Yarbrough v. Montoya-Paez

• Citation: 214 Ariz. 1,147 P.3d 755
• Decision Date: 06 November 2006
• Docket Number: No. 2 CA-SA 2006-0070.,2 CA-SA 2006-0070.
• Parties: Angelica YARBROUGH, on her own behalf as the surviving spouse of Roy D. Yarbrough, on behalf of her and the decedent's two minor children, Melissa Yarbrough and Brandon Yarbrough, and on behalf of the decedent's mother, Ninnie Woodall, Petitioner, v. Hon. Anna M. MONTOYA-PAEZ, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent, and Roberts Enterprises, Inc., an Arizona corporation; Milo DeWitt and Jane Doe DeWitt, husband and wife dba DeWitt Cattle Company; Avatar Holdings, Inc., a Delaware corporation; and County of Santa Cruz, a body politic, Real Parties in Interest.
• Court: Court of Appeals of Arizona

Page 755

147 P.3d 755

214 Ariz. 1

Angelica YARBROUGH, on her own behalf as the surviving spouse of Roy D. Yarbrough, on behalf of her and the decedent's two minor children, Melissa Yarbrough and Brandon Yarbrough, and on behalf of the decedent's mother, Ninnie Woodall, Petitioner, v. Hon. Anna M. MONTOYA-PAEZ, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent, and Roberts Enterprises, Inc., an Arizona corporation; Milo DeWitt and Jane Doe DeWitt, husband and wife dba DeWitt Cattle Company; Avatar Holdings, Inc., a Delaware corporation; and County of Santa Cruz, a body politic, Real Parties in Interest.

No. 2 CA-SA 2006-0070.

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

November 6, 2006.

Goldberg & Osborne, By David J. Diamond and D. Greg Sakall, Tucson, for Petitioner.

Barassi & Curl, By David L. Curl, Tucson, for Real Party in Interest Roberts Enterprises, Inc.

McNamara, Goldsmith, Jackson & Macdonald, P.C., By Eugene N. Goldsmith, Tucson, for Real Parties in Interest DeWitt.

Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C., By Scott Goering, Tucson, for Real Party in Interest Avatar Holdings, Inc.

Jones, Skelton & Hochuli, P.L.C., By Georgia A. Staton and Randall H. Warner, Phoenix, for Real Party in Interest Santa Cruz County.

OPINION

PELANDER, Chief Judge.

¶ 1 In this special action, petitioner Angelica Yarbrough seeks review of the respondent judge's order transferring venue of the underlying wrongful death action from Santa Cruz County to Pinal County. Because an appeal cannot adequately cure an erroneous venue ruling, such orders "are appropriately reviewable by special action." Floyd v. Superior Court, 125 Ariz. 445, 445, 610 P.2d 79, 79 (App.1980); accord Dunn v. Carruth, 162 Ariz. 478, 479, 784 P.2d 684, 685 (1989); Yuma County v. Keddie, 132 Ariz. 552, 553, 647 P.2d 1150, 1151 (1982); Behrens v. O'Melia, 206 Ariz. 309, ¶ 1, 78 P.3d 278, 279 (App.2003); Lakritz v. Superior Court, 179 Ariz. 598, 599, 880 P.2d 1144, 1145 (App. 1994); see Ariz. R.P. Spec. Actions 1(a), 17B A.R.S. Having concluded the respondent judge abused her discretion, we accept jurisdiction and grant relief. See Ariz. R.P. Spec. Actions 3(c), 17B A.R.S.

BACKGROUND

¶ 2 According to the petition for special action, Yarbrough's husband died in a June 2005 "motorcycle-livestock collision" in Santa Cruz County. Yarbrough subsequently brought a wrongful death action against the real parties in interest ("the defendants"): Roberts Enterprises, Inc. (REI); a married couple doing business as DeWitt Cattle Company; Avatar Holdings, Inc.; and Santa Cruz County. Because the county is a party defendant, Yarbrough filed the action in Santa Cruz County as required by A.R.S. § 12-401(15), then moved for a change of venue as permitted by A.R.S. § 12-408, to have the case transferred to Pima County. After hearing oral argument, the respondent judge granted a change of venue but ordered the case transferred to Pinal County.

ISSUE

¶ 3 At issue is the proper interpretation of § 12-408(A), which entitles a party opponent of a county in any civil action to have venue of the action changed as a matter of right from that county "to some other county." We must determine whether the phrase "some other county," as used in § 12-408, means any other county or whether a trial court's selection of an alternative venue pursuant to § 12-408 is constrained by any of the other venue statutes, §§ 12-401 through 12-411, comprising chapter 4 of Title 12, A.R.S.

VENUE STATUTES AND PRINCIPLES

¶ 4 As a threshold proposition, defendants are entitled to be sued in the county where they reside, unless a statutory exception to that principle applies. See § 12-401; Lakritz, 179 Ariz. at 599, 880 P.2d at 1145; Zuckernick v. Roylston, 140 Ariz. 605, 606, 684 P.2d 177, 178 (App.1984); Brown v. Superior Court, 2 Ariz.App. 434, 435, 409 P.2d 593, 594 (1966). "Venue is a privilege which permits one in whose favor it runs to have a case tried at a convenient place[;] it is personal and unless asserted may be waived." Sil-Flo Corp. v. Bowen, 98 Ariz. 77, 83, 402 P.2d 22, 26 (1965). Although convenience to the defendant is thus the first consideration in establishing venue, venue may be changed when necessary "to secure to parties fair and impartial trials of causes," GAC Properties, Inc. v. Farley, 14 Ariz.App. 156, 157-58, 481 P.2d 526, 527-28 (1971); see also § 12-406(B)(1); to promote "the convenience of witnesses and the ends of justice," § 12-406(B)(2); or for "other good and sufficient cause," § 12-406(B)(3).

¶ 5 Of Arizona's venue statutes, those pertinent for present purposes are chiefly §§ 12-401(7) and (15), 12-407(A), 12-408(A), and 12-411(B). Section 12-401 states the general rule that "[n]o person shall be sued out of the county in which such person resides," subject to nineteen enumerated exceptions, qualifications, and refinements, including these in subsections (7) and (15):

7. When there are several defendants residing in different counties, action may be brought in the county in which any of the defendants reside[s].

. . . .

15. Actions against counties shall be brought in the county sued unless several counties are defendants, when it [sic] may be brought in any one of the counties.

(Emphasis added.) Although § 12-401(15) prescribes the initial venue for actions against counties, § 12-408(A) states: "In a civil action pending in the superior court in a county where the county is a party, the opposite party is entitled to a change of venue to some other county without making an affidavit therefor."¹ Section 12-408(B) provides: "The party applying for the change of venue shall pay the cost thereof and give a bond to the opposite party as in other cases."

¶ 6 Our courts have recognized the legislative assumption underlying § 12-408 as "a presumption that trial in the very county which is a party to the suit would be unfair to the county's adversary." GAC Props., Inc., 14 Ariz.App. at 158, 481 P.2d at 528; see also Keddie, 132 Ariz. at 553, 647 P.2d at 1151. Therefore, unlike changes of venue pursuant to § 12-406 for which a moving party must show cause and on which the trial court has discretion, changes of venue under § 12-408 "require[ ] no showing other than that a county is an opposing party, [and] there is no discretion vested in the trial court." GAC Props., Inc., 14 Ariz.App. at 158, 481 P.2d at 528.

¶ 7 In requesting a change of venue pursuant to § 12-408(A), Yarbrough sought to have the case transferred to Pima County. She claims Pima County is "the most convenient adjoining county" for purposes of § 12-407(A), which she contends is applicable. Section 12-407(A) provides: "If a change of venue is ordered, the court shall transfer the action to the most convenient adjoining county, unless the parties agree to some other county . . . ." (Emphasis added.) In subtle contrast, § 12-411(B) provides: "A change of venue or judge shall be to the most convenient county, or judge, to which the objections of the parties do not apply or are least applicable." (Emphasis added.)

RULING BELOW AND PARTIES' CONTENTIONS

¶ 8 In her written ruling, the respondent judge reviewed the several different statutes potentially applicable to a determination of "which venue would be the most appropriate." She first invoked § 12-401(7), observing that Pinal County is the putative residence of REI, the sole party residing outside Santa Cruz County.² That fact, the judge wrote, makes Pinal County "the most appropriate [alternative] venue" under § 12-401(7). Next, the respondent judge noted the mandate of § 12-407(A) that venue be changed "to the most convenient adjoining county," which, here, "would mean either Pima County or Cochise County." Based on the location and convenience of the parties and their counsel, the judge observed, "Pima County would seem to be the appropriate forum," as least as between Pima and Cochise Counties. See generally § 12-406(B) (providing for change of venue when "the convenience of witnesses and the ends of justice would be promoted by the change"). Ultimately, the respondent judge ruled:

Convenience may be relevant but the venue statute is primarily concerned with fairness and impartiality. Removing the case to Pima County would result in a different forum. Plaintiff's concerns and the Motion for Change of Venue is [sic] based on the premise of fairness since the purpose is [to] secure the parties fair and impartial trials of causes. See A.R.S. 12-408. The Court cannot only be concerned with fairness toward the Plaintiff but must be concerned with fairness towards the Defendants as well. Since there was no showing of foreboding inconvenience or hardship for the Plaintiff, the matter shall be transferred to Pinal County.

¶ 9 As noted, Yarbrough contends § 12-407(A) governs changes of venue ordered pursuant to § 12-408, which obligated the respondent judge to transfer the action to an adjoining county. Yarbrough contends the respondent judge exceeded her authority by ordering the case transferred instead to nonadjoining Pinal County. Yarbrough further claims that, as between Pima and Cochise Counties—the two counties that do adjoin Santa Cruz County—Pima would be the more convenient, as the respondent judge so found.

¶ 10 The defendants contend § 12-407(A) does not apply to changes of venue under § 12-408, which by its terms calls only for "a change of venue to some other county." They claim the respondent judge neither exceeded her authority nor abused her discretion in ordering venue changed to Pinal County. Because defendant REI resides there, they argue, Pinal County is the only county besides Santa Cruz in which venue would have been proper in the first instance under § 12-401(7). And, "to the extent possible," the defendants assert, a court should comply with § 12-401 when changing venue pursuant to § 12-408.

DISCUSSION

¶ 11 Interpretation of Arizona's...