FILED BY CLERK MAY 31 2007 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO DONNA JAMES, the mother of decedent ) COREY JAMES; JOHN JAMES, the ) father of decedent COREY JAMES; and ) MARJORIE SURINE, the mother of ) 2 CA-CV 2006-0124 decedent MICHELLE JAMES, ) DEPARTMENT A ) Plaintiffs/Intervenors, ) OPINION ) JOSEPH BURKHAMER, the father of ) decedent MICHELLE JAMES, ) ) Plaintiff/Appellant, ) ) v. ) ) THE STATE OF ARIZONA, a body ) politic, ) ) Defendant/Appellee. ) ) APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. CV200400744 Honorable William J. O’Neil, Judge APPEAL DISMISSED Rubin & Samuels PLC By Michael S. Samuels Phoenix Attorneys for Plaintiffs/Intervenors Meagher & Geer, P.L.L.P. By Thomas H. Crouch Scottsdale and Law Office of Gary M. Gallner By Gary M. Gallner Avondale Attorneys for Plaintiff/Appellant Burke - Panzarella - Rich By Thomas P. Burke, II and Randy L. Kingery Phoenix Attorneys for Defendant/Appellee P E L A N D E R, Chief Judge. ¶1 In this wrongful death action, the trial court granted defendant/appellee State of Arizona’s motion to dismiss or for partial summary judgment on plaintiff/appellant Joseph Burkhamer’s claim on the ground he had failed to properly file a notice of claim against the state, as A.R.S. § 12-821.01 requires. Burkhamer appeals from the ensuing judgment, entered pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, and from the trial court’s subsequent order denying Burkhamer’s objection to the judgment and his motion to amend the pleadings. ¶2 The substantive issue Burkhamer raises is whether providing a notice of claim via facsimile delivered to, and received by, the Arizona attorney general’s office constitutes proper filing of the notice against the state under § 12-821.01. The preliminary procedural issue we find dispositive, however, is whether Burkhamer’s notice of appeal from the trial court’s judgment was untimely filed, thereby depriving this court of subject matter jurisdiction. We conclude it was and, therefore, must dismiss the appeal. 2 Background ¶3 The following facts are undisputed. On August 17, 2003, Corey and Michelle James, husband and wife, were killed in an automobile accident while traveling on a state highway in Pinal County. In 2004, John and Donna James, Corey’s parents, and Marjorie Surine and Joseph Burkhamer, Michelle’s parents, filed this wrongful death action, alleging the state had negligently designed and maintained the road and caused their children’s deaths. Before filing the action, Burkhamer sent a notice of claim via facsimile on February 13, 2004, to the Arizona attorney general’s office. Several months later, Burkhamer and the other three plaintiffs filed this case. ¶4 The state moved to dismiss Burkhamer’s claim in this action under Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, or, in the alternative, for partial summary judgment on that claim under Rule 56(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. The state argued Burkhamer’s claim was barred under § 12-821.01(A) because he had “failed to …
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