                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  SHAWN D. O’HARRA, Plaintiff/Appellant,

                                         v.

               JOSEPH JONES, JR., et al., Defendants/Appellees.

                              No. 1 CA-CV 18-0026
                                FILED 1-22-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2017-004765
                   The Honorable David B. Gass, Judge

                                   AFFIRMED


                                    COUNSEL

Shawn D. O’Harra, Phoenix
Plaintiff/Appellant

Phoenix City Attorney’s Office, Phoenix
By Robert A. Hyde
Counsel for Defendant/Appellee Joseph Jones, Jr.

Arizona Attorney General’s Office, Phoenix
By Khanrat Piensook, Deborah L. Garner
Counsel for Defendant/Appellee B. Armbruster
                       O’HARRA v. JONES, JR., et al.
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1           Shawn D. O’Harra (“O’Harra”) appeals from the judgment
dismissing his complaint for failure to file a notice of claim under Arizona
Revised Statutes (“A.R.S.”) section 12-821.01(A)1. For the following
reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            In March 2017, O’Harra filed a complaint alleging police
brutality against Phoenix Police Department Detective Joseph Jones, Jr.
(“Jones”) and Adult Probation Officer B. Armbruster (“Armbruster”)
stemming from an incident that occurred in December 2016. Jones and
Armbruster moved to dismiss the complaint under Arizona Rule of Civil
Procedure (“Rule”) 12(b)(6) for failure to serve a notice of claim in violation
of A.R.S. § 12-821.01. In response, O’Harra alleged that he filed a notice of
claim on June 16, 2017, in federal court.

¶3           The superior court granted Jones’ and Armbruster’s motion
to dismiss with prejudice; O’Harra appealed. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶4               We review de novo the dismissal of a complaint under Rule
12(b)(6) and whether a notice of claim complies with statutory
requirements. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶7 (2012); Jones v.
Cochise Cty., 218 Ariz. 372, 375, ¶ 7 (App. 2008) (citations omitted).
Dismissal is appropriate under Rule 12(b)(6) only if, “as a matter of law
. . . plaintiffs would not be entitled to relief under any interpretation of the
facts susceptible of proof.” Coleman, 230 Ariz. at 356, ¶ 8 (citation omitted).



1      The court’s ruling, signed November 28, 2017, mistakenly references
A.R.S. § 12-2603(F).


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                       O’HARRA v. JONES, JR., et al.
                          Decision of the Court

¶5             Filing of a notice of claim that satisfies § 12-821.01 is a
necessary prerequisite to filing a lawsuit against a public employee. Deer
Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 294, ¶ 1 (2007); see
also Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 62, ¶ 23 (App. 2010).

¶6             On appeal, O’Harra argues that he sent a notice of claim to the
two defendants on December 22, 2016. In violation of Arizona Rule of Civil
Appellate Procedure (“ARCAP”) 13(d), O’Harra has not provided a record
cite for his contention. Our independent review of the record reveals that
O’Harra failed to argue to the superior court that he properly submitted a
notice of claim in December 2016. As such, O’Harra’s contention is waived.
See, e.g., Lemons v. Showcase Motors, Inc., 207 Ariz. 537, 541 n.1, ¶ 17 (App.
2004) (“Legal issues and arguments must be presented to the trial court and
generally cannot be raised for the first time on appeal.”) (citation omitted);
see also Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App. 2007)
(the appellate court will not consider a question not raised in the superior
court) (citation omitted).

¶7              Even if not waived, O’Harra’s allegation that he sent a notice
of claim in December 2016 is not supported by the record. O’Harra’s
complaint fails to allege that he filed a notice of claim, and no notice is in
the record during that timeframe. After the defense removed the case to
federal district court, O’Harra filed a document titled “Notice of Claim and
Removal” in that court on June 16, 2017, almost two months after he filed
the complaint. In his response to the motion to dismiss, O’Harra stated “as
far as [filing] the claim(s) with the person or person(s) authorized to accept
service for a public employee, I thought that is what I did June 13th [sic]
2017.”

¶8            No evidence in the record shows that O’Harra filed the
requisite notice of claim under § 12-821.01 before he filed his complaint. See
Deer Valley, 214 Ariz. at 294, ¶ 1. Therefore, O’Harra’s complaint failed to
state a claim upon which relief can be granted, and the superior court
properly dismissed it with prejudice.2




2      Armbruster also contends that the June 16, 2017 notice of claim failed
to satisfy the statutory requirements of A.R.S. § 12-821.01. O’Harra
contends that he did not know the severity of his damages until June 8, 2017
or July 12, 2017. We do not need to examine the sufficiency of the June 16,



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                      O’HARRA v. JONES, JR., et al.
                         Decision of the Court

                              CONCLUSION

¶9            For the foregoing reasons, we affirm the superior court’s
dismissal of O’Harra’s complaint.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




2017 notice of claim because O’Harra failed to serve it before he filed the
complaint. Deer Valley, 214 Ariz. at 294, ¶ 1.




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