Hunter v. Barna ( 2023 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    HEIDI HUNTER, Plaintiff/Appellee,
    v.
    SZILVIA BARNA, Defendant/Appellant.
    No. 1 CA-CV 22-0307
    FILED 01-24-2023
    Appeal from the Superior Court in Maricopa County
    No. CV2022-050682
    The Honorable Mary Collins Cronin, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Szilvia Barna, New River
    Defendant/Appellant
    MEMORANDUM DECISION
    Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
    which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
    HUNTER v. BARNA
    Decision of the Court
    T H U M M A, Judge:
    ¶1           Defendant Szilvia Barna appeals from the grant of plaintiff
    Heidi Hunter’s petition for an injunction against harassment. Because
    Barna has shown no error, the injunction is affirmed.
    FACTS AND PROCEDURAL HISTORY
    ¶2           Barna and Hunter are neighbors in New River, Arizona, and
    share a water well that has caused significant strife. In November 2021,
    Hunter sued Barna, alleging contract breaches related to the well,
    harassment, fraud and other claims. That 2021 case remains pending.
    ¶3            In January 2022, on behalf of Barna and her children, Barna’s
    husband filed a petition for an injunction against harassment against
    Hunter, which was dismissed before resolution. Then, in March 2022,
    Hunter filed a petition for an injunction against harassment against Barna.
    Hunter alleged Barna sent her e-mail messages with “hostile, threatening
    language [] and defamation,” physically blocked Hunter’s contractors from
    accessing her property and trespassed on Hunter’s property at night and
    posted signs on the contractors’ tractor stating the contractors needed a
    permit and were being surveilled.
    ¶4            At a March 2022 evidentiary hearing on Hunter’s petition,
    Hunter testified about the e-mails Barna sent, describing them as
    “alarming.” Hunter also testified that Barna blocked Hunter’s contractors
    from accessing her property and that Barna trespassed onto Hunter’s
    property at night to post signs on the contractors’ tractor. Barna denied
    sending one of the e-mails Hunter submitted, testifying her husband sent
    it. Barna also denied blocking the contractors, trespassing property or
    posting a sign on the tractor, again testifying her husband was responsible.
    ¶5           At the end of the hearing, the court found Hunter had proven,
    by a preponderance of the evidence, that Barna “has committed an act of
    harassment or may commit an act of harassment in the future,” based on
    the e-mail messages and contact with Hunter’s contractors. The court
    issued the injunction against harassment and ordered the parties not to
    communicate directly, other than “through attorneys, legal process, and
    court proceedings” as well as through the U.S. Mail regarding the 2021 case
    or regarding the well, and via e-mail in case of an emergency. The
    courtroom clerk served Barna with the injunction against harassment.
    2
    HUNTER v. BARNA
    Decision of the Court
    ¶6            Barna timely appealed. This court has appellate jurisdiction
    under Article 6, Section 9, of the Arizona Constitution and Ariz. Rev. Stat.
    (A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(5)(b)(2023).1
    DISCUSSION
    ¶7             Hunter’s failure to file an answering brief on appeal may be
    considered a confession of error. See In re Marriage of Diezsi, 
    201 Ariz. 524
    ,
    525 ¶ 2 (App. 2002). Given a preference to resolve cases on their merits,
    however, this court will address the issues Barna raises. Adams v. Valley
    Nat’l Bank of Ariz., 
    139 Ariz. 340
    , 342 (App.1984). Although reviewing issues
    of law de novo, an order granting an injunction is reviewed for an abuse of
    discretion. Mahar v. Acuna, 
    230 Ariz. 530
    , 534 ¶ 14 (App. 2012). A court
    abuses its discretion “‘when the record, viewed in the light most favorable
    to upholding the trial court’s decision, is devoid of competent evidence to
    support the decision.’” 
    Id.
     (citations omitted).
    I.     The Evidence Supports the Injunction Against Harassment.
    ¶8            Barna argues the evidence was insufficient to support the
    injunction against harassment. Under A.R.S. § 12-1809, an injunction
    against harassment may be granted “to prevent a person from committing
    acts of harassment against another.” Ariz. R. Protect. Order P. 4(c). As
    applicable here, “harassment” is defined as a “series of acts . . . directed at
    a specific person” that would cause, and does cause, “a reasonable person
    to be seriously alarmed, annoyed or harassed . . . and serves no legitimate
    purpose.” A.R.S. § 12-1809(T)(1)(a). A “series of acts” requires at least two
    incidents. LaFaro v. Cahill, 
    203 Ariz. 482
    , 486 ¶ 14 (App. 2002).
    ¶9            Hunter testified that Barna has a “long-standing pattern” of
    “harassing communications” via e-mail. In one e-mail, Barna accused
    Hunter of lying to the court about the 2021 case. In another, Barna accused
    Hunter of forging bills, which Hunter described as “alarming” and a lie.
    Hunter testified she had asked Barna to stop sending her e-mails due to
    their “aggressive” nature, but Barna’s second e-mail came after that request.
    Both e-mails were signed by Barna, who did not deny sending them. A third
    e-mail was from a different e-mail address and not signed by Barna. Hunter,
    however, testified that “Barna’s been known to use [this e-mail address] for
    well business.” The e-mail called Hunter “stupid and insane,” told Hunter
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    3
    HUNTER v. BARNA
    Decision of the Court
    to “cease and desist yourself” and asked Hunter to “stop sending e-mails.”
    Barna denied sending this e-mail, stating her husband sent it.
    ¶10            Apart from these e-mail messages, Hunter testified Barna
    physically blocked contractors from accessing Hunter’s property. When
    contractors parked their tractor on Hunter’s property overnight, Barna
    trespassed and posted signs on the tractor. The signs stated the contractors
    needed a permit to work on the well and that Barna had recorded their
    license plate numbers. Pictures of these signs were submitted into evidence.
    Hunter testified the contractors did not do any work on the well site. Barna
    admitted to stopping the contractors to ask what they were doing, but
    testified she then left them alone without any “physical altercation.” Barna
    denied trespassing, stating the tractor was not on Hunter’s property,
    adding that her husband put the signs on the tractor. Barna also disputed
    Hunter’s testimony about the work done by the contractors.
    ¶11            On this record, the superior court weighed the credibility of
    the witnesses, and the conflicting evidence, and granted the injunction
    against harassment. In doing so, the court cited Barna’s e-mails, describing
    them as “very aggressive and not appropriate and [that they] serve no
    legitimate purpose” and that Hunter’s contractors could perform work on
    her property without a permit. This court defers to the superior court’s
    weighing of evidence and determinations of witness credibility, Gutierrez v.
    Fox, 
    242 Ariz. 259
    , 272 ¶ 49 (App. 2017), and will not reweigh credibility and
    conflicting evidence on appeal, Hurd v. Hurd, 
    223 Ariz. 48
    , 52 ¶ 16 (App.
    2009). The record supports the court finding at least two acts of harassment
    and, because Barna has not shown the court abused its discretion, the
    injunction against harassment is affirmed.
    II.    Barna’s Other Arguments Show No Error.
    ¶12           Barna argues she did not receive proper notice of the hearing.
    The record, however, shows Barna received notice of the deadline to submit
    evidence in advance of the hearing and that she actively participated in the
    hearing. Furthermore, Barna did not object to the notice in the superior
    court, meaning it is waived on appeal. See Cont’l Lighting & Contracting, Inc.
    v. Premier Grading & Utils., LLC, 
    227 Ariz. 382
    , 386 ¶ 12 (App. 2011).
    ¶13          Barna next argues she submitted lettered exhibits that “were
    dismantled and assigned numbers by the court on the date of the hearing
    for reasons unexplained.” Consistent with apparent custom and practice,
    the court used numbers (not letters) for exhibits at the hearing. The court
    provided Barna with an exhibit worksheet for her to use and explained to
    4
    HUNTER v. BARNA
    Decision of the Court
    Barna several times how her exhibits were numbered. Barna has shown no
    error in the court’s use of numbers (not letters) for the exhibits.
    ¶14            Barna also argues the court communicated with Hunter ex
    parte after she left the courtroom. After issuing the injunction against
    harassment prohibiting Barna and Hunter from having contact, the court
    had the parties leave the courtroom separately, with Barna leaving first and
    Hunter leaving second. The court remained on the record, which shows
    that, after Barna left, Hunter asked the clerk of court about scheduling for
    an appeal. The transcript shows the court stated, “and if a hearing date gets
    set, you’ll have to ask for a continuance” and “you might want to have
    somebody check your mail.” The hearing then adjourned.
    ¶15           The court has the authority to control its courtroom, including
    taking measures so that Hunter and Barna did not have contact with each
    other as they were leaving court. Cf. Ariz. R. Evid. 611(a). The statements
    by the court after Barna left were captured on the record, were non-
    substantive and occurred after the court issued the injunction. See Ariz. R.
    Sup.Ct. 81 E.R. 2.9(A); In re Est. of Long, 
    229 Ariz. 458
    , 463 ¶ 16 n.14 (App.
    2012). On this record, Barna has shown no error.
    ¶16           Finally, Barna argues the superior court improperly
    addressed issues in the 2021 case. The record, however, is to the contrary.
    Several times, the court warned the parties not to discuss the 2021 case. And
    the injunction against harassment makes clear that the parties can
    communicate for the purposes of the 2021 case. Again, Barna has shown no
    error.
    CONCLUSION
    ¶17           The injunction against harassment is affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED:    HB
    5
    

Document Info

Docket Number: 1 CA-CV 22-0307

Filed Date: 1/24/2023

Precedential Status: Non-Precedential

Modified Date: 1/24/2023