Hogen v. Hogen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENJAMIN TWIGGS HOGEN, Plaintiff/Appellant,

v.

STEVEN MARK HOGEN, Defendant/Appellee.

No. 1 CA-CV 24-0491
FILED 02-06-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-012321
The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Benjamin Twiggs Hogen, Mesa
Plaintiff/Appellant

White Mountain Law Group PLC, Show Low
By Michael R. Ellsworth
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge David D. Weinzweig joined.

C A T L E T T, Judge:

¶1 Benjamin Hogen (“Son”) appeals the superior court’s denial
of his motion for leave to amend his complaint. Because Son’s proposed
amended complaint did not allege facts sufficient to toll the statute of
limitations, we affirm the court’s denial of leave to amend.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2023, Son filed a complaint against his father,
Steven Hogen (“Father”), alleging Father committed various sexual acts
against Son when he was a child. Son alleged “duress” from 1997 until
November 2022. Father moved to dismiss, arguing the applicable statute
of limitations barred Son’s claims because Son turned eighteen in 2007 and
was therefore required to bring his claims by 2019, within twelve years after
his eighteenth birthday. See A.R.S. § 12-514(A).

¶3 When Son did not timely respond, the superior court granted
Father’s motion to dismiss. Son then moved to extend the response
deadline, which the court granted; Son then responded to the motion to
dismiss. In his response, Son argued the statute of limitations should be
tolled because he was of unsound mind during all relevant times. The court
again dismissed Son’s complaint, this time on the merits, because (1) Son
was required to bring the complaint by 2019 but did not do so until 2023,
(2) Son did not include any allegations in his complaint supporting tolling,
and (3) the facts Son first raised in his response to the motion to dismiss did
not meet the standard to toll the statute of limitations.

¶4 Son then filed a “supplemental pleading.” That document
included allegations only about the parties, jurisdiction, venue, and the
“factual circumstances constituting unsound mind.” The court took no
action. So, about two months later, Son filed a motion for leave to amend,
a motion requesting relief from judgment, and another supplemental

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pleading. The second supplemental pleading reiterated Son’s factual bases
for tolling but now listed the years for each. The only facts Son alleged for
being of unsound mind from 2019 through 2021 were that he “lived in two
sober living communities,” “walked off his job working as a crew member”
at a fast food restaurant, “lived with friend in ASU dormitory, unable to
pay rent,” “took the LSAT,” and “matriculated at University of Idaho
College of Law.” Other than the act of filing this lawsuit, Son alleged no
facts for 2022 or 2023.

¶5 The court construed Son’s initial supplemental pleading to be
an amended complaint that was improperly filed without leave of court,
but construed Son’s second supplemental pleading to be a proposed
amended complaint. But the court denied leave to amend because Son
failed to fix the issues the court previously addressed and further
amendment “would be futile as a matter of law.”

¶6 Son timely appealed. We have jurisdiction. See A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶7 Son challenges only the court’s denial of leave to amend. He
argues the court erred by concluding that his proposed amendment would
be futile.

¶8 “Although the superior court has the discretion to deny a
motion to amend, we review de novo whether a request to amend is futile.”
Ute Mountain Ute Tribe v. Ariz. Dep’t of Revenue, 254 Ariz. 410, 416 ¶ 22 (App.
2023). When reviewing whether a request to amend is futile, we presume
all factual allegations in the amendment are true. See Cullen v. Auto-Owners
Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008). Other questions of law, including
whether a statute of limitations should be tolled, are reviewed de novo.
Worldwide Jet Charter, Inc. v. Toulatos, 254 Ariz. 331, 336 ¶ 15 (App. 2022).

¶9 Son argues the court should have granted him leave to amend
because his updated supplemental pleading included facts that, when
taken as true, established that he was of unsound mind, thereby tolling the
statute of limitations. But even if we, like the superior court, construe Son’s
supplemental pleading to be a proposed amended complaint, he did not
allege sufficient facts to toll the statute of limitations.

¶10 In 2019, the legislature amended A.R.S. § 12-514(A)(1) to
allow a complaint relating to sexual conduct against a minor to “be
commenced within twelve years after the plaintiff reaches eighteen years of

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age and not afterward[.]” 2019 Ariz. Sess. Laws, ch. 259, § 1 (1st Reg. Sess.)
(H.B. 2466). The Act also permitted a cause of action “that would otherwise
be time barred because of an applicable statute of limitations” to “be
commenced before December 31, 2020.” A.R.S. § 12-514(A)(1) (2019); 2019
Ariz. Sess. Laws, ch. 259, § 3.

¶11 In addition to the Act’s time extension, “[i]f a person entitled
to bring an action . . . is at the time the cause of action accrues either under
eighteen years of age or of unsound mind” the applicable statute of
limitations is tolled. A.R.S. § 12-502. “A person of unsound mind is one
who ‘is unable to manage his affairs or to understand his legal rights or
liabilities.’” Nolde v. Frankie, 192 Ariz. 276, 281 ¶ 22 (1998). “To justify
tolling a limitations statute because a person lacks ability to manage his
daily affairs, we require ‘hard evidence that a person is simply incapable of
carrying on the day-to-day affairs of human existence.’” Id. ¶ 23. To justify
tolling based on an inability to understand and assert legal rights, a plaintiff
alleging sexual abuse must allege repressed memories of the abuse and
prior denial that such abuse took place. See id. at 282 ¶¶ 27-28.

¶12 It is uncontested that Son turned eighteen in 2007, so the
twelve-year statute of limitations in § 12-514(A)(1) ordinarily would have
run in 2019. But under the 2019 amendment to § 12-514(A)(1), Son’s
deadline to file his complaint was extended to December 31, 2020, unless he
asserted facts further tolling the limitations period. Son filed his complaint
in 2023. Thus, Son needed to allege facts which, when taken as true, would
show that he was of unsound mind from January 1, 2021, through the date
of his original complaint in 2023. Son did not do so.

¶13 In fact, Son alleged no facts showing he was of unsound mind
in 2022 and continuing through the date of his complaint in 2023. That
omission alone was sufficient for the superior court to deny leave to amend.
On top of that omission, Son admitted in his response to Father’s motion to
dismiss that he understood his rights in 2022. And the only fact Son alleged
to support that he was of unsound mind in 2021 is that he enrolled in law
school, which does not demonstrate that he was unable to manage his
affairs or understand his legal rights. Son included no other facts
supporting that he was of unsound mind from 2021 to 2023. Because Son’s
proposed amended complaint did not allege sufficient facts to toll the
statute of limitations, the court properly denied Son leave to amend.

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CONCLUSION

¶14 We affirm.

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

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