                                 IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


                  TERRY YAHWEH, Plaintiff/Appellant,

                                    v.

                 CITY OF PHOENIX, Defendant/Appellee.

                          No. 1 CA-CV 16-0270
                           FILED 7-11-2017

          Appeal from the Superior Court in Maricopa County
                         No. CV2015-011887
              The Honorable Arthur T. Anderson, Judge

                               AFFIRMED


                               COUNSEL

Terry Yahweh, Chandler
Plaintiff/Appellant

Sanders & Parks, P.C.
By Mark G. Worischeck, Anoop Bhatheja, Phoenix
Counsel for Defendant/Appellee



                                OPINION

Judge James P. Beene delivered the opinion of the Court, in which Presiding
Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
                          YAHWEH v. PHOENIX
                           Opinion of the Court


B E E N E, Judge:

¶1           Terry Yahweh appeals from the superior court’s ruling
dismissing his complaint against the City of Phoenix (“the City”). Because
Yahweh’s notice of claim did not include a sum-certain settlement offer as
required by A.R.S. § 12-821.01, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We assume the truth of all well-pleaded factual allegations
and draw all reasonable inferences from those facts. Coleman v. City of Mesa,
230 Ariz. 352, 356, ¶ 9 (2012). Yahweh worked as a detective for the Phoenix
Police Department (“the Department”) for many years, but his relationship
with the Department began deteriorating in 2009, and in 2014, Yahweh’s
employment with the Department ended. In November 2014, the
Department issued a summary of Public Standards Bureau Report #PSB14-
0096, which Yahweh contends included defamatory statements about him.
As a result of the report, Yahweh’s name was added to the “Brady List” of
police officers who have been implicated in professional misconduct.1

¶3          In May 2015, Yahweh delivered a Notice of Claim letter
(“NOC”) to the City, alleging defamation and violations of the Family
Medical Leave Act. The relevant portion of the NOC stated:

       The Claimant will be bringing legal action against the Phoenix
       Police Department and the City of Phoenix seeking damages
       for 1.5 million dollars, as the Claimant planned to earn for the
       next ten years and these were his projected earnings. He is
       suing for defamation of his character in the public, as the PSB
       report is a public record, and among his peers, and it has
       affected his earning potential to obtain employment. He will
       also be bringing action for violations of the Family Medical
       Leave Act.




1     Prosecutors are required to disclose to criminal defendants police
accused of professional misconduct, and a list of officers so defined is called
a “Brady List.” See generally Brady v. Maryland, 373 U.S. 83 (1963) (holding
that prosecutors must provide exculpatory evidence to criminal
defendants).



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                          YAHWEH v. PHOENIX
                           Opinion of the Court

       In order to obtain an agreeable resolution to this matter,
       contact his lawyer Jess Lorona Esq., promptly.

¶4             The City did not respond to the NOC, and by statute the
City’s failure to respond was deemed a denial after sixty days. Ariz. Rev.
Stat. (“A.R.S.”) § 12-821.01(E) (2017).2 In November 2015, Yahweh filed a
complaint against the City, alleging defamation, false light and due process
violations. The City moved to dismiss pursuant to Arizona Rule of Civil
Procedure 12(b)(6), arguing Yahweh’s claims were barred for failure to file
a proper NOC in accordance with A.R.S. § 12-821.01. The superior court
granted the motion, finding that Yahweh did not make a valid settlement
offer as required by § 12-821.01(A).

¶5            Yahweh timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(B) (2017).

                               DISCUSSION

¶6             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, 230 Ariz. at 355, ¶ 7; Jones v. Cochise County, 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).

¶7            Before suing an Arizona public entity, a claimant must submit
a NOC that complies with § 12-821.01. See Simon v. Maricopa Med. Ctr., 225
Ariz. 55, 62, ¶ 23 (App. 2010). A proper NOC must “contain a specific
amount for which the claim can be settled and the facts supporting that
amount.” A.R.S. § 12-821.01(A). ”This language unmistakably instructs
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, 296, ¶ 9 (2007).

¶8            The claim is barred if the claimant fails to present a valid
settlement offer to the public entity he or she wishes to sue. Id. “An offer
is the manifestation of willingness to enter into a bargain, so made as to
justify another person in understanding that his assent to that bargain is
invited and will conclude it.” Restatement (Second) of Contracts § 24
(1981). The amount a plaintiff will accept to settle litigation is rarely based

2     Absent material revision after the relevant date, we cite a statute’s
current version.


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                           YAHWEH v. PHOENIX
                            Opinion of the Court

on questions of liability alone, but includes factors such as the cost of
litigation and the anticipated trial verdict. See Deer Valley Unified Sch. Dist.
No. 97, 214 Ariz. at 297, ¶ 14 (citing State v. Brooks, 23 Ariz. App. 463, 467
(1975)). 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.

¶9            Yahweh’s NOC lacked the sum-certain settlement offer
required by § 12-821.01. While the NOC stated Yahweh would sue for $1.5
million for loss of projected earnings, it made no mention of the amount of
damages he would seek for his Family Medical Leave Act claim.
Furthermore, there was no indication in the NOC demonstrating a
willingness to settle all claims against the City for any stated amount.

¶10           Yahweh argues his obligation was satisfied because the NOC
instructed the City to contact his lawyer to “obtain an agreeable resolution
to this matter.” Even assuming, as Yahweh suggests, that the term
“resolution” means settlement, that portion of the NOC is still not a valid
offer. The statement shows no intent to be bound; rather, it is an invitation
to bargain for a yet-undefined settlement amount.

¶11            Yahweh relies on Yollin v. City of Glendale, 219 Ariz. 24 (App.
2008), to support his contention that the NOC he delivered to the City
contained a valid settlement offer. In Yollin, a claimant filed a NOC that
expressly stated he would settle all claims for a specified amount, but
indicated that his total damages were subject to change due to ongoing
medical expenses. Id. at 30, ¶ 16. This Court concluded that “ambiguous
expressions of equivocation, if combined with plain offers of settlement,
constitute offers and manifest the offeror’s intent to be bound.” Id. at 24, ¶
18. Yahweh’s NOC did not contain a settlement offer like that in Yollin.
Instead, Yahweh’s NOC included a series of ambiguous statements that
merely informed the City of the amount Yahweh intended to demand in
litigation, not a sum-certain settlement offer. There were no words of intent
in the NOC granting the City the power to settle all of Yahweh’s claims for
a particular and certain amount of money.

¶12           Yahweh argues any deficiencies with his NOC could have
been cured easily if the City had requested clarification. Public entities in
Arizona are not duty-bound to assist claimants with statutory compliance.
See Backus v. State, 220 Ariz. 101, 107 ¶ 28 (2009) (A public entity is not
required to request additional facts when a claimant’s NOC is deficient.).
Rather, a claimant must strictly comply with § 12-821.01, and “[c]ompliance
with this statute is not difficult.” Deer Valley Unified Sch. Dist. No. 97, 214


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                         YAHWEH v. PHOENIX
                          Opinion of the Court

Ariz. at 296, ¶ 9. Yahweh did not present the City with a valid, sum-certain
settlement offer, and accordingly his claims were barred.

                             CONCLUSION

¶13          For the foregoing reasons, we affirm.




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




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