Desert Mountain v. Flagstaff

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DESERT MOUNTAIN ENERGY CORP., Petitioner,

v.

CITY OF FLAGSTAFF, Respondent.

No. 1 CA-SA 24-0189
FILED 03-04-2025

Petition for Special Action from the Superior Court in Coconino County
No. CV2020-00624
The Honorable Elaine Fridlund-Horne, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

DeConcini McDonald Yetwin & Lacy PC, Tucson
By Lisa Anne Smith, Sesaly O. Stamps, Tyler H. Stanton
Counsel for Petitioner

Perkins Coie LLP, Phoenix
By Christopher D. Thomas, P. Derek Petersen, Janet M. Howe, Rahgan
Jensen, Jacinda Stephens
Counsel for Respondent

DESERT MOUNTAIN v. FLAGSTAFF
Opinion of the Court

OPINION

Presiding Judge Michael S. Catlett delivered the opinion of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Before joining the Supreme Court, Justice Brandeis observed,
“Sunlight is said to be the best of disinfectants; electric light the most
efficient policeman.” Louis D. Brandeis, What Publicity Can Do, Harper’s
Weekly, Dec. 20, 1913, at 10, 10. In 1962, the Arizona Legislature shined
more light on government decision-making by enacting Arizona’s open-
meeting law. See 1962 Ariz. Sess. Laws, ch. 138, § 1 (2d Reg. Sess.) (S.B. 209).
That law “open[s] the conduct of the business of government to the scrutiny
of the public” and “ban[s] decision-making in secret.” Karol v. Bd. of Educ.
Trs., 122 Ariz. 95, 97 (1979) (citing A.R.S. § 38-431.01 (1979)).

¶2 In this special action, we apply the open-meeting law to a
particular government decision—whether to authorize litigation. We
answer this specific question: May public bodies vote behind closed doors
to authorize litigation? The answer is no. Because the City of Flagstaff
(“City”) authorized this litigation during executive session and did not
timely ratify that decision, the City’s claims are null and void. We accept
jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

¶3 The City is a municipal corporation located in northern
Arizona. The City Council, which has a mayor and six council members,
runs the City. The City Council is a “public body” subject to the open-
meeting law. See A.R.S. § 38-431(6) (defining “public body”).

¶4 On December 2, 2020, the City Council held a special meeting
to discuss litigation against Desert Mountain Energy Corporation (“Desert
Mountain”). During that meeting, the City Council went into executive
session—without the public present—for “[l]egal advice regarding water
litigation.” The City Council voted during that session to authorize
litigation against Desert Mountain to stop it from mining helium near the
City’s water source.

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¶5 Based on that vote, the City sued Desert Mountain. The City
brought claims for breach of contract, fraudulent misrepresentation, and
negligent misrepresentation, and it sought declaratory and injunctive relief.
At the City’s request, the superior court entered a temporary restraining
order and, later, a preliminary injunction against Desert Mountain,
requiring it to cease well operations until it obtained all necessary permits.
Desert Mountain appealed the injunction; this court vacated it and
remanded. See City of Flagstaff v. Desert Mountain Energy Corp., 2022 WL
869624, at *5 ¶ 30 (Ariz. App. Mar. 24, 2022) (mem. decision).

¶6 After remand, on September 30, 2022, Desert Mountain
answered and counterclaimed. In its counterclaim, Desert Mountain
alleged that “the City violated Arizona’s Open Meeting law by not
authorizing the filing of the Original Complaint in an open meeting.” Two
weeks later, the City answered the counterclaim.

¶7 In early 2023, the City Council held a special meeting, during
which it went into executive session for “[l]egal advice regarding Open
Meeting Law” and this litigation. Five days later, on January 17, 2023, the
City Council voted in public to ratify the lawsuit.

¶8 Desert Mountain then moved for summary judgment,
arguing the City’s claims are null and void. Desert Mountain argued the
City violated the open-meeting law and did not timely ratify its vote. The
City responded that Desert Mountain lacked standing and the City’s
ratification was timely. The superior court denied summary judgment,
concluding there were material fact issues about ratification. Desert
Mountain sought special action relief, but this court declined jurisdiction.

¶9 Desert Mountain then deposed the City Council members
who voted to authorize this litigation and the former City Attorney who
advised the City Council on open-meeting law compliance. Armed with
that discovery, Desert Mountain asked the superior court to reconsider
summary judgment. The court declined. Desert Mountain again seeks
special action relief.

JURISDICTION

¶10 The Arizona Supreme Court revised the Arizona Rules of
Procedure for Special Actions effective January 1, 2025. Generally, the new
rules apply in special actions pending on that date. This action was pending
on January 1, 2025, so the new rules apply.

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¶11 Rule 2 delimits the relief available in a special action.
Regardless of the relief requested, special action jurisdiction may be
accepted “only if the remedy by appeal is not equally plain, speedy, and
adequate.” Ariz. R.P. Spec. Act. 2(b)(2). Special action jurisdiction is
appropriate “in matters of statewide importance, issues of first impression,
cases involving purely legal questions, or issues that are likely to arise
again.” Prosise v. Kottke, 249 Ariz. 75, 77 ¶ 10 (App. 2020); see also Ariz. R.P.
Spec. Act. 12(b)(3)–(4). The decision to accept jurisdiction remains highly
discretionary. See Ariz. R.P. Spec. Act. 2(b)(2).

¶12 Here, Desert Mountain claims the superior court exceeded its
authority by requiring Desert Mountain to defend claims that are null and
void. Desert Mountain also claims the court abused its discretion by not
granting summary judgment. Both claims can be raised in a special action.
See Ariz. R.P. Spec. Act. 2.

¶13 The City argues we should decline jurisdiction because there
are material fact issues about the timeliness of the City’s ratification. And
the City correctly points out that we “disfavor accepting special action
jurisdiction to review the denial of a motion for summary judgment[.]” See
State v. Bryson, 256 Ariz. 511, 513 ¶ 7 (App. 2023); see also Ariz. R.P. Spec.
Act. 12(c)(2). But neither factual disputes nor the procedural posture
impedes special action jurisdiction here.

¶14 After this court previously declined jurisdiction, Desert
Mountain took discovery pertinent to ratification. Although the City
argues discovery did not resolve whether its ratification was timely, that
issue is a mixed question of law and fact, requiring us to take the facts as
developed and decide their legal ramifications. If the City is correct that
those facts do not definitively answer the timeliness issue, then Desert
Mountain is not entitled to relief. But the factual record is developed
enough to decide whether Desert Mountain’s legal arguments entitle it to
relief, and the facts necessary to answer that question are uncontested. See
Piner v. Superior Court, 192 Ariz. 182, 185 ¶ 10 (App. 1998) (accepting special
action jurisdiction where “[t]he facts [were] not contested, and the legal
issue [could] properly be decided on the present record.”).

¶15 Desert Mountain’s petition also does not stem from an
ordinary denial of summary judgment. Desert Mountain challenges how
the City authorized this litigation. Any legal action violating the open-
meeting law “is null and void” unless timely and properly ratified. A.R.S.
§ 38-431.05(A). If the City violated the open-meeting law and then failed to
timely ratify, this litigation ends. So Desert Mountain’s petition is the rare

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one where jurisdiction is appropriate because the benefit lost is avoiding
litigation, which cannot be recovered by awaiting an appeal. See Ariz. R.P.
Spec. Act. 12(b)(7); Sigmund v. Rea, 226 Ariz. 373, 375, ¶ 5 (App. 2011) (“[A]n
appeal inadequately remedies a trial court’s improperly requiring a defense
in a matter where it has no jurisdiction[.]”) (quoting Taylor v. Jarrett, 191
Ariz. 550, 551-52, ¶ 5 (App. 1998)); Florez v. Sargeant, 185 Ariz. 521, 524
(1996) (“But we also acknowledge that in the rare extraordinary case,
special action relief may be the only way to avoid the very harms a
particular defense [(statute of limitations)] was intended to prevent.”);
Samaritan Health Sys. v. Super. Ct., 194 Ariz. 284, 287 ¶ 10 (App. 1998)
(“Denial of a motion for summary judgment is inappropriate for special
action jurisdiction except in very unusual cases. One of those unusual cases
is when a defendant has claimed immunity from suit.”) (citation
omitted); cf. also City of Phoenix v. Fields, 219 Ariz. 88, 90, ¶ 2 (App. 2008)
(“[T]he purpose of the notice of claim provision would be thwarted if our
review of this matter were delayed pending an appeal.”) (vacated on other
grounds by City of Phoenix v. Fields, 219 Ariz. 568 (2009)).

¶16 In fact, this court has twice before addressed the open-
meeting law when doing so was perhaps unnecessary or could have waited.
In the more recent example, we accepted special action jurisdiction despite
the superior court entering a final judgment the petitioner could have
appealed. See Tanque Verde Unified Sch. Dist. No. 13 v. Bernini, 206 Ariz. 200,
203 ¶¶ 4–5 (App. 2003). We did so because the petition satisfied the
elements for jurisdiction. See id. In the older example, we published our
reasoning for concluding the appeal was null and void. See Johnson v. Tempe
Elementary Sch. Dist. No. 3 Governing Bd., 199 Ariz. 567, 570 ¶ 17 n.1 (App.
2000). We acknowledged “[t]he anomaly of addressing a ‘null and void’
appeal even in part,” but still did so “given . . . the novelty and importance
of the factual parameters of the open meeting law[.]” Id.

¶17 Those same considerations apply here. As explained, the
issues turn on undisputed facts and their legal ramifications. The open-
meeting law ensures transparency in government and reflects the
important “public policy of this state . . . that meetings of public bodies be
conducted openly . . . to inform the public of the matters to be discussed or
decided.” City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 483 (1990)
(quoting A.R.S. § 38-431.09 (1990)). Hundreds of public bodies—many of
which authorize litigation on a somewhat frequent basis—must comply
with the open-meeting law’s restriction on approving “legal action” in
executive session. So whether that restriction applies to authorizing
litigation is widely important and likely to recur. And the petition raises

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novel issues about when a public body’s deadline to ratify begins. See
Bryson, 541 P.3d at 584 ¶ 7. We accept jurisdiction.

DISCUSSION

¶18 We answer two questions. Did the City violate the open-
meeting law by voting in executive session to authorize this litigation?
And, if the City violated the open-meeting law, did it timely ratify its
decision?

I.

¶19 We first address whether the City violated the open-meeting
law. Desert Mountain argues that voting to authorize litigation is a “legal
action” that needs to be held in a public session. The City responds that the
open-meeting law allowed it to consult with and instruct its attorneys about
pending or contemplated litigation during executive session and that
includes voting to authorize litigation. See A.R.S. § 38-431.03(A)(4).

¶20 Whether the City violated the open-meeting law turns on
statutory interpretation. We interpret statutes “according to the plain
meaning of the words in their broader statutory context,” unless directed
to do otherwise. S. Ariz. Home Builders Ass’n v. Town of Marana, 254 Ariz.
281, 286 ¶ 31 (2023). “Clear and unequivocal language determines a
statute’s meaning, reading each word, phrase, clause, and sentence in such
a way to ensure no part of the statute is void or trivial.” Planned Parenthood
Ariz., Inc. v. Mayes, 257 Ariz. 110, 115 ¶ 15 (2024). Only when statutory
language is ambiguous may we “use alternative methods of statutory
construction[.]” Id. at ¶ 17.

¶21 According to the open-meeting law, “[a]ll meetings of any
public body shall be public meetings and all persons so desiring shall be
allowed to attend and listen to the deliberations and proceedings.” A.R.S.
§ 38-431.01(A). Section 38-431.01(A) also says that “[a]ll legal action of
public bodies shall occur during a public meeting,” and § 38-431.03(D)
requires that “[a] public vote shall be taken before any legal action binds
the public body.” Legal action is “a collective decision, commitment or
promise made by a public body pursuant to the constitution, the public
body’s charter, bylaws[,] . . . and the laws of this state.” A.R.S. § 38-431(3).

¶22 But not every conversation a public body has must be public.
“The public’s right to know and to participate in the decision-making
process frequently comes into sharp conflict with the need for
confidentiality in certain areas.” Hokanson v. High Sch. Dist. No. 8, 121 Ariz.

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264, 267 (App. 1978). The open-meeting law, therefore, allows a public
body to go into “executive session” under nine circumstances. See A.R.S.
§ 38-431.03(A)(1)–(9). Those circumstances “establish an equilibrium
between the public’s desire for access and the governmental agency’s need
to act in private, short of reaching ‘a collective decision, commitment, or
promise.’” City of Prescott, 166 Ariz. at 483 (quoting Gipson v. Bean, 156 Ariz.
478, 482 (App. 1987) ). But, to protect the public’s interest in open
government, we construe those circumstances narrowly “in favor of
requiring public meetings.’” Johnson, 199 Ariz. at 569 ¶ 14.

¶23 The City concedes that authorizing litigation is a “legal
action.” We agree. Authorizing litigation is a collective decision the City
Council makes by exercising the powers it derives from the City’s charter.
The City contends, however, that “’[l]egal action involving a final vote or
decision’ may be taken during an executive session to ‘instruct [the public
body’s] attorneys or representatives in pending or contemplated litigation.”

¶24 Contrary to that interpretation, the open-meeting law does
not allow a vote during executive session to authorize litigation. The City’s
interpretation jams two subsections together. Properly read, the open-
meeting law gives the general rule that “[l]egal action involving a final vote
or decision shall not be taken at an executive session[.]” A.R.S. § 38-
431.03(D). But it then says a public body “may instruct its attorneys” as
provided in three subsections in § 38-431.03(A). Only one of those
subsections applies here—§ 38-431.03(A)(4). That subsection allows a
public body to go into executive session “only” for “[d]iscussion or
consultation” with its attorneys “to consider its position and instruct its
attorneys regarding” its “position . . . in pending or contemplated
litigation.” A.R.S. § 38-431.03(A)(4).

¶25 For the City to be correct, a vote authorizing litigation must
be (1) a discussion or consultation about a litigation position or (2) an
instruction about such a position. A vote authorizing litigation is neither.
A public body can go into executive session to talk with or consult its
attorneys about future litigation without authorizing it. Similarly, a public
body can use an executive session to instruct its attorneys on litigation
positions. But once the public body makes a final and collective decision to
authorize litigation, that is a legal action requiring a public vote. See City of
Prescott, 166 Ariz. at 485 (“[O]nce the members of the public body
commence any discussion regarding . . . what action to take based upon the
attorney’s advice, the discussion moves beyond the realm of legal advice
and must be open to the public.”); Fisher, 185 Ariz. at 124.

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¶26 The open-meeting law also says that “[a] public vote shall be
taken before any legal action binds the public body.” A.R.S. § 38-431.03(D).
Authorizing litigation commits public funds to the litigation venture. Once
funds are committed, the decision is binding; as such, a vote committing
funds to litigation must be public. See Johnson, 199 Ariz. at 570 ¶ 15
(concluding that voting to appeal a judgment “transcends ‘discussion or
consultation’ and entails a ‘commitment’ of public funds”).

¶27 The City pushes back. It argues that authorizing this litigation
did not bind the City because it could have voluntarily dismissed its
complaint before Desert Mountain answered it. See Ariz. R. Civ. P.
41(a)(1)(A)(i). That argument ignores that authorizing litigation committed
public funds to retain counsel to analyze and draft the City’s claims. Here,
too, the City did not just file a complaint. The City also immediately sought
a temporary restraining order. That (predictably) set off a flurry of
litigation—including a request for a preliminary injunction, an objection to
that request, a motion to dismiss, a response to that motion, and an
amended complaint—all within a month. The City cannot avoid a public
vote because it once had the option to voluntarily dismiss its claims (an
option it did not exercise), especially when the relief the City sought
promptly resulted in active litigation and its attendant costs.

¶28 The City also argues that authorizing this litigation did not
newly commit public funds because the City Council committed those
funds months earlier in the City’s budget. We disagree. Every “county,
city or town” must adopt a budget and, presumably, many budgets account
for future legal expenses. See A.R.S. § 42-17105 (prescribing procedures for
counties, cities, and towns to adopt budgets). If we were to adopt the City’s
position, public bodies could avoid public votes on legal actions simply by
budgeting funds for those actions in advance. Plus, budgeting funds for
future purposes and spending funds on present endeavors are distinct
matters—the former allocates funds while the latter uses them. A public
body cannot budget around the open-meeting law. See Fisher, 185 Ariz. at
124 (“[O]ur charge is to promote openness in government, not to expand
exceptions which could be used to obviate the rule.”); A.R.S. § 38-431.09(A)
(instructing courts to “construe [the open-meeting law] in favor of open and
public meetings”).

¶29 That brings us to Johnson. There, the Tempe Elementary
School District Governing Board terminated a teacher. Johnson, 199 Ariz. at
568 ¶ 4. On review, the superior court ordered the teacher reinstated. Id.
at ¶ 5. In response, “the Board met in executive session with its attorney to
discuss the status of [the] litigation.” Id. at ¶ 6. During that executive

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session, the Board voted to appeal. Id. The teacher later argued the appeal
was null and void under the open-meeting law. Id. at ¶ 7. But the Board,
like the City here, argued the open-meeting law “allows a public body,
meeting in an executive session, to instruct its attorneys to file an appeal.”
Id. at 569 ¶ 10.

¶30 We concluded “the Board’s private decision to appeal
violated the state’s open meeting law and that its notice of appeal is null
and void.” Id. at 568 ¶ 7. The Board’s decision was a “legal action,” and
not “only discussion or consultation with its attorneys for legal advice or to
give instructions regarding pending litigation under section 38-
431.03(A)(3)-(4).” Id. at 569 ¶ 11, 570 ¶¶ 15–17. We explained that “[a]
decision to appeal transcends ‘discussion or consultation’ and entails a
‘commitment’ of public funds.” Id. at 569 ¶ 13, 570 ¶ 15. “[O]nce the Board
finished privately discussing the merits of appealing, the open meeting
statutes required that board members meet in public for the final decision
to appeal.” Id. at 570 ¶ 15.

¶31 The analysis in Johnson applies equally here. Authorizing
litigation “transcends ‘discussion or consultation’ and entails a
commitment of public funds.” Id. Once the City Council “finished
privately discussing the merits of” authorizing litigation against Desert
Mountain, the open-meeting law required it to “meet in public for the final
decision” to sue. Id.

¶32 The City suggests amendments to the open-meeting law
rendered Johnson irrelevant. Not so. Those amendments did not change
§ 38-431.01(A)(4) in any material way. Instead, the legislature amended
§ 38-431.03(D) to clarify that “the public body may instruct its attorneys or
representatives as provided in subsection A paragraphs 4, 5 and 7 of this
section.” See 2000 Ariz. Sess. Laws, ch. 358, § 4 (2nd Reg. Sess.) (S.B. 1392).
It also amended subsection A to say that “[a] public vote shall be taken
before any legal action binds the public body.” Id. And it amended § 38-
431.03(A)(4) to allow public bodies to discuss with, consult, and instruct
their attorneys “regarding contracts that are the subject of negotiation” or
“in settlement discussions conducted in order to avoid or resolve
litigation.” Id. Those two subparts are not at issue. The only relevant
subpart—that allowing a public body to discuss or consult about “pending
or contemplated litigation”—existed in its current form before and after
Johnson. So Johnson remains binding and relevant.

¶33 Finally, the City frets that Desert Mountain’s position will
make it impossible for public bodies to use § 38-431.01(A)(4) without

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tipping off their litigation foes to their legal positions. The Board in Johnson
expressed similar concerns. We responded that “[u]nder the statute, any
discussions concerning strategy and the merits of the case could be
conducted in executive session, but the final vote or decision to appeal
needed to be public.” 199 Ariz. at 570 ¶ 16. The Attorney General’s Arizona
Agency Handbook (“Agency Handbook”) also instructs that “to preserve
the confidentiality afforded by the Open Meeting Law, the best practice is
for the public body, upon return to the open session, to vote to authorize its
attorney to ‘proceed as instructed in the executive session.’” Arizona
Attorney General, Arizona Agency Handbook § 7.9.5.4 (Rev. 2018) (“Agency
Handbook”). And “[t]he public body should provide more information
when it is possible to do so without risking the confidentiality of the
matter[.]” Id.

¶34 We need not decide how much information a public body
must divulge when publicly voting to authorize litigation. By voting
behind closed doors, the City divulged no information. The City violated
the open-meeting law.

II.

¶35 We next address whether the City timely ratified its decision
to authorize litigation. The City argues it did so because the City Council
did not learn that Desert Mountain claimed the City violated the open-
meeting law until five days before its ratification. Desert Mountain
responds that the deadline to ratify started right when the City Council
originally voted to authorize this litigation.

¶36 Any legal action violating the open-meeting law is “null and
void” unless the public body timely ratifies that action. A.R.S. § 38-
431.05(A)–(B); see also Prieve v. Flying Diamond Airpark, LLC, 252 Ariz. 195,
197 ¶ 7 (App. 2021) (“Absent ratification, decisions by public bodies in
violation of open meeting laws are null and void[.]”). Ratification must
occur “within thirty days after discovery of the violation or after such
discovery should have been made by the exercise of reasonable diligence.”
A.R.S. § 38-431.05(B)(1).

¶37 Recall that the City Council re-voted in public session on
January 17, 2023. Starting from that date and counting back thirty days, if
the City discovered or should have discovered its violation before
December 18, 2022, then its ratification was untimely. See A.R.S. § 38-
431.05(B)(1). We conclude the City should have done so.

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¶38 Three things should have led the City to discover its violation
before December 18, 2022. First, Johnson. As explained, we held there that
a public body cannot vote in executive session to authorize an appeal.
Johnson, 199 Ariz. at 570 ¶ 15. This then is not a case where “no previous
Arizona case has addressed the statutory exception at issue and its scope”
or where “reasonable minds can differ” on § 38-431.03(A)(4)’s application.
See Bernini, 206 Ariz. at 209 ¶ 29. Once Johnson said a public body cannot
authorize an appeal in executive session, it was clear that a public body also
cannot authorize a lawsuit that way.

¶39 Second, the Agency Handbook. The open-meeting law
requires a “person elected or appointed to a public body” to review the
open-meeting law chapter in the Agency Handbook “at least one day before
the day that person takes office.” A.R.S. § 38-431.01(H); see also Agency
Handbook § 7.1. The Agency Handbook has a section titled, “Litigation,
Contract Negotiations, and Settlement Discussions,” which discusses when
public bodies can go into executive session under § 38-431.03(A)(4). See
Agency Handbook § 7.9.5.4. It states that (A)(4) “allows consideration and
instruction only[.]” Id. Citing Johnson, it then explains that “[i]f legal action
is necessary by the public body before its representative can take the
directed action, the public body must vote on the matter in public session
and cannot do so in executive session.” Id. The City does not dispute that
the City Council members who authorized this litigation received open-
meeting law training and read the Agency Handbook.

¶40 Third, Desert Mountain’s counterclaim. Desert Mountain
filed that counterclaim on September 30, 2022. Two weeks later, the City
answered. Although alleging a violation does not always start the
ratification clock, see Bernini, 206 Ariz. at 210 ¶ 32, the answer and
counterclaim here further notified the City that it may have violated the
open-meeting law. And then, rather than swiftly ratifying, the City waited
three-and-a-half months to take a new vote.

¶41 The City responds in two ways. Neither is persuasive. One,
it argues the City Council did not discover its open-meeting law violation
because the City Attorney advised it “that a public body can instruct its
attorneys to file a lawsuit in executive session.” But the ratification deadline
cannot be extended based on an attorney’s patently incorrect legal advice.
Individual members of a public body must educate themselves about, and
then follow, the open-meeting law. See A.R.S. § 38-431.01(H); A.R.S. § 38-
431.07(A) (permitting the Attorney General to sue an individual member of
a public body for violating the open-meeting law). They cannot delegate

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compliance to the body’s attorney. And, because they cannot do so, they
cannot delay ratification based on that attorney’s incorrect advice.

¶42 Two, the City argues its deadline started no earlier than
January 12, 2023, when the City Council first heard about the counterclaim.
That argument is curious considering the City answered the counterclaim
in October 2022. The City does not explain why months passed before the
City Council heard about the counterclaim. Still, the City’s argument
artificially distinguishes between the City and the City Council and
between actual and constructive knowledge. Even if it took three months
for the City Council to learn of the counterclaim, the City Council
constructively knew about it when the City answered it. The open-meeting
law focuses on when “discovery should have been made by the exercise of
reasonable diligence” (in other words, when the public body had constructive
knowledge). A.R.S. § 38-431.05(B)(1) (emphasis added). We will not delay
the City’s deadline until someone actually told the City Council about the
counterclaim.

¶43 Because the City’s deadline to ratify started before December
18, 2022, the City’s ratification was untimely. See id. The City’s claims are
null and void. See A.R.S. § 38-431.05(A); Johnson, 199 Ariz. at 570 ¶ 17.

III.

¶44 Desert Mountain seeks attorney fees and costs on appeal. We
deny Desert Mountain’s request under A.R.S. § 12-349. But, as the
successful party, we award Desert Mountain its costs under § 12-341. As
the prevailing party in a contract matter, Desert Mountain is entitled, at
least, to some reasonable attorney fees under A.R.S. § 12-341.01. But, if
Desert Mountain has now “prevail[ed] by an adjudication on the merits,” it
may also receive reasonable attorney fees under § 12-348(A)(1). We award
Desert Mountain some reasonable attorney fees on appeal, and we might
award all reasonable fees on appeal, subject to compliance with Arizona
Rule of Civil Appellate Procedure 21. In its fee application, Desert
Mountain should address whether we should award all its attorney fees on
appeal under A.R.S. §§ 12-341.01 or 12-348(A)(1).

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CONCLUSION

¶45 We accept jurisdiction and grant relief. Because the City’s
claims are null and void, we instruct the superior court to enter summary
judgment for Desert Mountain.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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