JOHNSEN-BEY v. GLENDALE

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CAROLYN WISE JOHNSON-BEY, ) ) Plaintiff/Appellant, ) ) v. ) ) GLENDALE POLICE DEPARTMENT; ) CITY OF GLENDALE, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 06/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0340 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2011-070181 The Honorable Harriett E. Chavez, Judge AFFIRMED Carolyn Wise Johnson-Bey Appellant Mesa Michael J. Garcia, Glendale City Attorney By Christina A. Parry, Assistant City Attorney Attorneys for Appellees Glendale O R O Z C O, Judge ¶1 Appellant/Plaintiff Carolyn Johnson-Bey appeals the dismissal of her tort claims against Appellee/Defendant City of Glendale (Glendale). The trial court dismissed Appellant s claims in part because she failed to file a notice of claim pursuant to Arizona 821.01.A (2003) (the Revised Statutes Notice of (A.R.S.) Claim section Statute). 12- Because Appellant failed to properly file a notice of claim, we affirm the dismissal. PROCEDURAL AND FACTUAL HISTORY ¶2 Appellant s claims arise out of the Glendale Police Department s arrest of her husband at the couple s residence on March 23, 2010. Appellant claims the police department used excessive force during the arrest, and, as a result, she and her husband sustained various physical and emotional injuries. ¶3 a Sometime after June 21, 2010, Plaintiff hand-delivered series of documents Department. committed The to the documents collateral Glendale alleged negligence, Management police the Risk department contributory negligence, and gross negligence and sought $75 million in damages. response, letter Glendale denying Risk Assessment Appellant s Manager claims Gary and her Fry In sent request a for compensation. ¶4 On January 3, 2011, Appellant filed a Complaint against Glendale alleging negligence, tort liability, and conspiracy Glendale to filed illegally a Motion enter to her residence. Dismiss, which 2 the On March trial 1, court granted on April 5. Appellant appealed1 and this court has jurisdiction to pursuant A.R.S. §§ 12-120.21 (2003) and 12- 2101.A.1 (Supp. 2011). DISCUSSION2 ¶5 We review a trial court's grant of a motion to dismiss for an abuse of discretion but review de novo whether the court properly interpreted and applied the law. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006); see DeVries 1 The trial court did not sign the April 5, 2011 ruling in which it dismissed Appellant s claim. Thus, the ruling was not a final, appealable order when Appellant filed the notice of appeal on April 25, 2011. See Ariz. R. Civ. P. 58(a). Pursuant to Eaton Fruit Co. v. Cal. Spray Chem. Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967), this court suspended the appeal and revested jurisdiction in the superior court for the entry of a signed, appealable order. Such an order was entered on August 26, 2011, and the appeal was automatically reinstated. 2 Appellant s briefs do not comply with Rule 13(a) of the Arizona Rules of Civil Appellate Procedure (ARCAP). The briefs are difficult to understand, do not cite to the record on appeal, and are virtually devoid of relevant legal argument or citation to legal authority. See ARCAP 13(a)(6) (appellant s brief shall contain arguments with citations to the authorities, statutes and parts of the record relied on ). Although Appellant is a non-lawyer representing herself, she is held to the same standards as a qualified attorney, see, e.g., Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985), and her failure to comply with the procedural rules limits our ability to evaluate her arguments or otherwise address her claims. See, e.g., In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (refusing to consider bald assertions offered without elaboration or citation to legal authority); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93, ¶ 50, 977 P.2d 807, 815 (App. 1998) (rejecting assertions made without supporting argument or citation to authority). 3 v. State, 221 Ariz. 201, 204, ¶ 6, 211 P.3d 1185, 1188 (App. 2009). We also review de novo whether a party's notice of claim complies with the requirements of the Notice of Claim Statute. Jones v. Cochise Cnty., 218 Ariz. 372, 375, ¶ 7, 187 P.3d 97, 100 (App. 2008). ¶6 The Notice of Claim Statute requires that claims against a public entity be filed with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure. A.R.S. § 12 821.01.A. Rule 4.1(i) of the Arizona Rules of Civil Procedure designates the chief executive officer, the secretary, clerk, or recording officer as the persons authorized to accept service on behalf of a public entity. ¶7 Because compliance with the statute is a precondition to bringing an action against a public entity, the failure to properly file a notice of claim acts as a complete bar to the claim. See Falcon ex rel. Sandoval v. Maricopa Cnty., 213 Ariz. 525, 527, ¶ 10, 144 P.3d 1254, 1256 (2006); Salerno v. Espinoza, 210 Ariz. 586, 589, ¶ 11, 115 P.3d 626, 629 (App. 2005). In addition, actual notice and substantial compliance do not excuse failure to comply with the statutory requirements. See Martineau v. Maricopa Cnty., 207 Ariz. 332, 335, ¶¶ 15-17, 86 P.3d 912, 915 (App. 2004). 4 ¶8 In this case, the trial court found that Appellant did not comply with the requirements of the Notice of Claim Statute because she failed to file a notice of claim with the individuals designated in Rule 4.1(i). cannot say documents Department the trial Appellant met the Based on our review of the record, we court filed erred. with substantive the Even if Glendale requirements we assume Risk of the Management the Notice of Claim Statute, see Backus v. State, 220 Ariz. 101, 104, ¶ 10, 203 P.3d 499, 502 (2009), there is no evidence in the record that Appellant properly filed the designated in Rule 4.1(i).3 to contest the finding documents with the individuals Moreover, Appellant does not appear that she failed requirements of the Notice of Claim Statute. to comply with the We therefore affirm the dismissal of Appellant s claims on the ground that she failed to properly file a notice of claim. CONCLUSION 3 Although a handwritten document entitled Judicial Notice of Action was attached to Appellant s Complaint, there is nothing in the record to indicate that Appellant properly filed the document with the individuals designated in Rule 4.1(i). The Notice of Claim Statute requires that claims against public entities be filed within 180 days of the accrual of the cause of action. A.R.S. § 12 821.01.A. Here, it is undisputed that Appellant s cause of action accrued on March 23, 2010. In order to comply with the statute, Appellant should have filed her claim with the individuals designated in Rule 4.1(i) by September 19, 2010. As that deadline has expired, Appellant cannot cure her failure to follow the requirements of the statute. 5 ¶9 For the foregoing reasons, we affirm the trial court s dismissal of Appellant s claims. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Judge /S/ ____________________________________ PETER B. SWANN, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.