Opinion
2 CA-CV 2022-0099
04-06-2023
Cynthia Michelle Mojica, Plaintiff/Appellee, v. Ryan Sambo Jones, Defendant/Appellant.
Udall Law Firm LLP, Tucson By Samantha O. Sanchez and Craig L. Cline Counsel for Defendant/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. DV20220686 The Honorable M. June Harris, Judge Pro Tempore The Honorable Lisa Schriner Lewis, Judge Pro Tempore
Udall Law Firm LLP, Tucson By Samantha O. Sanchez and Craig L. Cline Counsel for Defendant/Appellant
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Ryan Jones appeals from an order of protection that prohibits him from having contact with Cynthia Mojica and from possessing firearms. Mojica did not file an answering brief, which we treat as a confession of reversible error. We therefore vacate the order of protection, including the prohibition on possessing firearms.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mojica and Jones, who are coworkers at a law enforcement agency, were involved in a romantic relationship that lasted a little over a year. The relationship ended in January 2022.
¶3 In May 2022, Mojica filed a petition for an order of protection against Jones. The petition made three allegations, namely that Jones: (1) broke into Mojica's home in December 2020 while intoxicated and refused to leave her property; (2) continued to go to Mojica's house uninvited after their breakup despite her repeated requests that he stop doing so; and (3) deliberately set fire to Mojica's house in May 2022.
¶4 After an ex parte hearing, the trial court issued an order of protection. The order prohibited Jones from contacting Mojica and from going to her residence or place of employment. It also ordered Jones to surrender his firearms within twenty-four hours.
¶5 Jones requested a hearing, which occurred over two days in June 2022. The trial court subsequently issued a ruling that affirmed the order of protection, with two modifications. In particular, the court modified the order to allow Jones to go to the parties' shared place of employment, while still prohibiting him from contacting Mojica or "be[ing] within her sight or hearing" there. The court also clarified that, although the order disqualifies Jones from purchasing or possessing firearms or ammunition while off duty, he may carry a weapon while on duty as a law enforcement officer.
¶6 In support of its ruling, the trial court found that Mojica had proven her second allegation by a preponderance of the evidence and that Jones's proven conduct constituted harassment under A.R.S. § 13-2921. The court declined to consider Mojica's first allegation, which involved conduct alleged to have occurred more than one year before the petition was filed, and it found insufficient evidence to prove the third allegation.
¶7 This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(b) and Rule 42 of the Arizona Rules of Protective Order Procedure.
DISCUSSION
¶8 Jones appeals the trial court's ruling and order of protection, raising four issues. First, he argues that the court violated his due process rights by considering the second allegation because it lacked specificity. Second, he argues that the court erroneously analyzed and interpreted the elements of harassment under A.R.S. § 13-2921. Third, he argues that the court should not have restricted his right to possess a firearm. Fourth, he argues that the court abused its discretion by affirming the ex parte order of protection and concluding that Mojica had carried her burden on the second allegation.
¶9 Mojica did not file an answering brief. "When debatable issues exist and an appellee fails to file an answering brief, we may consider such failure a confession of reversible error." Savord v. Morton, 235 Ariz. 256, ¶ 9 (App. 2014). Jones has raised debatable issues. Specifically, it is debatable whether the trial court properly applied the test for harassment under A.R.S. § 13-2921. The definition of "harass" requires that the defendant's conduct "seriously alarm[], annoy[], humiliate[] or mentally distress[]" the plaintiff, and that the conduct would have had that effect on a reasonable person. A.R.S. § 13-2921(E). Here, the court's ruling concluded that Mojica "felt harassed," but it did not address whether a reasonable person would have felt similarly. Nor did it address whether a reasonable person would feel that way if Jones engaged in similar future conduct. While we need not address whether this constituted error, it is sufficient to create a debatable issue. In addition, although Jones does not squarely address the issue, he also suggests that the court did not make proper findings under A.R.S. § 13-3602(G)(4) before restricting his firearm rights. This is also a debatable issue. As a result, we exercise our discretion to treat Mojica's failure to file an answering brief as a confession of reversible error. We therefore need not address the substance of Jones's arguments.
¶10 Jones requests his attorney fees and costs on appeal. After considering the factors enumerated in Rule 39 of the Arizona Rules of Protective Order Procedure, we decline to award Jones attorney fees. However, as the successful party, Jones is entitled to his costs on appeal, upon his compliance with Rule 21(b), Ariz. R. Civ. App. P.
DISPOSITION
¶11 We vacate the order of protection.