Rowe v. Clark

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LORIANN ROWE, Plaintiff/Appellee, v. LAWRENCE CLARK, Defendant/Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-01-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0485 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2009-019774 The Honorable Steven Holding, Commissioner AFFIRMED Lawrence Clark In Propria Persona Phoenix K E S S L E R, Judge ¶1 the Defendant-Appellant superior harassment. court s order Lawrence continuing Clark an ( Clark ) appeals injunction against For the reasons that follow, we affirm the order of the superior court. FACTUAL AND PROCEDURAL HISTORY ¶2 Loriann injunction Rowe against ( Rowe ) harassment, filed a alleging petition that for Clark an made threatening statements to her, including the statement I am going to . . . kill you, and sue you . . . . court issued the injunction. The superior Clark requested a hearing, which the superior court promptly held. ¶3 At party to the hearing, testify. Rowe the superior testified that court permitted Clark approached outside of her workplace and yelled incoherently at her. then yelled that he would sue Rowe. each her Clark Clark then culminated his yelling by threatening to kill Rowe. ¶4 Clark testified that he did not yell the statements Rowe accused him of yelling and that he would not behave that way because he had a pending petition Services to be reunited with his son. with Child Protective The commissioner asked Clark about his prior relationship with Rowe and whether he had any legitimate need to contact her. Clark stated that he did not have any need to contact Rowe. ¶5 The superior court gave Clark the final opportunity to speak, and he repeated his contention that he would not conduct himself the way Rowe alleged because it would jeopardize his CPS case. Clark also argued that the conduct Rowe described was a single incident that did not legally constitute harassment. 2 ¶6 The superior court ordered that the injunction remain in effect. Clark filed a timely notice of appeal. This Court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(F)(2) (2003). ANALYSIS ¶7 On appeal, Clark contends that we should overrule the superior court because 1) the superior court did not permit Clark to testify, 2) the superior court incorrectly applied the statutory definition of harassment, and 3) there was no evidence supporting a finding answering brief. of harassment. Rowe did not file an We decline to treat her failure to file an answering brief as a confession of error because the issues in this appeal are not reasonably debatable. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982) ( Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so. ). Bugh v. Bugh, 125 Ariz. 190, 191, 608 P.2d 329, 330 (App. 1980) (holding that failure to file an answering brief is treated as a confession of error when debatable issues are raised ). I. The Superior Court Permitted Clark to Testify ¶8 Clark alleges that the superior court did not permit him to testify or make a legal argument. did testify. false. We disagree. Clark He stated that Rowe s factual contentions were He also presented legal argument. 3 In particular, he argued that the conduct described by Rowe did not meet the statutory definition of harassment. The superior court afforded Clark and an opportunity to be heard his contention to the contrary is plainly at odds with the record. II. The Superior Court Applied the Correct Legal Standard ¶9 Clark contends that the superior court applied the statutory definition of harassment. improperly We disagree. [H]arassment means a series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose. (Supp. 2009). A.R.S. § 12-1809(R) The superior court quoted this definition at the beginning of the proceeding. The superior court applied the correct definition of harassment. III. Substantial Evidence Supported Finding That Harassment Took Place ¶10 the Superior Court s Clark contends that the superior court s finding of harassment is not supported by any evidence in the record because all of the allegedly offensive conduct took place in a single occurrence and therefore there was no evidence that he engaged 1809(R). in a We series of disagree. acts We as review required a by superior A.R.S. court s § 12- order granting an injunction against harassment for a clear abuse of 4 discretion. LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10, 56 P.3d 56, 59 (App. 2002) (citation omitted). Harassment requires a series of acts which may take place over any period of time. abuse A.R.S. § 12-1809(R). its discretion in The superior court did not clearly finding that the three separate utterances in a brief period was a series of acts. ¶11 LaFaro does not clearly require a contrary result. LaFaro overturned a superior court s finding of harassment when the only conduct directed at the plaintiff occurred during a single occasion. 203 Ariz. at 486, ¶ 14, 56 P.3d at 60. However, testimony in that case indicated that the allegedly harassing act consisted of a single utterance. 1 Rowe s testimony indicates that she endured multiple hostile utterances. Rowe testified that at first she heard indiscernible utterances from Clark. Then, she turned around before Clark howled that he would sue her. yet another Rowe described the death threat against her as act, transition then. preceding her description of it with the The transcript of Rowe s testimony indicates that at least three separate acts occurred in sequence. 1 The A witness reported the utterance as [y]ou re a bigot, LaFaro. LaFaro, 203 Ariz. at 486, ¶ 14, 56 P.3d at 60 (internal quotation marks omitted). LaFaro reported that the defendant called him a bigot, homophobe, fascist, and Nazi. Id. (internal quotations marks omitted). The Court s description of both testimonial accounts indicates a single utterance, although one version involved an utterance that strung together multiple vituperations. 5 fact that they took place in a short time period does not preclude the separate utterances from being a series of acts because the statute expressly applies to a series of acts taking place over any period of time. A.R.S. § 12-1809(R). Therefore, the substantial evidence supports superior court s finding that harassment occurred. CONCLUSION ¶12 For the foregoing reasons, we affirm court s injunction against harassment. /s/ DONN KESSLER, Judge CONCURRING: /s/ MARGARET H. DOWNIE, Presiding Judge /s/ PETER B. SWANN, Judge 6 the superior

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