Opinion
No. 2 CA-CV 2018-0039
09-20-2018
PINAL COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA, Plaintiff/Appellee, v. CHERYL ENERVOLD, Defendant/Appellant.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Cedric I. Hay, Deputy County Attorney, Florence Counsel for Plaintiff/Appellee Cheryl Enervold, Bismarck, North Dakota In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
No. CV201601683
The Honorable Stephen F. McCarville, Judge
AFFIRMED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Cedric I. Hay, Deputy County Attorney, Florence
Counsel for Plaintiff/Appellee Cheryl Enervold, Bismarck, North Dakota
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Cheryl Enervold appeals from the trial court's judgment concluding that a "park model" trailer on her property was in violation of a county zoning ordinance and issuing a permanent mandatory injunction requiring removal of the trailer from her property. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's judgment. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 2 (App. 2007). In February 2015, a code compliance officer for Pinal County Planning and Development Services observed and documented two violations of zoning ordinances on Cheryl and Terry Enervolds' property: (1) "the unlawful storage of scrap vehicles and debris," and (2) "an installed Park Model . . . as a guesthouse in a Suburban Ranch zoned area." After a demand letter went unanswered, the compliance officer filed a complaint against the Enervolds with the Pinal County Hearing Office. At a hearing in February 2016, the Enervolds were found in violation of the county ordinance for "allowing and permitting an installed Park Model to remain on their [p]roperty as a guesthouse in a Suburban Ranch zoned area," and a $700 fine was entered against them.
Enervold has not provided a transcript of the evidentiary hearing upon which the trial court's findings were based. An appellant has the burden "to ensure that 'the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised.'" Blair v. Burgener, 226 Ariz. 213, ¶ 9 (App. 2010) (quoting Baker v. Baker, 183 Ariz. 70, 73 (App. 1995)); see also Ariz. R. Civ. App. P. 11(c)(1)(B). Absent the hearing transcript, we glean the facts from the answering brief and our independent review of the record. See Lansford v. Harris, 174 Ariz. 413, 417 n.1 (App. 1992).
A "park model" is a trailer "built on a single chassis mounted on wheels, designed to be connected to utilities" that "has a gross trailer area of not less than 320 square feet and not more than 400 square feet." Pinal County Development Services Code § 2.10.010.
¶3 In September 2016, the Pinal County Attorney filed a complaint in superior court seeking a judgment for the removal of the park model and a permanent injunction against the Enervolds. The trial court held an evidentiary hearing and issued a minute entry stating the issue was whether "the structure located on [the Enervolds'] property [is] a park model or an RV," and concluding "the structure is in fact a park model and therefore subject to the Pinal County Zoning Ordinances" and A.R.S. § 11-815(C), (H). The court noted that the structure was essentially "affixed to the property" based on "several factors," including skirting around the unit, which would not allow for easy removal, decking that would have to be partially detached before the trailer could be moved, and a water source installed in close proximity. The court entered a judgment and permanent mandatory injunction, requiring the Enervolds to remove the trailer within 30 days. Cheryl Enervold timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(b).
Terry Enervold, Cheryl's husband, was a party below but has not filed a notice of appeal or joined Cheryl's appeal. Although Cheryl included his name on her notice of appeal and opening brief, the notice of appeal is signed only by Cheryl, who is not licensed to practice law in Arizona and cannot bring an appeal on behalf of others. See Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399 (1967) (person not admitted to practice law in Arizona may not represent another individual).
Discussion
¶4 Enervold challenges the trial court's finding that the trailer on her property violated the ordinance, claiming there was insufficient evidence to support the court's ruling because the trailer "has never been used as a living quarters" and is not affixed to the property. She asserts she has "been tried by a trial of assumptions," and that the county presented "no proof" to support the court's finding. We review a trial court's grant of a permanent injunction for an abuse of discretion, Kromko v. City of Tucson, 202 Ariz. 499, ¶ 4 (App. 2002), but we will defer to the court's factual findings and will not set them aside unless clearly erroneous. Sholes v. Fernando, 228 Ariz. 455, ¶ 6 (App. 2011).
¶5 As noted above, Enervold has not provided this court with a transcript of the evidentiary hearing upon which the trial court's findings were based. An appellant has the burden "to ensure that 'the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised.'" Blair v. Burgener, 226 Ariz. 213, ¶ 9 (App. 2010) (quoting Baker v. Baker, 183 Ariz. 70, 73 (App. 1995)); see also Ariz. R. Civ. App. P. 11(c)(1)(B). "[I]n the absence of a transcript, we presume the evidence and arguments presented at the hearing support the trial court's ruling." Blair, 226 Ariz. 213, ¶ 9.
¶6 Enervold first asserts the trial court erred by concluding her trailer is a park model instead of a recreational vehicle. Pursuant to § 2.185.060 of the Pinal County Development Services Code, a recreational vehicle may be stored on a parcel provided it is "not connected to any utility source" and is "not in use for sleeping or living purposes." But a park model is not a recreational vehicle under title 2 of the Code, and Enervold's citation to A.R.S. § 41-4001 to support her contrary characterization is misplaced, as that statute has no bearing on the Pinal County zoning ordinance. As noted above, in the absence of the transcript, we must presume the evidence supports the court's factual findings, including that the trailer was a park model affixed to the property. Enervold thus has not met her burden of showing the court erred in finding a violation of the ordinance. Sholes, 228 Ariz. 455, ¶ 6.
A.R.S. § 41-4001, titled "Definitions," limits its application to terms found in chapter 37, which involves Arizona's Department of Housing, Office of Manufactured Housing, Office of Administration, and Mobile Home Parks Administrative Hearings. It does not purport to define terms used in county ordinances. --------
¶7 Enervold also asserts that "most all residen[ts]" in the area agreed the Enervolds "have not caused any damage or duress by the storage" of the park model, and anything to the contrary "is only an opinion voiced by the county inspector." However, A.R.S. § 11-815(H) provides that "the county attorney, the inspector[,] or any adjacent or neighboring property owner" may institute an action to remove a prohibited structure. Thus, it is irrelevant that the Enervolds' neighbors "signed an affidavit" in support of the Enervolds; the county inspector's complaint alone was sufficient to initiate and maintain the action below.
¶8 Finally, because Enervold has not provided a transcript of the evidentiary hearing, we are unable to consider her argument that the county did not present evidence to support its complaint. Accordingly, she has not demonstrated any abuse of the trial court's discretion in finding the Enervolds in violation of the zoning ordinance and issuing a permanent injunction requiring them to remove the park model.
Disposition
¶9 The trial court's judgment and permanent injunction are affirmed.