Floyd Nelson v. Encompass PAHS Rehabilitation Hospital, LLC d/b/a Encompass Health Rehabilitation Hospital of Littleton Rule Made Absolute en banc JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT JUSTICE MÁRQUEZ JUSTICE HOOD JUSTICE GABRIEL , 2023 CO 1 ( 2023 )

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2023 CO 1Supreme Court Case No. 22SA195
Original Proceeding Pursuant to C.A.R. 21
Boulder County District Court Case No. 22CV30257
Honorable Andrew Hartman, Judge
In Re
Plaintiff:
Floyd Nelson,
v.
Defendant:
Encompass PAHS Rehabilitation Hospital, LLC d/b/a Encompass Health
Rehabilitation Hospital of Littleton.
Rule Made Absolute
en banc
January 9, 2023
Attorneys for Plaintiff:
Rhoden Law Firm
Garry J. Rhoden
Craig, Colorado
Attorneys for Defendant:
Rodman & Rodman, LLC
John R. Rodman
Brendan P. Rodman
Cala R. Farina
Sheridan S. Couture
Denver, Colorado
Attorneys for Respondent Boulder County District Court:
Philip J. Weiser, Attorney General
Grant T. Sullivan, Assistant Solicitor General
Denver, Colorado
JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.
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JUSTICE BERKENKOTTER delivered the Opinion of the Court.
¶1 In this original proceeding under C.A.R. 21, we consider how to determine
a limited liability company’s (“LLC”) residence for purposes of analyzing venue.
Petitioner Encompass PAHS Rehabilitation, LLC d/b/a Encompass Health
Rehabilitation Hospital of Littleton (“Encompass”) argues that the trial court erred
in looking to the residence of Encompass’s members in determining that venue
was proper in Boulder County District Court and thus denying Encompass’s
motion for change of venue. Respondent Floyd Nelson, analogizing to federal
diversity cases, argues that the trial court properly looked to the residences of
Encompass’s members in deciding where venue lies.
¶2 In addressing this issue of first impression, we explore the nature and form
of LLCs and the differences between venue and federal diversity jurisdiction, and
ultimately conclude that the residence of an LLC for venue purposes under
C.R.C.P. 98 is controlled by the residence of the LLC, not that of its members. We,
accordingly, make the rule absolute.
I. Facts and Procedural History
¶3 The pertinent facts are not in dispute. Nelson, a resident of Arapahoe
County, alleges that he sustained injuries from a fall at a rehabilitation hospital
owned by Encompass, an LLC, that is located in Arapahoe County. Nelson sued
Encompass, asserting claims for negligence; medical negligence; and negligent
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hiring, supervision, retention, and training. Although Nelson is a resident of
Arapahoe County, the LLC is located in Arapahoe County, and the alleged torts
occurred in Arapahoe County, Nelson brought the action in Boulder County
District Court.
¶4 Before responding to Nelson’s suit on the merits, Encompass moved to
change venue from Boulder County to Arapahoe County pursuant to
C.R.C.P. 98(f). Encompass argued that because neither it nor Nelson were
residents of Boulder County and the alleged tort occurred in Arapahoe County,
venue was improper and the suit had to be moved to Arapahoe County. Nelson
opposed the motion, asserting that the trial court should look to the residences of
Encompass’s two limited liability members, (1) Encompass Health Littleton
Holdings, LLC (“Littleton Holdings”); and (2) Porter Care Adventist Health
System (“Porter”), in determining proper venue. Nelson contended that because
Littleton Holdings, which owns a 68% stake in Encompass, is a Delaware-
chartered corporation, he could file suit in the county of his choosing pursuant to
C.R.C.P. 98(c), as interpreted by this court in Denver Air Center v. District Court,
839 P.2d 1182, 1184–85 (Colo. 1992). Nelson further asserted—upon information
and belief—that Porter is a resident of Boulder County because it owns or operates
two health care facilities in the county.
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¶5 After the trial court denied Encompass’s motion for change of venue,
Encompass filed a petition for a rule to show cause why the trial court’s denial of
its motion to change venue should not be reversed. We then issued an order to
show cause.
II. Analysis
¶6 We begin by discussing our original jurisdiction and discretion to hear this
matter pursuant to C.A.R. 21. Next, we detail the relevant standard of review and
principles of law, before turning to how, for venue purposes, courts should treat
LLCs. We then apply these principles to the matter before us and conclude that
venue is not proper in Boulder County. Accordingly, we make the rule absolute
and vacate the trial court’s order denying Encompass’s motion to change venue to
Arapahoe County.
A. Original Jurisdiction
¶7 This court exercises its original jurisdiction in those “extraordinary
circumstances ‘when no other adequate remedy’ is available.” People in Int. of A.C.,
2022 CO 49, ¶ 6, 517 P.3d 1228, 1233 (quoting C.A.R. 21(a)(1)). We “have
historically cabined” our original jurisdiction to matters raising “issue[s] of first
impression that ha[ve] significant public importance.” People v. A.S.M., 2022 CO
47, ¶ 9, 517 P.3d 675, 677. But we have also exercised our discretion to hear cases
under C.A.R. 21 that “raise ‘issues involving venue’ because such issues ‘directly
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affect the trial court’s jurisdiction and authority to proceed with a case’ and
‘review of a venue determination serves to avoid the delay and expense involved
in re-trial should this court deem venue improper.’” Magill v. Ford Motor Co., 2016
CO 57, ¶ 10, 379 P.3d 1033, 1036 (quoting Hagan v. Farmers Ins. Exch., 2015 CO 6,
¶ 13, 342 P.3d 427, 432).
¶8 We choose to exercise our original jurisdiction to review the trial court’s
order denying Encompass’s motion to change venue because it involves a question
of first impression: how to discern an LLC’s residence for venue purposes.
Additionally, forcing Encompass to litigate this matter in Boulder County just so
an appellate court could subsequently order a new trial in Arapahoe County
would waste judicial resources and the parties’ time and money.
B. Standard of Review
¶9 We review a trial court’s decision regarding a motion to change venue for
an abuse of discretion. Id. at ¶ 12, 379 P.3d at 1036; Sampson v. Dist. Ct., 590 P.2d
958, 959 (Colo. 1979). “A trial court abuses its discretion when it proceeds to hear
a case where venue is improper.” Magill, ¶ 12, 379 P.3d at 1036. “[W]hen a party
requests a change of venue upon a ground which entitles it to the change as a
matter of right the trial court loses all jurisdiction except to order the change.”
Denver Air, 839 P.2d at 1185 (quoting Ranger Ins. Co. v. Dist. Ct., 647 P.2d 1229, 1231
(Colo. 1982)); see Brownell v. Dist. Ct., 670 P.2d 762, 764 (Colo. 1983) (“When a
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meritorious motion for change of venue is filed, ‘the trial court loses jurisdiction
in the case to proceed further with the determination of other issues, and has only
authority to order a transfer to the proper county.’” (quoting Bd. of Cnty.
Comm’rs v. Dist. Ct., 632 P.2d 1017, 1022 (Colo. 1981))).
C. Venue Principles
¶10 Pursuant to C.R.C.P. 98(f), courts “may, on good cause shown,” grant a
change of venue “[w]hen the county designated in the complaint is not the proper
county.” For torts, like those alleged here, venue is proper in the county: (1) where
the plaintiff resides; (2) where an in-state defendant resides; or (3) where the
alleged tort occurred. C.R.C.P. 98(c)(1), (5). If the defendant is not a Colorado
resident, then venue is appropriate in the “county of plaintiff’s choice.” Denver
Air, 839 P.2d at 1184–85.
¶11 A plaintiff may choose the county in which to file suit so long as venue is
proper. Hagan, ¶ 14, 342 P.3d at 432. While there is a “strong presumption” in
favor of a plaintiff’s choice of venue, it is not absolute. Id. (quoting UIH-SFCC
Holdings, L.P. v. Brigato, 51 P.3d 1076, 1078 (Colo. App. 2002)). The movant
challenging a suit’s venue bears the burden to show that it is improper. Tillery v.
Dist. Ct., 692 P.2d 1079, 1084 (Colo. 1984).
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D. LLCs and Venue
¶12 We turn next to consider the unique statutory scheme that authorizes the
creation of LLCs, including how those statutes incorporate both corporate and
general partnership principles. Then, we consider Nelson’s argument that an
LLC’s residence for venue purposes should be analyzed the same way its
citizenship is determined for purposes of analyzing federal diversity jurisdiction.
¶13 As noted, an LLC created under Colorado’s Limited Liability Company Act
is a form of legal entity that “combin[es] features of Colorado’s limited partnership
and corporation statutes.” LaFond v. Sweeney, 2015 CO 3, ¶ 15, 343 P.3d 939, 944;
see Colorado Limited Liability Company Act, §§ 7-80-101 to -1101, C.R.S. (2022).
The third of its kind in the country, the Act “includes some of the same basic
features found in the Uniform Limited Liability Company Act of 1996 (‘Model
Act’) drafted by the National Conference of Commissioners on Uniform State
Laws.” LaFond, ¶ 15, 343 P.3d at 944; Water, Waste & Land, Inc. v. Lanham, 955 P.2d
997, 1000 (Colo. 1998). However, “[u]nlike a number of other states, where LLC
statutes were based on [the Model Act],” Colorado opted to “combine[] features
of the state’s existing limited partnership and corporation statutes.” Water, Waste
& Land, 955 P.2d at 1000. To that end, “the [Colorado] LLC Act includes the same
basic features of limited liability, single-tier tax treatment, and planning flexibility
shared by the Uniform Limited Liability Company Act and LLC legislation
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adopted by other states.” Id.; see generally John R. Maxfield et al., Colorado Enacts
Limited Liability Company Legislation, 19 Colo. Law. 1029 (June 1990) (outlining the
LLC statutory scheme in Colorado).
¶14 Similar to corporations, these LLCs shield individual members from
personal liability for the LLC’s actions. § 7-80-705, C.R.S. (2022). We have also
previously made clear that LLCs created under the Act, like corporations, are
“separate from the members that own the entity.” Griffith v. SSC Pueblo Belmont
Operating Co., 2016 CO 60M, ¶ 11, 381 P.3d 308, 312. But LLCs are also like general
partnerships in certain respects: they “avoid both double taxation and liability for
the business’s debts.” 1 James D. Cox & Thomas Lee Hazen, Treatise on the Law of
Corporations § 1:11, Westlaw (3d ed., database updated Dec. 2022).
¶15 Because LLCs are “a relatively new form of doing business, there may be
questions as to whether laws applying to corporations, partnerships, and other
enumerated forms of doing business apply to [LLCs].” Id. A leading treatise has
noted that an LLC is “essentially a partnership with a legislative grant of limited
liability,” and that laws applying to corporations “should apply equally to
[LLCs].” Id.
¶16 The residence of a corporation “generally is the county of its ‘residence’ or
principal place of business.” 9 Fletcher Cyclopedia of the Law of Corporations § 4372,
Westlaw (database updated Sept. 2022); accord Hagan, ¶ 19, 342 P.3d at 433. This
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is because the law considers a corporation a legal person that is entirely different
from its individual shareholders, and which has a legal capacity that is distinct
from its shareholders, even if they organized the corporation, manage it, and own
all, or nearly all, of its shares. 1 James D. Cox & Thomas Lee Hazen, Treatise on the
Law of Corporations § 1:2, Westlaw (3d ed., database updated Dec. 2022); see
generally 19 C.J.S. Corporations § 787, Westlaw (database updated Nov. 2022) (“A
corporation ordinarily may be sued in the county of its residence or domicile and
for the purpose of suing or being sued, a domestic corporation is a resident of the
county where it has its registered or principal office . . . . A ‘principal office’ is
defined as an office of a corporation in which the decision makers for the
organization within the state conduct the daily affairs of the organization.”
(footnotes omitted)).
¶17 Because a corporation is legally distinct from the individuals who run or
own the entity, it “do[es] not belong to the natural persons composing it.” Trs. of
Dartmouth Coll. v. Woodward, 17 U.S. 518, 667 (1819). For this reason, a
corporation’s residence, for venue purposes, is determined based on the residence
of the corporation, not the residences of the individuals who own it. Thus, when
a court is examining a motion to change venue in a case involving a corporation,
it does not consider where the corporation’s officers or shareholders reside.
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E. Differentiating Federal Diversity Subject Matter
Jurisdiction and Venue Principles
¶18 Nelson asserts that LLCs should not be treated like corporations in
determining venue. Rather, he contends, an LLC’s residence for venue purposes
should be the same as its citizenship for purposes of analyzing diversity
jurisdiction in federal court. He argues that an LLC “can reasonably and in
fairness be found to reside where any of its members may be found.” We disagree.
¶19 Federal diversity jurisdiction and venue principles are legally distinct
concepts. And, importantly, they “are not concepts of the same order.” Wachovia
Bank v. Schmidt, 546 U.S. 303, 316 (2006). Federal diversity jurisdiction, pursuant
to 28 U.S.C. § 1332, “concerns a court’s competence to adjudicate a particular
category of cases.” Id. Because diversity jurisdiction is rooted in the very authority
of the court to act, a federal court may sua sponte raise concerns regarding
diversity jurisdiction at any time. This is also why diversity jurisdiction cannot be
waived. Id.¶20 For diversity purposes, a corporation’s citizenship or domicile is where it is
registered to do business or its principal place of business. In contrast, ”a limited
liability company ‘takes the citizenship of all its members’” for diversity purposes.
Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1014 (10th
Cir. 2018) (quoting Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233,
1234 (10th Cir. 2015)). This is because federal courts have declined to extend the
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subject matter jurisdiction rule that applies to corporations to unincorporated
associations. Siloam Springs, 781 F.3d at 1234; see Zambelli Fireworks Mfg. Co. v.
Wood, 592 F.3d 412, 420 (3d Cir. 2010) (collecting cases from circuit courts arriving
at the same disposition).
¶21 But, Nelson’s reliance on cases involving diversity jurisdiction in the federal
courts is misplaced because subject matter jurisdiction arises out of different and
“far weightier” concerns than venue. Wachovia Bank, 546 U.S. at 316. “Venue
provisions come into play only after jurisdiction has been established and concern
‘the place where judicial authority may be exercised.’” Lindahl v. Off. of Pers.
Mgmt., 470 U.S. 768, 793 n.30 (1985) (quoting Neirbo Co. v. Bethlehem Shipbuilding
Corp., 308 U.S. 165, 168 (1939)). “[R]ather than relating to the power of a court,
venue ‘relates to the convenience of litigants and as such is subject to their
disposition.’” Id. (quoting Neirbo, 308 U.S. at 168).
¶22 That is all to say that subject matter jurisdiction and venue analyses serve
different purposes and ask different questions: federal diversity analysis looks to
whether there is statutory authority for the federal trial court to even entertain the
matter, whereas venue decisions turn on the convenience of the parties. Associated
Gov’ts v. Colo. Pub. Utils. Comm’n, 2012 CO 28, ¶ 9, 275 P.3d 646, 649. And for
venue purposes under C.R.C.P. 98, this also means looking to see if an action has
been brought in a county other than one in which it should be tried.
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¶23 Because these concepts are not interchangeable, conflating and injecting
federal subject matter jurisdiction principles into an LLC venue analysis invites
more confusion than clarity. See 14D Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3801, Westlaw (4th ed., database updated Apr.
2022). So, while the citizenship of an LLC’s members is relevant to determining if
a federal court has the authority to act in a particular case, that information is not
particularly relevant to determining under C.R.C.P. 98 if venue is improper in a
particular county or if venue is convenient when one of the parties is an LLC.
¶24 Moreover, it is illogical to suppose that the reach of C.R.C.P. 98, as it relates
to an LLC, extends to the location of its members. This is particularly true because
an LLC has a legal capacity that is distinct from its members. Importantly, an LLC
is not merely a pass-through entity such that it only exists through its members.
Thus, it makes little sense to make decisions about where a case should be litigated
based on the location of the members of an LLC.1
1The trial court, relying on a case decided by a division of the court of appeals in
1900, argues that its ruling is consistent with the common law view that all
unincorporated groups should be treated as partnerships for venue purposes.
See Adamson v. Bergen, 62 P. 629, 630–31 (Colo. App. 1900). We are unpersuaded.
While the ruling may well align with the common law view of unincorporated
groups as articulated over a century ago, the General Assembly clearly
understood when enacting the Limited Liability Company Act—and with it a
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¶25 Adopting Nelson’s logic would weaken the delineation the General
Assembly created between LLCs and their members. See Ronquillo v. EcoClean
Home Servs., Inc., 2021 CO 82, ¶ 22, 500 P.3d 1130, 1135–36 (“We construe a statute
‘as a whole to give “consistent, harmonious and sensible effect to all its parts.”’”
(quoting Bd. of Cnty. Comm’rs v. Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1192
(Colo. 2004))). Because an LLC “is separate from the members that own the
entity,” Griffith, ¶ 11, 381 P.3d at 312, it strains common sense to look to the
residences of an LLC’s members to determine its residence for purposes of
analyzing venue.
¶26 To find otherwise would contravene the overarching statutory purpose to
delineate an LLC from its members, much like, for venue purposes, the distinction
between a corporation and its shareholders. See 1 James D. Cox & Thomas Lee
Hazen, Treatise on the Law of Corporations § 1:2, Westlaw (3d ed., database updated
Dec. 2022). Accordingly, we hold that the residence of an LLC’s members cannot
properly be considered in determining the LLC’s residence for venue purposes
new type of unincorporated association that was not merely a pass-through
organization, like a partnership—that it was authorizing a new type of legal
entity in derogation of the common law. § 7-80-109, C.R.S. (2022).
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under C.R.C.P. 98. Instead, courts must determine an LLC’s residence for venue
purposes like a corporation’s: by looking to the LLC’s residence.
III. Application
¶27 Having held that the residence of an LLC determines the location of the LLC
for purposes of venue, we conclude that Encompass is a resident of Arapahoe
County, not of Boulder County. Contrary to Nelson’s contention, the fact that
Encompass’s members, Littleton Holdings and Porter, reside outside of Arapahoe
County, does not affect our analysis. Venue is proper in Arapahoe County—and
is improper in Boulder County—because (1) Nelson resides in Arapahoe County,
(2) Encompass resides in Arapahoe County, (3) the alleged torts took place in
Arapahoe County, and (4) Encompass is a Colorado resident.2
2 Finally, Nelson also argues that Encompass failed to properly exhaust its
remedies below by not filing a motion for reconsideration with the Boulder trial
court. See C.R.C.P. 121, § 1-15(11). C.A.R. 21 does not obligate parties to move for
reconsideration before seeking an order to show cause. See C.A.R. 21; see also People
ex rel. Rein v. Meagher, 2020 CO 56, ¶ 22, 465 P.3d 554, 560 (“[W]e do not add words
to or subtract words from a statute.”); People v. G.S., 2018 CO 31, ¶ 32, 416 P.3d 905,
913 (“We apply ‘[t]he standard principles of statutory construction . . . to our
interpretation of court rules.’” (alterations in original) (quoting In re Marriage of
Wiggins, 2012 CO 44, ¶ 24, 279 P.3d 1, 7)). C.A.R. 21 offers relief that is “wholly
within the discretion” of this court. C.A.R. 21(a)(1). Accordingly, there is no
procedural defect impeding our analysis of the parties’ substantive arguments.
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IV. Conclusion
¶28 The residence of an LLC for venue purposes cannot be determined based on
the residence of its members. Rather, the residence of an LLC for venue purposes
under C.R.C.P. 98 maps to how the residence of a corporation is determined for
venue purposes. That is, the trial court must look only to the residence of the LLC
itself. Because Encompass’s residence, like Nelson’s, is in Arapahoe County, and
because the alleged torts occurred in Arapahoe County, venue is not proper in
Boulder County. Thus, the trial court erred in denying Encompass’s motion to
change venue. Accordingly, we make the rule to show cause absolute, vacate the
district court’s order denying Encompass’s motion to change venue, and remand
for further proceedings consistent with this opinion.
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