¶ 1 Before a public entity properly can be sued for damages, a notice of claim that complies in all respects with Arizona Revised Statutes (“A.R.S.”) section 12-821.01
PROCEDURAL AND FACTUAL BACKGROUND
¶ 2 Dr. Robert P. Drew and Sheila King (collectively “Plaintiffs”) offer speech therapy services through their business, Arizona Speech & Hearing Professionals, L.L.C. (“ASHP”). In 2010, Plaintiffs submitted a bid in response to the Prescott Unified School District’s request for proposal to provide professional special education services. ASHP made the District’s list of approved service providers for the 2010-11 school year and was awarded “a possible five-year term of contract,” renewable on an annual basis.
¶ 3 On May 27, 2011, a District superintendent acted to exclude Plaintiffs from the District’s grounds, ostensibly because they had verbally intimidated other special education service providers. Although the District’s
¶4 On December 15, 2011, Plaintiffs served the District with a notice of claim stating they planned to seek damages totaling $921,600 and offering to accept a settlement in the amount of $120,200 plus reinstatement of their status as a service provider. That same day, Plaintiffs mailed a copy of the letter to Bayomi, who received it on December 20, 2011. The letter, dated December 15, stated that Plaintiffs’ settlement offer would “remain open until December 30, 2011, unless earlier withdrawn.” (Emphasis in original.)
¶ 5 In March 2012, Plaintiffs filed their complaint against Defendants. Defendants moved to dismiss the complaint for failure to comply with A.R.S. § 12-821.01, arguing in part that, because the notice of claim had not allowed them the sixty days contemplated by § 12-821.01(E) in which to respond, they had not received a realistic and meaningful opportunity to investigate the claim and make a decision regarding settlement before the offer was withdrawn per its express terms.
¶ 6 The superior court granted the motion to dismiss, concluding that Plaintiffs’ claims were barred because the notice of claim, by its own terms, unilaterally shortened the sixty-day period provided in A.R.S. § 12-821.01(E). Pursuant to AR.S. § 12-2101(A)(1), we have jurisdiction over Plaintiffs’ timely appeal of the resulting judgment dismissing their complaint with prejudice.
ANALYSIS
¶ 7 Plaintiffs attached exhibits to their response to Defendants’ motion to dismiss, and Defendants referenced those exhibits in their reply. Because matters outside the pleadings were presented to and not excluded by the superior court, the court should have construed the motion to dismiss as a motion for summary judgment. See Ariz. R. Civ. P. 12(b); Frey v. Stoneman,
¶ 8 In reviewing the grant of a motion for summary judgment, we construe the facts and reasonable inferences in the light most favorable to the opposing party and will affirm only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund,
¶ 9 In construing a statute, we seek to honor the legislative intent. Yollin v. City of Glendale,
¶ 10 Under A.R.S. § 12-821.01(A), persons with a claim against a public entity or public employee must file that claim with a person authorized to accept service within 180 days after the cause of action accrues. The claim
¶ 11 The requirements set forth in A.R.S. § 12-821.01 exist to “allow the public entity to investigate and assess liability, ... permit the possibility of settlement prior to litigation, and ... assist the public entity in financial planning and budgeting.” Backus,
¶ 12 Subsection (E) of the statute plainly states that the claim — which necessarily includes the claimant’s specific offer to accept a sum certain in settlement — is not deemed denied until sixty days after filing unless the public entity denies the claim in writing before the sixty-day period expires. A.R.S. § 12-821.01(E). The legislature has allocated sixty days as a reasonable period of time for the government to investigate and determine an appropriate response or course of action. The statute provides that the public entity can shorten the sixty-day period by acting sooner, but does not contain any language suggesting that a claimant can unilaterally shorten the statutory period. Consequently, in the absence of a written denial by the public entity, the settlement offer contained in the notice of claim must remain open for sixty days to comply with the statute and allow time for investigation and assessment of the claim.
¶ 13 In this case, Plaintiffs failed to make a settlement offer that complied with A.R.S. § 12-821.01 because their offer explicitly lapsed after no more than fifteen days. On December 15, 2011, Plaintiffs’ legal counsel prepared a notice of claim addressed to Defendants. The District received the document that same day, and Bayomi received it on December 20. The notice of claim included a specific settlement offer, but it also emphasized that the offer would only remain open until December 30, 2011, while also reserving Plaintiffs’ right to withdraw it sooner. Thus, by its own terms, the settlement offer contained in the notice of claim expired no later than December 30, 2011.
¶ 14 Defendants therefore only had until December 30, 2011, to accept the offer of settlement contained in the notice of claim. After that date, the offer was deemed withdrawn and could not be accepted. See Restatement (Second) of Contracts § 41(1) (1981) (“An offeree’s power of acceptance is terminated at the time specified in the offer____”).
¶ 15 Plaintiffs maintain the statute only requires that claimants provide notice of their claim to the government entity and wait sixty days before bringing suit, and they argue that they complied by waiting more than sixty days before filing their complaint. Plaintiffs’ argument presumes the statute’s only purpose is notice, a presumption we reject. See generally Falcon,
¶ 16 Plaintiffs also argue that if Defendants needed additional time to investigate and assess the notice of claim, Defendants “could have asked for it,” and that, after Plaintiffs’ offer had expired on December 30, Defendants should have taken steps to nevertheless accept the revoked offer or make their own settlement offer. Plaintiffs therefore maintain that “Defendants essentially set a trap for Plaintiffs” and should be deemed to have waived their notice of claim defense by not sooner asserting it. Assuming without deciding that Plaintiffs have not waived any of these arguments by failing to previously raise or properly preserve them, we reject Plaintiffs’ attempt to shift the burden of statutory compliance to Defendants, and we find no support in the record for a waiver of Defendants’ notice of claim defense by their pre-litigation conduct. As Plaintiffs’ argument recognizes, the notice of claim statute clearly places the burden on the claimant to make a statutorily compliant settlement offer. See AR.S. § 12-821.01(A). Because Plaintiffs’ notice of claim did not fully comply with A.R.S. § 12-821.01, Plaintiffs’ claims are barred. See Deer Valley,
¶ 17 Both sides request attorneys’ fees on appeal pursuant to A.R.S. § 12-341.01. Plaintiffs are not the successful party, and their request is denied. Further, in our discretion, we decline to award attorneys’ fees to Defendants, but we award Defendants their costs, contingent on their compliance with Rule 21, ARCAP.
CONCLUSION
¶ 18 To comply with AR.S. § 12-821.01, a claimant’s settlement offer must remain open for sixty days unless the public entity or employee denies the claim before the sixty-day period expires. In this case, neither the public entity nor the public employee denied the claim, and Plaintiffs withdrew their settlement offer after no more than fifteen days. Consequently, Plaintiffs’ notice of claim did not comply with A.R.S. § 12-821.01. We therefore affirm the superior court’s judgment dismissing Plaintiffs’ case.
Notes
. We cite the current version of the statutes throughout this opinion because no changes material to our decision have occurred.
. According to the District, much of the December 15-30 period coincided with the District's scheduled holiday break. The District office closed sometime on or before December 23, and remained closed through the end of the calendar year. See generally A.R.S. § 15-801(B) (providing that "[g]overning boards of school districts may declare a recess during the Christmas holiday season of not to exceed two school weeks”). Arguably then, although Plaintiffs purported to grant a fifteen-day period for the District to evaluate their claim, as a practical matter, the District had much less time in which to investigate the claim and consider the appropriate course.
. We reject any argument that the notice of claim containing Plaintiffs’ settlement offer may be deemed effective by simply voiding the language causing the offer to expire on December 30, 2011. Cf. Valley Nat’l Bank of Phoenix v. Shumway,