Fleming v. Pima County

• Decision Date: 18 June 1984
• Docket Number: No. 17192-PR,17192-PR
• Citation: 685 P.2d 1301,141 Ariz. 149
• Parties: , 119 L.R.R.M. (BNA) 2338 Forrest FLEMING, Plaintiff/Appellee, v. PIMA COUNTY, Arizona; Pima County Board of Supervisors, E.S. "Bud" Walker, Katie Dusenberry, Conrad Joyner, Sam Lena and David Yetman; Sandy Bowling, an employee of Pima County, Defendants/Appellants.
• Court: Arizona Supreme Court

Page 1301

685 P.2d 1301

141 Ariz. 149, 119 L.R.R.M. (BNA) 2338

Forrest FLEMING, Plaintiff/Appellee, v. PIMA COUNTY, Arizona; Pima County Board of Supervisors, E.S. "Bud" Walker, Katie Dusenberry, Conrad Joyner, Sam Lena and David Yetman; Sandy Bowling, an employee of Pima County, Defendants/Appellants.

No. 17192-PR.

Supreme Court of Arizona, In Banc.

June 18, 1984.

Reconsideration Denied July 17, 1984.

Watt & Cohen by Melvin C. Cohen, Tucson, for plaintiff/appellee.

Jones, Dickerman, Nuckolls, Edwards & Smith by John Gabroy, Tucson, for defendants/appellants.

FELDMAN, Justice.

On July 1, 1977 Pima County discharged Forrest Fleming (plaintiff) from employment as an automotive service supervisor. Fleming first sought administrative review of his discharge; dismissal of those proceedings was judicially approved. ¹ He also brought the case at bench seeking reinstatement to his position and damages for wrongful discharge. The trial court made a specific finding that the discharge had been made as "a pretext to avoid the merit system" and ordered relief, including reinstatement, back pay, prejudgment interest and attorney's fees. The court of appeals held the evidence sufficient to support the trial court's conclusion that the discharge was improper and affirmed the portion of the trial court's order which provided for reinstatement to employment and award of attorney's fees, but vacated that portion of the order which had awarded damages consisting of the wages which plaintiff had lost between the date he was improperly discharged and the date he was reinstated. Fleming v. Pima County, 141 Ariz. 167, 685 P.2d 1319 (1983.) The county petitioned for review and plaintiff cross-petitioned for review of the reversal of the damage award. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Civ.App.P., Rule 23.

We accepted review because of the conflicting public policy issues involved. We hold that the court of appeals erred in reversing the damage award and affirm the judgment entered by the trial court. A complete recital of the facts is contained in the opinion of the court of appeals; we include only those facts necessary for an understanding of the legal issues we decide.

FACTS

On June 17, 1977 the county notified plaintiff that his employment would be terminated effective July 1. ² Plaintiff commenced grievance procedures under the Pima County merit system rules and requested a hearing, claiming that no cause existed for termination of his employment. His administrative appeal was dismissed by the merit system commission. Plaintiff pursued the matter by appeal to the courts. The court of appeals determined that "the question of an improper layoff [was] outside the province" of the commission's review. Fleming I, 125 Ariz. at 524, 611 P.2d at 111. The court held that a claim of bad faith discharge raises "issues outside the merit system," but noted that the plaintiff

is not left without a remedy, see Donaldson v. Sisk, [57 Ariz. 318, 113 P.2d 860 (1941) ], and the record suggests that he has sought alternative relief.

Id.

Indeed, plaintiff had sought alternative relief by filing the action which is the subject of the present review. The complaint in that action sought reinstatement and recovery of damages for wrongful discharge under both tort and contract theories. Plaintiff remained out of work while the action was pending until he found other employment on April 19, 1980. ³ On May 6, 1980, this court denied review in Fleming I. Within six months thereafter on August 26, 1980, plaintiff presented a claim by letter complying with A.R.S. § 11-622 to the Pima County Board of Supervisors. The claim sought recovery of lost wages and employment benefits resulting from plaintiff's allegedly illegal discharge. The claim was evidently denied ⁴ and the pending action proceeded to trial and judgment in plaintiff's favor.

On appeal, defendant argued that plaintiff's claim for lost wages was barred by failure to timely file the administrative claim required by A.R.S. § 11-622. The statute provides:

A person having a claim against a county shall, within six months after the last item of the account accrues, present to the Board of Supervisors ... a written itemized claim .... The Board shall not consider a claim unless the demand therefor is presented within such time.

(Emphasis supplied.)

The court of appeals agreed with the county, holding that the statute had required plaintiff to file the claim within six months "after the payment for the last labor ... becomes due" and concluded that the date for filing was six months after discharge. The court held, therefore, that plaintiff's filing was untimely and vacated that portion of the trial court's order which awarded back pay on the ground that the award was barred by the failure to comply with the claim statute. The portion of the trial court's order which provided for reinstatement and payment of attorney's fees was affirmed. 141 Ariz. at 170, 685 P.2d at 1322.

THE CONTRACT CLAIM

Plaintiff argues that his filing of a claim for back pay with the county on August 26, 1980 was timely and complied with A.R.S. § 11-622. Plaintiff contends that August 26th was within six months of the time "after the last item of the account accrues." We agree. If the account is deemed to "accrue" at the time of discharge, plaintiff would have been required to file a claim at least every six months even though the contract had not been completed and even though plaintiff had affirmed it and sought to enforce performance through the grievance procedure. The items of damage (lost wages) were still accruing and the mitigating factors (earnings from other, sporadic employment) were still accumulating so that the total amount of the claim could not be determined. Further, pending completion of the grievance procedure, plaintiff had no way of knowing just what type of claim to file. The filing of the claim would have been a useless act because the county was aware of plaintiff's position by reason of the matters asserted in the grievance procedure and the attendant appeal to the superior court and the court of appeals. So long as the board continued to oppose plaintiff's grievance complaint and his administrative appeal, it was required to reject each claim filed. See Holdren v. Peterson, 52 Ariz. 429, 436, 82 P.2d 1095, 1098 (1938); Maricopa County v. Biaett, 21 Ariz.App. 286, 289, 518 P.2d 1003, 1006 (1974). Plaintiff would then have been required to sue on each claim pursuant to A.R.S. § 11-630 (requiring action on a rejected claim within six months after action of the Board of Supervisors). This would have resulted in four or five separate lawsuits, each of which would have required litigation of precisely the same issues as were already before the superior court in the appeal from the grievance procedure. In our view such an elevation of form over substance would serve no useful purpose and should not be adopted unless required by the clear words of the statute or the legislative objectives underlying that statute.

The purpose of the six month limitation for a demand upon a county was long ago explained by Arizona courts. The statute protects counties "from having to meet the items of an open account years after the data relative to the items thereof may have passed from the knowledge" of the responsible county officials. Apache County v. Barth, 6 Ariz. 13, 30, 53 P. 187, 192 (1898), rev'd on other grounds, 177 U.S. 538, 20 S.Ct. 718, 44 L.Ed. 878 (1900). The term "last item of the account accrues" is especially relevant to "any claim for particular services rendered at irregular intervals." Cochise County v. Wilcox, 14 Ariz. 234, 238, 127 P. 758, 759-60 (1912). To efficiently administer its responsibilities, it may be crucial that a county have notice of its legitimate debts within a short time after those debts become due. If so, in the case at bench there is no question about the county's cognizance of plaintiff's repeated efforts to protest his unjust dismissal. Another purpose of the statute has been described as to prevent county revenue from being "consumed" in litigation over claims when the county might have been able to "amicably adjust" the claim before "faced with the costs of suit." Norcor of America v. Southern Arizona International Livestock Association, 122 Ariz. 542, 543, 596 P.2d 377, 378 (App.1979). Again, the filing of grievance proceedings gave the county whatever opportunity it needed for "amicable adjustment." It made no attempt at adjustment. The county's opposition to the grievance claim made it impossible for it to "adjust" the back pay claim.

When an employee is wrongfully discharged before the expiration of his term, one long established remedy is to "treat the contract as continuing, and recover damages for breach thereof." Old Dominion Copper Mining and Smelting Co. v. Andrews, 6 Ariz. 205, 210, 56 P. 969, 970 (1899). The measure of damages for such a breach of contract is determined by deducting the sums earned in mitigation "from the sum stipulated to be paid by the contract." Id. at 211, 56 P. at 971; see also Perry v. Apache Junction Elementary School Dist. # 43, 20 Ariz.App. 561, 563, 514 P.2d 514, 516 (1973) (breach of an employment contract by wrongful discharge limits the contract damages to "the balance of the salary due under the employment contract less any sums the employee was able to earn during the remainder of the contract period"). Implicit in this is that the total damages cannot be calculated until the contract is terminated.

Countering the interest of counties in avoiding stale claims and in settlement is the policy of supporting the merit based civil service system; for county employees, see A.R.S. § 11-351 et seq.; for state employees, see A.R.S. § 41-761; Donaldson v. Sisk, 57 Ariz. 318, 113 P.2d 860 (1941); see also City of Phoenix v. Powers, 57 Ariz. 262, 113 P.2d 353 (1941). It is essential for the...