Opinion
2 CA-CV 2024-0137
11-05-2024
Kevin Nunn and Lynda Hammond, Plaintiffs/Appellants, v. Pinal County, Defendant/Appellee.
Kevin Nunn and Lynda Hammond, Gold Canyon In Propria Personae Jones, Skelton & Hochuli P.L.C., Phoenix By Georgia A. Staton, Ravi V. Patel, and Justin M. Ackerman Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CV202302426 The Honorable Delia R. Neal, Judge
Kevin Nunn and Lynda Hammond, Gold Canyon In Propria Personae
Jones, Skelton & Hochuli P.L.C., Phoenix By Georgia A. Staton, Ravi V. Patel, and Justin M. Ackerman Counsel for Defendant/Appellee
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE
¶1 Lynda Hammond and Kevin Nunn appeal from the superior court's order dismissing their complaint against Pinal County, in which they alleged the county had negligently approved their home's construction after overlooking structural defects during inspections. Hammond and Nunn challenge the court's conclusion that their complaint failed to comply with Arizona's notice-of-claim statute, A.R.S. § 12-821.01, and the associated one-year statute of limitations for bringing a claim against a public entity, A.R.S. § 12-821. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We "assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts." Satamian v. Great Divide Ins. Co., 257 Ariz. 136, ¶ 10 (2024) (quoting Coleman v. City of Mesa, 230 Ariz. 352, ¶ 9 (2012)). In October 2011, Hammond and Nunn purchased their home at a foreclosure sale. The following month, Farmers Insurance, from which the couple sought coverage, ordered an inspection that revealed "only minor issues" that "were attributed to [the] house sitting empty for several years." In 2013, the couple hired contractors to begin repairing those issues. For the next ten years, they fixed wall cracks, uneven beams on the ceiling, and leaks from the veranda into the garage; they also replaced multiple doors and windows, the entire veranda, a garage door, and indoor and outdoor floor tiles. By 2022, they had spent $250,000 on repairs, but each one "failed to work" and "would lead to the need for another remedy; another contractor; another company; another fix."
¶3 In December 2022, the second floor of the home began structurally collapsing into the garage below. A few days later, a structural engineer and contractor advised Nunn and Hammond to immediately install six posts in the garage to prevent the second floor from completely collapsing to the ground. Thereafter, Nunn and Hammond filed a claim with Farmers Insurance and contacted various agencies for help.
¶4 In the summer of 2023, Farmers Insurance conducted an investigation, which revealed that the "second floor supporting structural framing was changed" and had "resulted from a design/construction defect by the architect, engineer, contractor, and/or truss manufacturer." The investigators concluded that throughout the years, the "dead [and] live loads over the middle garage overhead door framing" had caused deflection, cracks, and separation that allowed "water [and] moisture to migrate to the interior," ultimately damaging the wooden structural framing.
¶5 On September 20, 2023, Nunn and Hammond served Pinal County with a notice of claim, alleging that the county was liable for approving a "faulty" and "substandard" build of the home. The claim listed December 2, 2022 as the "date of loss" and explained the damage to the property as follows: "Second floor of home collapsing into garage. Structure framing not sufficient to hold up structure above." The couple claimed a total of $2 million in damages, consisting of $1 million in property damage and $1 million for pain, suffering, and "marital stress." However, they left blank the section for the "specific amount for which the claim(s) could be settled." In response, Pinal County asserted it would take no action regarding the claim because, among other reasons, the notice had been untimely served and had failed to state a sum certain settlement amount.
¶6 On December 8, 2023, Nunn and Hammond filed a complaint against Pinal County, alleging "gross negligence, wanton disregard for human life and safety, fraud and theft when it wrongly approved the construction of the house." They sought $10 million and attorney fees in relief. Pinal County thereafter moved to dismiss the complaint, arguing that Nunn and Hammond had failed to: (1) timely comply with the notice of claim statute; (2) provide a sum certain settlement amount in their notice of claim; and (3) file their lawsuit within the one-year statute of limitations. See §§ 12-821.01, 12-821.
¶7 The superior court granted the county's motion to dismiss with prejudice on all three grounds. In a detailed ruling, it determined that Nunn and Hammond had been "on notice that there were significant structural issues with the home by December 2, 2022, at the very latest." Accordingly, the court concluded that the couple's notice of claim was untimely under § 12-821.01. It further found they had failed to comply with the notice-of-claim statute by omitting a sum certain amount for which they would settle their claims. Finally, the court found the claims were barred by the statute of limitations under § 12-821 because the complaint was not filed until December 8, 2023, and the couple had not proffered any evidence to prove the statute was tolled. The court entered a final judgment, and this appeal followed. We have jurisdiction under A.R.S. §§ 12-2101(A)(1) and 12-120.21(A)(1).
Discussion
¶8 Nunn and Hammond argue the superior court erroneously dismissed their complaint after finding they had failed to comply with A.R.S. §§ 12-821.01 and 12-821. Specifically, they appear to contend that the court: (1) "misunderstood the true accrual date" of their cause of action when it determined their notice was untimely and their complaint was filed outside the statute of limitations; and (2) erred when it dismissed their claim for failing to state a sum certain settlement figure because "sum certain is often thrown out or tolled" and "is no longer a jurisdictional bar for claims." Because we agree with the court that Nunn and Hammond failed to comply with the statutory requirement that they specify a sum certain amount for which they would settle their claims, see § 12-821.01(A), the court correctly granted the motion to dismiss.
Pinal County contends that Nunn and Hammond's appeal should be dismissed and their arguments deemed waived because they failed to comply with Rule 13(a), Ariz. R. Civ. App. P. We conclude that Nunn and Hammond's opening brief conveys their assertions, supported by citations to legal authorities, in a manner sufficient for us to conduct a meaningful review. We therefore decline to deem their arguments waived. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (absent "totally deficient" brief by appellants, "courts prefer to decide each case upon its merits").
¶9 We review de novo a superior court's dismissal of a complaint under Rule 12(b)(6), Ariz. R. Civ. P., and whether a party's notice of claim complies with § 12-821.01. Yahweh v. City of Phoenix, 243 Ariz. 21, ¶ 6 (App. 2017); Jones v. Cochise County, 218 Ariz. 372, ¶ 7 (App. 2008); see Ariz. R. Civ. P. 12(b)(6) (dismissal appropriate if plaintiff fails to "state a claim upon which relief can be granted"). "[W]e will affirm the court's order dismissing a complaint if it is correct for any reason." Fappani v. Bratton, 243 Ariz. 306, ¶ 8 (App. 2017).
¶10 Before suing a public entity in Arizona, a claimant must file a notice of claim that complies with statutory requirements under § 12-821.01. Jones, 218 Ariz. 372, ¶ 6. A notice of claim requires "facts sufficient to permit the public entity . . . to understand the basis on which liability is claimed" and must "also contain a specific amount" for which the claim could be settled. § 12-821.01(A). Our supreme court has interpreted this language as "unmistakably instruct[ing] claimants to include a particular and certain amount of money that, if agreed to by the government entity, will settle the claim." Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 9 (2007). That mandate, along with the requirement that claimants provide a factual foundation for the settlement amount, "ensure[s] that government entities will be able to realistically consider a claim." Id. "[F]ailure to state an exact monetary figure in the notice of claim as the specific amount for which the claim can be settled raises a strong risk that the claim will be found statutorily noncompliant." City of Mesa v. Ryan, No. CV-23-0284-PR, ¶ 9, 2024 WL 4509603 (Ariz. Oct. 17, 2024).
¶11 A claimant must file a notice "within one hundred eighty days after the cause of action accrues," § 12-821.01(A), and must thereafter file a lawsuit "within one year after the cause of action accrues," § 12-821. The notice-of-claim statute requires strict compliance. See City of Mesa, 2024 WL 4509603, ¶ 9; Humphrey v. State, 249 Ariz. 57, ¶ 20 (App. 2020). If a notice of claim fails to comply with § 12-821.01(A), compliance with § 12-821 becomes irrelevant because "the person is barred from suing the public entity . . . on the claim." City of Mesa, 2024 WL 4509603, ¶ 1; Humphrey, 249 Ariz. 57, ¶ 20.
¶12 Nunn and Hammond concede they filed their notice of claim without a sum certain settlement amount, but they maintain that it was "legal" for them to have done so. They argue that, because they were unable to calculate an exact settlement figure at the time they filled out the form, it was "lawful to leave it blank and choose an amount" later. They maintain it was impossible to calculate an accurate amount because the extent of necessary repairs, estimated costs, and "punitive and compensatory damages" were unknown "at such an early stage." And they contend that if they had chosen a sum certain without knowing the true amount, their claim could still have been dismissed.
¶13 Arizona law does not support Nunn and Hammond's position. Compliance with the statute "does not require that claimants reveal the amount that they will demand at trial if litigation ensues but simply requires that claimants identify the specific amount for which they will settle and provide facts supporting that amount." Deer Valley Unified Sch. Dist. No. 97, 214 Ariz. 293, ¶ 9; see Yahweh, 243 Ariz. 21, ¶ 8 ("Simply reciting the amount a claimant will demand in a complaint is insufficient to satisfy § 12-821.01, because such a statement does not express a willingness to accept a specific sum in settlement."). Nunn and Hammond were thus not required to state their total amount of damages or the specific amount they would be seeking in litigation; they were instead required to specify an amount they would have accepted to resolve the dispute, so long as they did "not demand unfounded amounts that [would] constitute 'quick unrealistic exaggerated demands.'" Deer Valley Unified Sch. Dist. No. 97, 214 Ariz. 293, ¶ 9 (quoting Hollingsworth v. City of Phoenix, 164 Ariz. 462, 466 (App. 1990)). Their acknowledged failure to include any settlement figure bars their claims under § 12-821.01.
Nunn and Hammond rely on federal decisions to argue the sum certain requirement is "non-jurisdictional." Because these cases do not concern Arizona's notice-of-claim statute, we need not address Nunn and Hammond's arguments that rely on them.
¶14 We disagree with Nunn and Hammond's argument that they should not be held responsible for omitting a settlement amount because the notice-of-claim form provided by Pinal County "does not require" such a figure, nor does it state "that it is mandatory to fill in an amount." They maintain that "there is no hint in the document that would alert or lead a [c]laimant to believe or know that leaving one line blank could be detrimental" to the claim. But it is well-settled in Arizona that where "a claimant's notice of claim fails to communicate a specific amount for which the claim can be settled or provide a method for calculating that specific amount, the claimant has failed to comply with § 12-821.01(A)." City of Mesa, 2024 WL 4509603, ¶ 21. And "[p]ublic entities in Arizona are not duty-bound to assist claimants with statutory compliance." Yahweh, 243 Ariz. 21, ¶ 12.
¶15 While we do not minimize the dismissal's impact on Nunn and Hammond, "[w]e hold unrepresented litigants in Arizona to the same standards as attorneys" and we "may not afford [them] special leniency." Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017); In re Marriage of Williams, 219 Ariz. 546, ¶ 13 (App. 2008) ("A party's ignorance of the law is not an excuse for failing to comply with it."); Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999) (unrepresented litigants "held to the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer"). In this context, requiring strict compliance with the notice-of-claim statute, both by represented and unrepresented litigants, advances the important functions the requirements serve-to "permit the public entity to investigate the claim, assess liability, consider settlement before litigation, and budget for possible future litigation." City of Mesa, 2024 WL 4509603, ¶ 9. The lack of a sum certain settlement amount in Nunn and Hammond's notice of claim made it impossible for Pinal County to realistically consider the claim, undermining the policy behind Arizona's notice-of-claim statute.
¶16 By failing to provide Pinal County with a specific settlement offer, Nunn and Hammond failed to comply with § 12-821.01(A). Accordingly, their claims are barred, and the superior court did not err by dismissing the complaint with prejudice. See City of Mesa, 2024 WL 4509603, ¶ 1; Humphrey, 249 Ariz. 57, ¶ 20; Yahweh, 243 Ariz. 21, ¶ 12. And because Nunn and Hammond's failure to comply with the statutory requirement that they provide a sum certain settlement amount is alone sufficient to bar their claim, we need not address the timeliness of their notice of claim or whether they filed their complaint within the statute of limitations.
Attorney Fees
¶17 Pinal County requests attorney fees on appeal under A.R.S. § 12-349(A)(3) and Rule 21, Ariz. R. Civ. App. P. Because we conclude Nunn and Hammond did not unreasonably expand or delay the proceedings, we deny the county's request.
Disposition
¶18 For the foregoing reasons, we affirm the superior court's dismissal of the complaint with prejudice.