                                                                    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
