Opinion
No. 1 CA-SA 17-0281
12-14-2017
KENT D. SIROTA, Petitioner, v. THE HONORABLE KERSTIN LEMAIRE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, ROMAN A. SANCHEZ and JANE DOE SANCHEZ, husband and wife, Real Parties in Interest.
COUNSEL O'Steen & Harrison, PLC, Phoenix By Jonathan V. O'Steen Counsel for Petitioner Jennifer Peddy Berg, Attorney at Law, Stevens Point, WI By Jennifer Peddy Berg Counsel for Real Parties in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CV2017-007647
The Honorable Kerstin G. LeMaire, Judge
JURISDICTION GRANTED; RELIEF GRANTED
COUNSEL
O'Steen & Harrison, PLC, Phoenix
By Jonathan V. O'Steen
Counsel for Petitioner
Jennifer Peddy Berg, Attorney at Law, Stevens Point, WI
By Jennifer Peddy Berg
Counsel for Real Parties in Interest
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in which Judge Randall M. Howe and Judge Kent E. Cattani joined.
BEENE, Judge:
¶1 Petitioner Kent Sirota ("Sirota") seeks special action review of the superior court's order transferring venue of the underlying personal injury action from Maricopa County to Yuma County. For the following reasons, we accept jurisdiction and grant relief.
FACTS AND PROCEDURAL HISTORY
¶2 Sirota filed a complaint in Maricopa County Superior Court alleging that Real Parties in Interest, Roman and Jane Doe Sanchez (collectively "Sanchez"), negligently injured him in a motor vehicle accident in Scottsdale. In the complaint, Sirota acknowledged Sanchez resided in Yuma County, but asserted that venue was proper in Maricopa County under Arizona Revised Statutes ("A.R.S.") section 12-401.
¶3 Sanchez filed an application to transfer the matter to Yuma County. In his application, Sanchez argued none of the nineteen exceptions enumerated in A.R.S. § 12-401 applied, and therefore Sirota was required to commence the suit in Yuma where Sanchez resided.
¶4 Sirota objected, arguing venue in Maricopa County was appropriate under A.R.S. § 12-401(10) because the accident occurred in Maricopa County. The superior court ultimately transferred the matter to Yuma County, although the order does not explain the reasons for granting the application. Sirota now seeks special action review.
JURISDICTION
¶5 Accepting special action jurisdiction is appropriate here because "an appeal cannot adequately cure an erroneous venue ruling[.]" Yarbrough v. Montoya-Paez, 214 Ariz. 1, 2, ¶ 1 (App. 2006). Such orders "are appropriately reviewable by special action[.]" Floyd v. Superior Court, 125 Ariz. 445, 445 (App. 1980). As Sirota has no equally plain, speedy, and adequate remedy by appeal, we accept jurisdiction of his special action petition. Ariz. R.P. Spec. Act. 1(a).
DISCUSSION
¶6 Interpretation of Arizona's venue statutes involves a question of law that we review de novo. Amparano v. ASARCO, Inc., 208 Ariz. 370, 372, ¶ 3 (App. 2004). If a venue ruling hinges on findings of fact, we will not disturb a trial court's order granting or denying a change of venue unless the court clearly has abused its discretion. Yarbrough, 214 Ariz. at 4, ¶ 11.
¶7 "[D]efendants are entitled to be sued in the county where they reside, unless a statutory exception to that principle applies." Yarbrough, 214 Ariz. at 3, ¶ 4 (emphasis added); see also A.R.S. § 12-401. Here, the accident report, initial complaint, and initial attempts at service establish Sanchez resides in Yuma County. Thus, unless a statutory exception applies, Yuma County is the appropriate venue for this claim.
¶8 Sirota argues Maricopa County is the proper venue because the auto accident underlying his claim occurred in Maricopa County. One exception set forth in A.R.S. § 12-401(10) states that when the basis of the "action is a crime, offense or trespass for which an action in damages may lie, the action may be brought in the county in which the . . . trespass was committed or in the county in which the defendant . . . reside[s][.]" "[I]t is well-established in Arizona that the word 'trespass' within A.R.S. § 12-401(10) means 'tort,' in the sense of a 'wrongful act that causes damage to another.'" Lakritz v. Superior Court, 179 Ariz. 598, 600 (App. 1994); see also Pride v. Superior Court, 87 Ariz. 157, 160-61 (1960) (tort action for injuries arising from automobile collision constitutes a trespass). Thus, under A.R.S. § 12-401(10), Sirota may properly file his claim in Maricopa County where the tort occurred or in Yuma County where Sanchez resides.
¶9 "[W]here venue may lie in several alternative counties under permissive 'may' exceptions of the venue statute, the plaintiff can exercise his choice as to the proper county." Zuckernick v. Roylston, 140 Ariz. 605, 606 (App. 1984); citing Massengill v. Superior Court, 3 Ariz. App. 588 (1966). Here, as the alleged tort was committed by Sanchez in Maricopa County, Sirota's action was properly filed in Maricopa County. Once the action was brought in the proper county, the superior court had no jurisdiction to change the venue. See Ellsworth v. Layton, 97 Ariz. 115, 119 (1964).
¶10 Sanchez cites Massengill, 3 Ariz. App. at 591, for the proposition that Arizona case law gives precedent to the "shall" exceptions over the "may" exceptions under A.R.S. § 12-401, and therefore the general
rule that "[n]o person shall be sued out of the county in which such person resides" controls. Sanchez's reliance is misplaced.
¶11 In Massengill, plaintiff filed a complaint in Maricopa County against Yuma County and Yuma County public officials for an automobile accident that occurred in Yuma County. Id. at 589. One defendant was served in Maricopa County, making Maricopa County a proper venue, but the others were served in Yuma County. Id. At the request of the Yuma County defendants, the case was transferred to Yuma County. Id. at 590. In affirming, we explained that although the venue statute contains an exception using the term "shall" so as to make it mandatory, it contains a further exception when public officials from different counties are being sued in the same action. Id. at 590-91 ("Actions against counties shall be brought in the county sued unless there are several counties defendants, when it may be brought in any one of the counties."); see A.R.S. § 12-401(16) (emphasis added). This case, in contrast, does not involve a county defendant, and the plaintiff is a resident of Maricopa County whose cause of action stems from an incident that occurred in Maricopa County. Accordingly, the plaintiff properly exercised his choice as to the forum in which to file his lawsuit.
¶12 We find the superior court abused its discretion in granting the change of venue to Yuma County.
CONCLUSION
¶13 Based on the foregoing, we accept special action jurisdiction and grant relief. In the exercise of our discretion, we deny both parties' requests for fees under Ariz. R.P. Spec. Act. 4(g) and ARCAP 21.