Terborg v. Town of Payson

Arizona Court of Appeals, Division Two

September 26, 2025

JSH Attorney: Justin Ackerman

Court of Appeals Clarifies Notice of Claim Sum Certain Requirement

Yesterday, the Court of Appeals issued an Opinion holding that a notice of claim had a sufficient sum certain under A.R.S. § 12-821.01 despite having conflicting words and numbers when providing a sum certain.

In June 2023, a Payson police officer, accompanied by a police canine, was pursuing a suspect near the residence of Joseph E. Terborg. During the pursuit, the officer unleashed the canine to assist in apprehending the suspect. However, instead of attacking the suspect, the canine bit Terborg, who was merely a bystander. As a result, Terborg suffered physical and emotional injuries.

In November 2023, Terborg submitted a notice of claim to the Town of Payson and the Payson Police Department, as required by Arizona law, and subsequently filed a personal injury lawsuit in April 2024.

After Terborg filed his complaint, the Town of Payson moved to dismiss the claims, arguing that Terborg’s notice of claim did not comply with the requirements of A.R.S. § 12-821.01(A), because it failed to state a specific amount for which the claim could be settled. The trial court agreed, finding that the notice of claim was noncompliant because it contained an inconsistency: it demanded “the sum-certain amount of One Hundred Thousand Dollars ($250,000.00),” presenting a conflict between the written words and the numerical figure. The court concluded that this inconsistency rendered the notice ambiguous and thus insufficient under the statute. Terborg appealed this decision to the Arizona Court of Appeals.

The Court of Appeals held that this inconsistency did not make the notice ambiguous. Applying principles of contract interpretation, the Court explained:

  • Not every inconsistency is an ambiguity; ambiguity exists only if there is more than one reasonable interpretation.
  • In legal documents, written words prevail over numbers when the two conflict.
  • The notice, read as a whole, showed that Terborg intended to demand $100,000. The use of parentheses for numbers throughout the notice signaled that the words were primary and the numbers were supplementary.
  • Arizona law on negotiable instruments (A.R.S. § 47-3114) supports the rule that words control over numbers in case of conflict.

Thus, according to the Court of Appeals, because the only reasonable reading was that Terborg demanded $100,000, it held the notice of claim met the statutory requirement of a sum certain. The trial court’s judgment was vacated and the case remanded.

Justin Ackerman  represents clients in federal and state appellate matters in cases involving excessive force, wrongful death, personal injury, bad faith, and premises liability. After graduating as the valedictorian of his class from Phoenix School of Law, Justin worked as a law clerk for the Hon. Michael J. Brown in Division One of the Arizona Court of Appeals. Following his clerkship, Justin has handled over 75 appeals, successfully arguing before the Arizona Court of Appeals, Arizona Supreme Court, and U.S. Court of Appeals for the Ninth Circuit.  Justin has spoken at many seminars on appellate preservation topics and is recognized as a Southwest Super Lawyers and Best Lawyers in the area of Appellate Practice.

jackerman@jshfirm.com | 602.263.4552 | jshfirm.com/jackerman