Simmons v. Temple

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GLENNA SIMMONS, Plaintiff/Appellant,

v.

MECCA TEMPLE, Defendant/Appellee.

No. 1 CA-CV 23-0544
FILED 04-30-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-051510
The Honorable Melissa Iyer Julian, Judge

AFFIRMED

COUNSEL

Glenna Simmons, Phoenix
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Julie M. Rhodes, Rebecca Banes
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.
 SIMMONS v. TEMPLE
Decision of the Court

B A I L E Y, Judge:

¶1 Glenna Simmons appeals the superior court’s judgment
dismissing her complaint against Mecca Temple. For the following reasons,
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.” Yahweh v. City of
Phoenix, 243 Ariz. 21, 22, ¶ 2 (App. 2017) (citation omitted).

¶3 In November 2022, the Department of Child Safety (“DCS”)
removed a foster child from Simmons’ care. Temple was a DCS employee
involved in removing the child.

¶4 In April 2023, Simmons filed a complaint against Temple in
Maricopa County case no. CV2023-051212 (the “first complaint”),1 alleging
various claims and damages arising from the child’s removal. Later that
month, Simmons moved to dismiss her first complaint. That same day,
Simmons emailed Temple, stating, “I plan to sue you for the wrongful
removal of my foster child . . . on 11.17.2022.”

¶5 About a week later, Simmons filed another complaint against
Temple in Maricopa County case no. CV2023-051510 (the “second
complaint”), alleging Temple authorized the wrongful removal of the foster
child and demanding damages and declaratory relief. Temple moved to
dismiss Simmons’ second complaint under Rule 12(b)(6) of the Arizona
Rules of Civil Procedure, arguing, in part, that Simmons had not complied
with Arizona Revised Statutes (“A.R.S.”) section 12-821.01 (the “notice of
claim statute”). The superior court concluded Simmons had not complied
with the notice of claim statute and granted Temple’s motion.

¶6 We have jurisdiction over Simmons’ timely appeal under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).

1 Simmons’ first complaint is not in Maricopa County case no. CV2023-

051510’s record, but we may take judicial notice of it. See State v. Valenzuela, 109 Ariz. 109, 110 (1973).

2
 SIMMONS v. TEMPLE
Decision of the Court

DISCUSSION

¶7 We review de novo the dismissal of a complaint and
compliance with the notice of claim statute. Yahweh, 243 Ariz. at 22, ¶ 6.
Dismissal under Rule 12(b)(6) is appropriate if the plaintiff, as a matter of
law, “would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Id. (citation omitted).

I. Damages Claims

¶8 Before suing a public employee for damages arising from
conduct committed within the course and scope of her employment, Crum
v. Superior Court, 186 Ariz. 351, 352 (App. 1996), a claimant must strictly
comply with the notice of claim statute, Yahweh, 243 Ariz. at 23, ¶ 12. The
notice of claim must contain “facts sufficient to permit the . . . public
employee to understand the basis on which liability is claimed” and “a
specific amount for which the claim can be settled and the facts supporting
that amount.” A.R.S. § 12-821.01(A). Failure to file a notice of claim “within
[180] days after the cause of action accrues” bars the claim. Id.

¶9 The superior court found that Simmons’ April 2023 email did
not comply with the notice of claim statute, and the parties now agree the
email was insufficient. On appeal, Simmons argues the superior court
should have considered her first complaint, rather than her email, and
contends that her first complaint satisfied the notice of claim statute.

¶10 Parties generally waive issues raised for the first time on
appeal. See Romero v. Sw. Ambulance, 211 Ariz. 200, 203–04, ¶ 6 (App. 2005).
Simmons argued to the superior court that she satisfied the notice of claim
statute. But Simmons cited only the exhibit containing her email. She did
not submit her first complaint into the second complaint’s superior court
record, and she did not explain to the superior court how her first complaint
satisfied the notice of claim statute. Thus, Simmons waived the argument.

¶11 Further, even if Simmons did not waive her argument, it is
meritless. Assuming, without holding, that a dismissed complaint can be a
valid notice of claim, Simmons’ first complaint was deficient. The notice of
claim must “identify the specific amount for which [the claimant] will
settle.” Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 9
(2007). “Simply reciting the amount a claimant will demand in a complaint
is insufficient to satisfy [the notice of claim statute] because such a
statement does not express a willingness to accept a specific sum in
settlement.” Yahweh, 243 Ariz. at 23, ¶ 8.

3
 SIMMONS v. TEMPLE
Decision of the Court

¶12 Simmons’ first complaint contained no indication she was
willing to settle for any amount. And although Simmons’ first complaint
demanded $160,000 for negligence, $80,000 for intentional infliction of
emotional distress, $200,000 for loss of affection, and $7,000,000 in punitive
damages, she also demanded an unspecified amount of compensatory
relief, interest, costs, attorneys’ fees, “and any such relief as the [c]ourt may
deem just and proper.” Thus, Simmons’ first complaint did not satisfy the
notice of claim statute. See Deer Valley, 214 Ariz. at 297, ¶ 11 (stating the
notice of claim statute is not satisfied when there is a “substantial variation
in potential value and the absence of any clear aggregate claim amount”).

¶13 Simmons further argues that Temple “cannot feign ignorance
or contend that the notice of claim didn’t exist” because Temple “physically
held all of this information in [her] hands.” “Actual notice and substantial
compliance do not excuse failure to comply with the [notice of claim]
statutory requirements.” Swenson v. Cnty. of Pinal, 243 Ariz. 122, 128, ¶ 20
(App. 2017) (citations omitted). Thus, even if Temple had actual notice, it
would not excuse Simmons’ failure to file a valid notice of claim.

II. Declaratory Relief

¶14 Simmons’ second complaint also demanded “declaratory
relief as [the] court see[]s fit.” Parties are not required to file a notice of
claim when seeking declaratory relief. Martineau v. Maricopa Cnty., 207
Ariz. 332, 337, ¶¶ 24–25 (App. 2004). But we may affirm the superior court’s
dismissal of a complaint “if it is correct for any reason.” Dube v. Likins, 216
Ariz. 406, 417, ¶ 36 n.3 (App. 2007) (citation omitted).

¶15 Simmons waived this argument by not raising it with the
superior court or on appeal. See Childress Buick Co. v. O’Connell, 198 Ariz.
454, 459, ¶ 29 (App. 2000); Romero, 211 Ariz. at 203–04, ¶ 6. But, regardless
of the waiver, Simmons was not entitled to declaratory relief.

¶16 “For a court to grant declaratory judgment, the party seeking
relief must assert ‘a legal relationship, status or right’ in which the party has
a definite interest and ‘the denial of it by the other party.’” Original
Apartment Movers, Inc. v. Waddell, 179 Ariz. 419, 420 (App. 1993) (citation
omitted). “The court may refuse to render or enter a declaratory judgment
or decree where such judgment or decree, if rendered or entered, would not
terminate the uncertainty or controversy giving rise to the proceeding.”
A.R.S. § 12-1836.

¶17 Simmons’ second complaint does not clearly state what
declaratory relief she sought. We interpret it as seeking a declaration that

4
 SIMMONS v. TEMPLE
Decision of the Court

she was entitled to a hearing under A.R.S. § 8-515.05 and a declaration that
the policy requiring foster parents to respond to DCS inquiries within 24
hours is “unrealistic.”

¶18 Unless an exception applies, if a foster parent disagrees with
DCS’s decision to remove a child from the foster parent’s care, he or she
must notify DCS within 24 hours, and DCS must hold a case conference
with the foster parent. A.R.S. § 8-515.05(B). Simmons’ second complaint
indicated she had no opportunity to participate in a case conference. But
DCS is not a party here, and nothing suggests a declaratory judgment
against only Temple would resolve Simmons’ claim that she was entitled to
a hearing. Further, Simmons acknowledged there is a juvenile case
involving the child, and she should have sought relief through the juvenile
case, not a separate civil action against Temple. See A.R.S. § 8-532 (stating
the juvenile court has exclusive original jurisdiction over parental
termination cases). See also Maryn B. v. Padilla, 1 CA-SA 19-0294, 2020 WL
582350, at *2–3, ¶¶ 8, 14 (Ariz. App. Feb. 6, 2020) (mem. decision) (accepting
jurisdiction of a special action filed by foster parents alleging DCS did not
comply with A.R.S. § 8-515.05).

¶19 Similarly, Simmons’ demand for a declaration that the
communication policy was “unrealistic” fails because a declaration in a case
involving only Temple would not impact the policy or terminate the
underlying controversy. See A.R.S. § 12-1836.

CONCLUSION

¶20 We affirm the dismissal of Simmons’ complaint.

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

5