Shoni v. Hansen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
THIRUSELVAM SHOSUN SHONI, Plaintiff/Appellant,
v.
CARLA C. HANSEN, Defendant/Appellee.
No. 1 CA-CV 19-0550
FILED 7-28-2020
Appeal from the Superior Court in Maricopa County
No. CV2016-011940
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL
Thiruselvam Shosun Shoni Sakthiveil, Phoenix
Plaintiff/Appellant
Elardo, Bragg, Rossi & Palumbo, P.C., Phoenix
By John A. Elardo, Jarin K. Giesler, Alexis N. Tinucci, &
Michael E. Palumbo
Counsel for Defendant/Appellee
SHONI v. HANSEN
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.
P E R K I N S, Judge:
¶1 Thiruselvam Shoni appeals the trial court’s grant of summary
judgment to Carla Hansen on Shoni’s claims for negligence and trespass.
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 When reviewing a grant of summary judgment, we view the
facts in the light most favorable to the non-moving party. State Comp. Fund
v. Yellow Cab Co. of Phoenix, 197 Ariz. 120, 122, ¶ 5 (App. 1999).
¶3 On September 8, 2014, at about 4:00 a.m., a significant
rainstorm caused by the remnants of Hurricane Norbert struck Maricopa
County, causing historic levels of rain and flooding. Shoni slept as his home
flooded with about two feet of water. That morning, Shoni photographed
the damage and his neighbor’s block wall and metal gate, which he
suspected caused the flooding. The metal gate, which extended over a wash
on Hansen’s property, had three hinged metal flaps at the bottom. These
flaps had space between them and did not reach the bottom of the wash.
¶4 Shoni sued Hansen in August 2016, alleging that her
construction of the mason wall and gate was negligent and caused a
trespass because the metal flaps diverted the flood water onto his property.
He later alleged that the purportedly shoddy construction of the wall led to
a sinkhole, causing more flooding on his property. Between 2017 and 2018,
Shoni disclosed two types of evidence. The first was a series of photographs
dated September 22, 2014, showing damage to the interior of his home. The
second was his own affidavit, in which he asserted:
I found out from observing and speaking with others that the
cause of the flooding was from a wash that ran along
Defendant’s property. I found out from personal observation
that Defendant had deliberately diverted the water by placing
metal plates on the bottom of the fence so that water would
not flow into the wash and as a result, the water flooded my
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SHONI v. HANSEN
Decision of the Court
property. . . . [Hansen] intentionally diverted the water as you
can see from the photos.
He also asserted that the photographs attached to the affidavit
demonstrated “how the water was diverted and the changes she made.”
¶5 Hansen disclosed an expert opinion by an engineering
consultancy, and various photographs of the wash. The consultancy
concluded that “[i]t is not likely that a reasonable property owner could
have foreseen or avoided the failure sequence that led to the flooding of
Shoni’s property.” The engineers noted in their experience that the metal
flaps “are not an uncommon device to stop animal movement under the
grate [of a metal fence]” and that schools commonly use “even more
obstructive devices” to protect children.
¶6 In August 2018, Hansen filed a motion for summary
judgment. Hansen argued that Shoni presented no evidence to prove his
negligence claim. As to trespass, Hansen argued Shoni failed to provide
evidence that Hansen had “intentionally altered the flow of water onto
Shoni’s property.”
¶7 Shoni argued that his affidavit and photographs were enough
to create a triable issue of material fact.
¶8 The trial court disagreed and granted summary judgment to
Hansen. The court held that Shoni provided no foundation for the
allegations in his affidavit. The court noted that, while he claimed personal
knowledge of the cause of the flood, he “nowhere . . . identif[ied] what he
purportedly ‘observed,’ or why this observation enabled him to draw
conclusions about the cause of the flooding.” Ultimately, the court
characterized Shoni’s affidavit as “conclusory and self-serving,” (quoting
Cemex Constr. Materials S., LLC v. Falcone Bros. & Assocs., Inc., 237 Ariz. 236,
245 (App. 2015)). Finally, the court noted that the photographic evidence
did not show how the metal flaps or sinkhole caused the flooding on
Shoni’s property.
¶9 After Hansen failed to timely file a proposed form of
judgment, the court dismissed the case. Shoni timely appealed.
DISCUSSION
¶10 We review a grant of summary judgment de novo. Jackson v.
Eagle KMC L.L.C., 245 Ariz. 544, 545, ¶ 7 (2019). A court must grant
summary judgment if “the moving party shows that there is no genuine
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SHONI v. HANSEN
Decision of the Court
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a). Summary judgment is proper “if
the facts produced in support of the claim or defense have so little probative
value, given the quantum of evidence required, that reasonable people
could not agree with the conclusion advanced by the proponent of the claim
or defense.” Deutsche Bank Nat’l Trust Co. v. Pheasant Grove LLC, 245 Ariz.
325, 330, ¶ 15 (App. 2018) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990)).
¶11 When a party submits an affidavit in opposition to a party’s
motion for summary judgment, that affidavit “shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” Ariz. R. Civ. P. 56(e); see also Hegel v. O’Malley Ins.
Co., 122 Ariz. 52, 55 (1979). If an affiant asserts things outside the scope of
their personal knowledge, a court must disregard the affidavit for summary
judgment. Cecil Lawter Real Estate Sch., Inc. v. Town & Country Shopping Ctr.
Co., 143 Ariz. 527, 534 (App. 1984), disapproved on other grounds by Gust,
Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586 (1995).
¶12 A plaintiff in a negligence action for property damage must
prove that the defendant owed a duty to him, breached that duty, and the
breach caused plaintiff to suffer damage. Clark v. New Magma Irrigation &
Drainage Dist., 208 Ariz. 246, 248, ¶ 8 (App. 2004). While causation is
generally a question of fact reserved for the jury, summary judgment is
proper if no reasonable juror could find that the defendant’s breach caused
the plaintiff’s damages. Harmon v. Szrama, 102 Ariz. 343, 345 (1967).
Causation cannot be left to a jury’s mere speculation. Salica v. Tucson Heart
Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 7 (App. 2010).
¶13 Shoni argues his affidavit and photographs provided enough
evidence for a reasonable trier of fact to find that Hansen’s wall and metal
flaps caused the flooding of his home. He is mistaken. First, Shoni’s
photographs do not prove causation or show how flood waters were
diverted onto his property.
¶14 Second, his affidavit merely recites his unsupported
conclusions with a vague reference to unidentified “others” who
purportedly agree with him, which is insufficient to defeat summary
judgment. Maricopa Cty. v. Biaett, 21 Ariz. App. 286, 290 (1974)
(“[C]onclusions of ultimate facts and law do not satisfy the requirement that
specific facts be set forth which show a genuine issue of material fact . . . .”)
As the trial court correctly noted, “although [Shoni] uses the word
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SHONI v. HANSEN
Decision of the Court
‘observing’. . . nowhere does he identify what he purportedly ‘observ[ed]’
or why this observation enabled him to draw conclusions about the cause
of the flooding.” Shoni’s affidavit cannot defeat a motion for summary
judgment.
¶15 The only material, admissible evidence in the record
contradicts Shoni’s self-serving, conclusory affidavit. Hansen retained an
engineering expert who opined that Shoni’s flooding was caused by the
historic, unprecedented storm, and not by Hansen’s wall or metal flaps.
¶16 Shoni, relying on Schlecht v. Schiel, asserts that an action for
damages in trespass lies when a landowner deliberately increases the flow
of water onto the property of another. 76 Ariz. 214, 217–18 (1953). At a
minimum, however, the plaintiffs in Schlecht had evidence of causation,
unlike Shoni. Id. at 219 (a witness testified that “he watched the [defendant’s]
wall divert the water into plaintiffs’ premises” (emphasis added). Summary
judgment is proper as to Shoni’s negligence claim.
¶17 An action for trespass in this circumstance requires Shoni to
prove that Hansen cast “naturally flowing water . . . on the real property of
another ‘who is under no duty or obligation to receive the same.’” W.
Maricopa Combine, Inc. v. Ariz. Dep’t of Water Res., 200 Ariz. 400, 410, ¶ 47
(App. 2001) (quoting Schlecht, 76 Ariz. at 218). In other words, Shoni must
show both that Hansen intentionally diverted the water and her conduct
caused the water to flood his property. Taft v. Ball, Ball & Brosamer, Inc., 169
Ariz. 173, 176 (App. 1991). But Shoni offered no evidence of Hansen’s intent.
And, as noted above, he also failed to offer evidence of causation. His mere
conclusion that Hanson deliberately diverted the water and caused his
damages cannot defeat summary judgment and he instead must proffer
material, admissible evidence. Cemex Constr., 237 Ariz. at 245, ¶ 38. Because
Shoni has not provided evidence to oppose Hansen’s motion, we affirm
summary judgment on his trespass claim.
CONCLUSION
¶18 We affirm. As the prevailing party, Hansen may recover costs
upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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