brooks/phoenix v. Hon. Agne

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COLT TRISTAN BROOKS; THE CITY OF PHOENIX, a municipal
corporation, Petitioners,

v.

THE HONORABLE SARA J. AGNE, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

LENA G. DAVIS; LAMARCUS L. WHITE, Real Parties in Interest.

No. 1 CA-SA 21-0154
FILED 11-16-2021

Special Action Review from the Superior Court in Maricopa County
No. CV2020-054101
CV2020-054192
The Honorable Sara J. Agne, Judge

REVIEW GRANTED; RELIEF DENIED
 COUNSEL

City Attorney’s Office, Phoenix
By Victoria Torrilhon
Counsel for Petitioners

Gust Rosenfeld P.L.C., Phoenix
By Charles W. Wirken and Robert D. Haws
Counsel for Amicus Curiae, Arizona School Risk Retention Trust, Inc.

Tempe City Attorney, Tempe
By Judith R. Baumann, Michael R. Niederbaumer, and Sara R. Anchors
Counsel for Amicus Curiae, City of Tempe

Goldberg & Osborne, LLP, Phoenix
By Allen D. Bucknell (argued), Marc A. Kamin, and Kwesi A. Seabrook
Counsel for Real Parties in Interest

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Amicus Curiae, Arizona Trial Lawyers Association

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.

M c M U R D I E, Judge:

¶1 Colt Brooks and the City of Phoenix (“City”) seek special
action relief from the superior court’s order denying their motion for
summary judgment. We grant special action jurisdiction but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In July 2020, Lamarcus White and Lena Davis sued the City
and Brooks for negligence and loss of consortium after Brooks changed
lanes while driving a fire engine and collided with their vehicle in July 2019.
The complaint alleged the City was vicariously liable for Brooks’
negligence.

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¶3 Before filing their complaint, White and Davis tried to file
notices of claim with the City as required by A.R.S. § 12-821.01. The first
notices filed with the City in November 2019 were defective. In December,
White and Davis’s process server visited an address she believed was
Brooks’ residence and discovered that Brooks did not live there. A relative
living at the address gave the process server Brooks’ phone number. The
process server called and spoke with Brooks on December 14, 2019. She
claimed that Brooks told her she should serve the notice of claim on the fire
department, and he would not be personally served. On December 20, 2019,
White and Davis filed an amended notice of claim with the Phoenix City
Clerk’s Office, naming the City and Brooks. Brooks was never personally
served.

¶4 Brooks and the City moved for summary judgment, arguing
that the claims were barred because White and Davis never served a notice
of claim on Brooks as required by A.R.S. § 12-821.01. White and Davis
countered that their claim against Brooks was not barred because Brooks
had actual notice and evaded service. The court considered the process
server’s statement, Brooks’ declaration that he did not authorize the City
Clerk to accept service on his behalf, and testimony by Brooks that he told
the process server to contact the City to reach him but did not recall the
details of the conversation. Brooks and the City argued that the City
routinely facilitates employee service to minimize employee work
disruptions, and the City likely would have arranged service if the process
server had contacted the City as Brooks requested.

¶5 The superior court viewed the facts in the light most favorable
to White and Davis and found that genuine issues of material fact
precluded summary judgment for Brooks and the City. Brooks and the City
then petitioned this court for special action relief.

DISCUSSION

A. We Accept Special Action Jurisdiction.

¶6 We accept jurisdiction to address a legal issue of statewide
importance: whether a public defendant must be dismissed when a plaintiff

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fails to comply strictly with A.R.S. § 12-821.01.1 See Gutierrez v. Fox, 242 Ariz.
259, 264, ¶ 13 (App. 2017) (Special action jurisdiction is appropriate when
“a petition presents a purely legal issue of first impression that is of
statewide importance.”) (internal quotation omitted). We recognize that
exercising special action jurisdiction to consider the denial of summary
judgment is rarely appropriate. Salt River Valley Water Users’ Ass’n v. Barker,
178 Ariz. 70, 73 (App. 1993). Jurisdiction is appropriate because a defendant
who asserts immunity, as Brooks does here, has no adequate remedy at law
by direct appeal if he is erroneously forced to stand trial. Id.

B. Before a Trial on the Merits, the Trier of Fact Must Resolve
Genuine Disputes of Material Fact about Whether Equitable
Principles Bar Brooks from Asserting A.R.S. § 12-821.01 as a
Defense and Whether Brooks Created Apparent Authority in the
City to Accept Service on his Behalf.

¶7 Brooks and the City argue that the superior court erred by
permitting the claim to proceed against Brooks because anything short of
strict compliance with A.R.S. § 12-821.01 is dispositive. “We review a denial
of a motion for summary judgment for an abuse of discretion and view the
facts and all reasonable inferences therefrom in the light most favorable to
the party opposing the motion.” Sonoran Desert Investigations, Inc. v. Miller, 213 Ariz. 274, 276, ¶ 5 (App. 2006).

¶8 If a notice of claim against a public entity, public school, or
public employee is not served within the statutory time limit, the claim is
barred. A.R.S. § 12-821.01. Claims must be served on the person or persons
authorized to accept service. A.R.S. § 12-821.01(A). “Actual notice and
substantial compliance do not excuse failure to comply with the statutory
requirements of A.R.S. § 12-821.01(A).” Falcon ex rel. Sandoval v. Maricopa
Cty., 213 Ariz. 525, 527, ¶ 10 (2006). But “this procedural requirement is
subject to waiver, estoppel, and equitable tolling.” Pritchard v. State, 163
Ariz. 427, 432 (1990).

¶9 In denying the summary judgment motion, the superior court
found that White and Davis had “shown genuine issues of material fact as

1 Because we find the court did not abuse its discretion by finding that
issues of fact needed to be resolved, we do not address whether an
employee’s dismissal with prejudice under A.R.S. § 12-821.01 has
preclusive effect on the vicarious liability of a public employer that was
correctly served under the statute.

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to whether an A.R.S. § 12-821.01 defense is available to [Brooks].” Although
the superior court did not express the specific rationale that might cause the
defense to be unavailable to Brooks, on review, we conclude there is a
genuine dispute about whether waiver and estoppel apply and if Brooks
created apparent authority in the City to accept service on his behalf.

¶10 To establish that Brooks is estopped from asserting his rights
under A.R.S. § 12-821.01, White and Davis would have to show that
(1) Brooks committed acts inconsistent with his later assertion of those
rights; (2) they reasonably relied on Brooks’ conduct; and (3) they suffered
injury because Brooks repudiated his prior conduct. Valencia Energy Co. v.
Ariz. Dep’t of Revenue, 191 Ariz. 565, 576–77, ¶ 35 (1998).

¶11 The first element requires an affirmative act. Valencia Energy,
191 Ariz. at 577, ¶ 36. Brooks’ silence or inaction cannot meet this
requirement. Still, if he committed affirmative acts by telling the process
server that he would not disclose his address or be personally served, it may
meet the first element. According to the process server, Brooks refused to
give her an address for service and told her “he was not going to be served”
and that she should “serve [the notice of claim] to the fire department.”
After she advised Brooks that she needed to serve him personally, he said,
“[W]ell that’s not going to happen!” Those statements may satisfy the first
element of estoppel if they conflict with his later assertion of A.R.S.
§ 12-821.01.

¶12 The second element requires reasonable reliance by White
and Davis. Valencia Energy, 191 Ariz. at 577, ¶ 37. Brooks’ insistence that he
would not be personally served does not constitute a factual assertion that
can be relied on by White and Davis as accurate. But it is conceivable that
White and Davis accepted as accurate and reasonably relied on Brooks’
statement that they should serve him through the City. Thus, the third
element, injury, would be satisfied if White and Davis’s claim against
Brooks is dismissed for failure to serve him.

¶13 A waiver is the voluntary surrender of a known right. Am.
Cont’l Life Ins. Co. v. Ranier Const. Co., 125 Ariz. 53, 55 (1980). A party may
waive a right expressly or by conduct inconsistent with the intent to assert
the right. Id. To establish waiver by conduct, one must show that the
behavior necessarily implies waiving the right. Id. Here, to establish waiver,
White and Davis would have to show that Brooks intended to relinquish
his right to be personally served a notice of claim through the phone call
with the process server. It would be insufficient, for example, to show that

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Brooks misunderstood the requirements of A.R.S. § 12-821.01 and
mistakenly told the process server to serve his notice to the City.

¶14 Under A.R.S. § 12-821.01(A), notice may be served on the
public defendant or a person authorized to accept service for the defendant.
Without actual authority to accept service, a principal who creates apparent
authority in an agent to accept service on his behalf will be bound by service
upon that apparent agent. See Pac. Guano Co. v. Ellis, 83 Ariz. 12, 16 (1957).
“To bind a principal on the basis of apparent authority the principal’s
conduct must be such that the law will not permit him to say he did not
give the agent the authority.” Id. Here, White and Davis served the City the
December 20 notice of claim after Brooks allegedly told them to serve his
notice of claim on the City. Brooks will be bound by service upon the City
if he intentionally or inadvertently induced White and Davis to believe that
the City could accept service on his behalf. Canyon State Canners v. Hooks, 74
Ariz. 70, 73 (1952).

¶15 Fact issues remain concerning whether Brooks should be
estopped from asserting A.R.S. § 12-821.01 and whether Brooks waived his
right to assert the defense. Any factual disputes about equitable defenses in
applying A.R.S. § 12-821.01 must be resolved before a trial on the merits,
and the court should act as the factfinder. A.R.S. § 12-821.01(G) (issues of
fact about the statute’s application must be resolved before trial on the
merits); McCloud v. State, Ariz. Dep’t of Pub. Safety, 217 Ariz. 82, 86, ¶ 9 (App.
2007) (court acts as factfinder in considering equitable defenses unrelated
to the central facts relevant to the claim’s merits).

¶16 Fact issues also remain about whether Brooks created
apparent authority in the City to accept the notice-of-claim service. If this
material dispute is the legal theory the superior court is considering, it must
submit the question to a jury before a trial on the merits. Lee v. State, 225
Ariz. 576, 577, ¶ 1 (App. 2010); A.R.S. § 12-821.01(G); see also Pritchard, 163
Ariz. at 433 (Disputed issues of fact about compliance with A.R.S. § 12-821
must be resolved by the jury, not the trial court.).

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CONCLUSION

¶17 We accept jurisdiction but deny relief.

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

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