Opinion
No. 1 CA-CV 13-0438
05-06-2014
DOLORES E. ALVAREZ, Plaintiff/Appellee, v. ROBYN SCHONERT, Defendant/Appellant.
Dolores E. Alvarez, Prescott Plaintiff/Appellee Robyn Schonert, Prescott Valley Defendant/Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CV201300522
The Honorable David L. Mackey, Judge
AFFIRMED
COUNSEL
Dolores E. Alvarez, Prescott
Plaintiff/Appellee
Robyn Schonert, Prescott Valley
Defendant/Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Defendant-Appellant Robyn Schonert (Schonert) appeals from the judgment of the trial court continuing the issuance of an injunction against harassment filed against her by Dolores Alvarez (Alvarez). Because we find that the trial court did not abuse its discretion in continuing the injunction against harassment, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In May 2013, Alvarez filed a petition in Yavapai County Superior Court for an injunction against harassment against Schonert, citing Schonert's "[r]epeated phone calls," bullying of Alvarez's daughter, and "obscene" and "discrediting" internet postings. After a hearing at which only Alvarez appeared, the trial court issued the injunction against harassment, barring Schonert from having any contact with Alvarez and her two minor children.
¶3 Subsequently, Schonert moved to dismiss the injunction against harassment and requested another hearing. After a second hearing at which both Alvarez and Schonert appeared, the court found that Alvarez "established grounds to keep [the injunction] in effect" and confirmed the issuance of the injunction.
¶4 Schonert timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003) and - 2101(A)(5)(b) (Supp. 2013).
Alvarez's failure to file an answering brief could be regarded as a confession of reversible error, but because the record before us is complete, we will consider the case on its merits. See Gonzales v. Gonzales, 134 Ariz. 437, 657 P.2d 425 (App. 1982) (citation omitted); see also Cardoso v. Soldo, 230 Ariz. 614, 616 n.1, ¶ 4, 277 P.3d 811, 813 n.1 (App. 2012).
DISCUSSION
¶5 At the outset, we note that Schonert's brief fails to comply with the Arizona Rules of Civil Appellate Procedure (ARCAP). ARCAP Rule 13(a)(4) requires a "statement of facts relevant to the issues presented for review, with appropriate references to the record." ARCAP Rule 13(a)(6) requires "[a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."
¶6 While the opening brief does contain a statement of facts in a section titled "Background," the section lacks any appropriate references to the record. Moreover, Schonert's arguments, contained in a section titled "Discussion," do not cite to the portions of the record that she is relying on.
¶7 We may dismiss her appeal for this reason. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342-43, 678 P.2d 525, 527-28 (App. 1984). Our decisions have repeatedly held that pro se litigants are "entitled to no more consideration from the court" than parties who are represented by counsel. Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 16, 17 P.3d 790, 793 (App. 2000); see also Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983). However, even overlooking the opening brief's deficiencies, we find no error in the trial court's decision.
¶8 The harassment statute, A.R.S. § 13-2921 (2010), provides in pertinent part:
A. A person commits harassment if, with intent to harass or with knowledge that the person is harassing another person, the person:For the purposes of A.R.S. § 13-2921, "harassment" is "conduct that is directed at a specific person and would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person. A.R.S. § 13-2921(E).
1. Anonymously or otherwise contacts, communicates or causes a communication with another person by . . . electronic . . . means in a manner that harasses.
. . .
3. Repeatedly commits an act or acts that harass another person.
4. Surveils or causes another person to surveil a person for no legitimate purpose.
¶9 We review the trial court's issuance of an injunction against harassment under a clear abuse of discretion standard. Cardoso, 230 Ariz. at 619, ¶ 16, 277 P.3d at 816; see also LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10, 56 P.3d 56, 59 (App. 2002). An abuse of discretion occurs when a court "commits an error of law in the process of reaching a discretionary conclusion or 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." Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14, 287 P.3d 824, 828 (App. 2012) (quotation omitted).
¶10 Schonert argues that the evidence presented was insufficient to support the continuance of the injunction against harassment. We disagree. At the evidentiary hearing, Alvarez testified that Schonert text-messaged Alvarez's daughter stating that her mother was a "whore," had Alvarez's daughter bullied at school, posted harassing information on the internet, used Facebook to send Alvarez harassing messages, and parked her car at the end of the street where Alvarez lives on multiple occasions. The testimony of Alvarez's daughter supported the allegations.
¶11 We find that the record could support the trial court's determination that Schonert harassed Alvarez under A.R.S. § 13-2921 (A)(1), (A)(3), and/or (A)(4). Although Schonert disputed the validity of the testimony and evidence presented, the trial court did not abuse its discretion in accepting the testimony and evidence presented by Alvarez and her daughter and by continuing the injunction against harassment. See Cardoso, 230 Ariz. at 619, ¶ 17, 277 P.3d at 816; see also Goats v. A.J. Bayless Mkts., Inc., 14 Ariz.App. 166, 171, 481 P.2d 536, 539, 541 (1971) (we typically defer to a trial court's determination because the trial court is in the best position to judge the credibility of witnesses and to resolve conflicting evidence) (citation omitted).
¶12 Schonert also argues that the trial court failed to consider a police report that she attached to her request for a hearing. The record reflects otherwise. Upon conclusion of the evidentiary hearing, the trial judge explicitly stated that his determination was based not only on the evidence presented at the hearing, but also upon the evidence contained in the court's files. Moreover, in deciding to continue the injunction, the trial court implicitly rejected the merits of the police report or found the report to be irrelevant. See Cardoso, 230 Ariz. at 620, ¶ 21, 277 P.3d at 817; see also Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) (appellate courts may "infer additional findings of fact . . . sufficient to sustain the trial court's [decision] as long as those findings are reasonably supported by the evidence, and not in conflict with any express findings.") (citation omitted).
¶13 Lastly, Schonert argues that the trial court was biased. Trial court judges are "presumed to be free of bias and prejudice and to overcome this presumption, a party must show by a preponderance of the evidence that the trial judge was, in fact, biased." Cardoso, 230 Ariz. at 619-20, ¶ 19, 277 P.3d at 816-17; see also State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005). Schonert has failed to make this showing.
CONCLUSION
¶14 For the forgoing reasons, we affirm the injunction against harassment.