Roberts, v. Adventure Holdings, LLC

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NO. COA10-589 NORTH CAROLINA COURT OF APPEALS Filed: 21 December 2010 AFRIKA S. ROBERTS, by and through her Guardian ad Litem, FRANKIE J. PERRY, Plaintiff, v. Durham County No. 09 CVS 7394 ADVENTURE HOLDINGS, LLC, and, 3311 CAPITAL BOULEVARD, LLC, d/b/a ADVENTURE LANDING, Defendants. 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, for plaintiff-appellee. Ross & Van Sickle, PLLC, by R. Matthew Van Sickle and C. Thomas Ross, 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 -2Carolina 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 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 -3action, 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 -4the 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 purpose is not the proper one. N.C. Gen. Stat. § 1-83 (2007). for that 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 1 This statute applies in cases, such as the case sub judice, that are not covered by the specific provisions listed in North Carolina General Statutes, sections 1-76 through 1-81.1. -5S.E. 229, 232 (1937). However, because our courts have not addressed this issue explicitly, defendants point us to a South Carolina case, which distinguished a GAL from other types of guardians and then dismissed the action based upon improper venue. Blackwell v. Vance Trucking Company, 139 F.Supp. 103 (1956). We explore the parties arguments in turn. In Lawson, our Supreme Court addressed whether or not a plaintiff, guardian of an incompetent, [has] the right to maintain and try the action in the county of his personal residence[.] N.C. at 528, 191 S.E. at 231. 211 The Lawson Court recited several statutes in effect at the time and quoted a civil procedure treatise. It then held that, because the treatise says the personal residence of the fiduciary controls in actions brought by fiduciaries and because a statute expressly provided that [e]very guardian shall take possession, for the use of the ward, of all his estate, and may bring all necessary actions therefor[,] [t]he guardian can select the forum, as there is no statute to the contrary. Id. at 530, 191 S.E. at 232 (citations omitted). Roberts fiduciary, argues Lawson that so controls. long as However, a GAL is Roberts considered overlooks a the significant differences between a general guardian, such as the plaintiff in Lawson, and a GAL, as we have in the instant case. A general guardian is responsible for the entirety of one s person and/or estate and maintains such responsibility beyond the context of the courtroom. and control of A general guardian is one who has general care the ward s person and estate. Black s Law -6Dictionary 774 (9th ed. 2009). In contrast, a GAL is appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party. Id. Ad litem is a Latin phrase that means [f]or the purposes of the suit[.] Id. at 49. In one of our juvenile cases, we discussed the limited role of a GAL who had been appointed based upon the parents suspected diminished capacity. See In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), aff d, 362 N.C. 507, 666 S.E.2d 751 (2008) (per curiam). guardian We noted that the more expansive role of a general is to replace the individual s authority to make decisions with the authority of a guardian when the individual does not have adequate capacity to make such decisions. Id. at 329, 653 S.E.2d at 242 (quoting N.C. Gen. Stat. § 35A-1201(a)(3) (2005)) (emphasis in original). limited. Id. In contrast, a GAL s authority is more In fact, the language of the General Assembly is clear that the GAL s role is limited to one of assistance, not one of substitution. Id. Even though In re L.B. involved a GAL s representation of a parent with suspected diminished capacity, its comments are instructive. Because North Carolina courts have not addressed this precise issue, defendants cite Blackwell, supra. In Blackwell, a minor had been injured in an automobile accident. 139 F.Supp. at 104 05. The minor resided in New York, the defendant resided in North Carolina, and the accident occurred in South Carolina. Id. The minor s GAL instituted the action in South Carolina, where he was a citizen and resident. Id. at 105. Because the defendant had -7filed a motion to dismiss based upon improper venue, the question presented was whether or not venue could be based solely upon the GAL s state of residence. Id. In holding that it could not, the Blackwell court explained that a guardian ad litem is something quite different [than a general guardian]. He 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, and he has no powers nor duties either prior to the institution of the suit or after its termination. Id. at 106 07. Again, some distinctions exist between Blackwell and the case sub judice. Nonetheless, the Blackwell court s emphasis on the role of a GAL as opposed to that of a general guardian of one s person and/or estate and its effect on whether the GAL s residence may be used to establish venue is applicable to the facts before us. Based upon our own precedent, in addition to the persuasive reasoning of Blackwell, we now hold that a GAL s county of residence is insufficient, standing alone, to establish venue. Here, all real parties out-of-state or in Wake County. her parents. Florida. in interest are located either Roberts resides in Virginia with Adventure s principal office is in Jacksonville, Capital s principal office is in Wake County. Adventure Landing the site of the incident at issue also is located in Wake County. Nevertheless, Roberts s GAL filed the complaint initiating this action in Durham County. Because the residence of the GAL is the only conceivable connection to Durham County and -8because we hold that the GAL s residence, standing alone, is insufficient to establish venue, we conclude that Durham County is an improper venue for the instant action. Even Roberts s though action, Durham we County still must is not decide the proper whether transfer of venue is the appropriate remedy. venue dismissal for or We have held that venue is not jurisdictional, but is only ground for removal to the proper county upon a timely objection made in the proper manner. Miller, 38 N.C. App. at 97, 247 S.E.2d at 279 (citations omitted). Our Supreme Court has explained that [a plaintiff] is not entitled to an abatement of this action, even though it be conceded it was instituted in the wrong county. It has been repeatedly held that our statutes relating to venue are not jurisdictional, and that if an action is instituted in the wrong county it should be removed to the proper county, and not dismissed, if the motion for removal is made in apt time, otherwise the question of venue will be waived. G.S. 1-83; Davis v. Davis, 179 N.C. 185, 102 S.E. 270; Roberts v. Moore, 185 N.C. 254, 116 S.E. 728; Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Calcagno v. Overby, 217 N.C. 323, 7 S.E. 2d 557; Wynne v. Conrad, 220 N.C. 355, 17 S.E. 2d 514. Wiggins v. Trust Co., 232 N.C. 391, 393 94, 61 S.E.2d 72, 73 (1950). In a similar case in which a motion to dismiss, rather than a motion to transfer venue, was presented to the trial court, our Supreme Court held that the trial court in that case correctly treated defendant s motion to dismiss as a motion for a change of venue. . . . In the motion defendant had pointed out that Sampson -9County was the proper venue. Coats v. Hospital, 264 N.C. 332, 334, 141 S.E.2d 490, 492 (1965) (citing Cloman v. Staton, 78 N.C. 235, 237 (1878)). In addition, we have held that [t]he trial court has no discretion in ordering a change of venue if demand is properly made and it appears that the action has been brought in the wrong county. Baldwin v. Wilkie, 179 N.C. App. 567, 569, 635 S.E.2d 431, 432 (2006) (quoting Swift and Co. v. Dan-Cleve Corp., 26 N.C. App. 494, 495, 216 S.E.2d 464, 465 (1975)), disc. rev. denied, 361 N.C. 353, 645 S.E.2d 764 (2007). In the case sub judice, defendants motion to dismiss based upon improper venue reads, Plaintiff s Complaint should be dismissed pursuant to N.C.R.Civ.P. 12(b)(3), since the face of the Complaint discloses that this matter is in the improper venue. None of the parties reside in Durham County and, pursuant to N.C.G.S. § 1-82, since [d]efendant 3311 Capital Boulevard, LLC, resides in Wake County, which is also the sites [sic] of the incident giving rise to this action, Wake County is the proper venue for this case. Even though they did not request a transfer of the case to the proper venue, our precedent requires that the motion be treated as such. Accordingly, we hold that, rather than dismissing Roberts s case, the trial court should have transferred it from Durham County, an improper venue, to Wake County, the proper venue. We affirm the trial court s denial of defendants motion to dismiss based upon improper venue. However, because Durham County is not the proper venue for the case sub judice, we remand to the trial court for entry of an order transferring the case to Wake County. -10Affirmed in part; Remanded. Judges ELMORE and THIGPEN concur.

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