Roberts ex rel. Perry v. Adventure Holdings LLC. (Lawyers Weekly No. 10-07-1226, 10 pp.) (Barbara Jackson, J.) Appealed from Durham County Superior Court. (Orlando F. Hudson Jr., J.) N.C. App. Click here for the full text of the opinion.
Holding: In a case of first impression, we hold that the county of residence of a guardian ad litem, standing alone, is not sufficient to establish venue.
Affirmed in part; remanded for transfer to Wake County.
In June 2006 the minor child Roberts visited Adventure Landing in Raleigh with her family. During her visit, she was injured in a go-kart accident in which all of the toes on her left foot were amputated. Roberts and her family live in Virginia.
In 2009, Roberts, through her guardian ad litem Perry filed a complaint alleging that the injuries were a direct and proximate result of negligent and careless conduct of defendants and their agents. Defendants filed an answer and motions to dismiss; the trial court denied the motions. The defendant appeals the order only with respect to Rule 12(b)(3), saying the trial court improperly denied their motion to dismiss because of improper venue, and in the alternative that it should have been transferred to Wake County.
Defendant Adventure Holdings is a foreign limited liability company with a principal office in Florida. Defendant Capitol is an N.C. limited-liability company. Defendants own and operate Adventure Landing.
We agree with defendants that Durham County is not the proper venue. We think transfer of venue, rather than dismissal, is the appropriate remedy.
Addressing the merits of defendants’ appeal, we note that N.C. statutes provide that an action must be tried in the county where the plaintiffs or defendants 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.
N.C. courts have not addressed the issue whether or not the residence of a GAL is sufficient to confer venue. Plaintiff cites a case holding that in actions brought by fiduciaries, the personal residence of the fiduciary controls with respect to venue. Plaintiff argues that as long as GALs are considered fiduciaries, that case controls.
But plaintiff overlooks significant differences between a general guardian and a GAL. A general guardian is responsible for the entirety of one’s person or estate. A GAL is appointed to appear in a lawsuit on behalf of a minor or incompetent party.
Defendants point us to a South Carolina case which distinguished a GAL from other types of guardians and dismissed the action based on improper venue. In that case, a minor was injured in a trucking accident in South Carolina. The minor lived in New York and the defendant in North Carolina. The question was presented whether venue could be based solely on the GAL’s state of residence, and the court held that it could not.
Based on our own precedent and the persuasive reasoning of the S.C. case, we hold that GAL’s county of residence is insufficient to establish venue. Here, the residence of the GAL is the only connection to Durham County.
We affirm the trial court’s denial of defendants’ motion to dismiss based on venue. However, because Durham County is not the proper venue, we remand for an order transferring the case to Wake County.
Affirmed in part, remanded.