Sierra Tucson, Inc. v. Lee – 6/28/2012

July 5, 2012

Arizona Court of Appeals Division Two Holds That Venue Transfer is Mandatory When a Plaintiff Fails to Rebut a Defendant’s Motion to Transfer and Supporting Affidavit Within Five Days.

Louise Litwack filed a wrongful death action in Pima County against the psychiatric facility Sierra Tucson, Inc.  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 that neither Sierra Tucson nor its parent company (also a named defendant) owns property in Pima County.  Litwack’s response indicated that she did not object to the transfer.

About a week later, and nearly two weeks after Sierra Tucson filed its motion, however, Litwack sought to withdraw her previous response, amend her complaint to name a defendant in Pima County, and have the Pima court retain venue.  The judge granted Litwack’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.

Under A.R.S. § 12-404(B), 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.  The Court of Appeals held that the judge was required to transfer this case because Litwack failed to controvert Sierra Tucson’s affidavit within five days.  The judge did not have the authority to grant Litwack’s motion to amend the complaint because it should have transferred the case to Pinal County.

Judge Espinosa authored the opinion; Judges Vásquez and Kelly concurred.