Turner v. City of Flagstaff (CA1 2/22/11)

This is a notice-of-claim case in the context of a particular statute.

Turner claimed that a new Flagstaff ordinance reduced his property value. He sued under §12-1134, which allows compensation for that sort of thing. He had filed a notice of claim saying that he owned the property. Flagstaff moved to dismiss because the notice was wrong: the actual owner was Turner’s L.L.C, of which he is merely the President.  Turner asked to amend his notice but the court dismissed without expressly ruling on that.

The Court of Appeals agrees that the notice was bad.

Although 12-1134 has its own notice-of-claim requirement the court holds (explicitly – it says “We hold”) that both it and the general notice-of-claim statute (12-821.01) apply. The court does not explain why the Legislature intended in 1134 a 90-day notice requirement atop the otherwise-similar 180-day–after-accrual requirement of 821.01. “Turner does not dispute” this, the court says. One wonders why the court thought that an adequate substitute for statutory interpretation. Turner’s failure to argue it is a basis for decision in this case; to bind others to that failure by purporting to “hold” something without legal analysis is unfortunate. The holding might be right – one of the footnotes, written about another subject, hints at a possible argument – but law shouldn’t be made on rollovers.

The statutes require that the “owner” (1134)/ “persons who have [the] claims” (821.01) give the notice. Turner wasn’t the owner. Substantial compliance isn’t good enough. What about the cases saying that the purpose of the claims’ statutes is to give the government reasonable opportunity to investigate/settle/defend? They apply to grey areas – what facts should be in the notice, for example. Since “owner” means “owner,” the notice was defective.

The court remands, however, for determination of the amendment issue, which the trial court hadn’t ruled on. Amendment must come within the original 180-day limit, though, and this case is over three years old. So the court includes a footnote explaining why it bothers to remand: the savings statute might apply unless the limitations period has already run. But that explains how a late lawsuit might be filed, not how a late notice can be. And, in any event, it’s an argument for the next case, not this one; a trial court can’t decline to dismiss simply because a litigant might have the right to re-file.

(link to opinion)