Rogut v. Surprise

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NATHAN B. ROGUT, Plaintiff/Appellant,

v.

CITY OF SURPRISE, Defendant/Appellee.

No. 1 CA-CV 23-0740
FILED 08-13-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-051392
The Honorable Steven C. Moss, Judge

AFFIRMED

COUNSEL

Nathan Rogut, Scottsdale
Plaintiff/Appellant

Jellison Law Offices, PLLC, Scottsdale
By James M. Jellison
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
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M c M U R D I E, Judge:

¶1 Plaintiff Nathan Rogut appeals from the superior court’s
orders dismissing his complaint, denying his other requests for relief, and
denying his motion for reconsideration. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This case started from a family law dispute between Rogut
and his ex-wife that led to criminal prosecutions against Rogut for violating
protective orders.

¶3 On April 17, 2023, Rogut sued the City of Surprise (“City”)
and many other defendants, including his ex-wife, his ex-wife’s boyfriend,
City police officers, City prosecutors, City and Maricopa County Superior
Court judges and commissioners, Maricopa County, the State of Arizona,
and the State’s Attorney General. Rogut sued the City under A.R.S. § 1-602
(Parents’ Bill of Rights), A.R.S. § 38-260 (beneficiaries of bond), breach of
contract, and “for claims arising in tort.” Rogut imputed liability to the City
for the alleged actions of a judge, prosecutors, and police officers. Rogut
sued the other defendants for several claims, including breach of contract,
defamation, intentional infliction of emotional distress, negligence,
obstruction of criminal investigations or prosecutions, false reporting to
law enforcement, perjury, public records tampering, malicious prosecution,
and actions under A.R.S. §§ 1-602 and 38-260, and 42 U.S.C. § 1983.

¶4 The common thread in Rogut’s complaints was that the
defendants’ illegal conduct deprived him of his constitutional parenting
rights. Rogut sought damages and requested “more time to amend the
complaint to include additional Defendants and, if necessary, enumerate
each individual cause of action and claim for relief for each defendant.” On
May 16, 2023, Rogut mailed the City the notice of claim, the summons, and
the complaint.

¶5 The City moved to dismiss the complaint. First, the City
argued that Rogut violated A.R.S. § 12-821.01, which it argued required
Rogut to submit the notice of claim to the City before suing and within 180
days of the claims’ accrual. Second, the City argued it was not vicariously
liable for actions against City judges, and the City judge and prosecutors
were immune from liability. Third, the City asserted that A.R.S. § 12-821’s
one-year statute of limitation barred Rogut’s claims against the City arising
from police officers’ actions. Finally, the City asserted that Rogut failed to
allege facts supporting any cause of action.

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¶6 Rogut responded. He argued that he had pled sufficient
factual allegations and alternatively requested leave to amend his
complaint.

¶7 Meanwhile, Rogut requested service accommodations. He
conceded that several defendants had not received a copy of the summons
or complaint. Rogut requested “that the Court waive individual service for
Defendants appearing as individuals and in their official capacity” and that
the court accept service by email. He also asked the court to waive costs and
filing fees because he was a self-represented litigant. Rogut also moved for
sanctions, or an order that the City follow ethical rules, and Rogut moved
for an order to show cause for failure to disclose evidence. He filed another
motion requesting more time to serve the other defendants and fee waivers.

¶8 In August, the superior court held a status conference.1 Rogut
argued he had served the City,2 the State, and the County by emailing and
mailing the complaint and notice of claim, but he admitted he had served
no individual defendant. Rogut explained he thought sending certified mail
was sufficient service for all defendants, and now he needed more time to
effect service lawfully.

¶9 Before the court ruled on any of the above motions, Rogut
moved for declaratory relief and a default judgment. He sought orders
about legal decision-making, parenting time, and property possession, a
protective order for his child against his ex-wife, an order appointing him
the sole conservator of his child’s estate, and over $20 million in damages
from the City, Maricopa County, and the State.

¶10 The superior court denied Rogut’s service accommodation
requests for lack of good cause. The court dismissed the complaint without
prejudice to all defendants except the City and its employees “for lack of
proper or timely service of process.”

¶11 The court dismissed the complaint with prejudice for the City
and its employees. It found that the City, its judges, and prosecutors were

1 Because of conflicts, a judge visiting from Mohave County received
the case.

2 The City maintained Rogut did not serve the entity lawfully, but it
voluntarily appeared to contest the complaint. On appeal, Rogut conceded
that he served no defendant lawfully. See generally Ariz. R. Civ. P. 4.1.

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immune from Rogut’s claims. It also reasoned that because Rogut
submitted his notice of claim in May 2023, he could only complain of actions
taken after November 2022. See A.R.S. § 12-821.01(A). The court found that
the only actions allegedly taken after November were “by a judge and
prosecutor in the performance of their duties.”

¶12 The court also noted that Rogut submitted his notice of claim
after filing the complaint, which was untimely. Moreover, because of the
one-year statute of limitation for claims against a public entity or employee,
Rogut’s claims from actions before April 17, 2022, were barred. See A.R.S.
§ 12-821.

¶13 The court assumed without deciding that the City had
vicarious liability for judicial officers. The court found “that the bulk of
Plaintiff’s claims [against the City] [fell] foul of the one-year statute of
limitations, that all of Plaintiff’s claims [against the City] [fell] foul of the
notice of claim statute, and that all claims as to [City] judicial officers and
prosecutors [were] barred by the immunity defenses.” The court denied
Rogut’s other requests for relief.

¶14 Rogut moved for reconsideration, which the court denied.
The court entered a final judgment under Arizona Rule of Civil Procedure
54(c), and Rogut appealed. We have jurisdiction to review the dismissal of
the claims against the City and its employees under A.R.S.
§§ 12-120.21(A)(1), 12-2101(A)(1).

DISCUSSION

¶15 We review the superior court’s dismissal of a complaint for
failure to state a claim de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355,
¶ 7 (2012). We accept the complaint’s well-pled factual allegations, and all
reasonable inferences from the facts, as true. Id. at 356, ¶ 9. Here, dismissal
of the complaint was appropriate if Rogut “would not be entitled to relief
under any interpretation of the facts susceptible to proof.” See id. at 356, ¶ 8.

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A. Immunity Barred Rogut’s Claims Against the City, the Judge, and
the Prosecutors.

¶16 Rogut contests the court’s findings that the City, the judge,
and the prosecutors were immune from liability in the suit.3

¶17 Under A.R.S. § 12-820.01, a public entity is not liable for its
employee’s conduct if the employee exercises “a judicial or legislative
function.” And judges have “absolute immunity for acts performed in their
official capacities.” Widoff v. Wiens, 202 Ariz. 383, 386, ¶ 9 (App. 2002); see
also Burk v. State, 215 Ariz. 6, 9, ¶ 7 (App. 2007) (“Judges are absolutely
immune from damages lawsuits for their judicial acts.”). And prosecutors
are immune from civil liability when they act in their official capacity,
within the scope of their authority, and in a quasi-judicial capacity. State v.
Superior Court (Ford), 186 Ariz. 294, 297 (App. 1996). Initiating a prosecution,
conducting discovery, and presenting a case on behalf of the State are
quasi-judicial functions. See id. at 297-98.

¶18 Rogut alleged that the City’s prosecuting office committed
perjury when filing criminal complaints, and the City court “violated
[Rogut’s] constitutionally protected rights and/or committed public
records tampering” when adjudicating the matters. Rogut cited when
prosecutors filed criminal complaints, filed disclosures for trial, and
submitted motions and pleadings to the court. And Rogut cited instances
when the City court ruled on motions, held trials, and entered judgments.
The conduct alleged in the complaint fell within the scope of judicial
immunity as the prosecutors and the court acted in a judicial or
quasi-judicial capacity and within their authority. See Widoff, 202 Ariz. at
386, ¶ 9; Ford, 186 Ariz. at 297-98.

¶19 Rogut’s only immunity argument on appeal is that A.R.S.
§ 1-601 et seq. (Parents’ Bill of Rights) limits immunity application. Rogut
claims that despite immunity, he “has a statutory right to file claims against

3 The superior court assumed without deciding that the City could be
liable for its judicial employees’ conduct. So, for our analysis, we will do
the same. But see Hernandez v. Maricopa County, 138 Ariz. 143, 146 (App.
1983) (The county was not liable under respondeat superior for a justice of the
peace’s conduct because the county had no power to control the individual,
and therefore, there was “no master-servant or principal-agent relationship
between these separate branches of government.”).

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any governmental actor and/or any government entity that interfered with,
or usurped, his parental rights.”

¶20 A parent may sue a governmental entity or official for
usurping or interfering with fundamental parenting rights. A.R.S.
§ 1-602(E). In the action, the governmental entity or official has the burden
of proving “[t]hat the interference or usurpation is essential to accomplish
a compelling government interest of the highest order” and the
government’s interference or usurpation “is narrowly tailored and is not
otherwise served by a less restrictive means.” Id. § 1-602(F)(1), (2). The
government may usurp or interfere with fundamental parental rights only
by proving both elements. Id. § 1-602(G). But the Parents’ Bill of Rights does
not “prohibit courts, law enforcement officers or employees of a
government agency responsible for child welfare from acting in their
official capacity within the scope of their authority.” A.R.S. § 1-602(B).

¶21 Thus, we must decide whether the Parents’ Bill of Rights
limits common law or statutory immunity. We review statutory
interpretation de novo. Premier Physicians Grp., PLLC v. Navarro, 240 Ariz.
193, 194, ¶ 6 (2016). “We interpret statutes to give effect to the legislature’s
intent.” Id. at 195, ¶ 9 (quotation omitted). If the statute’s plain language is
clear, we apply it unless the result is absurd or unconstitutional. Id. And
“[w]hen possible, we seek to harmonize statutory provisions and avoid
interpretations that result in contradictory provisions.” Id.

¶22 The Parents’ Bill of Rights created a private right of action for
parents to sue government entities and officials for usurping or interfering
with fundamental parental rights. See A.R.S. § 1-602. But nothing in A.R.S.
§ 1-601 or § 1-602 waives, limits, or abrogates existing statutory or common
law immunities. We “will not inflate, expand, stretch or extend a statute to
matters not falling within its expressed provisions.” Roberts v. State, 253
Ariz. 259, 266, ¶ 20 (2022) (quoting City of Phoenix v. Donofrio, 99 Ariz. 130,
133 (1965)). Had the legislature intended to exclude common law or
statutory immunity from Parents’ Bill of Rights claims, it could have done
so explicitly. See id. (We “will not read into a statute something which is not
within the manifest intention of the legislature as gathered from the statute
itself.”).

¶23 Thus, statutory and judicial immunity applies to A.R.S.
§ 1-602 claims, and the superior court did not err by finding the judge and

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prosecutors were immune from Rogut’s claims.4 Additionally, because the
employees had immunity and were dismissed from the case with prejudice,
the City was not vicariously liable for the claims. See Laurence v. Salt River
Project Agric. Improvement & Power Dist., 255 Ariz. 95, 106, ¶ 44 (2023)
(“Dismissing a tort claim against an employee because the claim lacks merit
requires the court to also dismiss a claim against an employer under the
doctrine of respondeat superior.”); Stoner v. Ariz. Dep’t of Econ. Sec., No.
CV-24-1034-PHX-DGC, 2024 WL 2746978, at *3 (D. Ariz. May 29, 2024)
(Dismissal for failure to state a claim because of immunity is a judgment on
the merits.).

B. The Notice-of-Claim Statute and Statute of Limitation Barred
Rogut’s Claims Arising from the Officers’ Conduct.

¶24 The superior court found that either the 180-day
notice-of-claim requirement or the one-year statute of limitation barred the
claims against the City and its police officers. Rogut argues this finding was
error.

¶25 Rogut contests the court’s application of the time limits in
A.R.S. §§ 12-821.01 and 12-821. Under A.R.S. § 12-821.01(A), a person with
a claim against a public entity or employee must file a notice of the claim
with someone authorized to accept service within 180 days after the cause
of action accrues. “The purpose of the statute is to provide the government
entity with an opportunity to investigate the claim, assess its potential
liability, reach a settlement prior to litigation, budget and plan.” Havasupai
Tribe v. Ariz. Bd. of Regents, 220 Ariz. 214, 223, ¶ 30 (App. 2008). The claim is
barred unless the notice of claim is lawfully served on the public entity. Id.
“Actual notice and substantial compliance do not excuse failure to comply
with the statutory requirements of A.R.S. § 12-821.01(A).” Falcon ex rel.
Sandoval v. Maricopa County, 213 Ariz. 525, 527, ¶ 10 (2006).

¶26 Under A.R.S. § 12-821, “[a]ll actions against any public entity
or public employee shall be brought within one year after the cause of
action accrues.” “[A] cause of action accrues when the damaged party
realizes he or she has been damaged and knows or reasonably should know
the cause, source, act, event, instrumentality or condition that caused or
contributed to the damage.” A.R.S. § 12-821.01(B); see also Dube v. Likins, 216

4 Rogut also suggests that the Parents’ Bill of Rights excludes the use
of “any affirmative defense.” For the same reasons explained above, we
disagree.

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Ariz. 406, 421-22, ¶¶ 1-5 (App. 2007) (supplemental opinion) (applying the
same accrual standard to A.R.S. § 12-821); Boyd v. State, 256 Ariz. 414, 418,
¶ 10 (App. 2023). Accrual of a claim under the notice-of-claim statute does
not require the plaintiff to have facts sufficient to file a complaint. A.R.S.
§ 12-821.01; Humphrey v. State, 249 Ariz. 57, 65, ¶ 28 (App. 2020) (The claim
accrual is not tolled to allow a plaintiff to develop facts sufficient to file a
complaint.).

¶27 Rogut sued the City officers for “(1) defamation;
(2) intentional infliction of emotional distress; (3) negligence; and (4) for
claims arising in tort.” Rogut stated that “[t]he police knowingly, willfully,
maliciously, and repeatedly tampered with their own records, lied to the
prosecutor’s office, withheld or destroyed exculpatory evidence, and lied
to the court.”

¶28 In the complaint, Rogut described the police officers’ actions.
According to Rogut, in May 2019, he reported to the City police that his
ex-wife’s boyfriend threatened him, but the police did not have the report
when he requested it in September 2019. Also, in May 2019, Rogut’s ex-wife
called the City police and had him removed from property he claimed he
had an interest.

¶29 Throughout December 2019, Rogut’s ex-wife communicated
with the City police to report and submit evidence of protective order
violations and harassment. An officer submitted charges against Rogut for
violating the protective order. Rogut reported incidents of public records
tampering and false reporting of criminal charges to the Attorney General’s
Office and the City police department but received no relief.

¶30 Rogut’s ex-wife reported protective order violations to the
police in February and March 2020. Around this time, while Rogut was at
the police station for fingerprinting, the police allegedly “attempted to
create evidence in order to frame [Rogut] for felony theft.” The police
investigated another alleged protective order violation in April 2020, an
alleged assault in June 2020, and a reported theft in June 2020. Rogut’s
ex-wife reported more protective order violations to the police in July and
August 2020. Finally, officers submitted petitions for injunctions against
harassment and for Rogut to receive a mental health evaluation in June
2022, which the court granted.

¶31 The superior court calculated Rogut’s notice-of-claim and
statute-of-limitation deadlines from the dates alleged in the complaint. The
court started with the notice-of-claim statute, noting that Rogut mailed the

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claim to the City on May 16, 2023.5 Thus, any cause of action that accrued
before November 17, 2022, was time-barred. See A.R.S. § 12-821.01(A). All
of the officers’ alleged conduct occurred before this date.

¶32 The court then addressed the statute-of-limitation argument.
Rogut filed the complaint on April 17, 2023, meaning any cause of action
against the City or its employees that accrued before April 17, 2022, was
also barred by the statute of limitation for claims against a public entity or
employee. See A.R.S. § 12-821.

¶33 Rogut argues that because many of his claims were based on
criminal acts, A.R.S. § 12-511(A) extended the statute of limitation to “one
year from the final disposition of the criminal proceedings.” But A.R.S.
§ 12-511(A) only applies when a defendant is criminally charged and the
crime victim files a civil suit against the defendant. Rogut did not allege
that the City or its employees faced criminal charges in his complaint.
Instead, he states on appeal that he “looks forward to the commencement
of criminal proceedings” against the City. A.R.S. § 12-511 does not apply.

¶34 Rogut correctly points out that the date of alleged tortious
conduct is not always the same as when the action accrues. But Rogut
reasonably should have known the cause of his damage from the claims
when the officers’ conduct occurred. See A.R.S. § 12-821.01(B). At the very
latest, he reasonably should have learned of the alleged damage from the
officers’ conduct when he was criminally charged throughout 2020 and the
subject of the petitions in June 2022. See id.

¶35 Rogut submitted the notice of claim to the City untimely and
failed to serve a notice of claim on any of the individual officers. Moreover,
the one-year statute of limitation barred many of his claims, and there was

5 Generally, the claimant must lawfully serve the notice of claim in
compliance with the Arizona Rules of Civil Procedure. A.R.S.
§ 12-821.01(A); see also Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 61, ¶ 20
(App. 2010). But, as noted above, the City waived service by voluntarily
appearing.

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no basis for the remaining claims. The superior court did not err by
dismissing Rogut’s claims.6

C. We Need Not Decide Whether Rogut Had to Submit His Notice of
Claim Before Filing the Complaint.

¶36 Rogut challenges the superior court’s finding that he
improperly submitted his notice of claim after he filed the complaint. Rogut
asserts that “[n]othing in the language of A.R.S. § 12-821.01 statutorily bars
anyone from filing a claim with the Court prior to providing notice of
claim.” But our courts have said the statute requires the plaintiff to file the
notice of claim before suing. See, e.g., Donovan v. Yavapai County Cmty. Coll.
Dist., 244 Ariz. 608, 610, ¶ 7 (App. 2018) (Filing the notice of claim is a
“necessary prerequisite to filing a lawsuit against a public entity.”); see also
Yahweh v. City of Phoenix, 243 Ariz. 21, 23, ¶ 7 (App. 2017) (“Before suing an
Arizona public entity, a claimant must submit a [notice of claim] that
complies with § 12-821.01.”). We need not resolve this dispute because the
superior court correctly dismissed the claims for other reasons explained
above, and the complaint’s “defects [were] not curable by an amendment
of the pleadings.” Thus, the issue is moot.

¶37 Relatedly, Rogut also argues the City erred by appearing and
raising the notice-of-claim violation before Rogut lawfully served the
complaint. But a party may waive service of process by voluntarily
appearing. Cf. Ellman Land Corp. v. Maricopa County, 180 Ariz. 331, 336 (App.
1994). Nothing required the City to wait until the complaint’s service
deadline to appear. Contrary to Rogut’s assertion, the City did not commit
misconduct by voluntarily appearing to defend against the complaint.

D. The Superior Court Did Not Err by Denying Leave to Amend the
Complaint.

¶38 Rogut argues that the superior court “could have granted
[his] request to amend the initial complaint, which the lower court
determined contains incurable defects.” To be sure, a court can grant a

6 Also, absolute prosecutorial immunity barred many claims against
the officers. “[A]bsolute immunity extends to agency officials who perform
functions analogous to a prosecutor.” Ford, 186 Ariz. at 298. Though the
officers would not be entitled to immunity for their investigative functions,
the claims arising from the officers’ submission of charges and petitions to
the court were barred by absolute immunity. See id. at 298-99.

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request to amend a complaint. Deutsche Bank Nat’l Tr. Co. v. Pheasant Grove
LLC, 245 Ariz. 325, 331, ¶ 19 (App. 2018). But Rogut develops no argument
for why the court erred by denying leave to amend. And the superior court
may also deny leave to amend if the amendment is futile. See id. (Because
the statute of limitations barred the claim, an amendment clarifying the
relief sought would have been futile.). We discern no error.

¶39 For the first time in this proceeding, Rogut asks that we grant
leave to amend his complaint to add a new cause of action under A.R.S.
§ 13-2314.01(A). Though Rogut broadly asked the superior court for more
time to “enumerate each individual cause of action and claim for relief,” he
never requested leave from the superior court to add a cause of action under
A.R.S. § 13-2314.01(A). Generally, we will not consider issues not raised
below. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007).
Even so, considering the complaint’s procedural defects, the amendment
would be futile. See Deutsche Bank, 245 Ariz. 325, 331, ¶ 19. We will not
remand for the superior court to consider an amendment.

E. We Lack Jurisdiction to Review the Superior Court’s Dismissal
Without Prejudice for the Claims Against the Unserved Defendants.

¶40 Rogut argues the superior court erred by denying his requests
for accommodations to serve the other defendants in the suit. He claims the
superior court could have given him more time to serve all the defendants,
and it could have approved alternative service methods.

¶41 The superior court dismissed the claims against the other
defendants without prejudice. “[A] dismissal without prejudice is only
appealable if the dismissal results in finality.” Bank of New York Mellon v.
Dodev, 246 Ariz. 1, 7, ¶ 19 (App. 2018); see also A.R.S. § 12-2101(A)(3) (We
have jurisdiction over an appeal “[f]rom any order affecting a substantial
right made in any action when the order in effect determines the action and
prevents judgment from which an appeal might be taken.”). For example, a
dismissal without prejudice entered after the statute of limitation has run is
appealable if a savings statute does not apply because the order “in effect
determines the action.” Garza v. Swift Transp. Co., 222 Ariz. 281, 284, ¶ 15
(App. 2009) (quoting McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74,
¶ 4 (App. 2009)).

¶42 Rogut does not argue that the statute of limitation bars
refiling the claims against the other defendants. See McMurray, 220 Ariz. at
74, ¶ 4. Nor does he allege he has no relief under a savings statute. See id.
And he provides no reason why the judgment against the other defendants

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is final. As a result, we lack jurisdiction to address the dismissal without
prejudice about Rogut’s claims against the defendants other than the City
and its employees. See id.

CONCLUSION

¶43 We affirm.7

AMY M. WOOD • Clerk of the Court
FILED: AGFV

7 In his reply brief, Rogut requested oral argument “[s]hould this
Court have questions.” But see ARCAP 18(a) (The party must file a separate
request for oral argument.). In any event, oral argument would not help
resolve the case. See ARCAP 18(b)(3).

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