Roberts v. Adventure Holdings Llc

• Decision Date: 21 December 2010
• Docket Number: No. COA10–589.,COA10–589.
• Citation: 703 S.E.2d 784
• Parties: Afrika S. ROBERTS, by and through her Guardian ad Litem, Frankie J. Perry, Plaintiff,v.ADVENTURE HOLDINGS, LLC, and, 3311 Capital Boulevard, LLC, d/b/a Adventure Landing, Defendants.
• Court: North Carolina Court of Appeals

703 S.E.2d 784

Afrika S. ROBERTS, by and through her Guardian ad Litem, Frankie J. Perry, Plaintiff,
v.
ADVENTURE HOLDINGS, LLC, and, 3311 Capital Boulevard, LLC, d/b/a Adventure Landing, Defendants.

No. COA10–589.

Court of Appeals of North Carolina.

Dec. 21, 2010.

[703 S.E.2d 785]

Appeal by defendants from order entered 4 February 2009 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 28 October 2010.

Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Durham, for plaintiff-appellee.

Ross & Van Sickle, PLLC, by R. Matthew Van Sickle and C. Thomas Ross, Winston–Salem, for defendants-appellants.

JACKSON, Judge.

Adventure Holdings, LLC, (“Adventure”) and 3311 Capital Boulevard, LLC, (“Capital”) (collectively “defendants”) appeal the trial court's 4 February 2009 order denying their motion to dismiss based upon improper venue. For the reasons stated herein, we affirm in part and remand.

Adventure is a foreign limited liability company with its principal office in Jacksonville, Florida. Capital is a North Carolina limited liability company with its principal office in Raleigh, North Carolina. Defendants own and operate the amusement park known as Adventure Landing, located on Capital Boulevard in Raleigh.

On 10 June 2006, the minor child Afrika Roberts (“Roberts”) visited Adventure Landing with her family. During her visit, Roberts, who was nine years old at the time, was injured in a go-kart accident. As a result of the incident, all of the toes on Roberts's left foot were amputated. Roberts and her family reside in Virginia.

On 24 November 2009, Roberts, through her guardian ad litem (“GAL”) Frankie J. Perry, filed a complaint against defendants, alleging that Roberts's injuries “were a direct and proximate result of the negligent and careless conduct of [d]efendants” and their agents. On 10 December 2009, defendants filed their answer along with motions to dismiss pursuant to Rules 12(b)(3), 12(b)(6), and 12(b)(7) of our Rules of Civil Procedure. On 4 February 2009, the trial court denied defendants' motions to dismiss as to all three Rules. Defendants appeal the trial court's order only with respect to Rule 12(b)(3).

Defendants first contend that the trial court erred in denying their motion to dismiss

[703 S.E.2d 786]

based upon improper venue. In the alternative, defendants' second argument is that the case sub judice should have been transferred to Wake County. We agree with defendants that Durham County is not the proper venue for this action, and we think that transfer of venue, rather than dismissal, is the appropriate remedy.

Initially, we note that defendants' appeal is interlocutory, because it “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. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (citing Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231 (1916)), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). We previously have held

that ordinarily an order denying a change of venue is deemed interlocutory and is not subject to immediate appeal. See Frink v. Batten, 184 N.C.App. 725, 727, 646 S.E.2d 809, 811 (2007) (“the order denying the motion to change venue is an interlocutory order”). However, because the grant or denial of venue established by statute is deemed a substantial right, it is immediately appealable. Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (citations omitted).

Odom v. Clark, 192 N.C.App. 190, 195, 668 S.E.2d 33, 36 (2008). Furthermore, we have explained that “[t]he denial of a motion for change of venue, though interlocutory, affects a substantial right and is immediately appealable where the county designated in the complaint is not proper.” Caldwell v. Smith, ––– N.C.App. ––––, ––––, 692 S.E.2d 483, 484 (2010) (citations omitted). Therefore, because defendants have alleged that the county indicated in the complaint is improper, we address the merits of defendants' appeal.

North Carolina General Statutes, section 1–82 provides that an

action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement, or if none of the defendants reside in the State, then in the county in which the plaintiffs, or any of them, reside; and if none of the parties reside in the State, then the action may be tried in any county which the plaintiff designates in his summons and complaint, subject to the power of the court to change the place of trial, in the cases provided by statute[.]

N.C. Gen.Stat. § 1–82 (2007).¹ According to North Carolina General Statutes, section 1–83,

If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court.

The court may change the place of trial in the following cases:

(1) When the county designated for that purpose is not the proper one.

N.C. Gen.Stat. § 1–83 (2007). “The provision in N.C.G.S. § 1–83 that the court ‘may change’ the place of trial when the county designated is not the proper one has been interpreted to mean ‘must change.’ ” Miller v. Miller, 38 N.C.App. 95, 97, 247 S.E.2d 278, 279 (1978) (citations omitted).

North Carolina courts have not addressed the specific issue of whether or not the residence of a GAL is sufficient to confer venue. Roberts cites Lawson v. Langley for the proposition that, “[i]n actions brought by fiduciaries, the personal residence of the fiduciary controls” with respect to venue. 211 N.C. 526, 530, 191 S.E. 229, 232 (1937). However, because our courts have not addressed this issue explicitly, defendants point us to a South...