Danko v. Dumas ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOHN DANKO, III, Plaintiff/Appellant,
v.
BRIAN DUMAS, Defendant/Appellee.
No. 1 CA-CV 21-0019
FILED 9-14-2021
Appeal from the Superior Court in Maricopa County
No. CV 2020-093942
The Honorable Steven P. Lynch, Judge Pro Tempore (Retired)
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen, Phoenix
Counsel for Plaintiff/Appellant
Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Erica Leavitt
Counsel for Defendant/Appellee
DANKO v. DUMAS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
C A M P B E L L, Judge:
¶1 John Danko, III, appeals from the superior court’s order
dismissing, after an evidentiary hearing, an injunction against harassment
that had been issued in his favor against Brian Dumas. For the following
reasons, we affirm.
BACKGROUND
¶2 After a contentious divorce, Danko petitioned for an
injunction against harassment against Dumas, an attorney who resides in
South Carolina and represents his ex-wife (“Wife”) in post-dissolution
litigation. At an ex parte evidentiary hearing on the petition, Danko testified
that: (1) Wife and his former mother-in-law (“Mother”) stole his mail and
damaged his mailbox; (2) Wife, Mother, and Dumas “came to [his] home”
and demanded that he pay Wife’s garbage bill; (3) Wife emailed him an
“angry” demand to pay her garbage bill; (4) after Wife demanded payment
of her garbage bill, a 95-gallon refuse bin was dumped on his front lawn;
(5) Dumas, acting in concert with Wife and Mother, stole $7,700 from his
parents; (6) Wife and Mother stole his company computer; (7) Wife, Mother,
and Dumas punched, shoved, and kicked him and hit his children; and (8)
Dumas helped Wife steal funds from his retirement account.
¶3 Citing Danko’s testimony―that Dumas physically assaulted
him and assisted in the unauthorized withdrawal of money from his
retirement account―the superior court granted Danko’s petition for an
injunction against harassment against Dumas. Upon being served with the
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
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injunction, Dumas requested an evidentiary hearing and moved to dismiss
the order.
¶4 At the contested hearing, Danko again testified to events that
he claimed caused mental and emotional anguish. He testified that he saw
unidentified individuals park a van in front of his home, rummage through
his mail, and rip his mailbox from its post as they drove away. Through
subsequent investigation of the van’s license plate number, Danko testified
that he discovered the van’s owners “worked for a security company that
was employed by . . . Dumas.”
¶5 Danko also testified that Dumas sent him an email
demanding payment for Wife’s utility bills. He found the email harassing
because he had previously asked Dumas to direct all communications to his
attorney. Nonetheless, despite his reluctance to communicate directly with
Dumas, Danko testified that he later called Dumas to discuss Wife’s unpaid
bills. According to Danko, Dumas threatened him during the call, stating
he would not “walk again” if he did not pay Wife’s bills. About a week after
he received Dumas’ email, Danko returned home from work and found a
95-gallon garbage receptacle dumped on his front lawn, leaving trash
strewn across his yard. Although he admittedly had “no proof or evidence”
that Dumas, a resident of South Carolina, dumped the trash at his Arizona
home, Danko concluded that Dumas, Wife, or Mother likely “asked
somebody else to do it.”
¶6 Danko further testified that Dumas coerced his parents to
write a cashier’s check for $7,770 under the threat that Danko would be
harmed if they refused to pay. When Danko moved to admit a copy of the
cashier’s check into evidence, Dumas submitted his own copy of the check,
which reflected that Danko’s parents issued the check to Dumas’ law firm
rather than to Dumas personally, as reflected in Danko’s exhibit.
¶7 Finally, Danko testified that Dumas “aided and abetted” in
Wife’s theft of his company computer. In response to questions from the
court, Danko acknowledged that he had no evidence that Dumas stole the
computer; instead, he explained that Dumas simply “refused” to return it.
¶8 When he finished testifying, Danko rested. At that point, the
superior court asked Dumas whether he had “a motion for directed
verdict.” Responding in the affirmative, Dumas argued that Danko had
failed to present any evidence to support a finding that Dumas had
harassed, threatened, or intimidated him in any manner. The court agreed
and dismissed the injunction against harassment. Danko timely appealed.
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DISCUSSION
I. Administration of Oaths
¶9 Danko argues that the superior court violated Arizona Rule
of Protective Order Procedure (“Protective Order Rule”) 38 by failing to
administer an oath to both parties at the contested hearing. Asserting “there
is no record of the [c]ourt administering the oath,” Danko contends that he
is “automatically” entitled to a new hearing and that the court’s dismissal
order must be vacated.
¶10 We review de novo the interpretation and application of court
rules. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012). At a contested
hearing on a protective order, “[t]he court must administer an oath or
affirmation to all parties and witnesses.” Ariz. R. Protective Order P.
38(f)(2).
¶11 Danko first challenges the adequacy of the record
documenting the superior court’s administration of an oath to him. While
the contested hearing transcript fails to memorialize the court’s precise
wording, it does reflect that the court asked Danko to “raise [his] right hand
to be sworn in” and “administered” an “oath” to him before he testified.
The corresponding minute entry similarly states Danko “is sworn.” And
Danko, of course, participated in the hearing. Danko posits that a record of
an oath being “administered” is inadequate, but has cited no authority for
his contention that the record must reflect “every literal word” of an oath,
and our research has revealed none. Because the uncontroverted record
clearly reflects that the superior court administered an oath to Danko before
he testified, there is no factual support for his argument that the court
violated Protective Order Rule 38.
¶12 Danko next challenges the superior court’s failure to
administer an oath to Dumas, noting the transcript “has no reference at all
to [Dumas] being sworn in.” Although Danko’s assessment of the transcript
is accurate, he waived any challenge to the court’s failure to administer an
oath to Dumas by failing to raise the issue in the superior court. Odom v.
Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007) (“[A]rguments
raised for the first time on appeal are untimely and deemed waived.”).
Nonetheless, even considering the substance of his claim, we find no merit
to Danko’s challenge because Dumas did not testify. To the extent Dumas
made factual assertions while, as a self-represented party, raising speaking
objections to Danko’s testimony, none of his statements constituted
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evidence and there is no indication the superior court relied on them as
evidence.
II. Entry of a Directed Verdict
¶13 Danko argues that the superior court exceeded its legal
authority and violated the governing procedural rules by sua sponte
soliciting and granting a directed verdict in favor of Dumas.
¶14 Whether the superior court exceeded its authority is a
question of law that we review de novo. Clark v. Campbell, 219 Ariz. 66, 70-
71, ¶ 16 (App. 2008). The Protective Order Rules govern protective-order
matters. Ariz. R. Protective Order P. 1. However, the Arizona Rules of Civil
Procedure (“Civil Rules”) also apply to protective-order matters, to the
extent they are not inconsistent with the Protective Order Rules.2 Ariz. R.
Protective Order P. 2.
¶15 When both parties appear at a contested protective-order
hearing, the superior court “must ensure” that each party has “an
opportunity to be heard, to present evidence, and to call and examine and
cross-examine witnesses.” Ariz. R. Protective Order P. 38(f)(1). “At the
conclusion of the hearing,” the court “must state the basis for continuing,
modifying, or revoking the protective order.” Ariz. R. Protective Order P.
38(f)(4).
¶16 First, Danko asserts that the superior court failed to fulfill its
duty under Protective Order Rule 38 to “ensure that both parties testify.”
This argument reflects a misunderstanding of the rule. Under Protective
Order Rule 38, the superior court must provide each party an opportunity to
be heard (including to testify if they wish), but the court need not compel a
party to testify on his own behalf. Here, Danko had the opportunity both to
testify and to submit exhibits for the court’s consideration. He also had the
opportunity to call witnesses, including Dumas, but elected not to do so. By
resting his case, Danko waived his right to call Dumas as a witness and
risked forgoing any opportunity to question him in the event Dumas chose
not to testify on his own behalf. Contrary to Danko’s contention, Dumas
was also afforded an opportunity to be heard, but he elected to instead
move for a directed verdict.
2 When a protective order is sought in conjunction with a pending
family law case, the Arizona Rules of Family Law Procedure govern, to the
extent they are not inconsistent with the Protective Order Rules. Ariz. R.
Protective Order P. 2.
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¶17 Next, Danko contends that a directed verdict “is a creature of
criminal law” and that no corresponding civil mechanism exists for ending
a trial. As noted by Dumas, however, a 1996 amendment to Civil Rule 50
replaced “directed verdict” with “judgment as a matter of law,” and the
terms are now used “interchangeably” and “the tests” for granting the
motions “are the same.” Warner v. Sw. Deserts Images, LLC, 218 Ariz. 121,
127, ¶ 8 n.4 (App. 2008) (quoting Murcott v. Best Western Int’l, Inc., 198 Ariz.
349, 356, ¶ 36 (App. 2000)).
¶18 Under Civil Rule 50, the superior court may resolve an issue
against a party and enter judgment as a matter of law if the party “has been
fully heard on [the] issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.” Ariz. R. Civ. P. 50(a)(1). In other words, a
motion for judgment as a matter of law, or a directed verdict, may be
granted when the evidence presented by the nonmoving party has so little
probative value that, under the applicable burden of proof, a reasonable
finder of fact could not agree with the conclusion advanced by the
proponent of the claim. Warner, 218 Ariz. at 131, ¶ 25.
¶19 Pointing to Civil Rule 50’s “jury trial” language, Danko
contends that the rule has no application to protective-order proceedings
because they are tried to the bench, not a jury. Without question, Civil Rule
50 contemplates a jury trial, but Danko has failed to cite any substantive or
principled basis to preclude the superior court, as fact-finder, from
determining that a plaintiff, who has been afforded a full opportunity to be
heard, has failed to provide “a legally sufficient evidentiary basis” to
support an injunction against harassment. Had Dumas simply declined to
present a defense and rested and then argued as a matter of law that Danko
had failed in his obligations, as he was unquestionably permitted to do
under the governing rules, the effect would have been the same. Put simply,
there is no valid reason to preclude the court from entertaining a
defendant’s motion for directed verdict (or, perhaps more accurately, for a
judgment as a matter of law) in a contested protective-order proceeding
once the plaintiff has rested.
¶20 Finally, Danko asserts that the superior court violated
Protective Order Rule 38 by prematurely dismissing the injunction for
harassment before the conclusion of the hearing. But Danko had rested,
Dumas had elected to press the motion before presenting any evidence, and
the court had heard argument on that motion from both parties. Moreover,
Danko has not argued he was prevented from presenting his case in chief
or made any avowal about evidence he now claims he should have been
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allowed to present. The evidentiary portion of the hearing ended when
Danko rested and the hearing itself concluded when the court granted
Dumas’ motion for directed verdict. Therefore, the court’s ruling
dismissing the injunction against harassment was not premature.
¶21 In sum, applying both the Protective Order Rules and the
Civil Rules to this case, we find no merit to Danko’s contention that the
superior court exceeded its authority or committed reversible error by
entering a directed verdict in Dumas’ favor.
III. Dismissal of the Injunction Against Harassment
¶22 Danko challenges the superior court’s dismissal of the
injunction against harassment, asserting he presented credible evidence
that Dumas engaged in multiple acts of harassment. Viewing the facts “in
the light most favorable to upholding the [superior] court’s decision,” we
will reverse only if the record “is devoid of competent evidence to support
the decision.” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (citation
omitted).
¶23 To uphold the injunction against harassment, the superior
court had to find that Dumas harassed Danko. See A.R.S. § 12-1809(E). In
this context, harassment is defined as a “series of acts . . . directed at a
specific person and that would cause a reasonable person to be seriously
alarmed, annoyed or harassed and the conduct in fact seriously alarms,
annoys or harasses the person and serves no legitimate purpose.” A.R.S. §
12-1809(S)(1)(a). With this definition in mind, we consider each allegation
Danko raised at the hearing.
¶24 First, Danko testified that Dumas vicariously rummaged
through his mail and damaged his mailbox, asserting he had unspecified
“receipts and documentation” demonstrating that Dumas had paid
unknown individuals who purportedly committed the offenses. When
Dumas objected to Danko’s testimony for lack of foundation, the court
sustained the objection. Apart from being unsubstantiated, Danko’s
testimony at the hearing also contradicted his prior testimony. At the initial
hearing on his petition for an injunction, Danko testified, unequivocally,
that he witnessed Wife and Mother steal his mail and damage his mailbox,
not Dumas or his alleged agents. On this record, Danko failed to provide
any credible evidence that Dumas, vicariously or otherwise, stole his mail
and damaged his mailbox.
¶25 Second, Danko testified that Dumas sent him a harassing
email. After Danko read Dumas’ email aloud in open
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court―“[I]mmediately pay all the utilities for [Wife’s] household
now.”―the superior court stated, “[a]nd that’s all--that’s all it was.” Danko
has not shown the superior court erred in finding the email would not cause
a reasonable person to be seriously alarmed, annoyed or harassed, as
required to constitute harassment under A.R.S. § 12-1809(S)(1)(a). We also
agree with the superior court, Danko’s account simply “doesn’t make
sense.” On this record, Danko failed to provide any credible evidence that
Dumas sent him a harassing email or threatened him with violence over the
phone.
¶26 Third, Danko testified that Dumas probably “asked
somebody” to dump trash in his front yard. But Danko then admitted that
he had absolutely “no proof or evidence” to support this allegation.
¶27 Fourth, Danko testified that Dumas coerced his parents to
write a cashier’s check. But the superior court properly noted that his
parents were not listed on the injunction against harassment, meaning the
court lacked jurisdiction to consider any purported coercion of his parents.
Moreover, Danko was not able to connect the alleged coercion of his parents
to his purported harassment claims. Again, Danko has shown no error.
¶28 Finally, Danko testified that Dumas “aided and abetted”
Wife’s theft of his company computer. But Danko admitted he had no
evidence that Dumas had any role in the theft of the computer. Instead, he
alleged that Dumas “refused” to “return it.” On this record, no credible
evidence supports Danko’s allegations that Dumas helped steal the
computer, possessed the computer, or withheld it.
¶29 In sum, Danko failed to present any credible allegations of
harassment against Dumas. Because none of Danko’s claims were
supported by substantial evidence, the superior court did not err by
dismissing the injunction against harassment.
CONCLUSION
¶30 For the foregoing reasons, we affirm the superior court’s
dismissal of the injunction against harassment. Both parties request an
award of attorneys’ fees on appeal without citing any authority to support
their requests. Because a party “must specifically state the statute, rule,
decisional law, contract, or other provision authorizing an award of
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attorneys’ fees,” we deny both requests. ARCAP 21(a)(2). However, we
award Dumas, as the prevailing party, his taxable costs on appeal upon
compliance with ARCAP 21(a).
AMY M. WOOD • Clerk of the Court
FILED: AA
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