Opinion
No. 1 CA-CV 16-0148
02-14-2017
In re the Matter of: LENDON MARSHALL, Plaintiff/Appellee, v. MICHAEL GRAULICH, Defendant/Appellant.
COUNSEL Riggs Ellsworth & Porter, PLC, Queen Creek By Keith R. Nelson Counsel for Plaintiff/Appellee Law Offices of Neal W. Bassett, Phoenix By Neal W. Bassett Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CV2016-090323
The Honorable Margaret Benny, Judge Pro Tempore
AFFIRMED
COUNSEL Riggs Ellsworth & Porter, PLC, Queen Creek
By Keith R. Nelson
Counsel for Plaintiff/Appellee Law Offices of Neal W. Bassett, Phoenix
By Neal W. Bassett
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Donn Kessler joined. SWANN, Judge:
¶1 Michael Graulich ("Michael") appeals the superior court's continuation of an injunction against harassment obtained by Lendon Marshall ("Lendon"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2016, Lendon obtained an injunction against harassment against Michael based on several alleged incidences: threatening messages sent through a Facebook account, an encounter at a restaurant, and threatening phone calls. Michael was served with the injunction against harassment on January 29, 2016. He requested a hearing, which was held February 2, 2016.
¶3 Lendon has two children with his former girlfriend, Sarah Graulich ("Sarah"), who is married to Michael. At the time of the hearing, D.M., 14, lived with Lendon and Lendon's girlfriend, Ashley Baker ("Ashley"), while A.M., 6, lived with the Michael and Sarah. Sarah and Lendon had child-custody issues pending in their family case.
¶4 The injunction against harassment protected Lendon as well as D.M. and A.M. Because the injunction included A.M., Michael was not allowed to be in the residence he shared with Sarah and A.M.
¶5 The superior court heard testimony from Michael, Sarah, Lendon, and Ashley. The court accepted into evidence several documents, including a printout of Facebook posts Lendon offered and a printout of Facebook posts and text messages Michael offered.
¶6 Both parties spent the bulk of the hearing describing an incident that occurred when Lendon was returning A.M. to Sarah after visitation. The exchange occurred at a restaurant. Lendon testified that as he left the restaurant, Michael followed him out, yelling and cursing at him about allowing A.M. to be around her maternal grandmother. Michael testified that he only yelled to get Lendon's attention because of the distance between them. A verbal altercation involving the two as well as Ashley ensued. Michael then retrieved a loaded handgun from his vehicle.
¶7 Lendon and Ashley testified that Michael waived the gun around, causing nearby teenagers to scream and run, and police to be summoned. Michael and Sarah testified that Michael retrieved the gun from his vehicle and attached it to his waistband but did not waive it around. Michael testified that he retrieved the gun because he felt he was "in a direct threat . . . in fear of harm from [Lendon]."
¶8 The parties also addressed the other grounds upon which the injunction against harassment had been issued. Lendon testified that Michael had sent D.M. a Facebook message that said "[k]eep fucking around, you little punk, and see what happens to you, your friends, and your pathetic family." Michael denied sending D.M. threatening Facebook messages and testified that he believed D.M. and D.M.'s friends had sent the messages after either gaining access to Michael's Facebook account or creating fake Facebook accounts in his name. He also testified that he believed D.M. or D.M.'s friends to be behind text messages he had received.
¶9 Lendon further testified that Michael had telephoned him on at least two occasions and threatened to shoot him and had told D.M. that if Lendon "showed up to their house . . . he would shoot" Lendon. Michael denied making such a statement to D.M., and both Michael and Sarah testified Michael had never made threats to Lendon.
¶10 Lendon's counsel advised the court twice that D.M., who sat outside the courtroom during the hearing, was available to testify. The superior court asked Lendon's counsel, "what would he be testifying to, specifically?" Lendon's counsel responded:
He would be testifying specifically that he . . . had a Facebook account. That [Michael] had made this threat to him on Facebook. And that he . . . told [D.M.] that he would shoot [Lendon], if [Lendon] ever came to [Michael's] house.
¶11 The superior court asked Michael what his position was "with regards to the child testifying." Michael responded: "I'm more than happy to allow it," but added that D.M. would be biased "because . . . the Court is . . . in the process of deciding whether or not he comes and lives back home with us." He also advised that D.M. had a history of psychiatric illness and that a court-appointed advisor had recommended that D.M. be "shielded" from "any proceedings such as these."
¶12 After hearing both parties, the superior court told Lendon's counsel: "Rather than have [D.M.] testify today, I'll just allow you to make an offer of proof as to what he would have testified to." Lendon's counsel advised that he was satisfied with the description of D.M.'s anticipated testimony that he had already given the court.
¶13 After taking evidence, the superior court ordered that the injunction continue, "even disregarding the Facebook message to [D.M.], which I'm going to disregard." The superior court focused on the restaurant incident, finding that Michael had instigated the verbal altercation with Lendon and Ashley, deliberately retrieved the gun from his vehicle, and then re-entered the restaurant, potentially endangering A.M. "if something had gone off."
¶14 After the superior court ruled, Lendon's counsel advised the court that Lendon had been required to pay a filing fee but should not have. In the course of discussing that issue, Michael questioned why he had not received a copy of the notice of appearance filed by Lendon's counsel. He contended that had he received the notice of appearance, he would have made sure his own lawyer had attended with him. Referring to copying such notices to the opposing party, Lendon's counsel said that "as a general rule, I don't know that I've ever done that." The court advised Lendon's counsel that notices should be sent to any parties that have appeared or entered appearances. As for Michael's objection to not having received the notice, the superior court ruled that Michael had waived the objection because he did not raise it at the beginning of the hearing, adding, "I've already made my ruling with regards to that."
¶15 Michael timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(5)(b). See LaFaro v. Cahill, 203 Ariz. 482, 484-85, ¶¶ 7-8 (App. 2002) (holding an injunction against harassment is a final order from which an appeal is "explicitly permit[ted]" by what is now A.R.S. § 12-2101(A)(5)(b)).
¶16 Lendon did not file an answering brief. Although this can be construed as a confession of error, in our discretion, we choose to address the merits of the appeal. See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982) ("Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so.").
DISCUSSION
¶17 On appeal, Michael contends the superior court (1) denied him a fair trial when it decided that D.M. could "testify" via an "offer of proof;" (2) denied him due process by allocating only 15 minutes to present his case; and (3) abused its discretion by failing to reset the hearing or vacate its ruling after Lendon's counsel admitted he did not serve his notice of appearance on Michael.
¶18 "A court abuses its discretion when it commits an error of law in the process of reaching a discretionary conclusion or when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14 (App. 2012) (internal citation and quotation omitted). We view the facts in the light most favorable to upholding the superior court's order. Id. at 532, ¶ 2. I. THE OFFER OF PROOF
¶19 The superior court did not explain why it declined to have D.M. testify concerning the Facebook posts. Instead, it stated: "Rather than have [D.M.] testify today, I'll just allow you to make an offer of proof as to what he would have testified to."
¶20 "An offer of proof is only in order when (1) the court sustains an objection to a question asked the witness or (2) the court has indicated it would reject such testimony if offered." State v. Loftis, 89 Ariz. 403, 406 (1961). It is not itself hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible unless an exception applies. See Ariz. R. Evid. 801(c), 802. "An offer of proof is simply a 'reasonably detailed' description of the evidence that has been excluded," 1 Ariz. Practice Series Law of Evidence § 103:3 (McAuliffe and McAuliffe, 4th ed.), that allows the trial court to "adequately reconsider [its] exclusion of the evidence which he may well have done upon reflection." State v. Belcher, 109 Ariz. 551, 553 (1973).
¶21 Here, the superior court did not rely on the proffered Facebook evidence. The superior court explicitly noted in its ruling that it was disregarding the issue involving the Facebook messages, to which D.M. would have testified. Even without the Facebook evidence and D.M.'s testimony, the record supports that Michael engaged in a "series of acts," as A.R.S. § 12-1809 requires. LaFaro, 203 Ariz. at 486, ¶ 14 (holding that A.R.S. § 12-1809(R) requires at least two incidents). The superior court found that Michael had instigated the verbal altercation with Lendon and Ashley, deliberately retrieved the gun from his vehicle, and then re-entered the restaurant, potentially endangering A.M. "if something had gone off." These events, albeit committed within a short period, satisfy the statute's requirement of a "series of acts."
¶22 We find no error regarding the "offer of proof." II. TIME TO PRESENT
¶23 Michael also contends that the superior court denied him due process by allocating only 15 minutes during which he could present his case. Relying on Volk v. Brame, 235 Ariz. 462 (App. 2014), he argues that the court's time constraints put such "pressure" on him that he "rush[ed] his cross-examination of the petitioner's witnesses, and the questioning of his wife."
¶24 We review de novo Michael's claims that he was denied due process. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014). We will reverse a court's order based on due process errors only on a showing of prejudice. Volk, 235 Ariz. at 470, ¶ 26.
¶25 In Volk, the family court allotted 15 minutes for a hearing and actively rejected Father's efforts to dispute or clarify evidence submitted by Mother, and told the parties it would decide based on the documents submitted. Volk, 235 Ariz. at 465-66, ¶¶ 4-11. Indeed, the court in Volk took no testimony. We held that when a court addresses a disputed issue requiring an assessment of credibility, due process requires the court to afford the parties an opportunity to present sworn testimony, and the court may not rely solely on avowals of counsel. Id. at 464, ¶¶ 1-2.
¶26 In this case, the superior court advised that each side would have about 20 minutes—not 15 minutes as Michael asserts—to present. It also stated it would expand the time if it appeared necessary. In fact, the transcript shows that the hearing began at 1:36 p.m. and concluded at 3:18 p.m., for a total of one hour and 42 minutes.
¶27 While the superior court clearly was mindful of the time—as Michael details in his brief—the record does not reflect that time constraints precluded him from presenting his evidence. For example, Michael waived giving an opening statement. While he claims on appeal that he did so "given the quickly dwindling time that he had to present his case," he said nothing to the court about conserving his time because of the court's time schedule. He also cross-examined Lendon and Ashley, directly examined Sarah, and testified on his own behalf.
¶28 The transcript reveals that the superior court afforded the parties more than sufficient opportunity to develop their case, and, in fact, repeatedly asked whether they had anything else to present. We discern no procedural prejudice to Michael, and therefore find no due process violation. III. FAILURE TO SERVE NOTICE OF APPEARANCE
¶29 Finally, Michael contends that the court erred because it should have sua sponte reset the hearing or vacated its ruling after Lendon's counsel acknowledged that he did not serve his notice of appearance on Michael.
¶30 Lendon's counsel should have sent his notice of appearance to Michael, who was proceeding in propria persona. Ariz. R. Civ. P. Rule 5(a) requires, in pertinent part, that "every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. . . ." He did not do so.
We cite the version of the rules as they existed at the time of the events, as they were revised effective January 1, 2017. --------
¶31 Near the end of the hearing, when Lendon's counsel raised an issue regarding payment of filing fees, Michael told the court that Lendon's counsel had not sent him a copy of the notice of appearance. The superior court responded: "you waived it. You didn't raise that at the beginning of the hearing. I've already made my ruling with regards to that." While this statement could have been clearer, we interpret it as the superior court referring to its ruling continuing the order, not on any exchange or objection that does not appear in the record.
¶32 But even if Michael had not waived this objection by raising it so late in the proceeding, we find no prejudice to him. We will not reverse a judgment because of a defect that did not affect a party's substantial rights. Ariz. R. Civ. P. Rule 61 ("No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). The notice of appearance is not the type of filing that affects the substantial rights or interests of a party.
¶33 Michael argued at the hearing that had he known Lendon was going to have counsel, he would have arranged to be represented. He does not explain how he would have presented differently his case if he had known Lendon was going to be represented by counsel except to say he would have hired counsel. Nothing, however, prevented Michael from choosing to be represented by counsel at the hearing. The fact that Lendon's counsel did not comply with Rule 5(a) did not require the superior court—after ruling on the merits—sua sponte to reschedule the hearing or vacate its ruling.
CONCLUSION
¶34 For the above reasons, we affirm the superior court's continuance of the injunction against harassment.