No. 1 CA-CV 20-0337
COUNSEL The Collins Law Firm PLLC, Mesa By Ernest Collins Jr. Counsel for Plaintiff/Appellant Grasso Law Firm, Chandler By Robert Grasso Jr., N. Patrick Hall Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Tracey Westerhausen, Judge
The Collins Law Firm PLLC, Mesa
By Ernest Collins Jr.
Counsel for Plaintiff/Appellant
Grasso Law Firm, Chandler
By Robert Grasso Jr., N. Patrick Hall
Counsel for Defendant/Appellee
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
¶1 Michelle and Bryan Anderson appeal the superior court's order dismissing their claims, with prejudice, against the Town of Gilbert ("Gilbert"). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On December 24, 2017, Gilbert police arrested Michelle Anderson for driving under the influence of alcohol. Gilbert thereafter charged Michelle with two counts of DUI, two other misdemeanors, and one town ordinance violation. The prosecutor dropped the DUI charges and the court dismissed one of the misdemeanors (refusing to provide truthful name). But Michelle was found guilty of the town ordinance violation, which the court set aside.
¶3 Seeking redress from what they describe as "wrongful arrest" and "wrongful prosecution," the Andersons filed suit to recover money damages from Gilbert. They hired a process server to hand-deliver a notice of claim ("NOC") to the town clerk's office on Friday, June 22, 2018. But Gilbert's public offices are closed on Fridays. Instead of mailing the NOC on June 22, the Andersons' process server hand-delivered it the following business day, Monday, June 25. This notice described several potential claims and calculated the Andersons' damages as $14,163.50 in "actual out of pocket damages" and another $14,163.50 for "emotional distress and punitive damages."
¶4 On December 11, 2018, the Andersons filed a complaint, alleging wrongful arrest, wrongful and malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. They also sought punitive damages. Gilbert moved to dismiss the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6), asserting, inter alia, the NOC statute barred the Andersons' claims. After considering Gilbert's motion, the superior court dismissed all claims with prejudice for failure to comply with A.R.S. § 12-821.01.
¶5 The Andersons timely appealed and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
¶6 The Andersons argue the superior court erred in finding they filed an untimely NOC. Alternatively, they contend any noncompliance with A.R.S. § 12-821.01 should be permitted as "excusable neglect."
¶7 We review Rule 12(b)(6) dismissals de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). A court may dismiss a complaint under Rule 12(b)(6) when the plaintiff "would not be entitled to relief under any interpretation of the facts susceptible to proof." Id. at 356, ¶ 8. The NOC statute requires any plaintiff with claims against a public entity to file a notice within 180 days of accrual. A.R.S. § 12-821.01(A). Any claim not filed within this period is barred. Little v. State, 225 Ariz. 466, 469, ¶ 8 (App. 2010). Accrual is triggered when the damaged party realizes "he or she has been damaged and knows or reasonably should know" what caused or contributed to the injury. A.R.S. § 12-821.01(B).
¶8 It is undisputed that the event causing the Andersons' injury occurred when Gilbert police arrested Michelle on December 24, 2017. The Andersons needed to file their NOC on or before June 22, 2018. The Andersons' process server failed to deliver the NOC on Friday, June 22, the final day within the statute's 180-day period.
¶9 The Andersons argue that because Gilbert chooses to close its offices on Fridays, June 22, 2018 should be treated as a holiday. When the last day to file falls on a Saturday, Sunday, or legal holiday, the period runs until the next following business day. See Ariz. R. Civ. P. 6(a)(3). And because the Andersons filed the NOC the following business day, they argue the filing was timely. But June 22, 2018, did not fall on any legal holiday recognized in Arizona. See A.R.S. § 1-301. And we are not inclined to declare additional legal holidays by fiat. This is particularly so given the Andersons could have timely filed the NOC by mailing it on June 22 and were thus not without remedy on that date. See Lee v. State, 218 Ariz. 235, 239, ¶ 19 (2008). The superior court did not err in ruling the NOC was untimely.
¶10 The Andersons also contend dismissal was improper because a factual issue remained on whether their untimely filing amounted to excusable neglect. By failing to raise excusable neglect in the superior court, the Andersons waived this argument. See Woyton v. Ward, 247 Ariz. 529, 534, ¶ 16 (App. 2019) ("Failure to raise an issue before the trial court
constitutes a waiver on appeal."). Even if we disregard waiver, this argument fails because excusable neglect does not relieve noncompliance with the NOC statute. "The Legislature eliminated [the excusable neglect] exception when it amended the statute in 1994." Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 62, ¶ 25 (App. 2010). The superior court did not err in dismissing the Andersons' claims.
¶11 We decline to award fees under ARCAP 25, but Gilbert may recover costs upon compliance with ARCAP 21. We affirm.