Jenkins v Hearn Vascular Surgery, P.A

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NO. COA11-454 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 GORDON W. JENKINS, Guardian Ad Litem for MIRIAM HAJEH, a minor, and ASMA S. HAJEH and JAMAL HAJEH Plaintiffs, v. Forsyth County No. 10 CVS 7052 HEARN VASCULAR SURGERY, P.A. d/b/a CAROLINA VASCULAR AND VEIN SPECIALISTS and ANDREW T. HEARN, M.D., Defendants. Appeal by Defendants from Order entered 15 December 2010 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 13 October 2011. Wilson Helms & Cartledge, LLP, by G. Gray Wilson and Linda L. Helms, for Defendants. Pulley Watson King & Lischer, P.A., by Richard N. Watson, for Plaintiffs. THIGPEN, Judge. Hearn Vascular Surgery, P.A., doing business as Carolina Vascular and Vein Specialists, and Andrew T. Hearn, M.D. ( Dr. Hearn ) (collectively, Defendants ) appeal from an order entered 15 December 2010 denying their N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) motion for change of venue and their N.C. Gen. -2Stat. § 1A-1, Rule 12(b)(6) motion to dismiss. First we must determine whether the trial court s interlocutory order denying Defendants motions is suitable for immediate appellate review. If the order is immediately appealable, we must then decide whether the trial court erred in denying defendants motion for change of venue and motion to dismiss. We conclude the portion of the order denying Defendant s motion for change of venue is immediately County. appealable, and venue is properly in Alamance We also conclude the order denying Defendants motion to dismiss is interlocutory and not immediately appealable. We therefore dismiss Defendants appeal from the portion of the order denying Defendants motion to dismiss. The evidence of record tends to show that Asma Hajeh ( Asma ) and Jamal Hajeh ( Jamal ) are husband and wife and the parents of Miriam Hajeh ( Miriam ) (collectively, Plaintiffs ). Asma and Jamal are residents of Alamance County. Jenkins, a Forsyth County resident, is Miriam s Gordon W. guardian ad litem. On 24 December 2009, Asma, who was three weeks pregnant, began suffering from acute appendicitis. Jamal drove Asma to Alamance Regional Medical Center, where Dr. Hearn performed a -3laparoscopic appendectomy. Asma was discharged from Alamance Regional Medical Center on 27 December 2009. On 9 May 2010, when Asma was twenty-three weeks pregnant, Asma began experiencing abdominal pain and vomiting. readmitted to the Alamance Regional Medical Asma was Center and transferred to Forsyth Medical Center in Winston-Salem the next day. Examinations at Forsyth Medical Center revealed Asma was suffering from sepsis as a result of acute appendicitis. An open laparotomy surgery was performed on 10 May 2010, which revealed that a four centimeter portion of Asma s appendix remained in her body and had not been removed by Dr. Hearn. Asma also went into premature labor on 10 May 2010, and attempts to prevent premature labor were unsuccessful. Asma delivered a one pound, eight ounce baby girl Miriam. Miriam was hospitalized at Forsyth Medical Center and was a patient in the Forsyth Medical Center Neonatal Intensive Care Unit from the date of her birth on 10 May 2010 until after the filing of the complaint in this case on 22 September 2010. Miriam suffers from permanent and severe physical and cognitive conditions. alleges Dr. Plaintiffs Hearn s complaint, negligence in filed failing in to Forsyth remove entire appendix during the 24 December 2009 appendectomy. County, Asma s -4On 23 November 2010, Defendants filed motions pursuant to N.C. Gen. contending Stat. § 1A-1, Plaintiffs Rule 12(b)(3) instituted the and action Rule in 12(b)(6), an improper venue, and Plaintiffs complaint failed to state a claim upon which relief may be granted because the alleged trial court negligence injured a nonviable fetus. On 15 December 2010, the entered an order denying Defendants motions made pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) and Rule 12(b)(6). On 12 January 2011, Defendants filed a notice of appeal from the trial court s 15 December 2010 order. I: We must first Interlocutory Appeal determine whether the interlocutory order denying Defendants motions made pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) and Rule 12(b)(6) is immediately appealable. We conclude the denial of Defendants motion for change of venue is immediately appealable, and the denial of Defendants motion to dismiss is not. Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy. Turner v. Hammocks Beach -5Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (quotation omitted). As a general rule, interlocutory orders are not immediately appealable. immediate available appeal in at of Id. (citation interlocutory least two omitted). orders instances: and when However, judgments the trial is court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason for delay of the appeal; and when the interlocutory order affects a substantial right under N.C.G.S. §§ 1-277(a) and 7A-27(d)(1). In the present case, Id. (quotation omitted). the trial court did not certify pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) its order denying Defendants motions. We must determine whether the order affects a substantial right. i: Venue We first consider whether the portion of the order denying Defendants motion for change of venue affects a substantial right. We conclude it does. We further conclude the trial court erred by denying Defendants motion for change of venue, as venue is properly in Alamance County. [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 -6proper. Caldwell v. Smith, __ N.C. App. __, __, 692 S.E.2d 483, (2010) 484 (citations omitted); see also Roberts v. Adventure Holdings, LLC, __ N.C. App. __, __, 703 S.E.2d 784, 786 (2010) (stating, the grant or denial of venue established by statute is deemed a substantial right, it is immediately appealable ) (internal quotation omitted). Therefore, because Defendants have alleged the county indicated in the complaint is improper, we address the merits of Defendants appeal. Generally, absent an applicable specific statutory provision, venue is proper in the county in which any party is a resident at the commencement of the action. N.C. Gen. Stat. § 1-82 (2009) (providing, [i]n all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement ). N.C. Gen. Stat. § 1-83 (2009) provides the following: 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 -7purpose is not the proper one. 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. Roberts, __ N.C. App. at __, 703 S.E.2d at 786 (quotation omitted). In the present case, Asma and Jamal reside in Alamance County. Vascular Dr. Hearn Surgery, resides P.A., in doing Alamance business as Specialists, is located in Alamance County. on appeal that because all of the County, and Carolina Hearn Vascular Defendants argue parties in this case, including Miriam, reside in Alamance County, Alamance County is the proper venue. Plaintiffs counter with two arguments: (1) Miriam resided in Forsyth Medical Center because, from the time of her birth until after the filing of the complaint, Miriam was a patient in Forsyth Neonatal Intensive Care Unit at Forsyth Medical Center; and (2) the fact that Miriam s guardian ad litem resides in Forsyth County, in addition to Miriam s other ties to Forsyth County, is sufficient to establish venue. We find these arguments unconvincing. a: Residence of Unemancipated Infant We first address the question of whether Miriam resided in Forsyth County because she was a long-term patient at Forsyth -8Medical Center. We conclude Miriam s residence is with her parents in Alamance County. There is a common law presumption that a minor s domicile is the same as that of the minor s parents[.] Fain v. State Residence Comm. of the Univ. of N.C., 117 N.C. App. 541, 544, 451 S.E.2d 663, 665, aff d per curiam, 342 N.C. 402, 464 S.E.2d 43 (1995) (citation omitted). [A]n unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile. S.E. 307, 308 (1924). Thayer v. Thayer, 187 N.C. 573, 574, 122 Therefore, [a]s a general rule, the domicile of every person at his birth is the domicile of the person on whom he is legally dependent[.] Id. It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. Id. We find Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307 dispositive in this case. In Thayer, in a the opinion nine-year old of our Supreme illegitimate son Davidson County against his putative father. his grandfather in Montgomery County. Court in brought suit The son lived with Id. at 574, 122 S.E. at -9308. the The son s mother was a resident of Davidson County, and father was a resident of Montgomery County. Id. The question for the Court was whether the son resided, for purposes of venue, in Davidson County with his mother or in Montgomery County with his grandfather. Id. The Court in Thayer recognized that the appropriate question for purposes of venue is the place of residence, not the place of domicile. Id. at 575, 122 S.E. at 308 (stating there is a technical distinction between domicile and residence ). stated there is no suggestion However, the Thayer Court that the plaintiff s mother is in Montgomery County[.] domicile Id. of the The Court concluded, the residence of the mother, in our opinion, is the residence of the plaintiff; and as the plaintiff has not been emancipated or abandoned by his mother, the mere fact that he is living with his grandfather in Montgomery County does not affect our conclusion. Id. As in Thayer, there is no suggestion in the present case that Asma or Jamal either reside or are domiciled in Forsyth County. Asma and Jamal do not dispute that they reside in Alamance County. Miriam has neither abandoned by her mother and father. been emancipated nor The question of Miriam s legitimacy is not at issue, and Thayer supports the proposition -10that Miriam s in-patient stay at Forsyth Medical Center does not affect her residence. We therefore conclude the residence of the infant, Miriam, is the residence of her parents, Asma and Jamal. See Id. at 574, 122 S.E. at 308 (stating, the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate ); Fain, 117 N.C. App. at 544, 451 S.E.2d at 665; see also In re A.B., 179 N.C. App. 605, 611, 635 S.E.2d 11, 16 (2006) (holding, in the context of N.C. Gen. Stat. § 7B-101(15), that a newborn still physically in residence in the hospital may properly determined to live in the home of his or her parents ). be The fact that Miriam was a long-term patient at Forsyth Medical Center in Forsyth County after her birth does not affect her residence with her parents in Alamance County. b: We Miriam s next Residence of Guardian ad Litem address guardian ad the question litem of resides whether in the Forsyth fact County, that in addition to Miriam s other ties to Forsyth County, is sufficient to establish venue. We conclude it is not. [A] guardian ad litem . . . is appointed for the mere temporary duty of protecting the legal rights of an infant in a particular suit and his duties and his office end with that suit. He is not a party in interest in the suit, no property comes into his hands, -11and he has no powers nor duties either prior to the institution of the suit or after its termination. Roberts, __ N.C. App. at __, 703 S.E.2d at 787 (quoting Blackwell v. Vance Trucking Company, 139 F.Supp. 103, 106-07 (1956)). As such, a [guardian ad litem] s county of residence is insufficient, standing alone, to establish venue. Roberts, __ N.C. App. at __, 703 S.E.2d at 787. Plaintiffs contend in the present case that venue in Forsyth County is not predicated solely upon the residence of Miriam Hajeh s guardian ad litem. ad litem s residence in Forsyth In addition to the guardian County, Plaintiffs emphasize that Miriam had never lived anywhere other than in Forsyth County prior to filing suit[;] and Miriam was born in Forsyth County and resided in Forsyth County for months before this lawsuit was filed. However, this Court has already determined that Miriam s in-patient stay at Forsyth Medical Center did not affect Miriam s residence for purposes of venue. that Asma Alamance and Jamal, County; as Miriam s such, the mother law We reiterate and father, requires that reside in Miriam, an unemancipated infant, also resides with her mother and father. Dr. Hearn resides in Alamance County, and Hearn Vascular Surgery, P.A., doing business as Carolina Vascular Specialists, -12is located in Alamance County. in Alamance County. The injury alleged also occurred We believe the Court s holding in Roberts, __ N.C. App. at __, 703 S.E.2d at 787, is dispositive, and the facts of this case are insufficient to establish conclude the venue in Forsyth County.1 For the foregoing reasons, we trial court erred by denying Defendants motion for change of venue. We reverse this portion of the trial court s order and remand to the Forsyth County superior court for transfer of venue to Alamance County.2 ii: Motion to Dismiss 1 Plaintiffs also state in their brief that [a]ll of Miriam s doctors, physician assistants, therapists, and nurses are in Forsyth County. Although this has no bearing on the determination of Miriam s residence pursuant to N.C. Gen. Stat. § 1-82, nothing in this opinion precludes Plaintiffs, after the transfer of venue to Alamance County, from filing a motion to transfer venue back to Forsyth County pursuant to N.C. Gen. Stat. § 1-83(2), which states that [t]he court may change the place of trial . . . [w]hen the convenience of witnesses and the ends of justice would be promoted by the change. See also Stephenson v. Bartlett, 358 N.C. 219, 228, 595 S.E.2d 112, 118 (2004) ( [V]enue is sufficiently flexible that it may be changed when the convenience of witnesses and the ends of justice would be promoted by the change ) (citing N.C. Gen. Stat. § 1-83(2)). 2 Although Defendants prayed in their motion for change of venue that the court dismiss[] plaintiffs action with prejudice[,] we conclude the appropriate remedy is transfer of venue to Alamance County. See, e.g., Roberts, __ N.C. App. at __, 703 S.E.2d at 788 ( [V]enue is not jurisdictional, but is only ground for removal to the proper county upon a timely objection made in the proper manner ). -13We next consider whether the portion of the order denying Defendants motion to dismiss affects a substantial right. We conclude it does not. Ordinarily, a denial of a motion to dismiss under Rule 12(b)(6) merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court s ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal may be taken. State ex rel. Edmisten v. Fayetteville Street Christian School, 299 N.C. 351, omitted). 355, 261 S.E.2d 908, 911 (1980) (citation The inquiry as to whether a substantial right is affected is two-part the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [a party] if not corrected before appeal from final judgment[.] 723, 726, disagree 392 with Goldston v. American Motors Corp., 326 N.C. S.E.2d 735, Defendants 736 (1990). general Although contentions on we do appeal not that addressing the question presented in their motion to dismiss would be in the interests of judicial economy[,] and that the issue raised is one of public importance[,] we find it dispositive that Defendants have offered no evidence as to any -14potential injury to either party, and we see none, if the issue presented in this interlocutory appeal after a final judgment on the merits. is instead presented Therefore, we conclude the portion of the order denying Defendants motion to dismiss is not immediately appealable, and we dismiss this portion of Defendants appeal. REVERSED and REMANDED, in part; DISMISSED, in part. Judges HUNTER, JR. and BEASLEY concur.

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