brooks/phoenix v. Hon. Agne

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE COLT TRISTAN BROOKS; THE CITY OF PHOENIX, a municipal corporation, Petitioners, v. THE HONORABLE SARA J. AGNE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, LENA G. DAVIS; LAMARCUS L. WHITE, Real Parties in Interest. No. 1 CA-SA 21-0154 FILED 11-16-2021 Special Action Review from the Superior Court in Maricopa County No. CV2020-054101 CV2020-054192 The Honorable Sara J. Agne, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL City Attorney’s Office, Phoenix By Victoria Torrilhon Counsel for Petitioners Gust Rosenfeld P.L.C., Phoenix By Charles W. Wirken and Robert D. Haws Counsel for Amicus Curiae, Arizona School Risk Retention Trust, Inc. Tempe City Attorney, Tempe By Judith R. Baumann, Michael R. Niederbaumer, and Sara R. Anchors Counsel for Amicus Curiae, City of Tempe Goldberg & Osborne, LLP, Phoenix By Allen D. Bucknell (argued), Marc A. Kamin, and Kwesi A. Seabrook Counsel for Real Parties in Interest Ahwatukee Legal Office, P.C., Phoenix By David L. Abney Counsel for Amicus Curiae, Arizona Trial Lawyers Association MEMORANDUM DECISION Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding Judge Peter B. Swann and Judge David D. Weinzweig joined. M c M U R D I E, Judge: ¶1 Colt Brooks and the City of Phoenix (“City”) seek special action relief from the superior court’s order denying their motion for summary judgment. We grant special action jurisdiction but deny relief. FACTS AND PROCEDURAL BACKGROUND ¶2 In July 2020, Lamarcus White and Lena Davis sued the City and Brooks for negligence and loss of consortium after Brooks changed lanes while driving a fire engine and collided with their vehicle in July 2019. The complaint alleged the City was vicariously liable for Brooks’ negligence. 2 BROOKS/PHOENIX v. HON. AGNE et al. Decision of the Court ¶3 Before filing their complaint, White and Davis tried to file notices of claim with the City as required by A.R.S. § 12-821.01. The first notices filed with the City in November 2019 were defective. In December, White and Davis’s process server visited an address she believed was Brooks’ residence and discovered that Brooks did not live there. A relative living at the address gave the process server Brooks’ phone number. The process server called and spoke with Brooks on December 14, 2019. She claimed that Brooks told her she should serve the notice of claim on the fire department, and he would not be personally served. On December 20, 2019, White and Davis filed an amended notice of claim with the Phoenix City Clerk’s Office, naming the City and Brooks. Brooks was never personally served. ¶4 Brooks and the City moved for summary judgment, arguing that the claims were barred because White and Davis never served a notice of claim on Brooks as required by A.R.S. § …

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