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Terry v. Cheesecake Factory Restaurants, Inc.

Court of Appeals of North Carolina

April 18, 2017

LEE K. TERRY AND KRISTEN TERRY, INDIVIDUALLY AND AS PARENTS AND GENERAL GUARDIANS FOR KARRYNE TERRY, A MINOR, Plaintiffs,
v.
THE CHEESECAKE FACTORY RESTAURANTS, INC., Defendant.

          Heard in the Court of Appeals 3 November 2016.

         Appeal by plaintiffs from order entered 2 March 2016 by Judge Henry W. Hight, Jr. in Superior Court, Durham County, No. 15 CVS 2332.

          Law Offices of Thomas F. Loflin III, by Thomas F. Loflin III, for plaintiff-appellants.

          Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Kristie Hedrick Farwell, for defendant-appellee.

          STROUD, Judge.

         Plaintiffs 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.

         I. Background

         In 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 North Carolina.

         Plaintiffs 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 Factory").

         In 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.[1] 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. Plaintiffs appeal.

         II. Venue

         Plaintiffs' 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 omitted)).

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 of ...

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