Sierra Tucson, Inc. v. Lee

• Decision Date: 28 June 2012
• Docket Number: No. 2 CA–SA 2012–0025.,2 CA–SA 2012–0025.
• Citation: 282 P.3d 1275,230 Ariz. 255
• Parties: SIERRA TUCSON, INC., a corporation, and CRC Health Group, Inc., a corporation, Petitioners, v. Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF PIMA, Respondent, and Louise Litwack, individually and on behalf of all statutory beneficiaries of Kenneth Litwack, M.D., deceased, Real Party in Interest.
• Court: Arizona Court of Appeals

230 Ariz. 255

282 P.3d 1275

SIERRA TUCSON, INC., a corporation, and CRC Health Group, Inc., a corporation, Petitioners,

v.Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF PIMA, Respondent,andLouise Litwack, individually and on behalf of all statutory beneficiaries of Kenneth Litwack, M.D., deceased, Real Party in Interest.

No. 2 CA–SA 2012–0025.

Court of Appeals of Arizona, Division 2, Department B.

June 28, 2012.

Renaud Cook Drury Mesaros, PA by Michael D. Wolver, Charles S. Hover, III, Kevin R. Myer, Phoenix, Attorneys for Petitioners.

Kinerk, Schmidt & Sethi, P.L.L.C. by Dev Sethi, Tucson, and Panish Shea & Boyle, LLP by Kevin Boyle, Los Angeles, Attorneys for Real Party in Interest.

OPINION

ESPINOSA, Judge.

¶ 1 In this special action, petitioners Sierra Tucson, Inc., and its parent corporation, CRC Health Group, Inc. (jointly referred to as Sierra Tucson), defendants in the underlying wrongful death action, challenge the respondent judge's denial of their motion for a change of venue pursuant to A.R.S. § 12–404, from Pima County to Pinal County, where Sierra Tucson's psychiatric hospital and residential behavioral-health facility are located. Sierra Tucson contends respondent erred when he granted real party in interest Louise Litwack leave to file an amended complaint that rendered venue in Pima County proper by adding a Pima County resident as a defendant. We agree with Sierra Tucson that respondent erred because the clear language in § 12–404 required him to transfer the case and he lacked authority to permit Litwack to file the amended complaint. We therefore accept special-action jurisdiction and grant relief for the reasons stated below.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Litwack's late husband Kenneth, a California resident, was a patient at Sierra Tucson's residential psychiatric and behavioral-health facility. On August 16, 2011, Sierra Tucson reported to law enforcement officers and informed Kenneth's family that he was missing from the facility. Two weeks later, Kenneth's body was found on a trail on Sierra Tucson's property. On January 3, 2012, Litwack filed a wrongful-death complaint in Pima County on behalf of herself individually and her three children against Sierra Tucson and CRC Health Group and any unknown individuals or corporations. Litwack alleged Sierra Tucson is an Arizona corporation and its thirty-acre behavioral-health treatment facility is located northwest of Tucson. She also alleged CRC is a corporation authorized to conduct and conducting business "near Tucson, Arizona and/or owned real property in Pima County, Arizona."

¶ 3 Litwack served Sierra Tucson with a copy of the complaint on January 5, 2012. On January 25, 2012, Sierra Tucson filed a Motion for Statutory Transfer to Pinal County pursuant to § 12–404. Supported by the affidavit of Sierra Tucson's chief financial officer (CFO), the defendants asserted they are Delaware corporations, Sierra Tucson is a wholly owned subsidiary of CRC, and their principal executive office is in Cupertino, California. They also maintained that Sierra Tucson's facility is located in Pinal County, not Pima County, and neither Sierra Tucson nor CRC owns property in Pima County. Sierra Tucson asserted that, based on A.R.S. § 12–401, venue was not proper in Pima County and requested that the case be transferred to Pinal County, Sierra Tucson's principal place of business.

¶ 4 On or about January 31, 2012,¹ Litwack filed a response to the Motion for Statutory Transfer. She did not refute the assertions Sierra Tucson had made in its motion. Instead, she stated she had " no objection to the transfer of venue to Pinal County," and requested that the respondent judge "enter an Order directing the Clerk of the Court to facilitate the transfer and ordering the Plaintiff to pay the requisite transfer fees." However, on February 7, Litwack filed Plaintiff's Notice of Withdrawal of Response to Defendants' Motion for Statutory Transfer to Pinal County in which she stated she was withdrawing the previously filed response. The following day, she filed a Motion to Amend Complaint and Retain Venue. Pursuant to Rule 15(a), Ariz. R. Civ. P., Litwack sought to amend the complaint to add as a defendant Albert Sombrero, a Sierra Tucson employee and Pima County resident, who had been identified in detailed factual allegations in the original complaint as one of the employees who had spoken with and counseled Kenneth the evening before he was determined to be missing. Litwack argued that because Sombrero was a Pima County resident, venue in that county was proper under § 12–401 and respondent should deny Sierra Tucson's motion to transfer the case to Pinal County. Sierra Tucson filed an opposition to the motion, arguing transfer was mandatory and respondent had "no discretion to even consider [Litwack's] motion as a matter of law...."

¶ 5 On March 8, the respondent judge granted Litwack's motion to amend the complaint and denied Sierra Tucson's motion for change of venue. This special action followed.

SPECIAL–ACTION JURISDICTION

¶ 6 "Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion." Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 1260 (App.2010). We do so here for a variety of reasons. First, "[b]ecause an appeal cannot adequately cure an erroneous venue ruling, such orders ‘are appropriately reviewable by special action.’ " Yarbrough v. Montoya–Paez, 214 Ariz. 1, ¶ 1, 147 P.3d 755, 756 (App.2006), quoting Floyd v. Superior Court, 125 Ariz. 445, 445, 610 P.2d 79, 79 (App.1980) ; see also Ariz. R.P. Spec. Actions 1(a) (special-action review appropriate when no equally plain, speedy and adequate remedy by appeal exists).

¶ 7 In addition, this case requires us to interpret and determine the correct application of § 12–404 and Rule 15(a), presenting questions of law that are reviewed de novo and are particularly appropriate for review by special action. See Nielson v. Hicks, 225 Ariz. 451, ¶ 6, 240 P.3d 276, 277 (App.2010) (special-action jurisdiction appropriate to interpret and apply § 12–401 ); see also Nordstrom v. Cruikshank, 213 Ariz. 434, ¶ 9, 142 P.3d 1247, 1251 (App.2006) (interpretation and application of statute raises questions of law, well-suited for special-action review); ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶ 8, 83 P.3d 1103, 1106–07 (App.2004) (question of law particularly appropriate for special-action review; interpretation of rules question of law). Finally, the interpretation of § 12–404 and the determination of its correct application to the circumstances in this case are matters of statewide importance. Cf. Yuma Cnty. v. Keddie, 132 Ariz. 552, 553, 647 P.2d 1150, 1151 (1982) (interpretation and application of A.R.S. § 12–408 matter of statewide importance justifying acceptance of special-action jurisdiction).

DISCUSSION

¶ 8 Section 12–404 provides as follows:

A. If an action is not brought in the proper county, the court shall nevertheless have jurisdiction and may hear and determine the action unless the defendant, before expiration of the time allowed to answer, files with the clerk of the court in which the action is brought an affidavit of the defendant, his agent or attorney, stating that the county in which the action is brought is not the proper county and stating the county of the defendant's residence, and praying that the action be transferred to the proper county.

B. A copy of the affidavit shall be served upon plaintiff, and unless the affidavit is controverted under oath, within five days after service, the court shall order the action transferred to the proper county.

C. If the affidavit is controverted, the court shall hear the issue thus presented and shall order the action retained in the court in which it is brought, or transferred to the proper county.

¶ 9 "We interpret statutes in accordance with the intent of the legislature, [and] ‘look to the plain language of the statute ... as the best indicator’ of its intent, and if the language is clear and unambiguous, ‘we give effect to that language.’ " State ex rel. Goddard v. Ochoa, 224 Ariz. 214, ¶ 9, 228 P.3d 950, 953 (App.2010), quoting Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App.2005) (second alteration in Goddard ). "When the language of a statute is clear and unambiguous, a court should not look beyond [its] language" or employ rules of statutory construction to determine its meaning and the legislature's intent in enacting it. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App.2008) ; see also State v. Barnett, 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648 (App.2004).

¶ 10 Section 12–404 is clear and unambiguous. It provides in subsection (A) that a court has jurisdiction and may hear a matter even if the action may have been filed in a venue that is improper but it may not hear the matter if, before the time for filing an answer to the complaint has expired, the defendant files an affidavit establishing why venue is not proper, identifies the proper venue, and requests that the case be transferred accordingly. See Mohave Cnty. v. James R. Brathovde Family Trust, 187 Ariz. 318, 322, 928 P.2d 1247, 1251 (App.1996) (even if case brought in improper county, "the court still has jurisdiction to hear and determine the case unless the defendant timely requests to transfer" case to proper county). Subsection (B) gives the plaintiff the opportunity to refute the defendant's affidavit with the plaintiff's own affidavit. The statute plainly states in subsection (B) that the plaintiff must file the controverting affidavit within five days of service of the defendant's affidavit.

¶ 11 Consistent with the statute's plain language, case law interpreting it reiterates that when an action has been filed in an improper county; a timely, proper request for change of venue has been made pursuant to § 12–404 ; and no timely...