Denmon v. Safarian ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
DAVID DENMON, Plaintiff/Appellee,
v.
ALLEN M. SAFARIAN, Defendant/Appellant.
No. 1 CA-CV 15-0222
FILED 2-4-2016
Appeal from the Superior Court in Maricopa County
No. CV2015-052060
The Honorable Brian S. Rees, Judge Pro Tempore
VACATED
COUNSEL
The Cordrey Law Firm PLC, Phoenix
By Michael E. Cordrey
Counsel for Plaintiff/Appellee
Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connely II
Counsel for Defendant/Appellant
DENMON v. SAFARIAN
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Allen Safarian appeals the trial court’s order granting his
neighbor, David Denmon, an injunction against harassment prohibiting
contact with Denmon and construction workers rebuilding Denmon’s
house. For the following reasons, we vacate the order.
FACTS1 AND PROCEDURAL HISTORY
¶2 Denmon hired construction workers to rebuild his home after
it was destroyed by fire in April 2014. In January 2015, the workers began
parking along the public street in front of Safarian’s house. The workers
informed Denmon that Safarian had verbally accosted and harassed them
for doing so, and, in February 2015, Denmon filed a petition seeking an
injunction against harassment. The trial court issued the injunction, which
prohibited Safarian from contacting Denmon and obstructing the
construction workers’ activities, and it ordered Safarian to report any illegal
parking to the proper authorities. Safarian requested a hearing, which was
held in March 2015.
¶3 At the hearing, Denmon testified Safarian verbally accosted
or harassed multiple workers and a city inspector in January and February
2015. One woman “in her late 60s, early 70s” was so upset from a
confrontation that, according to Denmon, she was shaking and needed help
carrying items into Denmon’s house. Additionally, Denmon testified
Safarian had put a garden hose on the street to prohibit anyone from
parking in that area for the day.
¶4 One of the workers, Danny B., testified he parked in front of
Safarian’s house and was immediately confronted by Safarian. Safarian
1 We view the facts in the light most favorable to upholding the trial
court’s order. Mahar v. Acuna, 230 Ariz. 530, 531, ¶ 2 (App. 2012) (citing IB
Prop. Holdings, L.L.C. v. Rancho Del Mar Apartments Ltd. P’ship, 228 Ariz. 61,
63, ¶ 2 (App. 2011)).
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DENMON v. SAFARIAN
Decision of the Court
began yelling and demanded Danny B. park elsewhere. Danny B.
apologized and said he would move his car, but Safarian “continued . . . his
tirade,” and Danny B. apologized a second time. Safarian continued to yell
at Danny B. despite additional apologies until Danny B. finally told Safarian
to “shut up.” Danny B. then moved his vehicle across the street. Even after
Danny B. exited his vehicle, Safarian continued to yell at him. When Danny
B. was asked if he felt threatened or harassed by Safarian, he said, “When I
drove away that day, I was thinking I’m pleased that I didn’t get too
involved with him.”
¶5 Denmon did not call any other witnesses. After he rested his
case-in-chief, Safarian’s counsel moved for directed verdict. The trial court
denied the motion.
¶6 During his testimony, Safarian acknowledged he had asked
various workers not to park in front of his house because it inhibited access
and prevented him from receiving expected deliveries. However, he
denied these requests were inappropriate or could be considered
harassment. Safarian stated he did not want to “escalate the issue” by
calling the police to report the violations.
¶7 The trial court affirmed the existing order, and Safarian timely
appealed.2 We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1)3 and -2101(A)(5)(b). See LaFaro v. Cahill,
203 Ariz. 482, 485, ¶ 8 (App. 2002) (holding an injunction against
harassment is a final order from which an appeal is “explicitly permit[ted]”
by what is now A.R.S. § 12-2101(A)(5)(b)).
DISCUSSION
¶8 Safarian argues (1) Denmon did not present sufficient
evidence of harassment for the trial court to order the injunction, and (2)
the injunction is unconstitutionally vague and overbroad. We review
orders granting injunctions for a clear abuse of discretion. Id. at ¶ 10 (citing
Ariz. Dep’t of Pub. Safety v. Superior Court (Falcone), 190 Ariz. 490, 494 (App.
2 Denmon did not file an answering brief. Although this can be
construed as a confession of error, in our discretion, we choose to address
the merits of the appeal. See Nydam v. Crawford, 181 Ariz. 101, 101 (App.
1994) (citing Pinal Cnty. Juv. Action No. S-389, 151 Ariz. 564, 565 (App. 1986)).
3 Absent material changes from the relevant date, we cite a statute’s
current version.
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DENMON v. SAFARIAN
Decision of the Court
1997)). A court abuses its discretion when it misapplies the law to
undisputed facts. Id. (citing Falcone, 190 Ariz. at 494). We review the
constitutionality of a statute de novo and “only if it is necessary to resolve
the issue to decide the case.” City of Tempe v. Outdoor Sys., Inc., 201 Ariz.
106, 109, ¶ 7 (App. 2001) (citations omitted).
¶9 As relevant here, an injunction against harassment may be
issued only if the trial court “finds reasonable evidence of harassment of the
plaintiff by the defendant during the year preceding the filing of the
petition.” A.R.S. § 12-1809(E) (emphasis added). Harassment is defined as
“a series of acts over any period of time that is 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) (emphasis
added). Thus, the conduct for which the injunction against harassment
issued must, of necessity, have been directed against the individual seeking
the injunction. See A.R.S. § 12-1809(E), (S).
¶10 Denmon conceded he had no direct contact with Safarian, and
our review of the record reveals no evidence of any conduct by Safarian
directed at Denmon. Although Denmon testified he felt “annoyed or
harassed by Safarian’s behavior,” Safarian’s actions were directed at the
individuals parking in front of Safarian’s house. LaFaro, 203 Ariz. at 486,
¶ 13 (concluding defendant’s name-calling was not “directed at” the
plaintiff where it was contained in a conversation with an unrelated third
party which the plaintiff overheard). We therefore conclude the trial court
erred by granting the injunction prohibiting Safarian from contacting
Denmon.
¶11 The trial court likewise could not grant Denmon’s petition to
enjoin Safarian from obstructing the construction workers’ activities.
Although the evidence may support the trial court’s finding that Safarian
harassed the construction workers who parked in front of his house, as
stated in ¶¶ 3-4, supra, the court may only enjoin harassment against the
plaintiff, Denmon. See A.R.S. § 12-1809(E); LaFaro, 203 Ariz. at 486, ¶¶ 13,
15.
¶12 In that Denmon, the plaintiff, was not personally harassed by
Safarian, we conclude the trial court abused its discretion in granting
Denmon’s petition to enjoin Safarian from harassing Denmon and other
third parties. We need not address Safarian’s constitutional argument
because “there are nonconstitutional grounds dispositive of the case.”
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DENMON v. SAFARIAN
Decision of the Court
Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11 (App. 1999) (citing
Petolicchio v. Santa Cruz Cnty. Fair & Rodeo Ass’n, 177 Ariz. 256, 259 (1994)).
CONCLUSION
¶13 For the foregoing reasons we vacate the order granting an
injunction against harassment against Safarian. Safarian requests an award
of attorneys’ fees pursuant to A.R.S. § 12-1809(O). In our discretion, we
decline this request. As the prevailing party, however, Safarian is entitled
to recover his costs on appeal upon compliance with ARCAP 21(b).
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