Opinion
No. 1 CA-CV 18-0098
03-07-2019
COCONINO COUNTY, et al., Plaintiffs/Appellees, v. ERLING STEPHEN CALKINS, Defendant/Appellant.
COUNSEL Coconino County Attorney's Office, Flagstaff By Brian Y. Furuya Counsel for Plaintiffs/Appellees Erling S.Calkins, Flagstaff Defendant/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Coconino County
No. S0300CV201300751
The Honorable Mark R. Moran, Judge
AFFIRMED
COUNSEL
Coconino County Attorney's Office, Flagstaff
By Brian Y. Furuya
Counsel for Plaintiffs/Appellees
Erling S.Calkins, Flagstaff
Defendant/Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Erling Calkins appeals from the judgment entered in favor of Coconino County and the Coconino County Public Health Services District (collectively, the "County"). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Calkins and his wife, Elaine, own real property in Coconino County (the "Property"). In 2012, the County cited the couple, as owners of the Property, for six violations of the County zoning ordinance ("Ordinance"). The violations included: (1) improper storage of unlicensed and inoperable vehicles; (2) improper storage of a mobile home; (3) storage of a commercial vehicle without a conditional use permit; and (4) building a structure without a permit.
¶3 After an administrative hearing, a County hearing officer entered a judgment finding that the Property was in violation of the Ordinance. See Ariz. Rev. Stat. ("A.R.S.") § 11-815(E), (F) (providing for an administrative hearing for a civil violation of a zoning ordinance or regulation). The judgment imposed a $100 initial penalty and gave Calkins thirty days to correct the violations. Calkins acknowledged receipt of the judgment on September 6, 2012. The judgment further indicated that if Calkins did not correct the violations by October 6, 2012, a $200 noncompliance penalty would apply and a $750 daily penalty would accrue "[f]or each further day of noncompliance."
¶4 On appeal to the County Board of Supervisors (the "Board"), see A.R.S. § 11-815(G) (authorizing review by the Board), the Board affirmed the hearing officer's judgment but gave Calkins additional time, until April 18, 2013, to correct the violations. Calkins did not appeal the Board's decision to superior court. See A.R.S. § 11-815(G) (authorizing judicial review of the Board's decision).
¶5 In the summer and fall of 2013, the County visited the Property twice and determined that the initial violations had not been corrected and that additional health and building code violations existed.
Accordingly, the County filed a complaint in superior court seeking to enjoin "further human occupancy" of the Property and to compel Calkins and his wife to bring the Property into compliance. Calkins answered with a single sentence denying the allegations of the complaint.
¶6 Thereafter, the County moved for judgment on the pleadings. The superior court granted judgment in favor of the County. Following an evidentiary hearing, the court assessed penalties of $230,550, which included a $100 initial penalty, a $200 noncompliance penalty, and a $750 daily penalty for 307 days. The court enjoined Calkins from occupying the Property but granted him another opportunity to remedy the violations.
¶7 Two months later, the superior court held a compliance hearing and concluded that Calkins had come "nowhere close to remediating or coming into compliance with the Court's Order." The court invited the County to submit proposals for the remediation of the Property, and subsequently ordered the County remediate the Property.
¶8 After the County completed the remediation, the superior court held a hearing to establish restitution. Thereafter, the court entered a final judgment. Following an unsuccessful motion for new trial, Calkins timely appealed.
DISCUSSION
¶9 On appeal, Calkins challenges the superior court's entry of judgment on the pleadings and the penalty imposed against him.
I. Jurisdiction
¶10 As an initial matter, the County argues that Calkins' appeal should be denied because he challenges "the facts, procedures, and legal conclusions of an underlying administrative judgment that he failed to timely appeal," thereby depriving this Court of subject matter jurisdiction.
¶11 Calkins had thirty-five days to appeal to the superior court from when the Board served its decision. See A.R.S. §§ 11-815(G), 12-904(A). He did not file an appeal. Thereafter, the County filed an enforcement action. The court's final judgment in that case is the subject of this appeal. Our review is limited to the issues raised by the enforcement action; we will not revisit the Board's decision affirming the Hearing Officer's judgment.
II. Judgment on the Pleadings
¶12 On appeal, Calkins argues that the superior court erred in granting judgment on the pleadings. Arizona Rule of Civil Procedure ("Rule") 12(c) allows either party to move for judgment on the pleadings. Ariz. R. Civ. P. 12(c) (2014). A plaintiff is entitled to judgment on the pleadings if the allegations of the complaint "set forth a claim for relief and the answer fails to assert a legally sufficient defense." Pac. Fire Rating Bureau v. Ins. Co. of N. Am., 83 Ariz. 369, 376 (1958). In reviewing an order granting judgment on the pleadings, we view the facts in favor of the non-moving party but review all legal conclusions de novo. See Napier v. Bertram, 191 Ariz. 238, 239, ¶ 1 (1998); Shaw v. CTVT Motors, Inc., 232 Ariz. 30, 31, ¶ 8 (App. 2013) (citation omitted).
¶13 The County's motion for judgment on the pleadings tested whether Calkins' answer stated a defense to the County's claims. See Walker v. Estavillo, 73 Ariz. 211, 215 (1952). In Walker, our supreme court explained that the superior court erred in denying a motion for judgment on the pleadings, explaining that "[t]he complaint of plaintiffs having set forth a claim for relief, and defendants' answer and more definite statement failing to show any defense thereto, it was error for the trial court not to have granted plaintiffs' motion for judgment on the pleadings." Id.
¶14 Here, the County's complaint set forth specific allegations regarding Calkins' violation of the zoning ordinance, building code, and health code. The complaint was verified by the County's environmental services inspector, zoning code enforcement officer, and building inspector. Calkins' answer contained a single sentence categorically denying the allegations: "Defendants . . . for their answer to plaintiff's complaint deny the allegations of this complaint." The answer did not even admit or deny that Calkins and his wife were residents of the County or that they owned the Property.
¶15 Pursuant to Rule 8(b), a party answering a complaint is required to "state in short and plain terms the party's defenses to each claim asserted" and to "admit or deny the averments upon which the adverse party relies." Ariz. R. Civ. P. 8(b) (2014). The rule also requires that denials "fairly meet the substance of the averments denied." Id. More specifically,
When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits, but when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11(a).
Id.
¶16 "A general denial is good only if the pleader intends to controvert all averments of the preceding pleading." Colboch v. Aviation Credit Corp., 64 Ariz. 88, 93 (1946). Rule 12(b) requires that "[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto." Ariz. R. Civ. P. 12(b) (2014). Rule 11 requires that a party signing a pleading do so based on his "knowledge, information, and belief formed after reasonable inquiry." Ariz. R. Civ. P. 11(a) (2014).
¶17 The County's complaint adequately set forth a claim that the Property was in violation of the County codes and that Calkins and his wife had failed to correct the violations. Pursuant to Rules 8(b) and 11(a), Calkins could not have denied, after reasonable inquiry, all the averments in the complaint. Moreover, Rule 12(b) required Calkins to assert every defense to the County's claims, but his answer failed to assert any defenses.
¶18 On appeal, Calkins argues that the superior court abused its discretion by denying him "the opportunity to amend his answer." Calkins, however, did not seek permission to amend his answer as required by Rule 15. See Ariz. R. Civ. P. 15(a)(1) (2014) (requiring a defendant to obtain leave of court or consent of adverse party for an amendment if more than twenty-one days have passed since service of the answer).
¶19 Calkins also argues that the superior court should have applied "less stringent standards" in reviewing his answer because he represented himself. In Arizona, however, it is well established that a pro per litigant "is entitled to no more consideration than if he had been represented by counsel, and he is held to the same familiarity with required procedures and the same notice of statutes and local rules as would be attributed to a qualified member of the bar." Copper State Bank v. Saggio, 139 Ariz. 438, 441 (App. 1983).
¶20 Because Calkins' answer failed to assert a legally sufficient defense to the County's claims, we affirm the superior court's entry of judgment on the pleadings.
III. Penalties
¶21 Calkins also argues we should vacate the judgment for penalties or, in the alternative, remand to superior court for a proportionality review. He contends that "constitutional proportionality principles prohibit imposition of fines when such fines would constitute an unduly harsh penalty under the circumstance[s] of the case."
¶22 The Board has authority to adopt a zoning ordinance "to conserve and promote the public health, safety, convenience and general welfare." A.R.S. § 11-811(A). In granting that authority, the legislature authorized the County to establish civil penalties for a violation of the zoning ordinance not to exceed the amount of the maximum fine for a class 2 misdemeanor, or $750. See A.R.S. §§ 11-815(D), 13-802(B). The legislature also specified that "[e]ach day of continuance of the violation constitutes a separate violation." A.R.S. § 11-815(D).
¶23 The Board exercised this statutory authority in adopting the Ordinance. Pursuant to the Ordinance, an enforcement action begins with the filing of a zoning violation citation. Ordinance, § 16(D)(1)(a). If the property owner denies the violation, the case proceeds to a hearing. Ordinance, § 16(D)(2)(a). If the hearing officer determines that a violation exists, he or she may impose civil penalties not to exceed $750 per violation, per day. Ordinance, § 16(D)(4)(a). The Ordinance also provides for a $100 initial penalty and a $200 non-compliance penalty. Ordinance, § 16(D)(4)(e).
¶24 Here, the County followed the procedure in the Ordinance. The County first issued a zoning violation citation. Thereafter, the hearing officer held a hearing and determined that the Property violated the Ordinance in multiple ways. The hearing officer imposed a $750 daily penalty as authorized by the Ordinance.
¶25 Calkins does not challenge the constitutionality of A.R.S. § 11-815 or the Ordinance. Rather, he bases his challenge on the Eighth Amendment to the United States Constitution, which prohibits the imposition of excessive fines. See U.S. Const. amend. VIII. He argues that "[d]ue process considerations compel proportionality review of the fines herein."
¶26 Zoning laws "serve the public welfare by providing for the orderly development of the community." City of Phoenix v. Oglesby, 112 Ariz. 64, 65 (1975) (citation omitted). Because zoning matters fall within the purview of the legislature, courts presume that zoning ordinances are valid. See id. As the United States Supreme Court has explained, "judgments about the appropriate punishment for an offense belong in the first instance to the legislature." United States v. Bajakajian, 524 U.S. 321, 336 (1998) (citation omitted). Our supreme court has similarly acknowledged that establishing penalties is a function of the legislature, not the courts. See State v. Wagstaff, 164 Ariz. 485, 490 (1990). We will not declare a statutory fine "violative of the constitution unless it plainly and undoubtedly exceeds any reasonable requirements for redressing the wrong." State v. Wise, 164 Ariz. 574, 576 (App. 1990).
¶27 The hearing officer's judgment stated that a $750 daily penalty would accrue for "each further day of noncompliance." Despite having acknowledged that daily penalty, Calkins failed to bring the Property into compliance. Six months later, the Board gave Calkins additional time to correct the violations, but he failed to do so.
¶28 The daily penalty of $750 was authorized by statute and by the Ordinance. See A.R.S. § 11-815(C), (D); Ordinance, § 16(D)(4)(a). The record reflects that the violations continued unabated for 307 days. Accordingly, we affirm the judgment for penalties.
IV. Remaining Allegations
¶29 On appeal, Calkins also refers to the alleged introduction of "ex-parte evidence" and argues that the superior court judge violated the rules of court, demonstrating "conduct unbecoming a judge." Calkins also accuses the County of having "unclean hands" and of committing fraud. We find nothing in the record to support these allegations.
CONCLUSION
¶30 For the foregoing reasons, we affirm the judgment of the superior court. We award costs to the County upon compliance with Arizona Rule of Civil Appellate Procedure 21.