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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. ADVENTURE HOLDINGS, LLC, and, 3311 CAPITAL BOULEVARD, LLC, d/b/a ADVENTURE LANDING, Defendants. Durham County No. 09 CVS 7394

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. affirm in part and remand. Adventure is a foreign limited liability company with its principal office in Jacksonville, Florida. Capital is a North For the reasons stated herein, we

-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 and her family reside

Roberts's left foot were amputated. 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). 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. ___, Therefore, We

___, 692 S.E.2d 483, 484 (2010) (citations omitted).

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.

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