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Pinal County v. Fuller

Court of Appeals of Arizona, Second Division

August 28, 2018

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.

          Special Action Proceeding Pinal County Cause No. CV201700993

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

          OPINION

          VASQUEZ, 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]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, 210 (1992).

         Discussion

         ΒΆ6 Section ...


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