Opinion
No. 2 CA-CV 2020-0106
01-13-2021
CYNTHIA JARDINE, AN INDIVIDUAL, Plaintiff/Appellee, v. JOHN HACK, AN INDIVIDUAL, Defendant/Appellant.
COUNSEL Cynthia Jardine, 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NOT FOR PUBLICATION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. PO202000137
The Honorable Robert C. Olson, Judge
AFFIRMED
COUNSEL Cynthia Jardine, 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 Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 John Hack appeals from the trial court's order entering an injunction against harassment against him. Hack contends that the court abused its discretion by entering the injunction because (1) a series of harassing events with no legitimate purpose did not occur against Cynthia Jardine and (2) the injunction prevents Hack from using, entering, accessing, and enjoying his own real property. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's order. Clark v. Kreamer, 243 Ariz. 272, ¶ 10 (App. 2017). Jardine filed a petition for an injunction against harassment against Hack in March 2020. Jardine based her petition on the following allegations: (1) Hack erected twelve-foot screens along Jardine's property fence, (2) he flew the Gadsden flag "on the [b]oundary with [Jardine's] front property" and hung another Gadsden flag on part of the screen around the back boundary of her property, and (3) Hack made a false complaint about Jardine to the Pinal County Building Safety Department. Hack requested a hearing to contest the injunction, which was held over two days on April 23 and 28, 2020.
The Gadsden flag depicts a coiled rattlesnake with the words "don't tread on me" written below it.
¶3 On the first day of the hearing, the parties made opening statements and Jardine testified and presented exhibits. On day two, Hack testified that the screen had been originally built in April 2019 for agricultural purposes, and that the screen was originally retractable. He stated that when he left for the summer in May 2019, he had retracted the screen and left the screen retracted after he returned to Arizona in November 2019. And he stated he eventually took the screen down and replaced it with several flags because of "privacy concerns."
¶4 The trial court found there was insufficient evidence to support Jardine's assertion that Hack made a false report about her to the Pinal County Building Safety. However, the court did find that Jardine's other two claims showed that "[Hack] did engage in a series of acts that would seriously harass, alarm, or annoy a reasonable person" and that Hack's acts "seriously harassed, alarmed, or annoyed [Jardine] in these two matters and was not for a legitimate purpose." Hack was ordered not to "go on or near [Jardine'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 order Hack to remove the screen because to do so was "beyond an injunction against harassment," and would need to be addressed by building safety. Hack was also not enjoined from flying the Gadsden flag, but the court stated that flying a flag that "has the message such as the Gadsden flag" where Jardine could see it could be seen as impermissible communication under the injunction. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Analysis
Grounds for Injunction Against Harassment
¶5 "We review orders granting injunctions under a clear abuse of discretion standard," LaFaro v. Cahill, 203 Ariz. 482, ¶ 10 (App. 2002), and we will uphold the trial court's order if there is substantial evidence to support the injunction, Wood v. Abril, 244 Ariz. 436, ¶ 6 (App. 2018). However, the burden is on the 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). Hack did not provide this court with the transcript for the hearing on April 23, 2020, the first of the two hearings on Jardine's petition. Without this transcript, we presume the evidence and arguments presented at the April 23, 2020 hearing support the trial court's ruling to grant Jardine's injunction. See Blair, 226 Ariz. 213, ¶ 9. Therefore, we do not find Hack has met his burden and we affirm the trial court's order.
Restrictions of Injunction Against Harassment
¶6 Hack also contends that the restrictions the trial court placed on him in the injunction against harassment violate his constitutional rights. We review constitutional claims de novo. See State v. Brown, 207 Ariz. 231, ¶ 7 (App. 2004).
¶7 The trial court enjoined Hack from going within eight feet of the western property boundary wall and within five feet of the southern property boundary wall between the properties. After the court set the original ten-foot restriction, Hack asked that it reduce that restriction. The court then gave Hack an option to either accept a distance restriction to keep him away from the boundary walls, or to agree to remove the screens and flags on his property. In response, Hack asked for the boundary restrictions to be five feet on the south boundary and eight feet on the west boundary, which the court accepted.
¶8 Hack argues that the order restricting him from going within eight feet of the west property boundary wall and within five feet of the south property boundary wall is unconstitutional under Ariz. Const. art. II, § 4. Such a restriction, Hack argues, "prohibits [him] from engaging in lawful conduct on his own property and violates his fundamental right . . . to acquire, possess, and protect property." 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," and may generally "[g]rant relief necessary for the protection of the alleged victim . . . proper under the circumstances." A.R.S. § 12-1809(F). Such restrictions may, under certain circumstances, infringe on others' constitutional rights if necessary to serve the interest of protecting citizens from harassment. See State v. Baldwin, 184 Ariz. 267, 271 (App. 1995) (picketing statute was not an unreasonable restriction on speech); LaFaro, 203 Ariz. 482, ¶ 22-23 (injunctions may restrict harassment but not political speech).
Hack does not challenge the constitutionality of A.R.S. § 12-1809. He argues only that a restriction in the injunction issued against him violates his constitutional rights. --------
¶9 Again, Hack did not provide this court with the transcript from the first day of the hearing on Jardine's petition. As discussed above, Hack's failure to satisfy this burden on appeal creates a presumption that the arguments and evidence presented at that hearing support the trial court's decision to grant Jardine's injunction. See Blair, 226 Ariz. 213, ¶ 9. With this presumption, we assume the court only imposed restrictions upon Hack "necessary for the protection of the alleged victim" and "proper under the circumstances." § 12-1809(F)(3). Absent a complete record, we are constrained to affirm the trial court's ordered restrictions.
Disposition
¶10 For the foregoing reasons, we affirm the trial court's order granting the injunction against harassment. As the prevailing party on appeal, Jardine is entitled to recover her costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See Braillard v. Maricopa Cnty., 224 Ariz. 481, ¶ 60 (App. 2010).