Guadalupe Falcon v. Maricopa County

SUPREME COURT OF ARIZONA
EN BANC

GUADALUPE FALCON, Deceased, by ) Arizona Supreme Court
and through her surviving ) No. CV-06-0106-PR
children ANTONIO SANDOVAL, JR.; )
GUADALUPE PRATT; LYDIA SANDOVAL; ) Court of Appeals
FRANCISCO SANDOVAL; AURORA ) Division One
SANDOVAL; JOSE SANDOVAL; ) No. 1 CA-CV 04-0801
REYNALDO SANDOVAL; ALFREDO )
SANDOVAL, ) Maricopa County
) Superior Court
Plaintiffs-Appellants, ) No. CV2003-007177
)
v. )
)
MARICOPA COUNTY, a body politic; ) O P I N I O N
MARICOPA INTEGRATED HEALTH CARE )
SYSTEM, d/b/a MARICOPA COUNTY )
MEDICAL CENTER, an Arizona )
hospital, )
)
Defendants-Appellees. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Thomas Dunevant, III, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals Division One
212 Ariz. 144, 128 P.3d 767 (2006)

AFFIRMED IN PART, VACATED IN PART
________________________________________________________________

ROBBINS & CURTIN, P.L.L.C. Phoenix
By John M. Curtin

And
VICTORIA GRUVER CURTIN, P.L.C. Scottsdale
By Victoria Curtin
Attorneys for Antonio Sandoval, Jr., Guadalupe Pratt,
Lydia Sandoval, Francisco Sandoval, Aurora Sandoval,
Jose Sandoval, Reynaldo Sandoval, and Alfredo Sandoval

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Bruce P. White, Deputy County Attorney
Attorneys for Maricopa County and Maricopa Integrated
Health Care System, d/b/a Maricopa County Medical Center

JONES SKELTON & HOCHULI P.L.C. Phoenix
By Eileen Dennis GilBride
Attorneys for Amici Curiae Apache County, Cochise
County, Coconino County, Gila County, Graham County,
Greenlee County, La Paz County, Mohave County, Navajo
County, Pima County, Pinal County, Santa Cruz County,
Yavapai County, Yuma County, City of Phoenix, The
Arizona School Board Association, The Arizona School
Risk Retention Trust, and The League of Arizona Cities
and Towns
________________________________________________________________

R Y A N, Justice

¶1 Before suing a public entity for damages, a plaintiff

must file a notice of claim “with the person or persons

authorized to accept service for the public entity . . . as set

forth in the Arizona rules of civil procedure within one hundred

eighty days after the cause of action accrues.” Ariz. Rev. Stat.

(“A.R.S.”) § 12-821.01(A) (2003). If the public entity is a

county, the persons authorized to accept service under Arizona

Rule of Civil Procedure 4.1(i) are either “the chief executive

officer, the secretary, clerk, or recording officer thereof.”

¶2 This case requires us to decide whether delivery of a

notice of claim to one member of a county board of supervisors

2
complies with A.R.S. § 12-821.01(A) and Rule 4.1(i). We hold

that the board of supervisors is the chief executive officer of

the county for purposes of Rule 4.1(i) and that delivering a

notice of claim to only one member of the board does not comply

with the requirements of either the statute or the rule.

I

¶3 Guadalupe Falcon died after receiving care at Maricopa

Medical Center, a facility owned and operated by Maricopa

County. The Falcon children (“plaintiffs”) decided to sue

Maricopa County, among others, for medical malpractice.

¶4 Attempting to comply with A.R.S. § 12-821.01(A), the

plaintiffs sent a notice of claim letter by certified mail to

Supervisor Andrew Kunasek, a member of the Maricopa County Board

of Supervisors. The receipt for the certified letter was signed

for by an agent of the county authorized to sign for such mail.

The letter was apparently lost at an undetermined point. The

record does not disclose whether the letter was delivered to

Supervisor Kunasek’s office. Had the letter been so delivered,

the office policy would have been for Mr. Kunasek’s secretary to

forward it to the clerk of the board of supervisors.

¶5 After failing to receive a response to their notice of

claim letter, the plaintiffs filed a lawsuit against Maricopa

County. Maricopa County subsequently filed a motion for summary

judgment contending that the plaintiffs had not served a notice

3
of claim on a “person or persons authorized to accept service

for the [county] . . . as set forth in the Arizona rules of

civil procedure.” A.R.S. § 12-821.01(A). The superior court

granted summary judgment in favor of the county. The plaintiffs

appealed, asserting that delivery of a certified letter to one

member of the board of supervisors satisfies the requirements of

A.R.S. § 12-821.01(A) and Rule 4.1(i).

¶6 The court of appeals, in a divided opinion, reversed

and held that service on one member of the board satisfies Rule

4.1(i). Falcon v. Maricopa County, 212 Ariz. 144, 148, ¶ 17,

128 P.3d 767, 771 (2006). The majority first held that the

board of supervisors of Maricopa County is its chief executive

officer. Id. at 147, ¶ 11, 128 P.3d at 770. The majority then

held that Rule 4.1(i) allows a board of supervisors to be

“served through one member of the board.” Id. at 148, ¶ 15, 128

P.3d at 771. In so concluding, the majority relied heavily on

Rules 4.1(j) and (k), which it read as allowing service on a

multi-person entity through service on one member of the entity.

Id. at 147-48, ¶¶ 15-16, 128 P.3d at 770-71.

¶7 Judge Orozco dissented. She agreed with the majority

that the board of supervisors of Maricopa County is its chief

executive officer. Id. at 149, ¶¶ 19, 21, 128 P.3d at 772. She

did not think, however, that other subsections of Rule 4.1

should inform the court’s interpretation of Rule 4.1(i). Id. at

4
¶¶ 24-25. In addition, Judge Orozco concluded that the

majority’s holding did not harmonize A.R.S. § 12-821.01(A) with

Rule 4.1(i). Id. at ¶ 22. She concluded that service on one

member of the board was insufficient to comply with the statute

and the rule. Id. at 149, ¶ 21, 128 P.3d at 772.

¶8 We granted Maricopa County’s petition for review

because the court of appeals’ interpretation of Rule 4.1(i) has

important legal and practical consequences for political

subdivisions of the State. We have jurisdiction under Article

6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-

120.24 (2003).

II

¶9 The notice of claim requirements in A.R.S. § 12-821.01

serve “to allow the 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, 86 P.3d 912, 915-16 (App. 2004). A

notice of claim must therefore contain a statement of the facts

that establish the basis for liability and an amount for which

the claim can be settled. A.R.S. § 12-821.01(A).

¶10 If a notice of claim is not properly filed within the

statutory time limit, a plaintiff’s claim is barred by statute.

Salerno v. Espinoza, 210 Ariz. 586, 589, ¶ 11, 115 P.3d 626, 629

5
(App. 2005). Actual notice and substantial compliance do not

excuse failure to comply with the statutory requirements of

A.R.S. § 12-821.01(A). See Martineau, 207 Ariz. at 335, ¶¶ 15,

17, 86 P.3d at 915.

¶11 The plaintiffs contend that when they sent their

notice of claim to Mr. Kunasek, a member of the board of

supervisors, they complied with Rule 4.1(i). Maricopa County,

on the other hand, argues that delivery of a notice of claim to

a single member of the board does not comply with the rule.

Alternatively, the county and amici, which include various

Arizona counties, cities, and school boards, assert that the

Maricopa county manager, not the board of supervisors, is the

county’s “chief executive officer.”

¶12 To decide whether service upon one member of a county

board of supervisors satisfies Rule 4.1(i), we must first

determine whether the board of supervisors is the “chief

executive officer” of the county. If the whole board is the

chief executive officer, we must then decide whether service

upon one member of that body satisfies Rule 4.1(i).

III

A

¶13 Rule 4.1(i) does not define the term “chief executive

officer.” With respect to municipal corporations such as cities

and towns, the mayor is statutorily denominated the chief

6
executive officer. A.R.S. § 9-236 (1996); id. § 9-273(B) (Supp.

2005). But with other governmental subdivisions, such as

counties and school boards, the statutes do not specifically

identify the chief executive officer.

¶14 “Executive” is generally defined as “[t]he branch of

government responsible for effecting and enforcing laws; the

person or persons who constitute this branch.” Black’s Law

Dictionary 610 (8th ed. 2004). An officer is “[a] person who

holds an office of trust, authority, or command.” Id. at 1117.

The word “chief” means “[a] person who is put above the rest;

the leader.” Id at 253. A chief executive officer, therefore,

is the individual or entity that controls, supervises, and has

the ultimate responsibility for ensuring the proper function of

a governmental entity. Based upon the statutory powers and

duties of a board of supervisors, we conclude that a county’s

board of supervisors is its chief executive officer.

¶15 The board’s powers include supervising county

officers, A.R.S. § 11-251(1) (Supp. 2005); levying taxes, id. §

11-251(12); maintaining and controlling public roads, ferries

and bridges, id. § 11-251(4); providing for county hospitals,

id. § 11-251(5); erecting jails and courthouses, id. § 11-

251(8); “[making] and enforc[ing] all local, police, sanitary

and other regulations not in conflict with general law,” id. §

11-251(31); and purchasing real property, id. § 11-251(45).

7
Most importantly for purposes of this case, the board has the

power to “[d]irect and control the prosecution and defense of

all actions to which the county is a party, and compromise

them.” Id. § 11-251(14).

¶16 Because the board of supervisors has general

supervisory powers and policy-making responsibility for the

county, including the direction and control of lawsuits against

the county, we agree with the court of appeals that the board is

the chief executive officer of the county. See Falcon, 212

Ariz. at 147, ¶ 11, 128 P.3d at 770; see also Blauvelt v. County

of Maricopa, 160 Ariz. 77, 79, 770 P.2d 381, 383 (App. 1988)

(concluding that “[t]he chief executive officer or body of

Maricopa County is the board of supervisors”).

¶17 Like the court of appeals, we reject the argument that

the county manager of Maricopa County is its chief executive

officer. See Falcon, 212 Ariz. at 146, ¶ 9, 128 P.3d at 769.

The Board of Supervisors created the position of county manager.

See Maricopa County Bd. of Supervisors Minutes, January 2, 1953.

The county manager’s duties include “coordinat[ing] and

control[ling] all administrative branches of said County under

the direction and control of the Board of Supervisors.” Id.

(emphasis added). The resolution creating the county manager

position cautioned, however, that “nothing in this resolution

shall be construed as a delegation of the statutory or implied

8
powers of the Board of Supervisors of Maricopa County.” Id.

The county manager is appointed by the board and “serve[s] at

the will of the board.” Maricopa County Admin. Manual, §

A1501(B)(2) (Nov. 1991). The county manager, accordingly, is

plainly not the chief executive officer of the county; rather,

the board remains ultimately responsible for ensuring the proper

operation of county government. See id. § A1501(B)(1).

Finally, a county manager is not a statutory officer listed in

A.R.S. § 11-401(A) (2001), and not all counties have county

managers. Consequently, treating a county manager as the chief

executive officer of a county would create confusion for

claimants in determining the “person or persons authorized to

accept service for the public entity.” A.R.S. § 12-821.01(A).1

¶18 Because we hold that the board of supervisors is the

chief executive officer of a county, we now turn to the question

of whether the board of supervisors may be served through one of

its members.

1
Maricopa County has specifically authorized the clerk of
the board of supervisors to accept filings of notices of claims.
See Maricopa County Risk Management, Notice of Claim Form
Against Maricopa County 3,
http://www.maricopa.gov/Clk_board/pdf/Claimform_Notice.pdf (last
visited Oct. 24, 2006) (stating specifically that the notice of
claim form should be returned to the clerk of the board of
supervisors and providing no alternate address or means of
service). The plaintiffs did not serve their claim on the clerk
of the board.

9
 B

¶19 The plain language of Rule 4.1(i) requires service on

the chief executive officer, and the parties agree that Mr.

Kunasek, as a member of the board, is not the chief executive

officer of the county. Thus, the issue is whether service on

one member of the board is service on all for purposes of the

rule.

¶20 Although the individual members of the board are

officers of the county, A.R.S. § 11-401(A)(7), the board cannot

exercise its executive power except through collective action of

the majority of the board because the county board of

supervisors is a “public body.” A.R.S. § 38-431(6) (2001).

“All legal action of public bodies shall occur during a public

meeting.” A.R.S. § 38-431.01(A) (2001). “‘Legal action’ means

a collective decision, commitment or promise made by a public

body pursuant to the constitution, the public body’s charter,

bylaws or specified scope of appointment and the laws of this

state.” A.R.S. § 38-431(3).

¶21 Individual supervisors do not have the power to

“[d]irect and control the prosecution and defense of all actions

to which the county is a party, and compromise them.” A.R.S. §

11-251(14). Delivery of a notice of claim to only one board

member does not further the purpose of A.R.S. § 12-821.01(A) by

providing the county the opportunity to consider the claim and

10
possibly settle it. See Falcon, 212 Ariz. at 149, ¶ 23, 128

P.3d at 772 (Orozco, J., dissenting). Therefore, serving one

member of the board does not constitute service on the “chief

executive officer” of a county for the purposes of Rule 4.1(i).

C

¶22 The court of appeals’ majority opinion nevertheless

found three reasons to support its decision that serving a

notice of claim on one member of the board suffices for purposes

of Rule 4.1(i). First, it examined language in subsections (j)

and (k) of Rule 4.1, which describe how to serve entities other

than those listed in subsection (h) or (i). Falcon, 212 Ariz.

at 147-48, ¶ 15, 128 P.3d at 770-71. Reliance on these two

subsections to interpret Rule 4.1(i) was misplaced.

¶23 Three subsections of Rule 4.1 address the proper

method for service upon government entities. Rule 4.1(h)

governs service upon the state.2 Rule 4.1(i) describes the

method of service on counties, municipal corporations, or other

governmental subdivisions. Rule 4.1(j) directs the method of

service on governmental entities not listed in either subsection

(h) or (i). Specifically, Rule 4.1(j) states:

Service upon any governmental entity not listed above
shall be effected by serving the person, officer,

2
Rule 4.1(h) provides: “If a waiver has not been obtained
and filed, service upon the state shall be effected by
delivering a copy of the summons and of the pleading to the
attorney general.”

11
 group or body responsible for the administration of
that entity or by serving the appropriate legal
officer, if any, representing the entity. Service
upon any person who is a member of the “group” or
“body” responsible for the administration of the
entity shall be sufficient.

Id. (emphasis added). By its plain language, Rule 4.1(j) does

not apply here. Because the requirements for serving a county

are specifically set forth in Rule 4.1(i), Rule 4.1(j) has no

relevance in determining the proper person to be served when a

claim is made against a county. Similarly, Rule 4.1(k) is not

applicable because it describes the procedure for serving

corporations, partnerships, or other unincorporated

associations, not governmental entities.

¶24 Second, the court of appeals cited its “duty to

liberally construe procedural rules that do not speak to a set

of facts,” so as not to create a trap for the unwary. Falcon,

212 Ariz. at 148, ¶ 16, 128 P.3d at 771 (citing Nielsen v.

Patterson, 204 Ariz. 530, 533, ¶ 13, 65 P.3d 911, 914 (2003)

(suggesting that courts should not construe ambiguous rules of

civil procedure restrictively)). This rule of interpretation,

however, does not apply because Rule 4.1(i) plainly lists the

entities or persons who are authorized to accept service on

behalf of a county.

¶25 Third, the court of appeals noted that serving only

one member of the board adequately accomplishes the purposes of

12
A.R.S. § 12-821.01(A), which include putting the county on

notice and giving it an opportunity to resolve forthcoming

claims. Falcon, 212 Ariz. at 148, ¶ 16, 128 P.3d at 771.

Serving one member of the board of supervisors, however, does

not fulfill the purposes of the notice-of-claim statute. As

this case illustrates, service of a notice of claim upon a

single member of a multi-member political entity does not

necessarily result in successful notice to the entity as a

whole, which is the point of A.R.S. § 12-821.01(A) and Rule

4.1(i).

¶26 Finally, the rule fashioned by the majority below

could create serious problems for other political subdivisions

covered by Rule 4.1(i). An interpretation of Rule 4.1(i) that

“service may validly be completed on an individual member of a

governing board has the potential for numerous problems,

unintended or otherwise, considering the part-time nature of

many of these positions.” Falcon, 212 Ariz. at 149, ¶ 26, 128

P.3d at 772 (Orozco, J., dissenting). Many of the part-time

members of political subdivisions, such as school boards, may

not appreciate the significance of a notice of claim or realize

that such a claim must be acted upon within sixty days. See

A.R.S. § 12-821.01(E) (“A claim against a public entity or

public employee . . . is deemed denied sixty days after the

filing of the claim unless the claimant is advised of the denial

13
in writing before the expiration of sixty days.”). Moreover,

the individual served may have no reason to think that he or she

was the only member served, and so might not think it necessary

to inform others. As a result, interpreting Rule 4.1(i) to

permit filing of a notice of claim on a single member of a

multi-member chief executive officer of such political

subdivisions could undermine the purposes of A.R.S. § 12-

821.01(A).

IV

¶27 The plaintiffs nevertheless contend that they properly

filed their notice of claim with the clerk of the board of

supervisors because Mr. Kunasek’s office policy was to forward

the letter to the board’s clerk. We reject this argument as

speculative; the rule requires service on the board, not on

someone whose usual practice is to forward the claim to the

board.

¶28 The plaintiffs rely on Creasy v. Coxon, 156 Ariz. 145,

750 P.2d 903 (App. 1987)3, in asserting that service on an agent

3
Creasy was decided under the previous version of A.R.S. §
12-821.01(A), which stated that “[p]ersons who have claims
against a public entity or public employee shall file such
claims in the same manner as that prescribed in the Arizona
Rules of Civil Procedure, Rule 4(D) within twelve months after
the cause of action accrues.” A.R.S. § 12-821 (Supp. 1985).
Although Creasy did not refer to a specific subsection of Rule
4(d), former Rule 4(d)(8) is a nearly verbatim version of
current Rule 4.1(i). See 16 A.R.S. Rules Civ. Proc., Rule
4(d)(8) (1987).

14
of the correct party is sufficient. But Kunasek is not an agent

of the board; he is a member of the board.

¶29 In Creasy, the court of appeals held that serving a

notice of claim on the offices of the President and Vice-

President of Central Arizona Community College was sufficient to

effect service, even though neither had the notice “placed

directly” in his hands. Id. at 147-48, 750 P.2d at 905-06. The

court further stated that “[i]f a claimant can establish that

delivery was made to the appropriate office of the person or

agent described in Rule 4(d) [now Rule 4.1(i)], that is

sufficient to show that the notice of claim was properly

delivered.” Id. at 148, 750 P.2d at 906.

¶30 Creasy does not apply here because the plaintiffs did

not deliver their notice of claim to the office of a person or

entity listed in Rule 4.1(i). The plaintiffs’ notice of claim

letter was addressed to Supervisor Kunasek directly and, as

discussed above, Mr. Kunasek is not an authorized person to

accept service for the county under Rule 4.1(i). Thus, the

plaintiffs did not deliver their notice of claim to the chief

executive officer or the office of the chief executive officer

of Maricopa County. In addition, they did not deliver their

notice of claim to the clerk of the board of supervisors or the

office of the clerk. Therefore, the plaintiffs did not properly

serve the clerk of the board of supervisors.

15
¶31 The plaintiffs also contend that they relied on

Arizona case law, specifically Blauvelt, 160 Ariz. at 79, 770

P.2d at 383, and Maricopa County v. Arizona Tax Court, 162 Ariz.

64, 69, 781 P.2d 41, 46 (App. 1989), in sending their notice of

claim directly to Supervisor Kunasek. They assert that these

cases support their contention that service on an individual

member of the board of supervisors is sufficient under Rule

4.1(i). These cases simply do not support this interpretation,

however.

¶32 Blauvelt did not address the proper method of service

for the board of supervisors; rather, it addressed whether

filing a notice of claim with the county recorder satisfied Rule

4.1(i)’s predecessor, Rule 4(d)(8). 160 Ariz. at 79-80, 770

P.2d at 383-84. Blauvelt held that the county recorder was not

authorized under Rule 4(d)(8) to accept service on behalf of the

county because the term “thereof” at the end of the clause

referred to the board of supervisors (the chief executive

officer), not to the county itself. Id. at 80, 770 P.2d at 384.

In the course of its analysis, the court stated that “[t]he

earliest intention [of prior service statutes] . . . was that

suits against counties be served upon the board (the chairman or

a member) or, in their absence, upon the board's clerk.” Id. at

79, 770 P.2d at 383 (emphasis added). This language, however,

is not the holding of the case. In fact, it was not even a

16
statement of current law, but merely a statement of what the

court believed was the intent of the 1928 version of the law.

Id. The plaintiffs’ reliance on this dictum was not reasonable.

¶33 Similarly, the language the plaintiffs point to in

Arizona Tax Court is simply a repetition of the dictum from

Blauvelt. 162 Ariz. at 69, 781 P.2d at 46. Arizona Tax Court

involved taxpayers who improperly filed notices of appeal with

the Maricopa County Attorney’s Office, but later corrected their

mistake and served the clerk of the board of supervisors. Id.

at 66, 781 P.2d at 43. The court permitted this claim to go

forward after the taxpayers had properly filed their notices of

appeal with the clerk of the board. Id. at 70, 781 P.2d at 47.

This holding in Arizona Tax Court does not require a finding

that serving an individual member of the board satisfies Rule

4.1(i).

V

¶34 In sum, the chief executive officer of a county for

purposes of Rule 4.1(i) is the board of supervisors. Therefore,

delivery of a notice of claim to one member of the board does

not comply with either the statute or the rule, and such a

procedure does not serve the purposes of A.R.S. § 12-821.01(A).

17
 VI

¶35 For the foregoing reasons, we vacate in part the

opinion of the court of appeals and affirm the judgment of the

superior court.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

18