Opinion
No. 2 CA-CV 2017-0103
01-03-2018
KATHLEEN LOUISE MONROE, Plaintiff/Appellee, v. ROBERT RYAN DOTEN, Defendant/Appellant.
COUNSEL Doug Newborn Law Firm, PLLC, Tucson By Douglas J. Newborn 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NOT FOR PUBLICATION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 Pima County
No. C20171859
The Honorable John J. Assini, Judge Pro Tempore
VACATED AND REMANDED
COUNSEL
Doug Newborn Law Firm, PLLC, Tucson
By Douglas J. Newborn
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
EPPICH, Judge:
¶1 Robert Ryan Doten appeals the trial court's order affirming an injunction against harassment. For the reasons that follow, we vacate the trial court's order and remand with instructions to dismiss the injunction.
Factual and Procedural Background
¶2 Kathleen Monroe filed a petition for an injunction against harassment against Doten, her cousin-in-law, pursuant to A.R.S. § 12-1809. In her petition, she included three incidents as a legal basis for the injunction. She alleged Doten had removed personal property from her property, had come to her hospital room and told her the removed property did not belong to her, and had informed her that he "open carries" while on her property. Her initial petition was granted ex parte. After a contested hearing, the trial court found Doten had committed "a series of acts which would constitute harassment" and affirmed the injunction against him. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Confession of Reversible Error
¶3 Doten argues the trial court abused its discretion in affirming the injunction by misapplying the law to undisputed facts. See LaFaro v. Cahill, 203 Ariz. 482, ¶ 10 (App. 2002). He argues his actions served legitimate purposes or were not directed towards Monroe, and, therefore, did not constitute a series of acts sufficient to justify an injunction against harassment as a matter of law. See § 12-1809(C)(3), (S). Monroe did not file an answering brief. This court gave her an extension to file one, but she did not. She has not provided any excuse to justify her failure to respond.
¶4 "[W]hen an appellant raises a debatable issue, the court, in its discretion, may find that an appellee's failure to file an answering brief constitutes a confession of error." State ex rel. McDougall v. Superior Court, 174 Ariz. 450, 452 (App. 1993). "This doctrine is discretionary, however, and we are reluctant to reverse based on an implied confession of error when . . . the trial court has correctly applied the law." Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
¶5 Doten's brief presents debatable questions to be resolved on appeal. Monroe did not file an answering brief and has not provided an
excuse for her failure to respond. Further, the record supports Doten's argument that his actions did not provide a sufficient legal basis to affirm the injunction against him. Under these circumstances, we conclude Monroe's failure to respond is a confession of reversible error.
Disposition
¶6 For the foregoing reasons, we vacate the trial court's order and remand with instructions to vacate the injunction against harassment.