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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


 JOE LANGENDORF and SHIRLEY LANGENDORF, husband and wife,
                    Plaintiffs/Appellants,

                                        v.

 BUCKEYE WATER CONSERVATION AND DRAINAGE DISTRICT, a
   political subdivision of the State of Arizona, Defendant/Appellee.

                             No. 1 CA-CV 14-0399
                               FILED 4-28-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-000037
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Curtis Goodwin Sullivan Udall & Schwab PLC, Phoenix
By Larry K. Udall and Michael A. Curtis
Counsel for Plaintiffs/Appellants

The Herzog Law Firm PC, Scottsdale
By Michael W. Herzog
Counsel for Defendant/Appellee
                  LANGENDORF v. BUCKEYE WATER
                       Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1            Joe and Shirley Langendorf (the “Langendorfs”) appeal from
the trial court’s order granting summary judgment in favor of Buckeye
Water Conservation and Drainage District (the “District”). For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2          The Langendorfs own property adjacent to an irrigation canal
owned and operated by the District. In March 2012, a breach occurred in
the canal bank causing water to flood and damage the Langendorfs’
property.

¶3            The Langendorfs sued the District on the theories of
negligence, trespass, and negligence per se. The District filed a motion for
summary judgment asserting the defense of absolute immunity pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-820.01(A)(2).

¶4           After the parties presented their oral arguments, the
Langendorfs made a request to supplement their response with additional
evidence. The trial court denied the request. However, the Langendorfs
ignored the trial court’s ruling and filed a supplemental motion that
included additional affidavits offering evidence of the District’s negligence.
The District filed a motion to strike the Langendorfs’ supplemental
argument, which was granted by the trial court.

¶5             The trial court granted the District’s motion for summary
judgment based on absolute immunity. Judgment was entered in favor of
the District, and the Langendorfs timely appealed.

                               DISCUSSION

¶6            We review a grant of summary judgment de novo, and view
the facts in the light most favorable to the party opposing the motion.
Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011); Warrington by


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                   LANGENDORF v. BUCKEYE WATER
                        Decision of the Court

Warrington v. Tempe Elementary Sch. Dist. No. 3, 187 Ariz. 249, 250 (App.
1996). We review de novo whether a public entity has absolute immunity.
Myers v. City of Tempe, 212 Ariz. 128, 130, ¶ 9 (2006).

¶7          The Langendorfs contend that the District cannot assert an
absolute immunity defense because its decision to adopt a shotcreting
program to prevent canal erosion was not a determination involving a
fundamental governmental policy. We disagree.

¶8              In order for the District to raise the defense of absolute
immunity, it must show that its shotcreting program was based on the
determination of a fundamental governmental policy. Kohl v. City of
Phoenix, 215 Ariz. 291, 295, ¶ 19 (2007); A.R.S. § 12-820.01(A)(2). A
“[f]undamental governmental policy involves the exercise of discretion and
includes . . . a determination of whether to seek or whether to provide the
resources necessary for . . . the construction or maintenance of [government]
facilities.” A.R.S. § 12-820.01(B)(1)(b). Additionally, a fundamental
governmental policy involves “[a] determination of whether and how to
spend existing resources, including those allocated for equipment, facilities
and personnel.” A.R.S. § 12-820.01(B)(2).

¶9             In Kohl, our supreme court examined whether the City of
Phoenix was immune under A.R.S. section 12–820.01 from liability for its
decision not to install a traffic signal at an intersection where the plaintiffs’
son was killed by an automobile. Kohl, 215 Ariz. at 292, ¶ 1. Due to the
large number of intersections in the City, as well as the City’s limited funds
and resources, the City adopted a system for allocating priorities among
intersections for the installation of traffic signals. Id. at ¶¶ 5–8. The
supreme court held that the City engaged in a determination of
fundamental governmental policy when, based on its priority system, it
decided where to install traffic signals and concluded that it would not
spend its resources to place a signal at the subject intersection. Id. at ¶¶ 14–
15. See Myers, 212 Ariz. at 130, ¶ 10 (absolute immunity pursuant to A.R.S.
§ 12-820.01 applied to City of Tempe’s decision to enter into an automatic
aid agreement with neighboring municipalities to provide emergency
services; adoption of the agreement involved “weighing risks and gains,
concerned the distribution of resources and assets, and required consulting
the city’s subject matter experts”).

¶10            Here, as in Kohl, the District exercised its discretion and
approved a plan to provide resources necessary for the maintenance of its
facilities; specifically, shotcreting the District’s canals. The Board of
Directors of the Buckeye Water Conservation and Drainage District


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                   LANGENDORF v. BUCKEYE WATER
                        Decision of the Court

approved a Lining Matrix designed by the District’s expert to implement
the shotcreting program. The Lining Matrix broke down the entire District
canal system into thirty-two sections. A Matrix Score was developed for
each section based on multiple factors including the height of native grade
to high water mark, known history of leaks and gopher holes, ongoing
canal width erosion, O&M road width, and other special risk factors.
Sections with the highest Matrix Score received priority.

¶11           After the Board adopted the Lining Matrix, it authorized
funding so that the District could shotcrete the canal based on the Lining
Matrix. The District began shotcreting a portion of the canal from “Watson
to Apache,” which had a higher priority based upon the Lining Matrix than
the portion of the canal that is adjacent to the Langendorfs’ property.

¶12          Accordingly, the District’s decision to adopt the Lining
Matrix in prioritizing sections of the canal for shotcreting involved a
fundamental governmental policy and was therefore absolutely immune
under A.R.S. § 12-820.01(A)(2).1

¶13          The Langendorfs also argue that the District may not assert
the defense of absolute immunity because the shotcreting program was
only implemented to address damage due to water erosion, and not
damage caused by gopher infestation. The Langendorfs contend that the
flooding on their property was caused by gopher infestation.

¶14           The Langendorf’s contention is not supported by the record.
Although the District’s shotcreting program was primarily designed to
prevent water erosion, that was not the only purpose of the program. The
record clearly shows that the District’s decision to line the canals with
shotcrete was also designed, in part, to prevent gopher damage to the
canals.

¶15            The Langendorfs also contend that even if absolute immunity
applies to their negligence claim, it does not shield the District from liability
as to their negligence per se claim. The Langendorfs are incorrect. Absolute
immunity shields a public entity from liability for all negligent acts. A.R.S.


1      Contrary to the assertion of the Langendorfs, the District’s decision
to shotcrete a portion of the canal adjacent to the Langendorfs’ property
prior to its ranking in the Lining Matrix did not preclude the District from
asserting the defense of absolute immunity. See Kohl, 215 Ariz. at 296–97,
¶¶ 25–26 (holding the decision to signalize three street corners before their
ranked order did not affect the City’s immunity from suit).


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                  LANGENDORF v. BUCKEYE WATER
                       Decision of the Court

§ 12-820.01(A)(2); Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986); Kohl, 215
Ariz. at 295, ¶ 16 (“Section 12-820.01(A)(2) immunizes all determinations of
fundamental governmental policy, even those that can be shown to fall
below a standard of reasonable care.”).

¶16            Finally, the Langendorfs argue that the trial court erred when
it denied their request to supplement their response to the District’s motion.
We review the trial court’s ruling for an abuse of discretion. Larsen v.
Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000).

¶17             The trial court did not abuse its discretion. In addition to
being untimely, the Langendorfs’ supplemental affidavits and arguments
do not oppose or address the District’s defense of absolute immunity. Ariz.
R. Civ. P. 56(c) (timeliness of opposing affidavits); Ariz. R. Civ. P. 56(e)
(party opposing summary judgment must do so with affidavits and specific
facts setting forth a genuine fact dispute); GM Dev. Corp. v. Cmty. Am. Mortg.
Corp., 165 Ariz. 1, 5 (App. 1990) (opposing party’s failure to present facts
controverting the moving party’s affidavits permits the trial court to accept
facts alleged by moving party as true). The Langendorfs’ supplement
addresses the purported insufficiency of shotcreting as a method to control
gopher infestation and the alleged negligence of the District in maintaining
the canals. None of the additional evidence addresses whether the
District’s decision to adopt the shotcreting program involved a
fundamental governmental policy pursuant to A.R.S. § 12-820.01(A)(2).2
We find no error.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm the judgment of the trial
court.




                                     :ama



2      Based on our decision in this case, the District’s motion to strike
reference to the affidavit of Albert Clemmens contained within the
Lagendorfs’ opening brief is moot.


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