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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONY AUSTIN, a single individual; KENNETH CARVER, a married individual, 

Plaintiffs/Appellants,

v.

PEORIA UNIFIED SCHOOL DISTRICT, an Arizona governmental agency, 

Defendant/Appellee.

No. 1 CA-CV 14-0220

Appeal from the Superior Court in Maricopa County

No. CV2013-070785

The Honorable Eileen S. Willett, Retired Judge

AFFIRMED

COUNSEL

The Law Office of Michael S. DeFine, L.L.C., Sun City

By Michael S. DeFine

Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Michael E. Hensley, Erik J. Stone, Jonathan P. Barnes, Jr.

Counsel for Defendant/Appellee
AUSTIN v. PEORIA

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding 

Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.1

S W A N N, Judge:

¶1 The superior court dismissed claims against a school district based 

on the plaintiffs’ failure to comply with the requirements of Arizona’s notice of 

claim statute, A.R.S. § 12-821.01. We affirm. The plaintiffs were required to 

serve their notices of claim on all of the members of the district’s governing 

board. They did not do so. Likewise, plaintiffs’ provision of the notices of claim 

to the district’s counsel, who had made no representations to them regarding his 

authorization to accept service, was insufficient. 

FACTS AND PROCEDURAL HISTORY

¶2 In April 2012, a bus operated by the Peoria Unified School District 

(“the District”) collided with a truck occupied by Tony Austin and Kenneth 

Carver. Austin, Carver, and Sarah Saldana, an occupant of the bus, all allegedly 

sustained injuries. 

¶3 Soon after the accident, Saldana’s counsel, Gregory J. Lyon of 

Phillips & Lyon, P.L.C., sent written correspondence to the District. The 

District’s attorney, Michael E. Hensley, responded by letter in May 2012. 

Hensley informed Lyon that he was counsel for the District, asked Lyon to direct 

all future correspondence to him, and informed Lyon that presenting a claim 

against the District would require compliance with A.R.S. § 12-821.01. 

¶4 In October 2012, Austin and Carver, represented by Michael S. 

DeFine of The Law Office of Michael S. DeFine, L.L.C., each mailed notices of 

claim to:

 

1 On the court’s own motion, the clerk of this court is directed to amend the 

caption in this matter as shown above. The above caption shall be used on all 

future documents filed in this matter.
AUSTIN v. PEORIA

Decision of the Court

3

Peoria Unified School District

Administration Center

6330 West Thunderbird Road

Glendale, Arizona 85306

Peoria Unified School District

Administration Center

Attention: Hal Borhauer, Board Member

6330 West Thunderbird Road

Glendale, Arizona 85306

Peoria Unified School District #11

Cottonwood Elementary

11232 North 65th Avenue

Glendale, Arizona 85304

JONES, SKELTON & HOCHULI

Attention: Michael E. Hensley, Esq.

2901 North Central Avenue, Suite 800 

Phoenix, Arizona 85012

¶5 In April 2013, Austin, Carver, and Saldana, all of whom were at 

that point represented by DeFine, commenced a negligence action against the 

District and the Arizona Department of Public Safety (“DPS”). Austin and 

Carver alleged claims against both the District and DPS; Saldana alleged claims 

against DPS only. The District moved to dismiss the claims against it, arguing

that Austin and Carver had failed to comply with the filing requirement of § 12-

821.01(A) because the notice of claim had not been served on every member of 

the District’s Governing Board. Austin and Carver argued in response that 

mailing the notices to the administration center where the Board met and to 

Borhauer, the Board’s president, was sufficient. Austin and Carver also argued 

that, in view of Hensley’s instruction to Lyon to direct all further correspondence 

to him, service on Hensley was sufficient.

¶6 The superior court granted the District’s motion to dismiss Austin 

and Carver’s claims against it and entered judgment under Ariz. R. Civ. P. 54(b). 

Austin and Carver appeal.
AUSTIN v. PEORIA

Decision of the Court

4

DISCUSSION

¶7 A.R.S. § 12-821.01(A) requires that a claim against a public entity be 

“file[d] . . . 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 

within one hundred eighty days after the cause of action accrues.” If the notice 

of claim is not properly filed, the claim is barred. Id. 

¶8 At the time relevant to this appeal, Ariz. R. Civ. P. 4.1(i) provided: 

Service upon a county or a municipal corporation or other 

governmental subdivision of the state subject to suit, and from 

which a waiver has not been obtained and filed, shall be effected by 

delivering a copy of the summons and of the pleading to the chief 

executive officer, the secretary, clerk, or recording officer thereof.2 

A school district is a political subdivision of the state that may sue and be sued 

through its governing board. A.R.S. §§ 15-101(22), -326(1). For the purpose of 

filing a notice of claim, the governing board is the school district’s “chief 

executive officer.” See Batty v. Glendale Union High School Dist. No. 205, 221 Ariz. 

592, 594-95, ¶¶ 9-11, 212 P.3d 930, 932-33 (App. 2009). The question we must 

decide is whether the notice of claim must be filed with the entirety of the board. 

¶9 We are guided by Falcon v. Maricopa County, 213 Ariz. 525, 144 P.3d 

1254 (2006). In Falcon, the supreme court held that a county’s “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 [§ 12-821.01] or the rule [Rule 

4.1(i)].”3 Id. at 526, ¶ 2, 144 P.3d at 1255. The court explained that because 

 

2 The current version of Rule 4.1 specifies particular officials who must be 

served with respect to the state, the counties, and municipal corporations, and 

provides that service upon “any other governmental entity” must be made upon 

the person designated by statute to receive service for the entity or, if there is no 

such person, upon “the chief executive officer(s), or, alternatively, the official 

secretary, clerk, or recording officer of the entity as established by law.” Ariz. R. 

Civ. P. 4.1(h).

3 After Falcon was decided, Rule 4.1 was amended to provide that service 

upon a county is effected by service upon the clerk of the county’s board of 

supervisors. Ariz. R. Civ. P. 4.1(h)(2). 
AUSTIN v. PEORIA

Decision of the Court

5

individual supervisors lack authority to settle claims against the county, 

“[d]elivery 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 possibly settle it.” Id. at 528, ¶ 21, 144 P.3d at 1257. The 

court further explained that “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).” 

Id. at 529, ¶ 25, 144 P.3d at 1258. The court posited that “[m]any 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,” and, “[m]oreover, 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.” Id. at ¶ 26 (emphasis added). 

¶10 Applying the reasoning of Falcon, we hold that a notice of claim is 

filed with a school district’s “chief executive officer” when it is filed with all of 

the members of the governing board.4 Austin and Carver did not do this. 

Though they delivered notices to the building where the Board met, the notices 

were not addressed to each of the Board members (or even to the Board 

generally). They were instead addressed to a single Board member (who was not 

delegated by the Board to receive service of process, and who did not serve as

the Board’s secretary, clerk, or recording officer) and to the District generally. 

This was insufficient. 

¶11 Austin and Carver contend that equitable estoppel nonetheless 

precluded dismissal of their claims because they sent their notices of claim to 

Hensley, the District’s counsel, in reasonable reliance on his statement to Lyon, 

Saldana’s former counsel, that all further correspondence should be directed to 

 

4 Austin and Carver contend for the first time on appeal that this rule 

violates Arizona’s anti-abrogation clause, Ariz. Const. art. 18, § 6. They argue 

that our holding requires notices of claim to be served on board members during

public meetings -- which are only occasional -- because under the state open 

meetings law, A.R.S. §§ 38-431 et seq., members cannot take official actions except 

at such meetings. Austin and Carver’s arguments are unfounded. Nothing in 

Rule 4.1 requires that a public official be fulfilling his or her official duties at the 

moment of service. Further, it is well-established that a notice of claim may be 

served by mail. Lee v. State, 218 Ariz. 235, 239, ¶ 19, 182 P.3d 1169, 1173 (2008). 

Though the open meetings law may bear upon the process by which a governing 

board responds to a notice of claim, it has no relation to the manner by which the 

claimant must file the notice.
AUSTIN v. PEORIA

Decision of the Court

6

Hensley. Equitable estoppel requires that the party to be estopped engage in 

conduct inconsistent with its later position, and that the other party reasonably 

rely on the conduct to its detriment. Valencia Energy Co. v. Ariz. Dep’t of Revenue, 

191 Ariz. 565, 576-77, ¶¶ 35, 37, 959 P.2d 1256, 1267-68 (1998). Here, the letter in 

question was not directed to Austin, Carver, or their counsel, and it made no 

comment regarding Austin or Carver. The letter was in no way inconsistent with 

the District’s later position regarding Austin and Carver, and Austin and 

Carver’s purported reliance on the letter was not reasonable. The fact that 

Saldana later came to be represented by the same attorney as Austin and Carver 

is immaterial.

CONCLUSION

¶12 We affirm for the reasons set forth above. The District requests an 

award of attorney’s fees on appeal under ARCAP 25, Ariz. R. Civ. P. 11, and 

A.R.S. § 12-349. We note that Rule 11 does not provide grounds for an award of 

fees on appeal. Villa de Jardines Ass’n v. Flagstar Bank, 227 Ariz. 91, 99 n.10, ¶ 26, 

253 P.2d 288, 296 n.10 (App. 2011). In the exercise of our discretion, we deny the 

District’s requests for fees under ARCAP 25 and § 12-349.