Pinal Cnty. v. Fuller

• Decision Date: 28 August 2018
• Docket Number: No. 2 CA-SA 2018-0051,2 CA-SA 2018-0051
• Citation: 429 P.3d 570
• Parties: PINAL COUNTY, Petitioner, v. Hon. Steven J. FULLER, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent, and NGU Contracting, Inc., Real Party in Interest.
• Court: Arizona Court of Appeals

429 P.3d 570

PINAL COUNTY, Petitioner,

v. Hon. Steven J. FULLER, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent,andNGU Contracting, Inc., Real Party in Interest.

No. 2 CA-SA 2018-0051

Court of Appeals of Arizona, Division 2.

Filed August 28, 2018

Struck Love Bojanowski & Acedo PLC, Chandler, By Timothy J. Bojanowski and Nicholas D. Acedo, Counsel for Petitioner

Sandoval Law PLLC, Phoenix, By David J. Sandoval and Steven L. Long, Counsel for Real Party in Interest

Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.

VÁSQUEZ, Presiding Judge:

¶ 1 Pinal County seeks special action review of the respondent judge’s denial of its motion to dismiss the complaint filed by real party in interest NGU Contracting Inc., on the basis that NGU failed to comply with the county notice-of-claim statute, A.R.S. § 11-622(A). We accept special action jurisdiction and grant relief.

Factual & Procedural Background

¶ 2 In 2015, the County awarded NGU a public works construction contract. During the project, NGU sought a change order to recoup expenses caused by delays stemming from flooding. The County rejected the request, and NGU completed the project in June 2016.

¶ 3 In December 2016, NGU submitted a notice of claim signed by its counsel demanding more than $550,000 in compensatory damages. The County denied the claim in January 2017, asserting that "the potential for flooding of the site was not only foreseeable but specifically called out in the [c]ontract ... and made NGU’s responsibility." In that denial, the County also stated that it "reserve[d] any and all applicable defenses to the claims of NGU." In May 2017, NGU sued the County, asserting claims of breach of contract and unjust enrichment.

¶ 4 The County moved to dismiss the complaint pursuant to Rule 12(b), Ariz. R. Civ. P., asserting the notice of claim did not comply with the requirement in § 11-622(A) that a claim be "executed by the person [bringing the claim] under penalties of perjury." After argument, the respondent judge denied the motion but ordered that NGU "strictly comply with A.R.S. § 11-622(A) by June 29, 2018." NGU served the County with an identical notice including a notarized declaration by NGU’s president stating "under penalty of perjury that he has read and verified the contents of this Notice of Claim and the statements made therein." The County then filed this petition for special action.

Jurisdiction

¶ 5 In our discretion, we accept jurisdiction of this special action. Although, "[g]enerally, special action review of a denial of a motion to dismiss is not appropriate," it can be so when, as here, the issues are purely legal and of first impression. Farmers Ins. Exchange v. Udall , 793 Ariz. Adv. Rep. 23, ¶ 6, 424 P.3d 420 (Ct. App. June 12, 2018) ; see Ariz. R. P. Spec. Actions 1 ("[T]he special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal...."). Additionally, the question of statutory interpretation presented here is of statewide importance. See Sierra Tucson, Inc. v. Lee ex rel. County of Pima , 230 Ariz. 255, ¶ 7, 282 P.3d 1275 (App. 2012) (interpreting and correctly applying statute of statewide importance particularly appropriate for special action review). Finally, granting relief would end the litigation and "eliminate[ ] the necessity of any future appeals, and spare[ ] the parties and the judicial system unnecessary time and expense." Cardon v. Cotton Lane Holdings, Inc. , 173 Ariz. 203, 210, 841 P.2d 198 (1992).

Discussion

¶ 6 Section 11-622(A) states:

A person having a claim against a county shall present to the board of supervisors of the county against which the demand is held an itemized claim executed by the person under penalties of perjury, stating minutely what the claim is for, specifying each item, the date and amount of each item and stating that the claim and each item of the claim is justly due.

Compliance with § 11-622(A) is "a ‘mandatory’ and ‘essential’ prerequisite" to NGU’s cause of action. See Martineau v. Maricopa County , 207 Ariz. 332, ¶ 10, 86 P.3d 912 (App. 2004) (quoting Pritchard v. State , 163 Ariz. 427, 432, 788 P.2d 1178 (1990) ). The County argues, as it did below, that the signature on the notice of claim by NGU’s attorney was insufficient because it was not executed under penalty of perjury. The County further argues the respondent judge erred by allowing NGU to cure the defect by filing a late notice of claim.

¶ 7 NGU counters that its notice of claim was sufficient because it complied with "the purpose, spirit, and intent" of § 11-622(A), reasoning that the County had adequate notice of the claim and that an attorney’s ethical duties prohibit the making of false material statements and, in any event, the purported deficiency was merely "technical." NGU further contends the County has waived or is collaterally estopped from asserting the affirmative defense that the notice of claim was defective. It also asserts it should be permitted to file an amended notice under the doctrine of equitable tolling because the County rejected the notice on its merits before litigation began. "We review de novo the dismissal of a complaint under Rule 12(b)(6)." Swenson v. County of Pinal , 243 Ariz. 122, ¶ 5, 402 P.3d 1007 (App. 2017). And we review de novo whether a party has complied with the governing claim statute. See Jones v. Cochise County , 218 Ariz. 372, ¶ 7, 187 P.3d 97 (App. 2008).

Compliance with § 11-622

¶ 8 We first address whether a signature, standing alone, complies with the requirement in § 11-622(A) that the notice of claim be "executed ... under penalties of perjury."¹ We review de novo the interpretation of a statute and, in doing so, we must seek to "effectuate the legislature’s intent," the best indicator of which "is the statute’s plain language, which we read in context with other statutes relating to the same subject or having the same general purpose, and when that language is unambiguous, we apply it without resorting to secondary statutory interpretation principles." SolarCity Corp. v. Ariz. Dep’t of Revenue , 243 Ariz. 477, ¶ 8, 413 P.3d 678 (2018).

¶ 9 The term "executed" means that the document must be signed. See Execute , Black’s Law Dictionary (10th ed. 2014) ("To make (a legal document) valid by signing."). For a false statement to constitute perjury, it must be sworn or "subscribe[d] as true under penalty of perjury." A.R.S. § 13-2702. NGU has cited no authority, and we find none, suggesting a person may be convicted of perjury based on a mere signature.

¶ 10 We addressed a similar issue in State v. Salazar , 231 Ariz. 535, 298 P.3d 224 (App. 2013). There, we determined that an attorney’s signature alone does not meet the requirement in A.R.S. § 13-3010(B) that a wire interception warrant application be "upon the oath or affirmation of the applicant." Id. ¶¶ 8 -11. We noted that, "while an attorney’s submission of a signed document surely carries ethical weight, mere signing of a document does not ordinarily subject the signer to the penalty of perjury." Id. ¶ 10. Thus, Salazar not only supports the conclusion that a signature alone is insufficient under § 11-622(A), it refutes NGU’s argument that an attorney’s signature is the equivalent of making a statement under penalty of perjury due to the attorney’s ethical obligations. And, our decision in Salazar is consistent not only with the perjury statute but with our civil rules: Rule 80(c), Ariz. R. Civ. P., requires an otherwise-unsworn declaration to specifically state it has been made under penalty of perjury to comply with any rule requiring that "a matter to be supported, evidenced, established, or proved by a sworn written declaration, verification, certificate, statement, oath, or affidavit."

¶ 11 Furthermore, even were we to find Salazar inapplicable or meaningfully distinguishable, we would nonetheless be compelled to reject NGU’s claim that an attorney’s signature by itself complies with the avowal requirement of § 11-622(A). There is a profound difference between the sanctions an attorney might face under the ethical rules for violating ER 3.3(a)(1), Ariz. R. Sup. Ct. 42, or Rule 11(b)(3), Ariz. R. Civ. P., see Ariz. R. Civ. P. 11(c) (sanctions for violating Rule 11 include cost shifting); see also Ariz. R. Sup. Ct. 60 (disciplinary sanctions for violation of ethical rules include disbarment, suspension, and reprimand), and the penalties a person might face for perjury, a class four felony, § 13-2702, see A.R.S. § 13-702(D). In light of the unambiguous statutory language requiring the statement be made under penalty of perjury, an attorney’s signature alone—like any other signature—is insufficient.²

¶ 12 NGU asserts, however, that the avowal requirement is merely "technical," and it thus complied with the purpose of § 11-622(A) despite its failure to strictly comply with § 11-622(A). Arizona courts have consistently required strict compliance with the state notice-of-claim statute, A.R.S. § 12-821.01. See Deer Valley Unified Sch. Dist. No. 97 v. Houser , 214 Ariz. 293, ¶ 21, 152 P.3d 490 (2007) ; see also Falcon ex rel. Sandoval v. Maricopa County , 213 Ariz. 525, ¶ 10, 144 P.3d 1254 (2006). Although no case has expressly held that a party must strictly comply with § 11-622(A), we see no sound legal or policy reason to apply a different standard than that required for compliance with § 12-821.01. "The purposes of the notice of claim requirements of both § 12-821.01 and § 11-622 are similar; that is, to allow the public entity to investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting." Martineau , 207 Ariz. 332, ¶ 19, 86 P.3d 912.

¶ 13 NGU cites Arizona Telco Federal Credit Union v. Arizona Department of Revenue , 158 Ariz. 535, 764 P.2d 20 (App. 1988), for the...