                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


  MEGAN CAUGHLIN, a single woman, individually and on behalf of
statutory beneficiaries ALLICIA CAUGHLIN, VINCENT LAPOINTE and
  JANICE LAPOINTE, the natural children and parents of STEPHANIE
             JEAN CRISTIANI, Deceased, Plaintiff/Appellant,

                                         v.

     STATE OF ARIZONA, a governmental entity, Defendant/Appellee.

                              No. 1 CA-CV 14-0757
                                FILED 12-24-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-006634
                  The Honorable Patricia A. Starr, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Law Office of Scott E. Boehm, P.C., Phoenix
By Scott E. Boehm
Co-Counsel for Plaintiff/Appellant

Breyer Law Offices, P.C., Phoenix
By Mark P. Breyer and Brian C. Fawber
Co-Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Fred M. Zeder and Brock J. Heathcotte
Counsel for Defendant/Appellee
                           CAUGHLIN v. STATE
                           Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.


K E S S L E R, Judge:

¶1            Megan Caughlin appeals the trial court’s dismissal of her
wrongful death action for failure to comply with the notice of claim statute.
See Ariz. Rev. Stat. (“A.R.S.”) §§ 12-612(A) (Supp. 2015), -821.01(A) (Supp.
2015).1 For the following reasons, we reverse the trial court’s order
dismissing her complaint and remand for further proceedings consistent
with this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In May 2013, Stephanie Cristiani was driving on Interstate 17
when her front tire failed, causing her to collide with an adjacent light pole.
Cristiani died at the scene of the accident from multiple blunt force head
traumas.

¶3             Caughlin, Cristiani’s daughter, served four copies of the
notice of claim on the State within 180 days of the accident pursuant to
A.R.S. § 12-821.01(A).2 The notice of claim described the accident in detail
and the basis of the State’s alleged liability. The notice of claim also
identified all four of the wrongful death beneficiaries as “claimants,”3 and
specified that “a sum certain demand [was] being made against the State of
Arizona for $4,000,000.”

¶4            The State filed a motion to dismiss, arguing that Caughlin
failed to comply with the notice of claim statute by bundling the claims into
one conditional offer to settle. Although both Caughlin and the State were


1 We cite the current version of applicable statutes because no revisions
material to this decision have since occurred.
2 Caughlin also served copies of the notice of claim on Maricopa County

and the City of Phoenix, but later dismissed those entities from this action
when it was determined that the State was responsible for the light pole.
3 The four statutory beneficiaries include Cristiani’s parents, Janice and

Vincent LaPointe, and her two children, Megan and Allicia Caughlin.

                                      2
                             CAUGHLIN v. STATE
                             Decision of the Court

clear below that the sum certain was for $4,000,000 total, because Caughlin
asserted an alternative argument that the court could find that the statutory
beneficiaries served the State separately for $4,000,000 each, the court
granted the motion to dismiss finding the sum certain was ambiguous. As
to the bundling argument, the court stated that plaintiffs’ argument that
naming four statutory beneficiaries with only one monetary demand was
proper “conflates the requirements for a wrongful death lawsuit and a
proper notice of claim.”

¶5            Caughlin timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1) (Supp. 2015).

                                 DISCUSSION

¶6                “Before initiating an action for damages against a public
entity, a claimant must provide a notice of claim to the entity in compliance
with [A.R.S. § 12-821.01].” Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214
Ariz. 293, 294, ¶ 1 (2007). “The claim shall contain facts sufficient to permit
the public entity . . . to understand the basis on which liability is claimed.
The claim shall also contain a specific amount for which the claim can be
settled and the facts supporting that amount.” A.R.S. § 12-821.01(A). These
statutory requirements “allow the public entity to investigate and assess
liability, . . . permit the possibility of settlement prior to litigation, and . . .
assist the public entity in financial planning and budgeting.” Deer Valley,
214 Ariz. at 295, ¶ 6 (citations omitted). Claims that fail to comply with
A.R.S. § 12-821.01(A) are statutorily barred. Id. To comply with the statute,
the specific settlement amount has to be a sum certain which, if accepted by
the State, will settle the matter. Id. at 296, ¶ 9.

¶7            When a motion to dismiss attaches a notice of claim, the
motion should be considered as one for summary judgment unless it is clear
the court did not consider the notice or the notice was attached to the
complaint. Vasquez v. State, 220 Ariz. 304, 308, ¶ 8 (App. 2008). We review
summary judgments de novo. Havasupai Tribe v. Arizona Bd. of Regents, 220
Ariz. 214, 223, ¶ 27 (App. 2008).




                                         3
                            CAUGHLIN v. STATE
                            Decision of the Court

I.     The notice of claim’s sum certain demand was clear and
       unambiguous.

¶8            Caughlin contends that the notice of claim is unambiguous
and provides that the wrongful death action could be settled by the State
for a sum certain amount of $4,000,000.4 We agree.

¶9              The notice of claim lists all four statutory beneficiaries on the
first page and then states that “a sum certain demand is being made against
the State of Arizona for $4,000,000.” To drive that clarity home, the notice
of claim also references the statutory requirement, and notes that the
requirement is satisfied: “The Notice of Claim statute requires sum certain,
so such is being demanded.” It also reinforced the nature of the sum certain
as being for all four claimants by noting that “[b]y the time of trial, the
plaintiffs will have access to information currently in the possession of these
or other defendants . . . .” The notice also discussed all four claimants’
relationship with Stephanie Cristiani and how close they were to her and
their suffering from her death. Thus, as argued by Caughlin in the trial
court, there was only one claim for $4,000,000 representing the claim by all
the wrongful death statutory beneficiaries.

¶10           There is nothing ambiguous about the sum certain
demanded. On appeal, the State contends that the service of four copies of
the notice of claim on the State somehow transformed the notice into four
separate claims or at least could confuse the State into believing that.
However, the State conceded in the trial court that it understood the offer
was a single offer for the entire claim for $4,000,000. Accordingly, it cannot
successfully argue on appeal that it was confused by the multiple service of
the notice on various agencies of the State.

¶11            Moreover, while the arguments in the trial court could have
confused the court that it was possible there was an ambiguity in the
settlement amount, we look to the face of the notice of claim. That notice is
clear that all four claimants in the wrongful death action were offering to
settle the single claim against the State for $4,000,000. Accordingly, the trial
court erred in finding the notice of claim to be unclear and ambiguous.




4We reject the State’s contention that Caughlin failed to address the alleged
ambiguity of the sum certain. Caughlin’s argument expressly contends that
the notice of claim complied with A.R.S. § 12-821.01 by including a sum
certain demand for an unequivocal $4,000,000.

                                       4
                           CAUGHLIN v. STATE
                           Decision of the Court

II.    The State has abandoned its apportionment argument.

¶12           Caughlin also addressed the apportionment argument in her
opening brief. The State did not address that argument in its answering
brief. “Failure to respond in an answering brief to a debatable issue
constitutes confession of error.” Chalpin v. Snyder, 220 Ariz. 413, 423 n.7, ¶
40 (App. 2008). Moreover, when asked by this Court at oral argument
whether it had waived the apportionment/bundling argument, the State
conceded that bundling was not before this Court, it had waived the issue
on appeal, and in its view a bundled claim is not prohibited by the statute.
Accordingly, the State has affirmatively waived and abandoned any further
contentions in this case that the notice of claim was insufficient related to
bundling. We render no opinion on the propriety of a bundled claim.

                              CONCLUSION

¶13           For the foregoing reasons, we reverse the trial court’s order
granting the State’s motion to dismiss. The complaint was not barred by
the notice of claim statute. We remand for further proceedings consistent
with this decision. We also award Caughlin her taxable costs on appeal
upon timely compliance with Arizona Rule of Civil Appellate Procedure
21.




                                  :ama




                                         5
