James v. Peoria ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KIZZEN JAMES, et al., Plaintiffs/Appellants,
v.
CITY OF PEORIA, et al., Defendants/Appellees.
No. 1 CA-CV 20-0415
FILED 4-13-2021
Appeal from the Superior Court in Maricopa County
No. CV2019-054635
The Honorable Theodore Campagnolo, Judge
AFFIRMED
COUNSEL
Ahwatukee Legal Office P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants
AJ Law P.L.C., Phoenix
By Abdoukadir Abdul Jaiteh, Elizabeth Gonzalez
Co-Counsel for Plaintiffs/Appellants
Peoria City Attorney’s Office, Peoria
By Amanda Christine Sheridan, Saman John Golestan
Counsel for Defendant/Appellee City of Peoria
Jardine Baker Hickman & Houston, P.L.L.C., Phoenix
By Bradley R. Jardine
Counsel for Defendant/Appellee Peoria Unified School District
JAMES, et al. v. PEORIA, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Maria Elena Cruz joined.
F U R U Y A, Judge:
¶1 In this wrongful death case against the City of Peoria (“the
City”), Kizzen James appeals the superior court’s ruling granting the City’s
motion for summary judgment because James filed a defective notice of
claim. Because the document submitted to the City contains a fatal defect
disqualifying it from serving as a valid notice of claim, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In the afternoon of October 10, 2018, a motor vehicle
accidently struck 12-year-old Isaiah McGinnis (“Isaiah”) near 77th Avenue
and Peoria Avenue while he was walking home from school. Tragically,
Isaiah lost his life as a result of the accident.
¶3 On March 26, 2019, within 180 days of the accident, Appellant
Kizzen James (“James”), the surviving mother of Isaiah, hand delivered a
notice of claim cover form for wrongful death upon the City’s Clerk via a
licensed process server. See Ariz. Rev. Stat. (“A.R.S.”) § 12-821.01(A) (2021) 1.
Attached to the cover form was a letter from James’ legal counsel. This letter
contained the heading “NOTICE OF CLAIM” and outlined the alleged
basis for the City’s liability regarding Isaiah’s death. See id. The letter
proposed a “sum certain” settlement offer of $10,071,016.72 to the City. See
id. Most relevant to this appeal, James’ letter stated: “This compromise to
settle is valid for thirty (30) days from the date of this letter.” The City did
not respond in writing to the letter.
¶4 In October 2019, James filed a complaint for wrongful death
against the City and others. In response, the City moved to dismiss the
1 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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complaint. 2 The superior court granted the City’s motion, citing James’
failure to strictly comply with the notice of claim statute “by not keeping
the settlement offer open for at least 60 days.” See A.R.S. § 12-821.01(E). At
the time the court granted the City’s motion, the statute’s 180-day window
to file a notice of claim had already passed, and consequently, James’ claim
was statutorily barred. See A.R.S. § 12-821.01(A). Therefore, the court also
dismissed James’ complaint with prejudice.
¶5 James timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 James argues the superior court “failed to strictly construe
[her] notice of claim’s actual terms.” She contends that her inclusion of the
sentence: “This compromise to settle is valid for thirty (30) days from the
date of this letter” had no legal effect on the City’s statutorily mandated
sixty-day period to consider her claim, and therefore, was “meaningless.”
We disagree.
I. Standard of Review
¶7 “We review issues of law involving statutory interpretation
and a trial court’s grant of summary judgment de novo.” Bentley v. Building
Our Future, 217 Ariz. 265, 270, ¶ 11 (App. 2007). Summary judgment is
appropriate “if the moving party shows that there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter
of law.” Ariz. R. Civ. P. 56(a). “When interpreting a statute, our primary
goal is to find and give effect to legislative intent.” Secure Ventures, LLC v.
Gerlach in & for Cnty. of Maricopa, 249 Ariz. 97, 99, ¶ 5 (App. 2020) (citing
Ariz. Chapter of the Associated Gen. Contractors of Am. v. City of Phx., 247 Ariz.
45, 47, ¶ 7 (2019)). The best and most reliable indicator of legislative intent
“is the language of the statute itself.” Bentley, 217 Ariz. at 270, ¶ 12 (citations
omitted). “If the statutory language is unambiguous, ‘we apply it without
resorting to other methods of statutory interpretation.’” Id. at ¶ 13 (citing
Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268 (1994)).
2 In accordance with the Arizona Rules of Civil Procedure, the City’s
motion was converted to a motion for summary judgment. See Ariz. R. Civ.
P. 12(d), 56.
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Decision of the Court
II. Notice of Claim Statute, A.R.S. § 12-821.01
¶8 Before initiating an action for damages against a public entity,
“a claimant must provide a notice of claim to the entity in compliance with”
A.R.S. § 12-821.01. Deer Valley Unified School Dist. No. 97 v. Houser, 214 Ariz.
293, 294, ¶ 1 (2007); see also Drew v. Prescott Unified School Dist., 233 Ariz.
522, 523, ¶ 1 (App. 2013). It is strictly the onus of the claimant “to make a
statutorily compliant settlement offer.” Drew, 233 Ariz. at 526, ¶ 16 (citing
A.R.S. § 12-821.01(A)).
¶9 Subsection (A) of A.R.S. § 12-821.01 requires a person with a
claim against a public entity to provide notice of that claim by filing it with
a person authorized to accept service within 180 days after the cause of
action accrues. That notice of claim must contain the following: (1) sufficient
facts to permit the public entity “to understand the basis on which liability
is claimed”; (2) “a specific amount for which the claim can be settled”; and
(3) “the facts supporting that amount.” See A.R.S. § 12-821.01(A). A claim
not filed within 180 days after the cause of action accrues “is barred and no
action may be maintained thereon.” Id.
¶10 Subsection (E) of A.R.S. § 12-821.01 explains that “[a] claim
against a public entity . . . is deemed denied sixty days after the filing of the
claim unless the claimant is advised of the denial in writing before the
expiration of sixty days.” As this court held in Drew, “absent an earlier
response from the public entity, § 12-821.01(E) requires the settlement offer
contained in the notice to be held open for sixty days.” 233 Ariz. at 523, 525,
¶¶ 1, 12 (emphasis added). Such a requirement exists to allow a public
entity a “reasonable period of time” to investigate and assess liability,
permit the possibility of settlement before litigation, and assist in financial
planning and budgeting. Id. at 525–26, ¶¶ 11–12, 15 (citing Backus v. State,
220 Ariz. 101, 104–106, ¶¶ 10, 17 (2009)).
III. Drew v. Prescott Unified School District
¶11 Regarding the issues raised in the present appeal, this Court’s
prior decision in Drew v. Prescott Unified School District is instructive. The
plaintiffs in Drew served a school district with a notice of claim and the
district’s special education director was “mailed a copy of the letter” dated
December 15, which stated that the plaintiffs’ settlement offer would
“remain open until December 30, 2011, unless earlier withdrawn.” Id. at
524, ¶ 4. The Drew Court explained that because the plaintiffs’ notice of
claim “unilaterally withdrew the [settlement] offer after only fifteen days,
the notice did not comply with” A.R.S. § 12-821.01. Id. at 523, ¶ 1.
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Decision of the Court
Accordingly, “[p]laintiffs’ claims [we]re barred.” Id. at 526, ¶ 16 (citing Deer
Valley, 214 Ariz. at 295, ¶ 6).
¶12 Here, James’ purported notice of claim expressly provided
that its “compromise to settle” would only remain “valid for thirty (30) days
from the date of this letter.” Thus, by its own terms, the settlement offer
contained in James’ notice of claim expired no later than April 21, 2019.
After that date, the offer, despite James’ assertions to the contrary, could
not be accepted. See id. at 525, ¶ 14 (citing Restatement (Second) of Contracts
§ 41(1) (1981) (“An offeree’s power of acceptance is terminated at the time
specified in the offer . . . .”)). Thus, as was the case in Drew, James’ purported
notice of claim “failed to make a settlement offer that complied with A.R.S.
§ 12-821.01 because [her] offer explicitly lapsed” after no more than thirty
days from the date of the notice, when the City of Peoria should have been
given an acceptance period of not less than sixty days. See id. at ¶ 13.
¶13 Nevertheless, James questions the applicability of Drew,
arguing: (1) that the facts of this case make it distinguishable from Drew;
and (2) that Drew is wrongly decided. We address each position in turn.
A. Drew is not factually distinguishable.
¶14 James first argues that Drew is distinguishable from this case,
asserting that there is a material distinction between the phrasings used in
the respective notices of claims. However, despite James’ assertions to the
contrary, the relevant facts in the instant matter closely parallel those which
were determinative in Drew and support the superior court’s resolution.
¶15 In Drew, the plaintiffs stated that their offer of settlement
would “remain open until December 30, 2011, unless earlier withdrawn,”
233 Ariz. at 524, ¶ 4, whereas here, James’ notice stated, “[t]his compromise
to settle is valid for thirty (30) days from the date of this letter.” (Emphasis
added.) While the two letters use different words, the purpose and effect of
the language in both was to condition settlement upon acceptance of the
proposed offer by a certain date. In so doing, both formulations
substantively and impermissibly limited the public entities’ ability to accept
proposed settlement offers in contravention of A.R.S. § 12-821.01(E)’s sixty-
day timeframe, and their divergent means of expression present a
distinction without a difference.
B. Drew is not wrongly decided.
¶16 James alternatively contends that Drew’s reasoning is
unsound because the statute itself prevents changes to the notice of claim
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Decision of the Court
offer period, rendering any attempts to do so moot. James maintains that
her inclusion of a thirty-day deadline did not carry “the slightest meaning
or effect” on her compliance with A.R.S. § 12-821.01 because only a public
entity can effectively modify the sixty-day consideration period. As such,
James urges us to depart from those principles set forth by Drew. We decline
to do so because James’ analysis ignores the nature and effect of her
inclusion of the abbreviated acceptance period and misconstrues the
underpinnings of Drew.
¶17 James’ choice to include a shorter acceptance deadline is not
meaningless or ineffective. Instead, it was an exercise of control over her
own settlement offer. Under contract law, an “offer” is identifiable by its
characteristics—namely, “manifestation of willingness to enter into a
bargain, so made as to justify another person in understanding that his
assent to that bargain is invited and will conclude it.” K-Line Builders, Inc. v.
First Fed. Sav. & Loan Ass’n, 139 Ariz. 209, 212 (App. 1983) (quoting
Restatement (Second) of Contracts § 24 (1981)). Further, Arizona policy has
long provided that, within reason, “parties have the legal right to make
contracts as they desire to make them . . . .” Gaertner v. Sommer, 148 Ariz.
421, 423 (App. 1986) (citing S. H. Kress & Co. v. Evans, 21 Ariz. 442, 449
(1920)).
¶18 The letter James served upon the City was a contract offer,
which manifested her intent to settle her claims against the City for its
alleged liability regarding Isaiah’s death. In that regard, her letter explained
the subject of the proposed contract, set forth an amount necessary for
settlement, and unequivocally imposed a window of time in which the City
was required to respond to validly accept the offer. If the City had been so
disposed, it could have accepted these terms within that thirty-day
window, thereby forming a legally binding contract. Therefore, James’
imposition of the shorter window for acceptance was neither meaningless
nor ineffectual.
¶19 James further argues her inclusion of a shorter acceptance
period should be ignored. James critiques Drew’s holding as “untenable”
because, she argues, “[n]othing that a claimant can do can possibly shorten
the 60-day time period allotted for consideration of whether to accept or
deny a notice of claim,” rendering any express-but-inconsistent language in
a purported notice of claim “a nullity.” But James’ argument depends upon
a logical fallacy in its premises. Functionally speaking, all notices of claim
are, in fact, settlement offers. However, not all settlement offers necessarily
constitute valid notices of claim. Instead, notices of claim are creatures of
statute with explicit compliance requirements, and therefore, constitute a
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specialized form of settlement offer. See A.R.S. § 12-821.01. The absence of
any of the components mandated by statute will render a potential notice
of claim ineffective for notice of claim purposes, but not necessarily
ineffective as a more general settlement offer.
¶20 Here, where the City was allowed no more than thirty days
“to investigate, consider, and possibly settle the claim,” James “failed to
comply with the language and purpose of the notice of claim statute.” See
Drew, 233 Ariz. at 526, ¶ 14 (citing Deer Valley, 214 Ariz. at 296, ¶ 9). And
although James was at liberty to issue a general settlement offer that
included a shorter window for acceptance, the resultant consequence of
doing so was to render this same offer ineligible to concurrently serve as
her notice of claim under the statute.
¶21 Finally, James maintains the sixty-day timeframe of A.R.S. §
12-821.01(E) should automatically be deemed part of her defective notice of
claim, overriding and effectively replacing the thirty-day deadline she
expressly included. However, this position is incorrect.
¶22 Arizona’s notice of claim statute is a codification of sovereign
immunity. Swenson v. Cnty. of Pinal, 243 Ariz. 122, ¶ 6 (App. 2017). It has
been observed that “waiver of [a] Government’s sovereign immunity will
be strictly construed, in terms of its scope, in favor of the sovereign.” Lane
v. Pena, 518 U.S. 187, 192 (1996). Consequently, it is unsurprising that where
the Arizona Legislature saw fit to provide such immunity by statute,
“Arizona courts have consistently required strict compliance with the state
notice-of-claim statute.” Pinal Cnty. v. Fuller, 245 Ariz. 337, 341, ¶ 12 (App.
2018). Further, claimant has the sole burden to make a statutorily compliant
settlement offer. Drew, 233 Ariz. at 526, ¶ 16.
¶23 Citing Huskie v. Ames Bros. Motor & Supply Co., 139 Ariz. 396,
402 (App. 1984), among many other contract authorities, James argues that
implicit amendment of the actual language used in her settlement letter is
required “[s]ince Arizona’s statutes are part of every contract, where a
contract is incompatible with a statute, the statute governs.” (internal
citations omitted). This argument is unavailing because James’ imposition
of a thirty-day deadline was permissible under Arizona contract law. Her
failure to allow the City a full sixty days for evaluation was not, per se,
incompatible with Arizona statutes or other law. It only disqualified this
offer from simultaneously serving a dual purpose as a statutorily compliant
notice of claim. Thus, James’ inclusion of a thirty-day deadline cannot be
treated as a defect rendering her contract illegal, thereby requiring implicit
amendment. And further, as correctly observed in Drew, it was James’ duty
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Decision of the Court
to strictly comply with all portions of A.R.S. § 12-821.01, including the
requirement to provide a public entity at least sixty days to consider and
respond to a notice of claim. 233 Ariz. at 525–26, ¶¶ 12, 14, 16.
¶24 Given James’ defective notice of claim, and the passing of 180
days since her cause of action accrued, the superior court did not err in
concluding that her claim was statutorily barred and dismissing the same
with prejudice. See A.R.S. § 12-821.01(A), (B), (E).
¶25 Both parties request their reasonable costs incurred on appeal
pursuant to A.R.S. § 12-342. As the prevailing party, Appellees are entitled
to their taxable costs on appeal upon timely compliance with ARCAP 21.
CONCLUSION
¶26 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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