Elardo, Bragg, Appel & Rossi

Venue Transfer Mandatory When Plaintiff Fails to Rebut

Sierra Tucson, Inc. v. Lee (06/28/2012)

Plaintiff filed a wrongful death action in Pima County against Sierra Tucson, Inc., a psychiatric facility. Sierra Tucson filed a motion to transfer venue from Pima County to Pinal County pursuant to A.R.S. § 12-404, along with an affidavit, confirming that neither Sierra Tucson nor its parent company owned property in Pima County. Plaintiff’s response indicated that she did not object to the transfer. However, a week later Plaintiff changed her mind and attempted to withdraw her previous response. She also attempted to amend her complaint to name a defendant in Pima County in order to have the Pima County Superior Court retain venue. The judge granted Plaintiff’s motion to amend and denied Sierra Tucson’s motion for change of venue. Sierra filed a special action, which the Court of Appeals accepted.

After a defendant seeks to transfer venue and files a proper affidavit to that effect, “the court shall order the action transferred to the proper county” unless the defendant’s affidavit is controverted within five days. A.R.S. § 12-404(B). On appeal, the Court of Appeals held that the trial court was required to transfer this case because Plaintiff failed to controvert Sierra Tucson’s affidavit within the five days required by the rule. As such, the judge lacked the authority to grant Plaintiff’s motion to amend the complaint because the case should have been transferred to the Pinal County Superior Court.