{ "id": 4348318, "name": "GORDON W. JENKINS, Guardian Ad Litem for MIRIAM HAJEH, a minor, and ASMA S. HAJEH and JAMAL HAJEH Plaintiffs v. HEARN VASCULAR SURGERY, P.A. d/b/a CAROLINA VASCULAR AND VEIN SPECIALISTS and ANDREW T. HEARN, M.D., Defendants", "name_abbreviation": "Jenkins v. Hearn Vascular Surgery, P.A.", "decision_date": "2011-11-15", "docket_number": "No. COA11-454", "first_page": "118", "last_page": "125", "citations": [ { "type": "official", "cite": "217 N.C. App. 118" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "635 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636739 ], "year": 2006, "pin_cites": [ { "page": "16", "parenthetical": "holding, in the context of N.C. Gen. Stat. \u00a7 7B-101 (15), that \"a newborn still physically in residence in the hospital may properly be determined to 'live' in the home of his or her parents\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0011-01" ] }, { "cite": "681 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "773", "parenthetical": "quotation omitted" }, { "parenthetical": "citation omitted" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "595 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "118", "parenthetical": "\"[V]enue is sufficiently flexible that it may be changed 'when the convenience of witnesses and the ends of justice would be promoted by the change' \"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987643 ], "year": 2004, "pin_cites": [ { "page": "228", "parenthetical": "\"[V]enue is sufficiently flexible that it may be changed 'when the convenience of witnesses and the ends of justice would be promoted by the change' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0219-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "261 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "911", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "299 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575088 ], "year": 1980, "pin_cites": [ { "page": "355", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0351-01" ] }, { "cite": "139 F.Supp. 103", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4267279 ], "year": 1956, "pin_cites": [ { "page": "106-07" } ], "opinion_index": 0, "case_paths": [ "/f-supp/139/0103-01" ] }, { "cite": "179 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8238282 ], "year": 2006, "pin_cites": [ { "page": "611", "parenthetical": "holding, in the context of N.C. Gen. Stat. \u00a7 7B-101 (15), that \"a newborn still physically in residence in the hospital may properly be determined to 'live' in the home of his or her parents\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0605-01" ] }, { "cite": "122 S.E. 307", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 11, "year": 1924, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308", "parenthetical": "stating \"there is a technical distinction between 'domicile' and 'residence' \"" }, { "page": "308", "parenthetical": "stating, \"the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate\"" } ], "opinion_index": 0 }, { "cite": "187 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654466 ], "weight": 2, "year": 1924, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0573-01" ] }, { "cite": "464 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796008 ], "year": 1995, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0402-01" ] }, { "cite": "451 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "665", "parenthetical": "citation omitted" }, { "page": "665" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525936 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "544", "parenthetical": "citation omitted" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0541-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-82", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "providing, \"[i]n all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement\"" } ], "opinion_index": 0 }, { "cite": "703 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2010, "pin_cites": [ { "page": "786", "parenthetical": "stating, \"the grant or denial of venue established by statute is deemed a substantial right, it is immediately appealable\"" }, { "page": "786", "parenthetical": "quotation omitted" }, { "page": "787" }, { "page": "787" }, { "page": "787" }, { "page": "788", "parenthetical": "\"[VJenue is not jurisdictional, but is only ground for removal to the proper county upon a timely objection made in the proper manner\"" } ], "opinion_index": 0 }, { "cite": "692 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "484", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150845 ], "year": 2009, "pin_cites": [ { "page": "558", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0555-01" ] } ], "analysis": { "cardinality": 723, "char_count": 18423, "ocr_confidence": 0.72, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14779548923508667 }, "sha256": "d07f0415dfd349b2d333a92576052b4ddc4dfa4eb9626c22d3d87e5d93036821", "simhash": "1:7f2a6ee6d5ed87b2", "word_count": 3032 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR. and BEASLEY concur." ], "parties": [ "GORDON W. JENKINS, Guardian Ad Litem for MIRIAM HAJEH, a minor, and ASMA S. HAJEH and JAMAL HAJEH Plaintiffs v. HEARN VASCULAR SURGERY, P.A. d/b/a CAROLINA VASCULAR AND VEIN SPECIALISTS and ANDREW T. HEARN, M.D., Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nHearn Vascular Surgery, P.A., doing business as Carolina Vascular and Vein Specialists, and Andrew T. Hearn, M.D. (\u201cDr. Hearn\u201d) (collectively, \u201cDefendants\u201d) appeal from an order entered 15 December 2010 denying their N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) motion for change of venue and their N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss. First we must determine whether the trial court\u2019s interlocutory order denying Defendants\u2019 motions is suitable for immediate appellate review. If the order is immediately appealable, we must then decide whether the trial court erred in denying defendants\u2019 motion for change of venue and motion to dismiss. We conclude the portion of the order denying Defendant\u2019s motion for change of venue is immediately appealable, and venue is properly in Alamance County. We also conclude the order denying Defendants\u2019 motion to dismiss is interlocutory and not immediately appealable. We therefore dismiss Defendants\u2019 appeal from the portion of the order denying Defendants\u2019 motion to dismiss.\nThe evidence of record tends to show that Asma Hajeh (\u201cAsma\u201d) and Jamal Hajeh (\u201cJamal\u201d) are husband and wife and the parents of Miriam Hajeh (\u201cMiriam\u201d) (collectively, \u201cPlaintiffs\u201d). Asma and Jamal are residents of Alamance County. Gordon W. Jenkins, a Forsyth County resident, is Miriam\u2019s guardian ad litem.\nOn 24 December 2009, Asma, who was three weeks pregnant, began suffering from acute appendicitis. Jamal drove Asma to Alamance Regional Medical Center, where Dr. Hearn performed a laparoscopic appendectomy. Asma was discharged from Alamance Regional Medical Center on 27 December 2009.\nOn 9 May 2010, when Asma was twenty-three weeks pregnant, Asma began experiencing abdominal pain and vomiting. Asma was readmitted to the Alamance Regional Medical Center and transferred to Forsyth Medical Center in Winston-Salem the next day. Examinations at Forsyth Medical Center revealed Asma was suffering from sepsis as a result of acute appendicitis. An open laparotomy surgery was performed on 10 May 2010, which revealed that a four centimeter portion of Asma\u2019s appendix remained in her body and had not been removed by Dr. Hearn.\nAsma also went into premature labor on 10 May 2010, and attempts to prevent premature labor were unsuccessful. Asma delivered a one pound, eight ounce baby girl \u2014 Miriam.\nMiriam was hospitalized at Forsyth Medical Center and was a patient in the Forsyth Medical Center Neonatal Intensive Care Unit from the date of her birth on 10 May 2010 until after the filing of the complaint in this case on 22 September 2010. Miriam suffers from permanent and severe physical and cognitive conditions. Plaintiffs\u2019 complaint, filed in Forsyth County, alleges Dr. Hearn\u2019s negligence in failing to remove Asma\u2019s entire appendix during the 24 December 2009 appendectomy.\nOn 23 November 2010, Defendants filed motions pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) and Rule 12(b)(6), contending Plaintiffs instituted the action in an improper venue, and Plaintiffs\u2019 complaint failed to state a claim upon which relief may be granted because the alleged negligence injured a nonviable fetus.\nOn 15 December 2010, the trial court entered an order denying Defendants\u2019 motions made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) and Rule 12(b)(6).\nOn 12 January 2011, Defendants filed a notice of appeal from the trial court\u2019s 15 December 2010 order.\nI: Interlocutory Appeal\nWe must first determine whether the interlocutory order denying Defendants\u2019 motions made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3) and Rule 12(b)(6) is immediately appealable. We conclude the denial of Defendants\u2019 motion for change of venue is immediately appealable, and the denial of Defendants\u2019 motion to dismiss is not.\n\u201cInterlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.\u201d Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (quotation omitted). \u201cAs a general rule, interlocutory orders are not immediately appealable.\u201d Id. (citation omitted). However, \u201cimmediate appeal of interlocutory orders and judgments is available in at least two instances: when the trial court certifies, pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b), that there is no just reason for delay of the appeal; and when the interlocutory order affects a substantial right under N.C.G.S. \u00a7\u00a7 l-277(a) and 7A-27(d)(l).\u201d Id. (quotation omitted).\nIn the present case, the trial court did not certify pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) its order denying Defendants\u2019 motions. We must determine whether the order affects a substantial right.\ni: Venue\nWe first consider whether the portion of the order denying Defendants\u2019 motion for change of venue affects a substantial right. We conclude it does. We further conclude the trial court erred by denying Defendants\u2019 motion for change of venue, as venue is properly in Alamance County.\n\u201c[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.\u201d Caldwell v. Smith, _ N.C. App. _, _, 692 S.E.2d 483, 484 (2010) (citations omitted); see also Roberts v. Adventure Holdings, LLC, _ N.C. App. _, _, 703 S.E.2d 784, 786 (2010) (stating, \u201cthe grant or denial of venue established by statute is deemed a substantial right, it is immediately appealable\u201d) (internal quotation omitted). Therefore, because Defendants have alleged the county indicated in the complaint is improper, we address the merits of Defendants\u2019 appeal.\nGenerally, absent an applicable specific statutory provision, venue is proper in the county in which any party is a resident at the commencement of the action. N.C. Gen. Stat. \u00a7 1-82 (2009) (providing, \u201c[i]n all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement\u201d). N.C. Gen. Stat. \u00a7 1-83 (2009) provides the following:\nIf 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.\nThe court may change the place of trial in the following cases:\n(1) When the county designated for that purpose is not the proper one.\n\u201cThe provision in N.C.G.S. \u00a7 1-83 that the court \u2018may change\u2019 the place of trial when the county designated is not the proper one has been interpreted to mean \u2018must change.\u2019 \u201d Roberts, _ N.C. App. at _, 703 S.E.2d at 786 (quotation omitted).\nIn the present case, Asma and Jamal reside in Alamance County. Dr. Hearn resides in Alamance County, and Hearn Vascular Surgery, P.A., doing business as Carolina Vascular Specialists, is located in Alamance County. Defendants\u2019 argue on appeal that because all of the parties in this case, including Miriam, reside in Alamance County, Alamance County is the proper venue. Plaintiffs counter with two arguments: (1) Miriam \u201cresided\u201d in Forsyth Medical Center because, from the time of her birth until after the filing of the complaint, Miriam was a patient in Forsyth Neonatal Intensive Care Unit at Forsyth Medical Center; and (2) the fact that Miriam\u2019s guardian ad litem resides in Forsyth County, in addition to Miriam\u2019s other ties to Forsyth County, is sufficient to establish venue. We find these arguments unconvincing.\na: Residence of Unemancipated Infant\nWe first address the question of whether Miriam \u201cresided\u201d in Forsyth County because she was a long-term patient at Forsyth Medical Center; We conclude Miriam\u2019s residence is with her parents in Alamance County.\nThere is a \u201ccommon law presumption that a minor\u2019s domicile is the same as that of the minor\u2019s parents[.]\u201d Fain v. State Residence Comm. of the Univ. of N.C., 117 N.C. App. 541, 544, 451 S.E.2d 663, 665, aff\u2019d per curiam, 342 N.C. 402, 464 S.E.2d 43 (1995) (citation omitted). \u201c[A]n unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile.\u201d Thayer v. Thayer, 187 N.C. 573, 574, 122 S.E. 307, 308 (1924). Therefore, \u201c[a]s a general rule, the domicile of every person at his birth is the domicile of the person on whom he is legally dependent^]\u201d Id. \u201cIt is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate.\u201d Id.\nWe find the opinion of our Supreme Court in Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307 dispositive in this case. In Thayer, a nine-year old illegitimate son brought suit in Davidson County against his putative father. The son lived with his grandfather in Montgomery County. Id. at 574, 122 S.E. at 308. The son\u2019s mother was a resident of Davidson County, and the father was a resident of Montgomery County. Id. The question for the Court was whether the son resided, for purposes of venue, in Davidson County with his mother or in Montgomery County with his grandfather. Id. The Court in Thayer recognized that the appropriate question for purposes of venue is the place of residence, not the place of domicile. Id. at 575, 122 S.E. at 308 (stating \u201cthere is a technical distinction between \u2018domicile\u2019 and \u2018residence\u2019 \u201d). However, the Thayer Court stated \u201cthere is no suggestion that the domicile of the plaintiff\u2019s mother is in Montgomery County[.]\u201d Id. The Court concluded, \u201cthe residence of the mother, in our opinion, is the residence of the plaintiff; and as the plaintiff has not been emancipated or abandoned by his mother, the mere fact that he is living with his grandfather in Montgomery County does not affect our conclusion.\u201d Id.\nAs in Thayer, there is no suggestion in the present case that Asma or Jamal either reside or are domiciled in Forsyth County. Asma and Jamal do not dispute that they reside in Alamance County. Miriam has neither been emancipated nor abandoned by her mother and father. The question of Miriam\u2019s legitimacy is not at issue, and Thayer supports the proposition that Miriam\u2019s in-patient stay at Forsyth Medical Center does not affect her residence. We therefore conclude the residence of the infant, Miriam, is the residence of her parents, Asma and Jamal. See Id. at 574, 122 S.E. at 308 (stating, \u201cthe law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate\u201d); Fain, 117 N.C. App. at 544, 451 S.E.2d at 665; see also In re A.B., 179 N.C. App. 605, 611, 635 S.E.2d 11, 16 (2006) (holding, in the context of N.C. Gen. Stat. \u00a7 7B-101 (15), that \u201ca newborn still physically in residence in the hospital may properly be determined to \u2018live\u2019 in the home of his or her parents\u201d). The fact that Miriam was a long-term patient at Forsyth Medical Center in Forsyth County after her birth does not affect her residence with her parents in Alamance County.\nb: Residence of Guardian ad Litem\nWe next address the question of whether the fact that Miriam\u2019s guardian ad litem resides in Forsyth County, in addition to Miriam\u2019s other ties to Forsyth County, is sufficient to establish venue. We conclude it is not.\n[A] guardian ad litem ... 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.\nRoberts, _ N.C. App. at _, 703 S.E.2d at 787 (quoting Blackwell v. Vance Trucking Company, 139 F.Supp. 103, 106-07 (1956)). As such, \u201ca [guardian ad litem]\u2019s county of residence is insufficient, standing alone, to establish venue.\u201d Roberts, _ N.C. App. at _, 703 S.E.2d at 787.\nPlaintiffs contend in the present case that \u201cvenue in Forsyth County is not predicated solely upon the residence of Miriam Hajeh\u2019s guardian ad litem.\u201d In addition to the guardian ad litem\u2019s residence in Forsyth County, Plaintiffs emphasize that \u201cMiriam had never lived anywhere other than in Forsyth County prior to filing suit[;]\u201d and \u201cMiriam was born in Forsyth County and resided in Forsyth County for months before this lawsuit was filed.\u201d However, this Court has already determined that Miriam\u2019s in-patient stay at Forsyth Medical Center did not affect Miriam\u2019s residence for purposes of venue. We reiterate that Asma and Jamal, Miriam\u2019s mother and father, reside in Alamance County; as such, the law requires that Miriam, an unemancipated infant, also resides with her mother and father. Dr. Hearn resides in Alamance County, and Hearn Vascular Surgery, P.A., doing business as Carolina Vascular Specialists, is located in Alamance County. The injury alleged also occurred in Alamance County. We believe the Court\u2019s holding in Roberts, _ N.C. App. at _, 703 S.E.2d at 787, is dispositive, and the facts of this case are insufficient to establish venue in Forsyth County.\nFor the foregoing reasons, we conclude the trial court erred by denying Defendants\u2019 motion for change of venue. We reverse this portion of the trial court\u2019s order and remand to the Forsyth County superior court for transfer of venue to Alamance County.\nii: Motion to Dismiss\nWe next consider whether the portion of the order denying Defendants\u2019 motion to dismiss affects a substantial right. We conclude it does not.\nOrdinarily, a denial of a motion to dismiss under Rule 12(b)(6) merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal may be taken.\nState ex rel. Edmisten v. Fayetteville Street Christian School, 299 N.C. 351, 355, 261 S.E.2d 908, 911 (1980) (citation omitted). The inquiry as to whether a substantial right is affected is \u201ctwo-part\u201d \u2014 \u201cthe right itself must be substantial and the deprivation of that substantial right must potentially work injury to [a party] if not corrected before appeal from final judgment].]\u201d Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Although we do not disagree with Defendants\u2019 general contentions on appeal that addressing the question presented in their motion to dismiss would be in \u201cthe interests of judicial economy],]\u201d and that the issue raised is one \u201cof public importance],]\u201d we find it dispositive that Defendants have offered no evidence as to any potential injury to either party, and we see none, if the issue presented in this interlocutory appeal is instead presented after a final judgment on the merits. Therefore, we conclude the portion of the order denying Defendants\u2019 motion to dismiss is not immediately appealable, and we dismiss this portion of Defendants\u2019 appeal.\nREVERSED and REMANDED, in part; DISMISSED, in part.\nJudges HUNTER, JR. and BEASLEY concur.\n. Plaintiffs also state in their brief that \u201c[a]ll of Miriam\u2019s doctors, physician assistants, therapists, and nurses\u201d are in Forsyth County. Although this has no bearing on the determination of Miriam\u2019s residence pursuant to N.C. Gen. Stat. \u00a7 1-82, nothing in this opinion precludes Plaintiffs, after the transfer of venue to Alamance County, from filing a motion to transfer venue back to Forsyth County pursuant to N.C. Gen. Stat. \u00a7 1-83 (2), which states that \u201c[t]he court may change the place of trial. . . [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.\u201d See also Stephenson v. Bartlett, 358 N.C. 219, 228, 595 S.E.2d 112, 118 (2004) (\u201c[V]enue is sufficiently flexible that it may be changed \u2018when the convenience of witnesses and the ends of justice would be promoted by the change\u2019 \u201d) (citing N.C. Gen. Stat. \u00a7 1-83 (2)).\n. Although Defendants prayed in their motion for change of venue that the court \u201cdismiss! ] plaintiffs\u2019 action with prejudice!,]\u201d we conclude the appropriate remedy is transfer of venue to Alamance County. See, e.g., Roberts, _ N.C. App. at _, 703 S.E.2d at 788 (\u201c[VJenue is not jurisdictional, but is only ground for removal to the proper county upon a timely objection made in the proper manner\u201d).", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Wilson Helms & Gartledge, LLP, by G. Gray Wilson and Linda L. Helms, for Defendants.", "Pulley Watson King & Lischer, P.A., by Richard N. Watson, for Plaintiffs." ], "corrections": "", "head_matter": "GORDON W. JENKINS, Guardian Ad Litem for MIRIAM HAJEH, a minor, and ASMA S. HAJEH and JAMAL HAJEH Plaintiffs v. HEARN VASCULAR SURGERY, P.A. d/b/a CAROLINA VASCULAR AND VEIN SPECIALISTS and ANDREW T. HEARN, M.D., Defendants\nNo. COA11-454\n(Filed 15 November 2011)\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 substantial right \u2014 venue\nThe portion of an interlocutory order denying defendants\u2019 motion for change of venue affected a substantial right thus allowing for immediate appellate review.\n2. Venue \u2014 motion for change \u2014 residence of unemancipated infant\nThe trial court erred in a medical malpractice case by denying defendants\u2019 motion for change of venue to Alamance County. The fact that a baby was a long-term patient at a medical center in Forsyth County after her birth did not affect her residence with her parents in Alamance County. Further, defendants reside and do business in Alamance County in addition to the alleged injury occurring in Alamance County.\n3. Appeal and Error \u2014 interlocutory orders and appeals\u2014 motion to dismiss did not affect substantial right\nThe trial court did not err in a medical malpractice case by denying defendants\u2019 motion to dismiss because this portion of an interlocutory order did not affect a substantial right. Defendants offered no evidence as to any potential injury to either party if the issue was presented after a final judgment on the merits.\nAppeal by Defendants from Order entered 15 December 2010 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 13 October 2011.\nWilson Helms & Gartledge, LLP, by G. Gray Wilson and Linda L. Helms, for Defendants.\nPulley Watson King & Lischer, P.A., by Richard N. Watson, for Plaintiffs." }, "file_name": "0118-01", "first_page_order": 128, "last_page_order": 135 }