No. 1 CA-CV 19-0109 No. 1 CA-CV 19-0110 FC
COUNSEL The Hogle Firm, PLC, Mesa By Dana R. Hogle Co-Counsel for Petitioner/Appellee Michael S. Somsan & Associates, PLC, Gilbert By Michael S. Somsan Co-Counsel for Petitioner/Appellee Lorona Mead, PLC, Phoenix By Jess A. Lorona Counsel for Respondents/Appellants
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
The Honorable Susan G. White, Judge Pro Tempore
COUNSEL The Hogle Firm, PLC, Mesa
By Dana R. Hogle
Co-Counsel for Petitioner/Appellee Michael S. Somsan & Associates, PLC, Gilbert
By Michael S. Somsan
Co-Counsel for Petitioner/Appellee Lorona Mead, PLC, Phoenix
By Jess A. Lorona
Counsel for Respondents/Appellants
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined. MORSE, Judge:
¶1 Anthony Paiano and Virginia Paiano ("the Paianos") ask us to reverse the superior court's affirmation of an injunction against harassment against the former and an order of protection against the latter. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In the summer of 2018, Dennis Trotter filed a petition for order of protection against his ex-wife, Virginia Paiano, and a petition for injunction against harassment against her new husband, Anthony Paiano. In both petitions, Trotter accused the Paianos of intentionally and maliciously engaging in a scheme to interfere with online advertising for Trotter's business. Trotter stated that he advertised his business using a "pay per click" model, in which he paid his advertiser every time his advertisements were clicked by a user, up to a pre-determined limit. When that limit was reached, his advertisements no longer appeared online until the budget was replenished. In his petitions, Trotter claimed the Paianos admitted to him that they were repeatedly clicking on Trotter's advertisements, exhausting his advertising budget in a short period of time each day so that potential customers would not be able to see his ads.
¶3 Based upon these petitions, the superior court entered an order of protection against Virginia Paiano and an injunction against harassment against Anthony Paiano. The Paianos sought to quash the orders entered against them and requested a hearing. Given the related nature of the Paianos' proceedings, the superior court agreed to hear the matters at the same time.
¶4 At the hearing, Trotter testified that, starting in February or March 2018, his advertising budget was exhausted within hours of being renewed, whereas previously the budget would last well over a day. He said the change coincided with an intensification of arguments between himself and the Paianos, and submitted a number of profanity-laden emails between him and the Paianos to support this claim. Trotter also provided additional emails between Virginia and her son, which reflected arguments related to the alleged harassment and disputes over family matters.
¶5 As circumstantial evidence to support his allegations, Trotter produced a number of police reports. These reports showed that Trotter called the police in an effort to stop the Paianos from continuing the alleged harassment. As reflected in the reports, the police contacted the Paianos, who both denied any involvement in the alleged interference with Trotter's advertising. After the Paianos were contacted by the police and asked about the alleged scheme, the malicious clicking temporarily paused, before resuming a few weeks later.
¶6 Trotter also provided internet traffic information obtained from Google which, he argued, indicated that abnormally large numbers of clicks on his advertisements occurred within four miles of the Paianos' workplaces and Virginia Paiano's grandmother's house, where the Paianos frequently visited. Even so, Trotter admitted that the IP addresses associated with the voluminous clicking could not be definitively tied to the Paianos.
¶7 At the hearing, the Paianos denied any involvement with the alleged clicking scheme and disputed Trotter's interpretation of the data provided by Google, arguing that he misconstrued the data. No evidence was presented at the hearing to support the allegation in the petitions that the Paianos had previously admitted to maliciously clicking on Trotter's ads.
¶8 After hearing the evidence and reviewing post-hearing briefing, the superior court entered an order affirming both the order of protection and the injunction against harassment. The order, issued in both of the cases, found that there was "sufficient circumstantial evidence" presented to show that "Defendant was, in fact, engaged in the ad-clicking alleged in an attempt to anonymously harass and harm [Trotter] financially." The superior court also found that evidence "separate and apart from the Google 'advertisement clicking'" demonstrated that "Defendant ha[d] harassed [Trotter.]" Specifically, the superior court pointed to "harassing statements and conduct by the Defendant towards [Trotter], primarily by e-mail[.]"
¶9 The Paianos timely appealed, and we have jurisdiction under A.R.S. §§ 12-2101(A)(1) and -2101(A)(5)(b).
¶10 We review orders of protection and injunctions against harassment issued after an evidentiary hearing for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012) (reciting the standard of review for orders of protection); LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10 (App. 2002) (reciting the standard of review for injunctions against harassment). We review the facts "in the light most favorable to upholding the trial court's decision" and 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 and internal quotation marks omitted).
¶11 To sustain the order of protection, the superior court had to have reasonable cause to believe that Virginia Paiano "may commit an act of domestic violence" or find that she "ha[d] committed an act of domestic violence within the past year[.]" See Shah v. Vakharwala, 244 Ariz. 201, 202, ¶ 5 (App. 2018) (quoting A.R.S. § 13-3602(E)). "The term 'domestic violence' is defined by statute" and, as relevant here, "includes a wide array of criminal acts as well as harassment by verbal, electronic, mechanical, telegraphic, telephonic or written communication." Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 6 (App. 2014); see A.R.S. § 13-2921(A)(1) (defining criminal harassment). "[A] person commits harassment if, with intent to harass or knowledge that the person is harassing another person, the person ... repeatedly commits an act or acts that harass another person." A.R.S. § 13-2921(A)(3). In the context of domestic violence, "harassment" has been defined as "conduct 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." A.R.S. § 13-2921(E).
¶12 To affirm the injunction against harassment, the superior court had to find that Anthony Paiano harassed Trotter. See A.R.S. § 12-1809(C)(3); see also Wood v. Abril, 244 Ariz. 436, 438, ¶ 7 (App. 2018). In this context, 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). "If there is substantial evidence to support the issuance of an injunction, we will not substitute our judgment for that of the trial court." Prudential Ins. Co. of Am. v. Pochiro, 153 Ariz. 368, 370 (App. 1987).
¶13 Both Paianos argue that "[t]here was no competent evidence linking the[m] to the IP addresses identified by [Trotter] to be the source of the attacks against his Google ads." Essentially, they argue that definitive proof they were responsible for the clicking scheme was required to support the superior court's ruling. We disagree. The superior court could continue the order of protection and injunction against harassment if Trotter had shown, by a preponderance of the evidence, that the Paianos were responsible for the alleged harassment. See Michaelson, 234 Ariz. 544, ¶ 6; Ariz. R. Prot. Order P. 38(g). On matters of fact "we do not reweigh conflicting evidence or redetermine the preponderance of the evidence[.]" In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999). Even if we may have come to a different conclusion in the first instance, we cannot say that the continuation of the protective order and injunction against harassment was an abuse of discretion. There was sufficient circumstantial evidence to support the superior court's ruling. For example, the record reflects that the harassing activity temporarily halted after the Paianos were called by police, and the location data provided by Trotter showed that many of the clicks on his advertisements occurred in reasonably close proximity to the Paianos' places of work. Further, "[i]t is not our prerogative to weigh the evidence and determine the credibility of the witnesses; that role belongs to the trial court." Premier Fin. Servs. v. Citibank (Arizona), 185 Ariz. 80, 85 (App. 1995). The superior court determined that the Paianos' denials were not credible, providing further evidence to support the court's decision. On this record, we cannot say that the court clearly abused its discretion in finding the Paianos responsible for the malicious ad clicking.
¶14 Aside from the alleged malicious clicking, however, the superior court found that the emails provided an independent basis for the orders of protection and injunctions against harassment. The Paianos argue that the emails between the parties cannot be used to support a finding of harassment because the insults included in the emails also included supposedly legitimate discussions. They assert that "[i]nvited communications about a legitimate issue do[ ] not rise to the level of harassment, even where the parties express mutual disdain." The Paianos point to Cardoso, 230 Ariz. 619, ¶ 17 (finding harassment based on "hundreds" of text and e-mail messages) and Michaelson, 234 Ariz. 544-45, ¶ 7 (finding harassment based on over 60 unsolicited text messages in a single day) to support their contention that harassment may only occur "where parties receive unwanted communications to which they do not respond or after they have [been] told to stop." But these cases do not fix a minimum standard for establishing harassing behavior and they provide no support for the Paianos' argument.
To the extent the Paianos argue that the communications were too limited in number to constitute harassment, we note Anthony Paiano obtained an injunction against harassment against Trotter based on a mere three emails. If only the conduct described in Cardoso and Michaelson constituted harassment, Anthony would not have been entitled to the relief he obtained. --------
¶15 Even considering the Paianos' argument on the merits, any legitimate communication in the emails can be considered separately from the accompanying harassing conduct. Profanity-laden diatribes may constitute harassment even if sent in responsive emails that include some legitimate communication. The fact that appropriate topics are discussed in an email does not make other abusive language incapable of causing alarm or annoyance when it is included, without legitimate purpose, in the same correspondence. The Paianos provide no legal authority to support the proposition that some legitimate communication may inoculate conduct that would otherwise constitute harassment. Accordingly, the superior court did not err by finding that the emails sent by the Paianos constituted harassment.
¶16 Next, the Paianos argue that the superior court's minute entry order constitutes reversible error as a matter of law. Specifically, the Paianos argue that because the order makes findings only as to a "Defendant," without identifying which "Defendant," the order amounts to an abuse of discretion.
¶17 But, while the superior court's ruling is somewhat unartfully phrased, it is clear the term "Defendant," as used by the superior court, encompassed both Paianos. This is bolstered by the fact that the order references both of Trotter's "[p]etitions[,]" both case numbers, and expressly affirms both the order of protection and the injunction against harassment.
¶18 Finally, the Paianos argue the superior court abused its discretion by failing to identify the legal standard it applied in entering its order, failing to "include a statutorily enumerated offense[,]" failing to include an express finding as to the Paianos' intent, and failing to determine whether the Paianos' actions actually "seriously alarmed, annoyed, or harassed" Trotter. We are aware of no authority that requires the court to explicitly make such findings, and the Paianos cite no statute or precedent that suggests otherwise. Furthermore, "[w]e may generally infer findings of fact necessary to sustain a court's order." Marco C. v. Sean C., 218 Ariz. 216, 220, ¶ 12 n.3 (App. 2008) (rejecting argument that a trial court erred by failing to expressly make a factual finding).
¶19 The superior court's findings are sufficient to support the continuation of the order of protection and the injunction against harassment. The Paianos' argument that the law requires more is not correct, and we find no basis upon which to hold that the superior court abused its discretion.
¶20 For the foregoing reasons, we reject the Paianos' arguments and affirm the superior court's continuation of the order of protection and the injunction against harassment.