E.2d at 576. The defendant voluntarily terminated her employment 

with the plaintiff and joined another brokerage. Id. The plaintiff sued the defendant 

alleging, among other things, a breach of a separate non-compete. Id. The defendant 

moved to compel arbitration against the plaintiff even though the plaintiff was not 

(and could not) be a party to the U-4 registration with NASD. Id. 

Our Court explained the direct benefit the plaintiff received from the U-4:

“plaintiff required defendant to sign the U-4 Form so that plaintiff would be in a 

lawful position to benefit from the business of securities transactions.” Id. at 549, 548 

S.E.2d at 579. As such, the plaintiff was an intended beneficiary of the U-4 

registration and, therefore, deemed to be in privity of contract as a third-party 

beneficiary. Id. at 548, 548 S.E.2d 578-79. As a result, we held the plaintiff could be 

compelled to arbitrate its claims against the defendant.6

6 Our decision in that case also found grounding in equitable estoppel and principles of agency.
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Indeed, the benefit the plaintiff received in LSB Fin. Servs. is illustrative of 

the type of benefit our Courts have required to show a direct—rather than 

incidental—benefit for purposes of invoking the third-party beneficiary doctrine. “ ‘A 

person is a direct beneficiary of the contract if the contracting parties intended to 

confer a legally enforceable benefit on that person.’ ” Revels v. Miss Am. Org., 182 

N.C. App. 334, 336, 641 S.E.2d 721, 723 (2007) (quoting Holshouser, 134 N.C. App. at

400, 518 S.E.2d at 25). “ ‘It is not enough that the contract, in fact, benefits the [thirdparty], if, when the contract was made, the contracting parties did not intend it to 

benefit the [third-party] directly.’ ” Id. “ ‘As a general proposition, the determining 

factor as to the rights of a third[-]party beneficiary is the intention of the parties who 

actually made the contract.’ ” Vogel v. Reed Supply Co., 277 N.C. 119, 128, 177 S.E.2d 

273, 279 (1970) (quoting 17 Am.Jur.2d, Contracts § 304). “ ‘The real test is said to be 

whether the contracting parties intended that a third person should receive a benefit 

which might be enforced in the courts.’ ” Id. “The Court, in determining the parties’ 

intentions, should consider circumstances surrounding the transaction as well as the 

actual language of the contract.” Raritan River Steel Co., 329 N.C. at 652, 407 S.E.2d 

at 182.

In LSB Fin. Servs., the whole purpose of the U-4 registration form was to allow 

the plaintiff to legally engage in securities brokering. The plaintiff was not only 

aware of the U-4 form but required the defendant (plaintiff’s employee) to register 

with NASD. Not only did the defendant’s registration confer upon the plaintiff the 
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Opinion of the Court

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legal right to engage in securities brokering, but it also had the direct benefit of 

granting the plaintiff the right to be compensated for securities brokerage work, 

through the efforts of its employee.

In the case sub judice, unlike in LSB Fin. Servs., the Vacation Rental 

Agreement between Twiddy and May was not intended to directly benefit Plaintiffs 

by vesting them with any legally enforceable right. Certainly, Plaintiffs, themselves, 

are not expressly designated as beneficiaries under the Vacation Rental Agreement. 

Moreover, as the trial court found, there was no evidence Plaintiffs ever read or were 

aware of the terms of the Vacation Rental Agreement. Further, there is no evidence 

Plaintiffs were active or involved in entering into the Vacation Rental Agreement. 

On the Record before us, there is no evidence of “the type of active and direct dealings 

which courts have required to confer third[-]party beneficiary status on a party not 

contemplated by the contract itself.” Hospira Inc. v. Alphagary Corp., 194 N.C. App. 

695, 703, 671 S.E.2d 7, 13 (2009) (citation and quotation marks omitted).

Twiddy, nevertheless, contends the provisions of the Vacation Rental 

Agreement placed Plaintiffs in a class of persons intended to benefit from the 

contractual relationship between Twiddy and May. First, Twiddy points to the 

provisions restricting use of the vacation home to May and May’s “family”. Second, 

Twiddy relies on provisions of the indemnification clause. These provisions, however, 

do not provide any direct benefit to Plaintiffs or evidence any intent to provide a direct 

benefit to Plaintiffs.
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As an initial matter, by its very terms, the provision restricting use of the 

property does not purport to confer any benefit on May or any user of the property. 

The provision restricting use of the property provides:

4. Use and Tenant Duties. The use of the Premises is 

restricted to use by You and Your family . . . . The term 

“family” as used herein means parents, grandparents, 

children and extended family members vacationing at the 

Premises. 

It serves to expressly restrict May in whom she may invite to use the property during 

her tenancy. Further, the provision provides no legally enforceable right of access to 

the property by Plaintiffs (or other family members). See Raritan River Steel Co., 329 

N.C. at 652, 407 S.E.2d at 182. It merely grants May the ability to invite family 

members to use the property. As such, any benefit to Plaintiffs was purely incidental. 

Twiddy, nevertheless, contends—by virtue of this provision—Plaintiffs became 

lawful users of the property. To the contrary, however, this provision plainly 

supposes that in its absence, Plaintiffs (along with any number of others) could have 

been lawful users of the property. In any event, there is no evidence or showing this 

provision was intended to directly benefit Plaintiffs. Rather, the intent of this 

provision appears to be to provide uniformity in the types of users to whom Twiddy 

would rent the property on behalf of the Strickers. See Revels, 182 N.C. App. at 336-

37, 641 S.E.2d at 724.
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Likewise, the indemnity provision certainly itself provides no benefit to May 

or Plaintiffs. Rather, it is intended to attempt to cast a wide net over those from 

which Defendants might seek indemnification for damages. The provision provides: 

17. Indemnification and Hold Harmless. You agree to 

indemnify and save harmless the Owner and Agent for any 

liabilities . . . arising from or related to any claim or 

litigation which may arise out of or in connection with Your 

use and occupancy of the Premises including but not 

limited to any claim or liability. . . which is caused, made, 

incurred or sustained by You as a result of any cause, 

unless caused by the grossly negligent or willful act of 

Agent or the Owner, or the failure of Agent or the Owner 

to comply with the Vacation Rental Act. . . . The terms 

“Tenant,” “You,” and “Your” as used in this Agreement shall 

include Tenant’s heirs, successors, assigns, guests, invitees, 

representatives and other persons on the Premises during 

Your occupancy (without regard to whether such persons 

have authority under this Agreement to be upon the 

Premises), where the context requires or permits.

(emphasis added). 

To be fair, Twiddy does not contend the indemnity provision itself provides any 

benefit to Plaintiffs. Instead, Twiddy asserts because the provision provides its 

definition of “You” and “Your” is “as used in this Agreement”, then this definition 

should apply to the forum-selection clause which states: “You specifically consent to 

such jurisdiction and to extraterritorial service of process.” As such, Twiddy argues 

Plaintiffs—as guests or invitees—should be bound as third-parties to the forumselection clause. However, this argument ignores the fact the Vacation Rental 

Agreement expressly provides its provisions are severable and, indeed, May was 
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required to execute each provision individually. See Wooten v. Walters, 110 N.C. 251, 

254-55, 14 S.E. 734, 735 (1892) (“A contract is entire, and not severable, when by its 

terms, nature and purpose, it contemplates and intends that each and all of its parts, 

material provisions, and the consideration, are common each to the other, and 

interdependent. . . . On the other hand, a severable contract is one in its nature and 

purpose susceptible of division and apportionment, having two or more parts, in 

respect to matters and things contemplated and embraced by it, not necessarily 

dependent upon each other, nor is it intended by the parties that they shall be.”).

Moreover, Twiddy’s argument that “You” and “Your” as defined by the 

indemnity provision should be read uniformly into and throughout the Vacation 

Rental Agreement is defeated by the fact it is plainly apparent in the terms of the 

agreement itself that Defendants themselves intended no such thing. By way of 

illustration, employing the expansive definitions of “You” and “Your” to the provision 

restricting use of the property “by You and Your family” yields ludicrous results 

permitting practically anyone to use the property during May’s tenancy resulting in 

essentially no restriction whatsoever. It would mean the property would be restricted 

to use by May and her heirs, successors, assigns, guests, invitees, representatives,

and other persons on the Premises during May’s occupancy (without regard to 

whether such persons have authority under this Agreement to be upon the Premises)

. . . and their families (including extended families). In other words, use would not 

be restricted to just May and her family members—it could include everyone from 
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non-family social guests and their families, delivery drivers and their families, and 

even complete strangers who would otherwise be trespassers and their families. This 

would functionally obliterate the provision restricting use of the property. We decline 

to interpret the Vacation Rental Agreement to reach such an absurd result. See Atl. 

Disc. Corp. v. Mangel’s of N.C., Inc., 2 N.C. App. 472, 478, 163 S.E.2d 295, 299 (1968)

(“A construction of a contract leading to an absurd, harsh or unreasonable result 

should be avoided if possible.” (citing 51C C.J.S. Landlord and Tenant § 232(4), p. 

594)). As such, it could not have been the parties’ intent that these definitions of “You” 

and “Your” be applied throughout the Vacation Rental Agreement as Twiddy 

contends.7 In turn, then, this provision evinces no intent on the part of the parties to 

directly benefit Plaintiffs or bind them to the Vacation Rental Agreement, including 

specifically to the forum-selection clause as third-party beneficiaries.

In summary, there is no showing on this Record that Defendants and May 

intended to confer any legally enforceable right on Plaintiffs via the Vacation Rental 

Agreement. Instead, the Record here reflects any benefit incurred by Plaintiffs 

through the Vacation Rental Agreement was incidental and not direct. As such, 

Twiddy has failed to show Plaintiffs were third-party beneficiaries to the Vacation 

Rental Agreement. In turn, we conclude the trial court did not err by declining to 

7 We acknowledge the additional clause appended to the definition of “You” and “Your” in the 

indemnification provision which states: “where the context requires or permits.” The parties make no 

argument as to how this clause operates in the context of the definition. It could modify “as used in 

this Agreement” or it could modify “other persons”. It could have some other function entirely.
JARMIN V. TWIDDY & CO. OF DUCK, INC.

Opinion of the Court

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apply the third-party beneficiary doctrine to bind Plaintiffs to the forum-selection 

clause.

II. Equitable Estoppel

Next, Twiddy contends the trial court also erred by failing to apply the doctrine 

of equitable estoppel to bind Plaintiffs to the forum-selection clause in the Vacation 

Rental Agreement. “ ‘Equitable estoppel precludes a party from asserting rights he 

otherwise would have had against another when his own conduct renders assertion 

of those rights contrary to equity.’ ” Ellen v. A.C. Schultes of Md., Inc., 172 N.C. App. 

317, 321, 615 S.E.2d 729, 732 (2005) (quoting Int’l Paper Co. v. Schwabedissen 

Maschinen & Anlagen GMBH, 206 F.3d 411, 417-18 (4th Cir. 2000) (citation and 

quotation marks omitted)). 

While Twiddy identifies no prior case where Courts have applied equitable 

estoppel to bind a party to a forum- or venue-selection clause, both parties again 

analogize this situation to cases involving arbitration clauses. In that context, we 

have recognized: “ ‘[A] nonsignatory to an arbitration clause may, in certain 

situations, compel a signatory to the clause to arbitrate the signatory’s claims against 

the nonsignatory despite the fact that the signatory and nonsignatory lack an 

agreement to arbitrate.’ ” Smith Jamison Constr. v. APAC-Atl., Inc., 257 N.C. App. 

714, 717, 811 S.E.2d 635, 638 (2018) (quoting Am. Bankers Ins. Grp., Inc. v. Long, 453 

F.3d 623, 627 (4th Cir. 2006)). “ ‘One such situation exists when the signatory is 

equitably estopped from arguing that a nonsignatory is not a party to the arbitration 
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Opinion of the Court

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clause.’ ” Id. “ ‘In the arbitration context, the doctrine recognizes that a party may be 

estopped from asserting that the lack of his signature on a written contract precludes 

enforcement of the contract’s arbitration clause when he has consistently maintained 

that other provisions of the same contract should be enforced to benefit him.’ ” Ellen, 

172 N.C. App. at 321, 615 S.E.2d at 732 (quoting Schwabedissen, 206 F.3d at 418). 

“ ‘To allow [a plaintiff] to claim the benefit of the contract and simultaneously avoid 

its burdens would both disregard equity and contravene the purposes underlying 

enactment of the Arbitration Act.’ ” Id. For example, “In Schwabedissen, the Fourth 

Circuit Court of Appeals noted that ‘[a] nonsignatory is estopped from refusing to 

comply with an arbitration clause “when it [is seeking or] receives a ‘direct benefit’ 

from a contract containing an arbitration clause.” ’ ” Id.; see also LSB Fin. Servs., 144 

N.C. App. at 548, 548 S.E.2d at 579.

“[W]here the issue is whether the underlying claims are such that the party 

asserting them should be estopped from denying the application of the arbitration 

clause, a court should examine whether the plaintiff has asserted claims in the 

underlying suit that, either literally or obliquely, assert a breach of a duty created by 

the contract containing the arbitration clause.” Carter v. TD Ameritrade Holding 

Corp., 218 N.C. App. 222, 231, 721 S.E.2d 256, 263 (2012) (citation and quotation 

marks omitted). Even where a plaintiff’s claims sound in tort and not contract, a 

plaintiff may not avoid arbitration where the claims at their root are an attempt to 

hold the opposing party to the terms of the contract. See id. at 232, 721 S.E.2d at 
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Opinion of the Court

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263. Nevertheless, where a party’s claims “are dependent upon legal duties imposed 

by North Carolina statutory or common law rather than contract law,” equitable 

estoppel does not operate to require enforcement of an arbitration clause against a 

non-signatory even where the contract “provides part of the factual foundation” for 

plaintiffs’ complaint. Ellen, 172 N.C. App. at 322, 615 S.E.2d at 732-33; see also 

Smith Jamison Constr., 257 N.C. App. at 720-21, 811 S.E.2d at 640 (applying Ellen

to conclude “Although the existence of the Subcontract ‘[p]rovide[s] part of the factual 

foundation for [the] complaint,’ [the] claims . . . are ‘dependent upon legal duties 

imposed by North Carolina statutory or common law rather than contract law.’ ”).

Applying these analogous principles to this case, Plaintiffs’ Complaint alleges 

no breach of duty owed to them by the Vacation Rental Agreement. The Complaint 

further makes no allegation the Vacation Rental Agreement conferred any direct 

benefit on them. Indeed, the Complaint includes no claim or allegation whatsoever 

arising out of the Vacation Rental Agreement itself.

To the contrary, the Complaint is grounded in claims for negligence and 

wrongful death dependent upon legal duties allegedly imposed on Defendants by 

North Carolina statutory or common law rather than contract law. Ellen, 172 N.C. 

App. at 322, 615 S.E.2d at 732. Twiddy contends, however, the provisions of the 

Vacation Rental Agreement operating to allow Plaintiffs to be permissive users of the 

property during May’s tenancy and providing the Strickers “agree to provide the 
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Opinion of the Court

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premises to You in a fit and habitable condition” forms the basis for Plaintiffs’ claims.8 

Plaintiffs’ Complaint makes no such allegations. For example, there is no claim 

Plaintiffs are entitled to any refund of rent paid as a result of any breach of the duty 

under the Agreement. Moreover, even if the Vacation Rental Agreement—including 

listing May’s family as permissive users of the property—“provides part of the factual 

foundation” for Plaintiffs’ Complaint,9 “[P]laintiffs’ ‘entire case’ does not ‘hinge[ ] on 

[any] asserted rights under the . . . contract.’ ” Ellen, 172 N.C. App. at 322, 615 S.E.2d 

at 732-33 (citation omitted). As such, we conclude the doctrine of equitable estoppel 

did not require the trial court, under these facts and allegations, to bind Plaintiffs to 

the forum-selection clause in the Vacation Rental Agreement. See Smith Jamison 

Constr., 257 N.C. App. at 721, 811 S.E.2d at 640.

* * * *

Thus, as a matter of law, on the facts and allegations of this case, Plaintiffs—

as non-signatories to the Vacation Rental Agreement—may not be bound by the 

forum-selection clause contained in the Vacation Rental Agreement as third-party 

beneficiaries or by equitable estoppel. Therefore, the trial court did not err by 

declining to enforce the forum-selection clause against Plaintiffs in this action. 

8 This agreement to provide the premises in fit and habitable condition really appears to be intended 

to provide Defendants with the opportunity to cure any defect or offer substitute performance prior to 

having to refund May’s rental. 

9 It bears mentioning both sets of Defendants, in their Answers, admit upon information and belief 

the allegation Plaintiffs and their minor child were lawful visitors and/or tenants at the time of the 

incident. Thus, how and whether Plaintiffs were permissive users of the property at the time is not 

even really at issue in the case.
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Opinion of the Court

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Consequently, the trial court did not abuse its discretion in denying the Motions to 

Transfer Venue.10

Conclusion

Accordingly, for the foregoing reasons, the trial court’s 15 December 2021 

Order denying the Defendants’ Motions to Change Venue is affirmed. 

AFFIRMED.

Judges ZACHARY and GRIFFIN concur.

10 We express no opinion as to whether—if Plaintiffs were bound by the Vacation Rental Agreement—

Plaintiffs’ claims would fall within the scope of the forum-selection clause. Like the trial court, we also 

express no opinion as to whether the forum-selection clause applies to Defendants’ third-party claims 

against May. We also express no opinion as to whether Defendants may have waived application of 

the forum-selection clause by bringing their third-party indemnification action in Johnston County.