LEE K. TERRY AND KRISTEN TERRY, INDIVIDUALLY AND AS PARENTS AND GENERAL GUARDIANS FOR KARRYNE TERRY, A MINOR, Plaintiffs,
THE CHEESECAKE FACTORY RESTAURANTS, INC., Defendant.
in the Court of Appeals 3 November 2016.
by plaintiffs from order entered 2 March 2016 by Judge Henry
W. Hight, Jr. in Superior Court, Durham County, No. 15 CVS
Offices of Thomas F. Loflin III, by Thomas F. Loflin III, for
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Kristie Hedrick Farwell, for defendant-appellee.
appeal an order transferring venue of their negligence claim
from Durham County to Wake County. Because the pleadings and
discovery show that defendant maintains a place of business
in Durham County, Durham County was a proper venue
under North Carolina General Statute § 1-83, and the
trial court erred by transferring venue as a matter of right.
Therefore, we reverse and remand.
March of 2015, plaintiffs filed a complaint in Superior
Court, Durham County seeking damages for negligent injury to
their minor daughter. The complaint alleged that the
plaintiffs "are citizens and residents of North
Carolina" but did not mention their county of residence.
The complaint alleged that defendant was incorporated in
California but is "engaged in commerce within the state
of North Carolina under a Certificate of Authority from the
Department of the Secretary of State of North Carolina"
and "does business with the general public in Durham
County, North Carolina, as well as other counties" in
alleged they ordered "a one-half regular cheesecake and
a one-half ultimate red velvet cheesecake" for their
daughter's birthday from defendant's restaurant at
Crabtree Valley Mall; plaintiff Kristen Terry specifically
informed defendant her daughter had a "severe allergy to
nuts." Plaintiffs further alleged that the type of
cheesecake plaintiff Kristen ordered did not contain nuts,
but defendant's employee mistakenly gave plaintiff
Kristen "a one-half low carb cheesecake instead of a
one-half regular cheesecake[;]" and though the two
cheesecakes looked the same, the low carb cheesecake
contained nuts. Plaintiffs alleged their daughter became
violently ill due to her exposure to nuts and required
hospitalization after eating cheesecake from defendant, The
Cheesecake Factory Restaurants, Inc. ("Cheesecake
April of 2015, defendant filed a motion to dismiss pursuant
to Rule 12(b)(3) alleging that Durham County was not a proper
venue and thus the complaint should be dismissed or, in the
alternative, the case should be transferred to Wake County.
Defendant's motion alleged that the plaintiffs'
"last known address" was in Cary, North Carolina,
and that defendant's registered office is in Wake County,
North Carolina. On 2 March 2016, after a hearing on the
matter, the trial court denied the motion to dismiss and
allowed the request to transfer the case to Wake County.
only argument on appeal is that "the trial court
committed reversible error in granting the defendant's
motion to change venue to Wake County pursuant to N.C.
R.Civ.P 12(b)(3)." (Original in all caps.) Though
plaintiffs appeal from an interlocutory order, because the
trial court found plaintiffs filed their complaint in an
improper venue, this affects a substantial right which we
will consider. See Snow v. Yates, 99 N.C.App. 317,
319, 392 S.E.2d 767, 768 (1990) ("When a defendant
asserts improper venue in a timely writing, the question of
removal is a matter of substantial right, and the court of
original venue must consider and determine the motion before
it takes any other action. An appeal of an order disposing of
such a motion is interlocutory because it does not dispose of
the case. However, grant or denial of a motion asserting a
statutory right to venue affects a substantial right and is
immediately appealable." (citations and quotation marks
According to N.C. Gen. Stat. § 1-82, a civil action must
be tried in the county in which the plaintiffs or the
defendants, or any of them, reside at its commencement. As a
practical matter, the plaintiff generally gets to make an
initial choice as to the venue in which a particular civil
action should be litigated. However, a number of statutory
provisions authorize efforts to seek a change of venue.
First, according to N.C. Gen. Stat. § 1-83:
If the county designated 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