Opinion
No. 2 CA-CV 2020-0107
02-11-2021
ERROL BILLING, AN INDIVIDUAL, Plaintiff/Appellee, v. JOHN HACK, AN INDIVIDUAL, Defendant/Appellant.
COUNSEL Errol Billing, Arizona City In Propria Persona Attorneys for Freedom Law Firm, Chandler By Marc J. Victor and Jody L. Broaddus Counsel for Defendant/Appellant
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NOT FOR PUBLICATION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. PO202000138
The Honorable Robert Carter Olson, Judge
AFFIRMED
COUNSEL Errol Billing, Arizona City
In Propria Persona Attorneys for Freedom Law Firm, Chandler
By Marc J. Victor and Jody L. Broaddus
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred. ECKERSTROM, Judge:
¶1 John Hack appeals from the trial court's order affirming and modifying an injunction against harassment previously entered in favor of Errol Billing. Hack challenges the court's conclusion that a series of harassing events without legitimate purpose justified the injunction. He further contends the boundary restrictions imposed by the court are "an impermissible infringement on his constitutional rights." For the reasons that follow, we affirm.
A separate panel of this court recently decided Hack's identical appeal of the modified injunction granted in favor of Billing's wife, Cynthia Jardine. Jardine v. Hack, No. 2 CA-CV 2020-0106 (Ariz. App. Jan. 13, 2021) (mem. decision). We reach the same outcome here.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the trial court's order. Mahar v. Acuna, 230 Ariz. 530, ¶ 2 (App. 2012). In March 2020, Billing filed a petition for an injunction against harassment against his neighbor, Hack. Billing alleged that Hack had erected a twelve-foot structure along their shared property line on which he stretched large screens and flags. According to Billing, this impeded his use and enjoyment of his property and substantially reduced his property's value. Billing further alleged that Hack had erected two versions of the Gadsden flag on his property to "threaten and alarm" Billing. Both of these acts occurred while a prior injunction against harassment was in effect, prohibiting Hack from having any contact with Billing.
The Gadsden flag depicts a coiled rattlesnake with the words "DON'T TREAD ON ME" below it.
Billing also alleged that Hack had filed a false complaint against him with the Pinal County Building Safety Department, but the trial court found the evidence insufficient to support this allegation.
¶3 After a two-day hearing at which both Billing and Hack appeared and presented evidence, the trial court found: (a) Hack had "engage[d] in a series of acts that would seriously harass, alarm, or annoy a reasonable person"; (b) those acts had, in fact, "seriously harassed, alarmed, or annoyed" Billing and his wife, who felt threatened and bullied; and (c) Hack's acts were "not for a legitimate purpose." See A.R.S. § 12-1809(S)(1)(a) (defining "harassment" for purposes of injunctions). It found further that Hack's harassment had "occurred during the time that the prior injunction was in effect that enjoined this very behavior." Accordingly, the court ordered Hack to "not go on or near [Billing's] Property within eight (8) feet of the West Boundary Wall and within five (5) feet of the South Boundary Wall." The court did not mandate that Hack remove the screening structure or enjoin him from erecting American or Canadian flags, or even the Gadsden flag. But it warned Hack that "flying a flag that has the message such as the Gadsden flag pointed . . . in the direction of and visible by [Billing]" might be deemed "an impermissible communication" under the "no contact" injunction. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶4 We will affirm an order granting an injunction against harassment absent "a clear abuse of discretion." LaFaro v. Cahill, 203 Ariz. 482, ¶ 10 (App. 2002). Hack has not established such abuse here.
¶5 Hack first argues "there was not a series of harassing events directed to [Billing] with no legitimate purpose" and the trial court's finding to the contrary was "not supported by the evidence." But the burden is on an appellant "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) (party challenging trial court's finding as unsupported by or contrary to evidence "must include in the record transcripts of all proceedings containing evidence relevant to that . . . finding"). Hack has not provided this court with the transcript from the first day of the hearing. Without this transcript, we presume the evidence and arguments presented at the hearing supported the trial court's findings and ultimate order. See Blair, 226 Ariz. 213, ¶ 9.
¶6 Moreover, the record establishes that Hack had, indeed, erected large screens and flags immediately alongside and above Billing's fence in a manner that could seriously annoy a reasonable homeowner. He then erected a particular flag that, in the context of the particular conflict between the neighbors and the already existing "no contact" injunction, might reasonably be viewed as alarming or harassing. And, as the trial court noted, Billing and his wife provided uncontroverted testimony that they, in fact, felt seriously alarmed, annoyed, and harassed by these actions. The trial court did not abuse its discretion in implicitly finding Hack's explanations and excuses unpersuasive. See Cardoso v. Soldo, 230 Ariz. 614, ¶ 17 (App. 2012) (trial court in best position to judge credibility of witnesses, and appellate court generally defers accordingly). Nor did it err in finding Hack's actions constituted a qualifying series of sufficiently harassing acts without legitimate purpose under § 12-1809(S)(1)(a), such that an injunction was warranted.
¶7 Hack also contends the restrictions on his access to specified stretches of land near Billing's property violate his constitutional rights. Specifically, he contends the injunction prevents him from "using, entering, accessing, and enjoying" a portion of his own real property. He claims general infringement on his "rights to life, liberty, and property under the Arizona and United States Constitutions." And he cites, in particular, Article II, § 4, of the Arizona Constitution, which prohibits deprivation of property "without due process of law." We review constitutional claims de novo. See State v. Brown, 207 Ariz. 231, ¶ 7 (App. 2004).
¶8 When issuing an injunction against harassment, a court may "[r]estrain the defendant from contacting the plaintiff . . . and from coming near the residence . . . of the plaintiff or other specifically designated locations or persons." § 12-1809(F)(2). It may generally "[g]rant relief necessary for the protection of the alleged victim." § 12-1809(F)(3). In this case, the trial court explained that its decision to impose the boundary restriction stemmed from Hack's refusal to comply with the prior injunction. The court found that when Hack used the screens and flags along the property line, it constituted continued messaging to Billing in flagrant disregard of the existing "no contact" order. In addition to affirming the prior order, the court expressly found it had proven "insufficient" to abate Hack's acts of harassment. It was for this reason that the court "extend[ed] the order" to include the boundary restrictions Hack now challenges on appeal. The court explained that it intended the order as "a kindly caution" to Hack—who might normally expect to be ordered to stay one mile away from Billing's residence, as opposed to five or eight feet—that he must desist in his harassment of his neighbor.
¶9 The trial court originally enjoined Hack from going "on or near within 10 feet" of Billing's property. Hack then requested that the restricted distance be reduced so that he could tend to trees and other plants in the area in question. The court gave Hack the option to either accept a buffer or agree to remove the screens and flags from his property. Hack chose the distance restrictions, expressly requesting that they be reduced to eight feet on the west boundary and five feet on the south boundary to allow him sufficient access. The court accepted this request and modified the injunction accordingly. In light of these facts, Hack has suffered no deprivation of property without due process of law.
¶10 Moreover, as noted above, Hack chose not to provide this court with the transcript from the first day of the hearing. This failure gives rise to a presumption that the arguments and evidence presented at the hearing supported the trial court's decision. See Blair, 226 Ariz. 213, ¶ 9. We therefore presume the court only imposed restrictions upon Hack that are "necessary for the protection" of Billing and "proper under the circumstances." § 12-1809(F). Absent a complete record, we are constrained to affirm the restrictions ordered by the trial court.
Disposition
¶11 For the foregoing reasons, we affirm the trial court's order modifying the injunction against harassment. As the prevailing party, Billing is entitled to recover his costs on appeal, A.R.S. § 12-341, upon his compliance with Rule 21, Ariz. R. Civ. App. P.