FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA JUN 28 2012
DIVISION TWO
COURT OF APPEALS
DIVISION TWO
SIERRA TUCSON, INC., a corporation, and )
CRC HEALTH GROUP, INC., a corporation, ) 2 CA-SA 2012-0025
) DEPARTMENT B
Petitioners, )
) OPINION
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. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. C20120015
JURISDICTION ACCEPTED; RELIEF GRANTED
Renaud Cook Drury Mesaros, PA
By Michael D. Wolver, Charles S. Hover, III,
and 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
E S P I N O S A, 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
2
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
1
We have not been provided with a copy of Litwack’s response to the motion that
reflects the date on which it was filed, and the parties have referred to the response
variously as having been filed on January 31, 2012, the date on which it was signed by
counsel, and February 1, 2012.
3
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,
4
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).
5
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).
6
¶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
controverting affidavit has been filed, then transfer is mandatory. See Reilly v. Superior
Court, 141 Ariz. 540, 542-43, 687 P.2d 1295, 1297-98 (App. 1984); see also Santa Cruz
Ranch v. Superior Court, 76 Ariz. 19, 23, 258 P.2d 413, 415-16 (1953); Miles v. Wright,
22 Ariz. 73, 80, 194 P. 88, 90 (1920); Morgan v. Foreman, 193 Ariz. 405, ¶ 20, 973 P.2d
616, 619 (App. 1999); Lakritz v. Superior Court, 179 Ariz. 598, 599, 880 P.2d 1144,
1145 (App. 1994); Campbell v. Deddens, 21 Ariz. App. 295, 297, 518 P.2d 1012, 1014
(1974). On January 25, 2012, before the time for filing an answer to the complaint
7
expired, see § 12-404(A); Ariz. R. Civ. P. 12(a)(1)(A), Sierra Tucson hand-delivered to
Litwack’s counsel a copy of its motion for change of venue, together with a copy of the
affidavit of Sierra Tucson’s CFO. Consequently, Litwack had until February 1, five
business days after the motion and affidavit were served by hand-delivery upon her
counsel, to file a controverting affidavit under § 12-404(B). See Ariz. R. Civ. P. 6(a)
(when computing period of time specified by rule or statute and time period is less than
eleven days, neither day of event nor “intermediate Saturdays, Sundays and legal
holidays” included in calculation).
¶12 Based on his comments in his March 8 minute-entry ruling, the respondent
judge denied Sierra Tucson’s motion because he believed he could consider Litwack’s
motion to amend the complaint, which he granted, thereby rendering venue proper in
Pima County. Respondent granted Litwack’s motion because he found it proper to
permit her to substitute Sombrero for fictitiously named defendants; his order suggests
the amended complaint would relate back to the initial complaint. See Ariz. R. Civ. P.
15(c) (setting forth circumstances in which filing of amended complaint regarded as
“relat[ing] back to the date of the original pleading”). The respondent rejected Sierra
Tucson’s argument that he did not have the authority to consider the motion to amend the
complaint given the mandatory language in § 12-404 and was required to transfer the
case to Pinal County.
¶13 Without addressing the mandatory language in § 12-404, Litwack argues in
her response to the special-action petition that the respondent judge properly permitted
her to substitute Sombrero as a party and once that occurred, respondent correctly
8
retained venue in Pima County based on the criteria set forth in A.R.S. §§ 12-401 and
12-406. Sierra Tucson argues in this special action, as it did below, that respondent
lacked the authority to rule on Litwack’s request to file an amended complaint and was
required to grant its motion for change of venue. It contends that, in any event,
respondent misapplied the concept of fictitious parties in allowing Litwack to file the
amended complaint and have it relate back to the initial complaint because Sombrero
clearly had been known to her at the time she filed the initial complaint.
¶14 As noted above, the provisions of § 12-404 are mandatory and a trial court
cannot consider the discretionary criteria of § 12-406 when venue is improper under
§ 12–401; the defendant has filed a timely affidavit pursuant to § 12-404(A) and (B); and
the plaintiff has not filed a timely, proper, controverting affidavit. § 12-404(B). See
Morgan, 193 Ariz. 405, ¶ 20, 973 P.2d at 619; see also Reilly, 141 Ariz. at 542-43, 687
P.2d at 1297-98. Because Litwack did not file a controverting affidavit within the
statutorily prescribed period, the respondent judge was required to transfer the case to
Pinal County. Although we acknowledge venue is not jurisdictional in the sense of
subject-matter jurisdiction, and a court of improper venue has jurisdiction even when
transfer is mandatory, see Keddie, 132 Ariz. at 553, 647 P.2d at 1151, the court
nevertheless is required to transfer the case by operation of § 12-404.2 The respondent
2
We note that in Santa Cruz Ranch, 76 Ariz. at 23, 258 P.2d at 416, the supreme
court stated that once a proper affidavit has been filed and there is no opposition, the
court is “divested of jurisdiction by operation of law to proceed further in the case except
to transfer it . . . .” But we believe the court was using the term “jurisdiction” in a
broader, now antiquated, sense actually referring to courts’ authority rather than subject-
matter jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶¶ 14-18, 223 P.3d 653, 655-
9
therefore lacked the authority to consider, much less grant, Litwack’s motion for leave to
file the amended complaint and did not have the discretion to make a decision about
venue based on the amended complaint and his consideration of the factors set forth in
§§ 12-401 and 12-406. We need not address the propriety of respondent’s conclusion
that Sombrero merely was a substitute for fictitiously named defendants or respondent’s
apparent belief that the amended complaint related back to the original complaint because
the respondent lacked the authority to permit Litwack to file the amended complaint.
¶15 Litwack asserts the “resolution” of this special action “turns on whether the
amended complaint was appropriately accepted,” conceding that, if it was not, “there is
no Pima County defendant, and venue . . . is appropriate in Pinal County.” Although she
insists the respondent judge correctly granted her leave to file the amended complaint,
she also argues that because Sierra Tucson had not filed a “responsive pleading,” Ariz. R.
Civ. P. 15(a)(1)(B), she “had the unilateral right to amend her Complaint, as a matter of
course, and without leave of the trial court.” Litwack asserts that had she simply filed the
amended complaint “on February 8, 2012, or indeed on any date within the scope of”
Rule 15(a)(1)(B), Sierra Tucson’s motion to transfer venue “would have been rendered
moot and withered on the vine.”
56 (2010) (acknowledging prior opinions that “employed vague and outdated concepts of
‘jurisdiction’” that conflated subject-matter jurisdiction with other principles defining
courts’ authority and crystallizing principles of subject-matter jurisdiction). Our
conclusion is based, too, on the plethora of cases that make clear venue is not
jurisdictional. See, e.g., Keddie, 132 Ariz. at 553, 647 P.2d at 1151; Sil-Flo Corp. v.
Bowen, 98 Ariz. 77, 83, 402 P.2d 22, 26 (1965); James R. Brathovde Family Trust, 187
Ariz. at 321-22, 928 P.2d at 1250-51.
10
¶16 We interpret procedural rules according to the same principles we apply to
the interpretation of statutes. Sw. Gas Corp. v. Irwin, 229 Ariz. 198, ¶ 9, 273 P.3d 650,
654 (App. 2012). Accordingly, we look to the plain language of the rule as the best
reflection of our supreme court’s intent. Id.; see also Osterkamp v. Browning, 226 Ariz.
485, ¶ 14, 250 P.3d 551, 555 (App. 2011). “If a rule is clear and unambiguous, ‘we will
not employ other principles of construction to determine its meaning and the supreme
court’s intent in promulgating [it].’” Sw. Gas Corp., 229 Ariz. 198, ¶ 9, 273 P.3d at 654,
quoting Osterkamp, 226 Ariz. 485, ¶ 14, 250 P.3d at 555 (alteration in Sw. Gas Corp.).
¶17 Rule 15(a)(1)(B), which was amended in 2011, effective January 1, 2012,
provides in relevant part that a party may amend pleadings “once as a matter of course
. . . within twenty-one days after service of a responsive pleading . . . or, if a motion
under Rule 12(b), (e), or (f)[, Ariz. R. Civ. P.,] is served, on or before the date on which a
response to the motion is due, whichever is earlier.” See Ariz. Sup. Ct. Order R-11-0010
(Sept. 1, 2011). The former version of Rule 15(a)(1) had permitted a party to amend the
party’s pleading “once as a matter of course at any time before a responsive pleading
[was] served.” See Ariz. Sup. Ct. Order R-06-0009 (Sept. 5, 2007). It did not include
motions under Rule 12(b), (e), or (f) in the same category as responsive pleadings for
purposes of prescribing the period of time within which pleadings could be amended. Id.
The current version of the rule is clear; it permits a party to amend a pleading at the
earlier of within twenty-one days of service of a responsive pleading or the day on which
a response to specified Rule 12 motions is due. Ariz. R. Civ. P. 15(a)(1).
11
¶18 In promulgating and then amending Rule 15(a), the supreme court did not
include motions for change of venue together with responsive pleadings and Rule 12
motions in subsection (a)(1)(B). Had it intended to include such motions, it could have
done so. Cf. ChartOne, Inc., 207 Ariz. 162, ¶ 23, 83 P.3d at 1110 (observing Rule 23,
Ariz. R. Civ. P., “silent” as to whether former Rule 53, Ariz. R. Civ. P., allowing
appointment of special master in non-jury proceedings, applicable to class actions;
concluding had supreme court intended special-master rule to apply to class actions, “it
could have so provided”); State v. Mahaney, 193 Ariz. 566, ¶ 15, 975 P.2d 156, 158
(App. 1999) (if legislature intended statute to have particular meaning “it would have
clearly said so”). Case law interpreting the rule before its 2011 amendment established
that a motion to dismiss was not a responsive pleading for purposes of Rule 15(a)(1), and
we agree with Litwack that motions for change of venue are similarly not responsive
pleadings for purposes of the rule. See, e.g., Douglas N. Higgins, Inc. v. Songer, 171
Ariz. 8, 10, 827 P.2d 469, 471 (App. 1991). Additionally, Rule 7(a), Ariz. R. Civ. P.,
which defines pleadings that are permitted in civil cases, does not include motions for
change of venue. Therefore, we agree with Litwack that, as a general proposition, she
had been entitled to amend her complaint as a matter of right because neither a Rule 12
motion nor a responsive pleading had yet been filed. Under the circumstances here,
however, the right to file the amended complaint in Pima County no longer existed at the
time Litwack sought leave to file and presumably filed the amended complaint.
¶19 When Litwack failed to file a controverting affidavit by February 1—five
days after Sierra Tucson served her with a copy of its motion to change venue and
12
supporting affidavit—respondent had no authority to do anything other than transfer the
case to Pinal County. Santa Cruz Ranch, 76 Ariz. at 23, 258 P.2d at 416. Had Litwack
filed the amended complaint before the five-day period prescribed by § 12-404(B) had
passed, Sierra Tucson’s motion to change venue pursuant to the statute would appear to
have been moot; it no longer would have had a right to an automatic transfer given that a
proper amended complaint had been filed, naming a Pima County resident as a defendant.
We need not address whether, in such a situation, Litwack nevertheless would have been
required to file a controverting affidavit in accordance with § 12-404(B), because that is
not what occurred here.
¶20 In this case, the amended complaint presumably was not filed until
March 8, after the respondent judge granted Litwak leave to do so, which was over a
month after the controverting affidavit was due. That respondent had not yet granted
Sierra Tucson’s motion or effectuated the actual transfer of the case to Pinal County
before Litwack filed her amended complaint does not alter the fact that respondent had
been required to transfer the case after the five-day period for filing a controverting
affidavit had passed.
¶21 Finally, we reject Litwack’s assertion that this special action “is much ado
about nothing,” because “any claimed error can be cured through voluntary dismissal [of
the complaint] without prejudice and refiling.” She argues venue is proper in Pima
County because of the addition of Sombrero as a defendant and asserts that she prefers
litigating this matter there. Litwack contends that because she can withdraw the initial
complaint and refile it to include Sombrero and render proper venue in Pima County, the
13
outcome will be the same even if we grant Sierra Tucson special-action relief; the case
will end up being litigated in Pima County, “[a]lbeit after significant delay, spending of
judicial resources and expense incurred.” Even assuming Litwack is correct that the end
result would be the same and this case ultimately will return to Pima County, that fact
does not make the respondent’s ruling correct. And Litwack cites no authority for the
proposition that we may ignore the error here based on what she might do in the future or
the purported efficiency or expediency of declining jurisdiction.
CONCLUSION
¶22 Based on the foregoing, we hold that when a defendant files a proper
affidavit and request for change of venue pursuant to § 12-404(A), and the plaintiff does
not file a controverting affidavit within the five-day period prescribed by § 12-404(B),
the case must be transferred. The plaintiff cannot file an amended complaint after the
five-day period has passed in an effort to confer venue on the county from which the
transfer had been sought. The respondent judge in this case reached a contrary result by
permitting Litwack to file an amended complaint outside the five-day period to cure the
venue-related deficiency in the initial complaint and attempt to render Pima County a
proper venue. In so doing, respondent erred as a matter of law in interpreting and
applying § 12-404. Such error constitutes an abuse of discretion, warranting special-
action relief. See Ariz. R. P. Spec. Actions 3(c); Twin City Fire Ins. Co. v. Burke, 204
Ariz. 251, ¶ 10, 63 P.3d 282, 284-85 (2003) (error of law in process of reaching
discretionary conclusion may constitute abuse of discretion).
14
¶23 The respondent judge’s March 8, 2012 order is reversed. The amended
complaint shall be stricken, and the respondent is directed to enter any orders necessary
to transfer the underlying action to Pinal County for further proceedings.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
15