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Sierra Tucson, Inc. v. Bergin

Court of Appeals of Arizona, Second Division

May 11, 2016

Sierra Tucson, Inc., a Corporation; Rainier J. Diaz, M.D.; Scott R. Davidson; and Kelley Anderson, Petitioners,
The Hon. Jeffrey T. Bergin, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Lindsey Lecce, individually and on behalf of all surviving statutory beneficiaries; Lindsey Lecce, as personal representative of the Estate of Richard Lecce, Real Party in Interest.

Special Action Proceeding Pima County Cause No. C20155232

Renaud Cook Drury Mesaros, PA, Phoenix By Michael D. Wolver and Charles S. Hover III Counsel for Petitioners

Law Office of Scott E. Boehm, P.C, Phoenix By Scott E. Boehm

Kinerk, Schmidt & Sethi, P.L.L.C, Tucson By Dev K. Sethi and Ted A. Schmidt Co-Counsel for Real Party in Interest

Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.


HOWARD, Presiding Judge

¶1 Sierra Tucson, Inc., Rainier Diaz, Scott Davidson, and Kelley Anderson (collectively, "Sierra Tucson") seek special action review of the respondent judge's order denying Sierra Tucson's motion seeking change of venue in a wrongful death action. Sierra Tucson argues the respondent erred in finding inapplicable the venue selection provision contained in a contract between Sierra Tucson and the decedent, Richard Lecce, and in otherwise concluding venue was proper in Pima County. As to the first issue, we accept special action jurisdiction and deny relief. As to the second, we decline jurisdiction.

Factual and Procedural Background

¶2 In January 2015, Richard arranged for treatment at Sierra Tucson, a psychiatric hospital and behavioral health facility. When he arrived at Sierra Tucson, and again when transferred from the psychiatric hospital to a residential treatment facility, he signed contracts that included a venue selection provision stating that "any dispute" arising from Richard's "participation at Sierra Tucson . . . shall be heard exclusively in a State of Arizona Superior Court in Pinal County." While under Sierra Tucson's care, Richard died, allegedly committing suicide. Real-party-in-interest, Lindsey Lecce, Richard's widow, sued Sierra Tucson for wrongful death in Pima County Superior Court "on her own behalf, and on behalf of their two children, son Garret Lecce and daughter Morgan Lecce. She also brings this action on behalf of the Estate of Richard Lecce." The complaint alleged, inter alia, claims of negligence and claims based on the Consumer Fraud Act.

¶3 Sierra Tucson applied to transfer venue to Pinal County, arguing the venue selection provision constituted "good and sufficient cause" for a change of venue pursuant to A.R.S. § 12-406(B)(3). Lecce objected, asserting venue was proper in Pima County, the venue selection provision did not apply to the statutory beneficiaries, and the provision was in any event unconscionable. In response, Sierra Tucson contended the provision was binding and enforceable, and additionally asserted for the first time that venue transfer was appropriate under § 12-406(B)(2) based on "the convenience of witnesses and the ends of justice." [1]

¶4 The respondent judge denied Sierra Tucson's request to change venue to Pinal County. The respondent concluded that Sierra Tucson had not shown transfer was appropriate pursuant to § 12-406(B)(2) and that the venue selection provision "is not binding upon the surviving beneficiaries that bring this wrongful death action, " citing Dueñas v. Life Care Centers of America, Inc., 236 Ariz. 130, 336 P.3d 763 (App. 2014). The respondent granted Sierra Tucson's request to stay the trial court proceedings, and this petition for special action followed.


¶5 We have discretion to accept special action jurisdiction to address venue rulings. See Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, 6, 282 P.3d 1275, 1277 (App. 2012); see also Ariz. R. P. Spec. Actions 1(a). The enforcement of a forum selection provision is a legal issue. Bennett v. Appaloosa Horse Club, 201 Ariz. 372, ¶ 11, 35 P.3d 426, 429 (App. 2001) (enforceability of forum selection clause is reviewed de novo); see also Estate of DeCamacho v. La Solana Care & Rehab, Inc., 234 Ariz. 18, ¶ 9, 316 P.3d 607, 609 (App. 2014) (validity and enforceability of contractual arbitration provision reviewed de novo). As such, it is particularly appropriate for special action review. See Sierra Tucson, Inc., 230 Ariz. 255, ¶ 6, 282 P.3d at 1277. And special action review is proper when, as in this case, the issue is a question of first impression and of statewide importance. See Chartone, Inc. v. Bernini, 207 Ariz. 162, ¶ 9, 83 P.3d 1103, 1107 (App. 2004). Accordingly, we accept special action jurisdiction to address whether the respondent judge erred in concluding the venue selection provision did not require venue be transferred to Pinal County.

¶6 Whether venue should be changed pursuant to A.R.S. § 12-406, however, is left to a trial court's discretion. Curtis v. Richardson, 212 Ariz. 308, ¶ 8, 131 P.3d 480, 483 (App. 2006). And that determination may require a court to resolve factual disputes and weigh competing interests of the parties, see § 12-406(B)(1)-(3), and thus is less appropriate for review pursuant to special action, see State ex rel. Montgomery v. Rogers, 237 Ariz. 419, ¶ 6, 352 P.2d 451, 453 (App. 2015) (special action jurisdiction appropriate when issue "does not turn on the ...

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