                                                                 FILED BY CLERK
                          IN THE COURT OF APPEALS                   JUNE 30 2008
                              STATE OF ARIZONA
                                                                     COURT OF APPEALS
                                DIVISION TWO                           DIVISION TWO


JAMES COLT JONES, a single man; and         )
JAMES and BETTY JONES, husband              )         2 CA-CV 2007-0132
and wife,                                   )         DEPARTMENT A
                                            )
                   Plaintiffs/Appellants,   )         OPINION
                                            )
                    v.                      )
                                            )
COCHISE COUNTY, a political                 )
subdivision of the State of Arizona;        )
SHERIFF LARRY DEVER, an elected             )
official; PAUL MATTHEWS and                 )
CHERYL MATTHEWS, husband and                )
wife,                                       )
                                            )
                 Defendants/Appellants.     )



           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. C20070134

                           Honorable John F. Kelly, Judge

                          REVERSED AND REMANDED
Cardinal & Stachel, P.C.
 By Jana E. Flagler and Christian B. Carlsen                                     Sierra Vista
                                                         Attorneys for Plaintiffs/Appellants

Kimble, Nelson, Audilett & Kastner, P.C.
 By Daryl Audilett                                                                   Tucson
                    and
Jones, Skelton & Hochuli, P.L.C.
 By Eileen Dennis GilBride                                                       Phoenix
                                                       Attorneys for Defendants/Appellees

Law Office of Charles M. Brewer, L.T.D.
 By David L. Abney                                                                  Phoenix
                       and
Haralson, Miller, Pitt, Feldman & McAnally,
P.L.C.
 By Stanley G. Feldman                                                            Tucson
                                                             Attorneys for Amicus Curiae
                                                        Arizona Trial Lawyers Association


B R A M M E R, Judge.


¶1            Appellants James Colt Jones and his parents, James and Betty Jones, appeal

from the trial court’s grant of summary judgment in this personal injury action in favor of

Cochise County, Cochise County Sheriff Larry Dever, and Paul and Cheryl Matthews

(collectively, “the County”). The trial court determined the notice of claim the Joneses had

filed with the County pursuant to A.R.S. § 12-821.01 did not meet the statutory requirements.

Because we conclude the notice of claim satisfied the statute, and because the County waived

the statutory defenses in any event, we reverse and remand the case to the trial court.




                                             2
                           Factual and Procedural Background

¶2            On review of summary judgment, we “view the evidence in the light most

favorable to the party opposing the motion for summary judgment and draw all inferences

fairly arising from the evidence in that party’s favor.” Phoenix Baptist Hosp. & Med. Ctr.,

Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (App. 1994). At approximately 2:30

a.m. on August 3, 2005, Cochise County Sheriff Deputy Paul Matthews, responding to a call

in his county vehicle, struck James as he was walking along the shoulder of a highway.

James suffered several severe injuries, including a “brain shear” injury and injuries to his left

leg, left hand, and collarbone.

¶3            On January 31, 2006, pursuant to § 12-821.01, the Joneses sent a notice of

claim letter, signed by their attorney, to Matthews, Dever, and the Cochise County Board of

Supervisors. After describing the incident and James’s injuries, the notice concluded:

              If this matter can be settled prior to litigation, I will recommend
              to [James] that he settle his claims against Cochise County,
              Deputy Paul Matthews, and the Cochise County Sheriff’s Office
              for $4,500,000.00. I will advise Mr. and Mrs. Jones to settle
              their claim against Cochise County, Deputy Paul Matthews, and
              the Cochise County Sheriff’s Office for $1,000,000.00. These
              offers to settle will be withdrawn sixty (60) days from the
              receipt of this claim and suit will be filed.

¶4            In April 2006, the Joneses filed their complaint, alleging Matthews had been

negligent and that Cochise County and Dever were vicariously liable for that negligence.

The complaint also included a loss of consortium claim by James’s parents. The County filed

its answer the following month and admitted that Matthews “was in the course and scope of




                                               3
his employment at the time of the collision.” The County’s answer did not include as an

affirmative defense any failure by the Joneses to comply with § 12-821.01.

¶5            In April 2007, after having participated in more than six months of disclosure

and discovery, the County filed a motion requesting leave to amend its answer to “assert the

affirmative defense of failure to comply with the notice of claim statute” and a motion to

dismiss, asserting the Joneses’ notice of claim did not comply with § 12-821.01.1 To support

its motion, the County primarily relied on our supreme court’s February 2007 decision in

Deer Valley Unified School District No. 97 v. Houser, 214 Ariz. 293, 152 P.3d 490 (2007).

The trial court, over the Joneses’ objection, granted the County leave to amend and granted

its motion to dismiss. It then granted the County’s motion for sanctions made pursuant to

Rule 68, Ariz. R. Civ. P., and entered judgment in favor of the County, awarding it $7,304.40

in taxable costs.2 The judgment also stated the court had treated the County’s motion to

dismiss “as a Motion for Summary Judgment since the Notice of Claim is a document outside

the pleadings.” This appeal followed.




       1
         The record shows that, before filing its motion to dismiss, the County provided the
plaintiffs with a disclosure statement, answered interrogatories, and participated in seven
depositions—including those of all three plaintiffs. In its amicus brief, the Arizona Trial
Lawyers Association (ATLA) asserts the County also provided plaintiffs with two
supplemental disclosure statements and responded to a request for production of documents
before filing its motion to dismiss. We do not, however, find support for these assertions in
the record on appeal.
       2
      On November 17, 2006, the County had served the Joneses an offer to confess
judgment for $500 to each plaintiff.

                                             4
                                         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 Arizona Revised Statutes (A.R.S.)

section 12-821.01.” Deer Valley, 214 Ariz. 293, ¶ 1, 152 P.3d at 491. A notice of claim

“shall contain facts sufficient to permit the public entity or public employee to understand

the basis upon which liability is claimed,” “a specific amount for which the claim can be

settled[,] and the facts supporting that amount.” § 12-821.01(A). “Claims that do not

comply with A.R.S. § 12-821.01.A are statutorily barred.” Deer Valley, 214 Ariz. 293, ¶ 6,

152 P.3d at 492.

¶7            The County’s motion to dismiss asserted the Joneses’ notice of claim did not

comply with § 12-821.01. The trial court granted the motion, properly regarding it as a

motion for summary judgment pursuant to Rule 56(c), Ariz. R. Civ. P., because “the

[attached] Notice of Claim is a document outside the pleadings.” See Ariz. R. Civ. P. 12(b).

We review de novo a trial court’s determination that a party’s notice of claim failed to

comply with § 12-821.01. See Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 24, 160 P.3d

223, 230 (App. 2007); see also Brookover v. Roberts Enters., Inc., 215 Ariz. 52, ¶ 8, 156

P.3d 1157, 1160 (App. 2007) (“In reviewing a motion for summary judgment, we determine

de novo whether any genuine issues of material fact exist and whether the trial court properly

applied the law.”).




                                              5
Does the notice of claim contain “a specific amount for which the claim can be settled”?

¶8             In granting the County’s motion, the trial court relied on our supreme court’s

decision in Deer Valley, issued after the Joneses had served their notice of claim and filed

this action. Specifically, the trial court relied on the supreme court’s statement that the “clear

and unequivocal” language of § 12-821.01 “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, 214 Ariz. 293, ¶ 9, 152 P.3d at 493. The trial court reasoned that,

because the notice of claim “contained [only] an amount that the attorney would recommend

that his client settle for,” the notice did “not contain a specific amount for which the claim

‘can be settled’” and, therefore, did not meet the requirements of § 12-821.01 and Deer

Valley.

¶9             In Deer Valley, the supreme court addressed whether the statement of the

amount for which the claim could be settled in the notice of claim filed in that case was

sufficiently specific. See 214 Ariz. 293, ¶ 10, 152 P.3d at 493. The notice of claim in that

case identified several claim amounts but “repeated[ly] use[d] qualifying language” such as

“‘approximately,’” “‘or more,’” and “‘no less than’” in describing those amounts. Id. The

court determined that such qualifying language made “it impossible to ascertain the precise

amount for which the [defendant] could have settled [the] claim.” Id.            Thus, the court

concluded, “[i]n light of th[e] substantial variation in potential value and the absence of any

clear aggregate claim amount in [the notice of claim], the amounts identified . . . cannot be

considered ‘specific.’” Id. ¶ 11.


                                                6
¶10           In contrast to the amounts suggested for settlement by the plaintiff in Deer

Valley, the amounts stated in the Joneses’ notice of claim were certain and not approximate.

The notice’s language stating the Joneses’ attorney would recommend or advise them to

settle for those amounts in no way qualified the amounts. The County argues, however, those

statements qualified whether the Joneses would settle the claim, and, therefore, the notice of

claim did not fulfill the functions of § 12-821.01 because it left the County unable to “assess

the possibility of settlement prior to litigation and assist [it] in financial planning and

budgeting.”    See Deer Valley, 214 Ariz. 293, ¶ 6, 152 P.3d at 492 (notice of claim

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.’”), quoting Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz.

525, ¶ 9, 144 P.3d 1254, 1256 (2006). The County asserts the notice’s wording left it

“completely in the dark” about whether the Joneses would accept those amounts or whether

the notice of claim was “instead an opening salvo or a fishing expedition.”

¶11           The County’s argument, however, divorces portions of the language of the

notice of claim from their context and fails to consider the notice as a whole. Cf. State ex rel.

Goddard v. R.J. Reynolds Tobacco Co., 206 Ariz. 117, ¶ 13, 75 P.3d 1075, 1078 (App. 2003)

(in interpreting contract, “we read words ‘in the context in which they are used, and

[considering] the purposes sought . . . by the agreement.’”), quoting Employment Sec.

Comm’n v. Amalgamated Meat Cutters & Butcher Workmen of N. Am., 22 Ariz. App. 54, 58,




                                               7
523 P.2d 105, 109 (1974) (alteration in R.J. Reynolds).3 The Joneses’ notice of claim

explicitly referred to § 12-821.01 and described the amounts it stated as “offers to settle” that

would “be withdrawn sixty (60) days from the receipt of this claim,” the same time limit

imposed in § 12-821.01(E). We do not see—nor does the County adequately explain—how

it was prevented from assessing the possibility of settlement or planning by the language in

the notice of claim that the Joneses’ attorney would advise them to accept an offer of

settlement for the amounts stated in the notice of claim.

¶12           When viewed in isolation, that language arguably qualifies whether the Joneses

would, in fact, accept a settlement of that amount. But the concluding language stating the

specific amounts were offers to settle, subject to withdrawal after sixty days had passed,

belies any reasonable interpretation of that language as qualifying the Joneses’ willingness

to settle their claims for those amounts. There would have been no reason to describe the

amounts as offers if they were not offers, and certainly no reason to prescribe when they

would expire.4 Cf. K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n, 139 Ariz. 209, 212,



       3
        Arizona cases have not addressed how a notice of claim should be interpreted and by
whom. Because we determine that the notice is not reasonably susceptible to the County’s
interpretation, however, we need not decide that issue.
       4
        Although the Joneses do not argue on appeal that the trial court erred in granting the
County’s motion for leave to amend its answer, we note, nonetheless, that the purpose behind
the notice of claim requirement is simply not implicated in this case. The County did not
raise the notice of claim as a possible defense until nearly a year after the Joneses filed their
complaint. Thus, the County had ample opportunity to determine the relative merits of the
Joneses’ claims, decide whether to offer to settle them, and to engage in any necessary
financial planning and budgeting. See Deer Valley, 214 Ariz. 293, ¶ 6, 152 P.3d at 492.
Indeed, the record shows the County did precisely that, having offered to confess

                                               8
677 P.2d 1317, 1320 (App. 1983) (“An offer is ‘. . . a 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.’”), quoting Restatement (Second) of Contracts § 24

(1981) (alteration in K-Line Builders). This concluding language, together with the explicit

reference to the statute, makes it clear that the figures the Joneses provided represented “a

specific amount for which the claim can be settled.” § 12-821.01.

¶13           Notably, the County points to nothing in the record suggesting that it did not

understand the Joneses’ notice of claim to be a clear and firm statement of the amounts for

which they would settle their claims, or that it needed any other information to evaluate the

claims. It was the County’s burden to show the Joneses’ notice of claim was deficient in that

regard, and any supporting evidence would have been in the County’s sole control.

¶14           Moreover, § 12-821.01 is part of Chapter 7, article 2 of the Arizona Revised

Statutes, which is entitled “Actions Against Public Entities or Public Employees.” When the

Arizona legislature revised that article in 1984, the legislature “declared [it] to be the public

policy of this state that public entities are liable for acts and omissions of employees in

accordance with the statutes and common law of this state,” and that “[a]ll of the provisions

of this act should be construed with a view to carry out the above legislative purpose.” 1984

Ariz. Sess. Laws, ch. 285, § 1(A); see also Pritchard v. State, 163 Ariz. 427, 431, 788 P.2d

1178, 1182 (1990) (“[I]t is a common law rule in Arizona that the government is liable for




judgment—seven months after the action began—in favor of all three Joneses in the amount
of $500 each.

                                               9
its tortious conduct . . . .”). And, as a practical matter, due to the brief 180-day period within

which a notice of claim must be filed, see § 12-821.01(A), and because a purported

deficiency likely will not be raised by a defendant until after that time period has elapsed, a

claimant will have no opportunity to correct a deficiency in its notice of claim. Cf. Hayes v.

Cont’l Ins. Co., 178 Ariz. 264, 272, 872 P.2d 668, 676 (1994) (“[W]e are reluctant to

interpret a statute in favor of denial or preemption of tort claims.”). Therefore, although we

recognize that a claimant must strictly comply with § 12-821.01, evaluation of that

compliance should not turn on a reading of that statute—or of the notice of claim—that risks

elevating form over substance. To place undue weight on the language in the notice of claim

stating the Joneses’ counsel would recommend or advise them to accept settlement for the

specific amounts stated in the notice of claim would risk exactly that. As we have explained,

to do so would ignore the notice of claim’s characterization of those amounts as firm offers

to settle subject only to expiration by the passage of time.

¶15            Not only does the Joneses’ notice of claim strictly comply with the

requirements of § 12-821.01, it also fulfills the purposes behind the notice of claim

requirements—to allow the public entity to investigate and assess liability, permit the

possibility of settlement, and assist the public entity in financial planning and budgeting. See

Deer Valley, 214 Ariz. 293, ¶ 6, 152 P.3d at 492. Again, the County does not explain how

the alleged deficiencies in the Joneses’ notice of claim prevented it from investigating the

case, interfered with any financial planning, or prevented it from pursuing a settlement. As

we noted above, the County did not point to anything in the record suggesting it did not


                                               10
understand the Joneses’ notice of claim to clearly state an amount for which they would

settle. Accordingly, for the reasons stated above, we conclude that here, unlike in Deer

Valley, the Joneses’ notice of claim contains “a specific amount for which [their] claim can

be settled.” § 12-821.01(A).

Does the notice of claim contain sufficient facts supporting the amount claimed?

¶16           Although it did not raise this argument below, the County now asserts the

notice of claim “was deficient in identifying the factual basis for the amounts the lawyer was

willing to recommend to the [Joneses].” We may uphold a grant of summary judgment if it

is correct for any reason,5 see Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 6, 20 P.3d

1158, 1162 (App. 2001), but we find the County’s argument unpersuasive.

¶17           The County points out that the Joneses’ notice of claim only specifically lists

the dollar amount of James’s medical expenses. The notice stated that James currently had

a bill for $128,118.48 from one hospital and that, because “many of his injuries remain[]

unresolved, it is likely that [his] medical bills could easily exceed $250,000.00.” The County

argues that “[n]o explanation is given for the remaining $4,250,000” listed in the notice of

claim and it is not clear if those damages are for “pain and suffering,” “[l]ost future wages,”



       5
        We note that this rule does not apply in all circumstances. “Affirming a summary
judgment on new grounds . . . may deprive the non-moving party of the opportunity to
present facts which are relevant to the new issues, but which were not relevant to the issues
raised below.” Rhoads v. Harvey Publ’ns, Inc., 131 Ariz. 267, 269, 640 P.2d 198, 200 (App.
1981). Thus, we “may affirm on new grounds only if there are no conceivable facts which
would allow the non-moving party to prevail on the new issues.” Id. Because no facts
outside the notice of claim are relevant to whether it sufficiently states the facts on which it
is based, however, we address this argument in spite of the County’s failure to raise it below.

                                              11
or “[f]uture medical expenses.” Section 12-821.01(A) requires that a plaintiff’s notice of

claim contain “facts supporting [the] amount” for which the claim “can be settled.” The

plain language of the statute, however, does not require the notice of claim to provide a

specific calculation for each possible basis for or element of damage—only a total amount.

See Farris v. Advantage Capital Corp., 217 Ariz. 1, ¶ 5, 170 P.3d 250, 251 (2007) (“A

statute’s plain language is the best indicator of legislative intent . . . .”).

¶18            Moreover, the County’s reliance on Deer Valley is misplaced. There, although

our supreme court expressly declined to reach the issue, it suggested the plaintiff’s claim was

deficient because the notice of claim “d[id] not provide any facts supporting the claimed

amounts for emotional distress and for damages to [the plaintiff’s] reputation.” Deer Valley,

214 Ariz. 293, n.3, 152 P.3d at 494 n.3. The Joneses’ notice, in contrast, contained numerous

facts, beyond James’s medical expenses, supporting his claimed amount. It stated James may

have “permanent brain damage,” “suffers from speaking difficulties, is easily fatigued, and

suffers from severe migraines.” It further stated James’s left knee was injured, resulting in

“severe gait impairment” that might permanently affect the range of motion in his leg, and

that his left hand “continues to be painful and weak.” The notice also pointed out that the

damage to James’s collarbone may leave him permanently disfigured. Additionally, the

notice explained that James would not graduate from high school as expected, that he could

not currently work, and that “[i]t is possible that he will never be able to engage in full time

employment or attend college.” And, although the County also complains that James’

parents’ claims were insufficiently supported, the Joneses’ notice of claim that James’s


                                                12
parents could settle their claim for $1,000,000 had similar factual support. The notice of

claim explained that both parents had “been dominated with the care of their injured son,”

and had taken extensive time away from their employment to care for him, specifically

stating that Betty had “postponed return to her job for approximately 5 months.”

¶19           The factual-basis requirement of § 12-821.01 must be viewed in light of the

inherent uncertainty in damages for pain and suffering and future lost wages. And it must

be viewed in the context of the relatively compressed time period—180 days—within which

the notice of claim must be filed, and the factual information supporting it marshalled, after

the cause of action accrues. See A.R.S. § 12-821.01(A).

              In particular, the elements of future loss of earnings, loss of
              earning capacity, pain and suffering, and future medical
              expenses are not capable of precise ascertainment and thus “(i)n
              an action for personal injuries, the law does not fix precise rules
              for the measure of damages but leaves their ascertainment to a
              jury’s good sense and unbiased judgment.

Bruce Church, Inc. v. Pontecorvo, 124 Ariz. 305, 308, 603 P.2d 932, 935 (App. 1979),

quoting Meyer v. Ricklick, 99 Ariz. 355, 358, 409 P.2d 280, 282 (1965). In a personal injury

action, “the plaintiff is seeking a lump sum figure to compensate him for the injuries,” and

that sum may encompass a variety of bases. Id. Thus, it is not reasonable to interpret

§ 12-821.01 to require either a precise accounting for each possible basis for damages, or

expert reports supporting them. It instead requires only that the claimant provide the facts

supporting a lump sum award for those damages. And nothing in the record suggests the

notice of claim here failed to give the County the best information available to the claimants

a mere 180 days after the injury.

                                              13
¶20            Additionally, in Deer Valley our supreme court explained the requirement that

a notice of claim provide facts in support of the amount demanded in the notice is meant, in

addition to allowing the governmental entity “to evaluate the amount claimed,” to “ensure[]

that claimants will not demand unfounded amounts that constitute ‘quick unrealistic

exaggerated demands.’” Deer Valley, 214 Ariz. 593, ¶ 9, 152 P.3d at 493, quoting

Hollingsworth v. City of Phoenix, 164 Ariz. 462, 466, 793 P.2d 1129, 1133 (App. 1990).6

Given the Joneses’ detailed recitation of James’s injuries and the effect those injuries have

had and will have on his life, as well as the description of his parents’ situation, the statute’s

purpose has been met. No more detail was required.

Has the County waived any objection to deficiencies in the notice of claim?

¶21            The Joneses additionally assert that the County has “waived [its] right to

challenge the notice of claim” because it did not raise the issue until nearly a year after the

Joneses had filed their complaint and had actively litigated the case, including engaging in

discovery and participating in depositions. The Joneses reason those facts, viewed in the

light most favorable to them, see Phoenix Baptist Hosp. & Med. Ctr., Inc., 179 Ariz. at 293,

877 P.2d at 1349, would permit a trier of fact to conclude the County had waived any

purported deficiency in the notice of claim. See Brookover, 215 Ariz. 52, ¶ 8, 156 P.3d at



       6
       We also note that our supreme court has upheld a trial court’s admission into
evidence at trial, for impeachment purposes, portions of a plaintiff’s notice of claim.
Hernandez v. State, 203 Ariz. 196, 52 P.3d 765 (2002). Therefore, a claimant understandably
might be more cautious and circumspect in attempting relatively soon after an injury to
provide specific facts supporting a particular element of damages, particularly when doing
so could lead to later attempts to impeach trial testimony relevant to those damages.

                                               14
1160 (“In reviewing a motion for summary judgment, we determine de novo whether any

genuine issues of material fact exist and whether the trial court properly applied the law.”).

¶22           The notice of claim statute is “subject to waiver, estoppel and equitable

tolling.” Pritchard v. State, 163 Ariz. 427, 432, 788 P.2d 1178, 1183 (1990). The County

argues, however, that it has not waived this defense because it was granted leave to amend

its answer—a ruling which the Joneses do not appeal. The County, however, confuses

waiver pursuant to Rule 12(h), Ariz. R. Civ. P., engendered by a party’s failure to plead an

affirmative defense, with waiver by conduct. “Waiver is either the express, voluntary,

intentional relinquishment of a known right or such conduct as warrants an inference of such

an intentional relinquishment.” Am. Cont’l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53,

55, 607 P.2d 372, 374 (1980). As we understand their argument, the Joneses do not contend

the County has expressly waived the defense, instead asserting that it has waived it by

conduct.

¶23           “Waiver by conduct must be established by evidence of acts inconsistent with

an intent to assert the right.” Id. A party may assert an affirmative defense in its pleadings

and still waive that defense by conduct. See Peterson v. Highland Music, Inc., 140 F.3d

1313, 1318 (9th Cir. 1998) (“Rule 12(h)(1)[, Fed. R. Civ. P.,] specifies the minimum steps

that a party must take in order to preserve a defense. It does not follow, however, that a

party’s failure to satisfy those minimum steps constitutes the only circumstance under which

the party will be deemed to have waived a defense.”); Harris v. Sec’y, U.S. Dep’t of Veterans

Affairs, 126 F.3d 339, 343 n.2 (D.C. Cir. 1997) (“A Rule 15[, Fed. R. Civ. P.,] amendment,


                                             15
if allowed by the trial court, will cure any problem of timeliness associated with forfeiture

[by failing to plead an affirmative defense]. However, if a party ‘waives,’ i.e., intentionally

relinquishes or abandons an affirmative defense, no cure is available under Rule 15.”); see,

e.g., Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1296-97 (7th Cir. 1993) (waiver of

personal jurisdiction where party raised defense in answer but “fully participated in litigation

of the merits for over two-and-a-half years without actively contesting personal

jurisdiction”); Yeldell v. Tutt, 913 F.2d 533, 538-39 (8th Cir. 1990) (waiver of personal

jurisdiction where asserted in answer but not raised until appeal). Moreover, “[t]he merits

or facts of the controversy are not to be decided in the consideration of a motion to amend.”

Hernandez v. Maricopa County Superior Court, 108 Ariz. 422, 422, 501 P.2d 6, 6 (1972).

Therefore, that the trial court granted the County leave to amend its answer cannot be

interpreted as a determination the County had not waived that defense by its conduct. The

County’s mere amendment of its answer to allege a new affirmative defense does not

foreclose any subsequent argument that it has waived by its conduct the defense of failure

to comply with § 12-821.01.

¶24           Cases from other jurisdictions support a finding of waiver as a matter of law

when a party fails to assert a deficiency in the notice of claim until after litigating the claim

on its merits or investigating the claim prior to litigation. In Teresta v. City of New York, 108

N.E.2d 397, 397 (N.Y. 1952), the trial court dismissed the plaintiff’s tort action because he

had sent his notice of claim by ordinary mail, rather than personal delivery or registered mail,

in violation of the New York notice of claim statute. New York’s highest court determined


                                               16
the city had “unequivocal[ly] waive[d]” that requirement by informing the plaintiff that his

notice had been received and “hold[ing] an examination [with the plaintiff present] in

connection with the claim.” Id. at 398.7

¶25            In Miotke v. City of Spokane, 678 P.2d 803, 820 (Wash. 1984), overruled on

other grounds by Blue Sky Advocates v. State, 727 P.2d 644 (Wash. 1986), the plaintiffs

admitted they had not complied with the statute requiring them to file a claim with the city

prior to filing their action. The Washington supreme court affirmed the trial court’s

determination the city had waived this statutory defense by failing to raise it until “3 years

after the litigation began . . . [after] the first phase of litigation had been completed[,

including] several days of hearings . . . and the trial court had entered its first set of findings

and conclusions.” Id. The supreme court noted that waiver was appropriate “[i]n view of

the substantial litigation which had occurred before the defense was raised.” Id.

¶26            The above cases are distinguishable. They address either conduct that occurred

before litigation began or situations in which a governmental entity has engaged in

considerably more extensive litigation before raising the defense than is present here. But

the common thread of those cases is that waiver may be found when a governmental entity


       7
        The New York legislature added a saving clause to its notice of claim statute in
response to the appellate decision Teresta had overruled. See Teresta, 108 N.E.2d at 442 n.1;
Anderlohr v. City of New York, 112 N.Y.S.2d 135, 136 (N.Y. App. Div. 1952). Therefore,
most New York courts finding waiver where the governmental entity conducted an
examination after receiving the notice of claim rely on the saving clause instead of Teresta.
See, e.g., Soules v. City of Rochester, 199 N.Y.S.2d 966, 968-69 (N.Y. App. Div. 1960);
Anderlohr, 112 N.Y.S.2d at 136-37; Harwood v. City of Hornell, 246 N.Y.S.2d 222, 224-25
(N.Y. Sup. Ct. 1964). This in no way weakens the court’s conclusion in Teresta that a
governmental entity can waive the notice of claim requirements by its conduct.

                                                17
has taken substantial action to litigate the merits of the claim that would not have been

necessary had the entity promptly raised the defense.

¶27           As we noted above, here the County provided the Joneses with a disclosure

statement, answered interrogatories, and participated in seven depositions—including those

of all three plaintiffs—before it raised this defense, almost a year after the complaint was

filed. It appears, in fact, that it was the County, not the Joneses, that had noticed six of the

depositions—all three plaintiffs were deposed and the County served subpoenas on three

other witnesses. This conduct is inconsistent with an intention to assert the notice of claim

statute as a defense.8 Had the County intended to assert that defense, there would have been

no need for it to engage in disclosure or discovery; it would have been able to assert the

defense immediately.9 Of particular importance is that the County did more than merely

respond to the complaint or discovery requests—it actively investigated and proactively

defended the claim by subpoenaing and deposing witnesses and conducting other discovery.

Finally, we note that the County asserts the notice of claim requirements are not “difficult



       8
        The County asserted below that it did not “realize[]” the Joneses’ notice of claim was
insufficient until our supreme court “clarified” the statutory requirements in Deer Valley.
This assertion is inconsistent with the County’s argument, made below and on appeal, that
Deer Valley should be applied retroactively because it did not establish a new legal principle.
       9
         In its response to ATLA’s amicus brief, the County asserts that the recent decision
by Division One of this court in City of Phoenix v. Fields, No. CA-SA 07-0152, 2008 WL
1796039 (Ariz. App. April 22, 2008), stands for the proposition that a defendant does not
waive the defense of a plaintiff’s failure to comply with § 12-821.01 by raising the defense
late in the litigation. There, the defense was not raised until litigation had been ongoing for
four years. Id. ¶ 5. Nothing in that opinion, however, suggests the question of waiver was
raised by the parties, and the court did not address it.

                                              18
. . . to understand[] and . . . to assess or to meet,” thereby charging the Joneses with the

responsibility of providing it with a non-deficient notice of claim. Had the Joneses’ notice

of claim been so patently deficient, the County should have immediately been aware of its

arguable insufficiencies and promptly raised the issue.

¶28            Arizona courts have held waiver is “a question of fact to be determined by the

trier of fact.” Chaney Bldg. Co. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 272-73, 709

P.2d 904, 906-07 (App. 1985) (whether party waived contractual notice requirement question

for trier of fact). Here, however, the facts relating to waiver are uncontested, occurred after

litigation began, and are wholly unrelated to the underlying facts of the claim. See, e.g.,

Scruggs v. State Farm Mut. Auto. Ins. Co., 204 Ariz. 244, ¶ 27, 62 P.3d 989, 995 (App. 2003)

(finding as a matter of law that claimant complied with corroboration requirement of A.R.S.

§ 20-259.01(M) because material facts uncontested); Yeldell, 913 F.2d at 539 (deciding

waiver of personal jurisdiction as matter of law based on conduct after litigation began);

McCloud v. State, 217 Ariz. 82, ¶ 9, 170 P.3d 691, 695-96 (App. 2007) (trial court, not jury,

should decide whether to equitably toll statute of limitations because, in part, “the facts

related to the reasons for equitable tolling are frequently unrelated to the central facts

relevant to the merits of the plaintiff’s claim”). And the New York and Washington cases

cited above found waiver of notice of claim requirements as a matter of law.

¶29            In the summary judgment context, where the facts are undisputed and the “legal

conclusions to be drawn from th[o]se facts” are the matter “in actual dispute,” the trial court

should resolve those questions “sitting in its capacity as judge and not in its capacity as a trier


                                                19
of fact.” Scottsdale Jaycees v. Superior Court, 17 Ariz. App. 571, 574, 499 P.2d 185, 188

(1972). Thus, in these circumstances, the question of waiver need not be submitted to the

jury but instead should be decided by the trial court as a matter of law. The trial court here

did not discuss the Joneses’ argument that the County had waived the requirements of the

notice of claim statute, thus implicitly rejecting it. We disagree with the trial court’s implicit

conclusion; the undisputed facts here constitute waiver as a matter of law.10 Thus, as an

independent reason to reverse summary judgment, even had the Joneses’ notice of claim been

insufficient, the County has waived that affirmative defense.

                                          Disposition

¶30            For the reasons stated above, we conclude that the Joneses’ notice of claim met

the requirements of § 12-821.01, and that, in any event, the County waived the affirmative

defense that the notice of claim was deficient. Therefore, the trial court erred in granting the

County’s motion for summary judgment. Accordingly, we reverse that ruling and remand

the case to the trial court for further proceedings consistent with this opinion.11 We also


       10
         We do not address the Joneses’ assertion that the County is estopped from raising
as a defense the Joneses’ purported failure to comply with § 12-821.01.
       11
           In view of our disposition of this appeal, we need not address the Joneses’ argument
that Deer Valley should not be applied retroactively. We note, however, that the supreme
court in Deer Valley applied its holding to the plaintiffs in that case and “remand[ed] [the
case] to the superior court with instructions to dismiss”—thus applying its decision
retroactively to the plaintiffs in that case. 214 Ariz. 293, ¶ 24, 152 P.3d at 496. It did not
state its holding should otherwise be applied prospectively only, suggesting it is to be applied
both prospectively and retroactively. See Taylor v. Travelers Indem. Co. of Am., 198 Ariz.
310, ¶ 30, 9 P.3d 1049, 1060 (2000) (“‘Unless otherwise specified, Arizona appellate
opinions in civil cases operate both retroactively and prospectively.’”), quoting Law v.
Superior Court, 157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988). Nor would it be

                                               20
vacate the trial court’s award of fees and costs to the County made pursuant to Rule 68, Ariz.

R. Civ. P.



                                               J. WILLIAM BRAMMER, JR., Judge

CONCURRING:



JOSEPH W. HOWARD, Presiding Judge


JOHN PELANDER, Chief Judge




appropriate for this court to determine whether the Taylor presumption applies here—it is
for the supreme court to determine whether its opinions should be applied only prospectively.
See id. (“We occasionally allow a decision to have only prospective application, but the
matter ‘is a policy question within this court’s discretion.’”), quoting Fain Land & Cattle Co.
v. Hassell, 163 Ariz. 587, 596, 790 P.2d 242, 251 (1990) (emphasis added); Zavala v. Ariz.
State Pers. Bd., 159 Ariz. 256, 264, 766 P.2d 608, 616 (App. 1987) (questioning “whether
a lower court should . . . reckon[] the retroactivity of a higher court’s opinion”); see also
Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 36-37, 893 P.2d 26, 36-37 (App. 1994) (citing
Zavala and declining to address argument that supreme court opinion should only apply
prospectively).

                                              21
