Yellowman v. Vanderwey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEBORA YELLOWMAN, Plaintiff/Appellant,

v.

RISHA VANDERWEY AND JOSEPH R. SMITH, both of whom are named
in their official capacity as employees of the Tuba City Unified School
District; TUBA CITY UNIFIED SCHOOL DISTRICT, Defendants/Appellees.

No. 1 CA-CV 21-0116
FILED 12-2-2021

Appeal from the Superior Court in Coconino County
No. S0300CV202000141
The Honorable Ted Stuart Reed, Judge

AFFIRMED

COUNSEL

The Law Offices of David R. Jordan PC, Gallup, NM
By David R. Jordan
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix, AZ
By Georgia A. Staton, Ravi V. Patel, Justin M. Ackerman
Counsel for Defendants/Appellees
 YELLOWMAN v. VANDERWEY, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Debora Yellowman appeals the superior court’s judgment
dismissing her complaint for mandamus relief and compensation against
defendants Risha Vanderwey, Joseph R. Smith, and Tuba City Unified
School District (“the District”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Yellowman, a guidance counselor with the District,
unsuccessfully pursued eligibility for guidance counselors to receive
classroom site funds available to teachers under Arizona Revised Statutes
(“A.R.S.”) § 15-977. The District’s governing board denied her grievance
appeal, concluding that guidance counselors had not shown they met the
board-approved classroom site fund plan’s eligibility criteria.

¶3 Yellowman did not serve a notice of claim pursuant to A.R.S.
§ 12-821.01 on the District or its employees. Instead, she filed a special
action complaint in superior court asking the court to order the board to
hold a vote of teachers on a performance-based compensation system, and
that Vanderwey and Smith carry out the directives and distribute funds to
her because she meets the definition of “teacher” under the performance-
based compensation system. She further demanded the retention pay and
salary increase that certified teachers received.

¶4 The superior court granted the Defendants’ motion to dismiss
finding improper service, failure to comply with the notice of claim statute,
lack of verification, and lack of standing. It then entered final judgment.
We have jurisdiction over Yellowman’s timely appeal under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -
2101(A)(1).

DISCUSSION

¶5 Yellowman argues the superior court erred by dismissing her
claims for failing to serve a notice of claim pursuant to A.R.S. § 12-821.01

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 YELLOWMAN v. VANDERWEY, et al.
Decision of the Court

because that statute does not apply in this mandamus action. The District
argues the statute applies because Yellowman was seeking monetary
compensation.

¶6 The District attached documents outside the pleadings in
support of its motion to dismiss. The superior court's consideration of those
documents converted the motion to one for summary judgment. Ariz. R.
Civ. P. 12(d); Yollin v. City of Glendale, 219 Ariz. 24, 27, ¶ 6 (App. 2008). We
construe all facts in favor of Yellowman and will affirm only if there is no
genuine material fact dispute and the District “is entitled to judgment as a
matter of law.” Ariz. R. Civ. P. 56(a); Yollin, 219 Ariz. at 27 ¶ 6. Whether a
statute is applicable is a question of law, which we review de novo. Home
Builders Ass’n of Cent. Ariz. v. Kard, 219 Ariz. 374, 381, ¶ 30 (App. 2008).

¶7 Section 12-821.01(A) provides that:

Persons who have claims against a public entity, public school
or a public employee shall file claims with the person or
persons authorized to accept service . . . within one hundred
eighty days after the cause of action accrues. . . . Any claim
that is not filed within one hundred eighty days after the
cause of action accrues is barred and no action may be
maintained thereon.

¶8 The timely filing of a notice of claim that satisfies § 12-
821.01 is a necessary prerequisite to filing a lawsuit against a public
entity. Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 294, ¶ 1
(2007). The failure to properly file a notice of claim within the statutory
time bars a plaintiff’s claim. Falcon v. Maricopa County, 213 Ariz. 525, 527, ¶
10 (2006).

¶9 The notice-of-claim statute applies to all “claims” against
public entities, except for claims in eminent domain cases for just
compensation. A.R.S. § 12-821.01(A), (H). The purpose of the statute is to
allow a “public entity to investigate and assess liability, to permit the
possibility of settlement prior to litigation, and to assist the public entity in
financial planning and budgeting.” Martineau v. Maricopa County, 207 Ariz.
332, 335-36, ¶ 19 (App. 2004). Case law exempts injunctive and declaratory
relief claims from compliance with the statute. State v. Mabery Ranch
Co., 216 Ariz. 233, 245, ¶¶ 48–53 (App. 2007); Martineau, 207 Ariz. at 335–37,
¶¶ 18–24. Plaintiffs cannot avoid the notice-of-claim requirement by
couching their claim as one for injunctive or declaratory relief when they
are seeking monetary damages. See Martineau, 207 Ariz. at 337, ¶ 24 n.7; see

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 YELLOWMAN v. VANDERWEY, et al.
Decision of the Court

Arpaio v. Maricopa Cnty. Bd. of Supervisors, 225 Ariz. 358, 362, ¶ 11 (App.
2010) (a claimant seeking declaratory relief resulting in recovery of funds
from a governmental entity required to comply with the notice-of-claim
statute).

¶10 Yellowman’s complaint sought an order directing the board
to hold a vote of teachers on a performance-based compensation system
and the District’s employees to implement the compensation system
directives by distributing funds to her; she also sought retention pay and a
salary increase. Although Yellowman presented her complaint as one for
mandamus relief, there is no record evidence that she sought anything
other than compensation from the District. Instead, the record shows that
Yellowman requested “Guidance Counselor eligibility for Classroom Site
Funds.” Her request would require the District to expend funds, which
affects financial planning and budgeting. Thus, she must comply with the
notice-of-claim statute, which she undisputedly did not do. See Martineau,
207 Ariz. at 337, ¶ 24 n.7; Arpaio, 225 Ariz. at 362, ¶ 11. The plain language
of the statute supports its application to her claims, and the superior court
did not err by granting judgment in defendants’ favor. Deer Valley, 214
Ariz. at 294, ¶ 1; Falcon, 213 Ariz. at 527, ¶ 10.

¶11 Because Yellowman failed to satisfy a mandatory and
essential prerequisite to her cause of action, we do not further consider her
appeal or the other grounds addressed in the superior court’s ruling
granting judgment. Martineau, 207 Ariz. at 334, ¶ 10.

CONCLUSION

¶12 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to defendants upon compliance with Arizona Rule
of Civil Appellate Procedure 21.

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

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