A contractor was awarded a public works contract by Pinal County. The contractor submitted a change order to recoup additional expenses incurred because of unforeseen flooding during the performance of the contract. The County rejected the change order. The contractor then submitted a notice of claim, signed by its attorney, demanding $550,000 in compensatory damages. The County denied the claim, and the contractor sued. The County moved to dismiss on the ground that the notice of claim was deficient because it did not comply with the requirement in A.R.S. § 11-622(A), the notice-of-claim statute applicable to counties, that the notice of claim be executed by the person bringing the claim under penalty of perjury. The superior court denied the motion and ordered the contractor to comply with the notice-of-claim statute. The contractor submitted a second notice of claim, signed by its president under penalty of perjury. The County filed a special action.
The Court of Appeals accepted jurisdiction and vacated the superior court’s order. The Court held that a signature alone would be insufficient to convict the signer of perjury and rejected the contractor’s argument that a signature by an attorney is the equivalent of making a statement under penalty of perjury because of an attorney’s ethical obligations. The sanctions an attorney would face for violating an ethical rule, the Court observed, are profoundly different from the penalties a person would face for committing perjury. The Court also rejected the contractor’s argument that its claim should be allowed to go forward because it had substantially complied with the notice of claim statute, finding that Arizona courts have consistently required strict compliance with the state notice-of-claim statute (A.R.S. § 12-821.01) and that there was “no sound legal policy or reason to apply a different standard” to §11-622(A).
The contractor also argued that the County had waived or was estopped from asserting any notice of claim defense because it had responded to the notice of claim without raising the defect. The Court rejected these arguments, reasoning that to hold otherwise would impermissibly shift the burden of assessing compliance with a notice of claim statute from the claimant to the government. The Court also found that the contractor’s second notice of claim was untimely.
The Court vacated the superior court’s order and remanded with instructions to grant the Count’s motion to dismiss.
Judge Vásquez authored the opinion, which was joined by Judges Espinosa and Eppich.
Posted by: Nathan Arrowsmith