Nielson v. Hicks (CA1 9/21/10)

As we’ve said before, people file motions like this because they know that, once in a while, one of our trial judges will actually grant one. But you do sometimes have to wonder how they talked even their own client into believing.

The Nielson’s were injured when their plane hit a power line near the St. Johns airport. They sued St. Johns, the local power company (Navopache), and the Maricopa County firm that designed the airport, filing the case in Maricopa County. Navopache moved for change of venue to Apache County, arguing that the action concerned real property (i.e., it alleged that the power poles were in the wrong places in the ground) and therefore had to be brought where the property was (12-401(12)). The trial judge granted the motion. Plaintiffs then got a stay (from Apache County) and filed special action. The Court of Appeals accepted it and reversed. (The court treats this as a special action from Maricopa County so it isn’t clear if the case ever got to Apache County or, if it didn’t, how Apache County came to enter an order in it.)

12-401(12) deals with such things as title, possession, mortgages, rents, “and all other actions concerning real property.”  Under the doctrine of ejusdem generis “all other actions” means all other actions in which real property is the subject matter or basis of the action, not in which it is peripherally involved. When there are both tort and real property claims then the property venue may take precedence (Amparano) but the subject matter of this Complaint was personal injury, not real property.

The opinion is only eight pages long but does manage to include four footnotes, so it meets the CA1 style guidelines.


(link to opinion)