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Nielson v. Hicks - 9/21/2010

Arizona Court of Appeals Division One Holds That When Real Property Is Not the Basis of a Plaintiff’s Claim, but Is Rather Peripheral to the Action, A.R.S. § 12-401(12) Governing Mandatory Venue in Real Property Matters Does Not Apply.


In August 2008, Plaintiffs were involved in a plane crash in St. Johns, Arizona when the plane struck power lines near the runway.  Plaintiffs brought suit in Maricopa County Superior Court against various defendants, including Navopache Electric Cooperative, Inc. (“Navopache”), alleging the negligent design and placement of the power lines.  Navopache moved to change the venue of the action to Apache County Superior Court.  The trial court granted the motion, and Plaintiffs filed a petition for special action.  The Court of Appeals accepted jurisdiction, noting that special actions are appropriate to challenge venue rulings.

The ArizonaAppeals Court granted Plaintiffs relief and reversed the trial court’s order transferring the case to Apache County Superior Court.  The Court explained that venue usually lies in the county where a defendant resides, unless a cause of action falls within an enumerated exception.  One such exception is set forth in A.R.S. § 12-401(12), which states:

Actions for the recovery of real property, for damages thereto, for rents, profits, use and occupation thereof, for partition thereof, to quiet title thereto, to remove a cloud or encumbrance on the title thereto, to foreclose mortgages and other liens thereon, to prevent or stay waste or injuries thereto, and all other actions  concerning real property, shall be brought in the county in which the real property . . . is located.  (Emphasis added.) 

The Court held that under the ejusdem generis canon of statutory interpretation, the “all other actions concerning real property” catchall referred only to claims actually based on real property, rather than claims in which real property is merely peripheral, because the specific actions enumerated in § 12-401(12) refer only to actions in which the real property is the subject matter or basis of the claim.  Liberally construing Plaintiffs’ complaint in their favor, the Court determined that the claim sounded in tort and was based on personal injuries, rather than real property.  Thus, A.R.S. § 12-401(12) did not apply. 

Presiding Judge Thompson authored the opinion; Chief Judge Timmer and Judge Norris concurred.

Posted by Sharad H. Desai.

Posted On: 9/22/2010