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
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