Sierra Tucson, Inc. v. Lee (Litwack), 637 Ariz. Adv. Rep. 27 (App. Div. II, June 28, 2012) (J. Espinoza)
FAILURE TO TIMELY CONTROVERT MOTION TO CHANGE VENUE DIVESTS TRIAL COURT OF AUTHORITY TO GRANT MOTION TO ADD LOCAL DEFENDANT TO PRESERVE VENUE
Plaintiff filed a wrongful death action against Sierra of Tucson and its parent corporation in Pima County Superior Court although both defendants are located in Pinal County. Defendants moved to transfer venue to Pinal County pursuant to A.R.S. §12-404. Plaintiff did not oppose the motion but instead filed a motion to amend to bring in a Pima County defendant so as to eliminate the right to remove to Pinal. The trial court granted the motion to amend and denied the motion to change venue. Defendants than brought this special action arguing that the motion to amend was untimely and the Pima County Superior Court had discretion to even consider, let alone grant it. Instead the statute makes it mandatory that the trial court grant the motion to change venue. The Arizona Court of Appeals agreed and reversed.
The Court of Appeals analyzed the applicable statute. A.R.S. § 12-404 which states that where there are no defendants residing in the county where an action is filed, venue is only proper in a county where a defendant does reside. Nonetheless, the trial court in the improper venue has jurisdiction to hear and decide the matter unless before the date the answer is due the defendant files a motion to change venue to the appropriate county accompanied by an affidavit from the defendant establishing where it is located and therefore where venue should be transferred. Plaintiff then has five days to file a controverting affidavit. The statute provides specifically that, “unless the affidavit is controverted under oath, within five days after service, the court shall order the action transferred to the proper county.” From this the Court of Appeals concluded that once the five days runs it is mandatory that the trial court transfer venue to the proper county and it no longer has discretion to consider other issues such as a motion to amend.
Finally, the Court of Appeals acknowledged that had plaintiff filed her amended complaint within the five days and also filed an affidavit within the five days stating the amended complaint rendered venue proper in Pima County then the denial of the motion for change of venue would have been proper. Further the court acknowledged that plaintiff may very well cure this problem by simply voluntarily dismissing the complaint and refilling a complaint that also names the Pima county defendant rendering venue proper in Pima County.