Special Action Proceeding Pinal County Cause No. CV201700993
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 Vasquez authored the opinion of the Court, in
which Judge Espinosa and Judge Eppich concurred.
VASQUEZ, PRESIDING JUDGE:
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.
& Procedural Background
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
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.
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.
In our discretion, we accept jurisdiction of this special
action. Although, "[g]eneralry, 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 (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 (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."
Cordon v. Cotton Lane Holdings, Inc., 173 Ariz. 203,