CHANTEL v. MOHAVE ELECTRIC

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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 DUSTIN R. CHANTEL and ELIZABETH D. CHANTEL, husband and wife, ) ) ) Plaintiffs/Appellants, ) ) v. ) ) MOHAVE ELECTRIC COOPERATIVE, ) INC., an Arizona non-profit ) corporation, ) ) Defendant/Appellee. ) __________________________________) DIVISION ONE FILED: 4/16/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 12-0411 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. S8015CV200902574 The Honorable Lee Frank Jantzen, Judge AFFIRMED Dustin R. Chantel and Elizabeth D. Chantel Plaintiffs/Appellants In Propria Persona Kingman Curtis, Goodwin, Sullivan, Udall & Schwab, P.L.C. By Michael A. Curtis Larry K. Udall Attorneys for Defendant/Appellee Phoenix J O H N S E N, Judge ¶1 Dustin R. and Elizabeth D. Chantel appeal the superior court s entry of summary judgment in favor of Mohave Electric Cooperative, Inc. ( MEC ). For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 MEC cooperative. MEC. is a member-owned and operated electrical The Chantels, who live in Kingman, are members of The membership application the Chantels signed provided that they would be bound by MEC s articles of incorporation, bylaws and rules and regulations. MEC s rules and regulations provide, inter alia: The Customer will be held responsible for . . . interfering with the Cooperative s meter(s) or other utility property. The rules and regulations also allow MEC to disconnect without obvious service and imminent advance hazard to notice the if there is an safety or health of the Customer or the general population. ¶3 MEC provided overhead lines installed before they purchased it. signal. the on Chantels the with Chantels electricity property via decades The lines also served a nearby train In the summer of 2008, without a building permit, the Chantels began building what they called a divinely inspired structure directly beneath the lines. ¶4 A visited the county building property in inspector August 2008 and and an MEC determined employee that the clearance between the electric lines and the structure violated the National Electric Safety Code. 2 The county issued stop-work orders, but the Chantels continued construction. On September 12, 2008, the county instructed MEC to de-energize the overhead lines because the structure created an unsafe condition. ¶5 On September 15, 2008, MEC mailed the Chantels notice of the county s directive that MEC de-energize the lines. The following afternoon, MEC contacted Ms. Chantel to inform her that the lines would be de-energized that day. After de- energizing the lines above the Chantels structure on September 16, MEC installed a new system to provide service to the nearby train signal. When the Chantels asked MEC to reinstate their service, MEC said it would do so only if the Chantels reimbursed MEC for the costs it incurred in de-energizing the lines and installing the new system. ¶6 The Chantels filed a complaint against MEC alleging that the electrical lines were sagging and the power poles were breaking and asserting that the Chantels built the structure to catch any lines or poles that might break because MEC refused to repair them. They alleged eight claims for relief: Breach of contract, breach of the covenant of good faith and fair dealing, quiet title, intentional damages. ejectment, infliction of recovery emotional of rents, distress negligence, and punitive MEC filed a counterclaim seeking to recover more than $41,000 in expenses it incurred in de-energizing the lines and installing the new system. 3 ¶7 MEC moved for summary judgment on the complaint and counterclaim. The Chantels then withdrew their quiet title and ejectment claims, and the court granted MEC s motion for summary judgment as intentional to the Chantels infliction of claims emotional for recovery distress and of rent, punitive damages, but denied MEC s motion on the other claims. ¶8 they At the summary judgment hearing, the Chantels avowed would produce remaining claims. additional discovery to support their When they produced no such discovery, MEC moved for reconsideration of the denial of its summary judgment motion on its counterclaim and on the Chantels claims for breach of contract, breach of the covenant of good faith and fair dealing and negligence. The court granted the motion and entered summary judgment in favor of MEC on all of the remaining counts in the complaint and on the counterclaim, stating [i]n retrospect, incorrect. damages pursuant on to the Court s denial of MEC s entire motion was The court also awarded MEC more than $47,000 in its counterclaim Arizona Revised and awarded Statutes MEC attorney s ( A.R.S. ) sections fees 12- 341.01(A) (West 2013) and -349 (West 2013). 1 ¶9 We have jurisdiction of the Chantels timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, 1 Absent material revisions after the relevant date, we cite a statute s current version. 4 and A.R.S. §§ 12-120.21(A)(1) (West 2013) and -2101(A)(1) (West 2013). DISCUSSION A. Legal Principles. ¶10 Summary judgment is appropriate if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). Summary judgment is also appropriate when a plaintiff fails to establish a prima facie case. Gorney v. Meaney, 214 Ariz. 226, 232, ¶ 17, 150 P.3d 799, 805 (App. 2007). We review de novo the grant of a motion for summary judgment. Wolfinger v. Cheche, 206 Ariz. 504, 506, ¶ 4, 80 P.3d 783, 785 (App. 2003). We review the facts in the light most favorable to the party opposing summary judgment. Id. Additionally, an award of attorney s fees is left to the discretion of the superior court and will not be reversed on appeal absent an abuse of discretion. Orfaly v. Tucson Symphony Soc y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App. 2004). ¶11 the In their opening brief, the Chantels challenge only superior court s entry of summary judgment on their negligence claim and on their claim for recovery of rent and the court s award of attorney s fees in favor of MEC. The Chantels therefore have waived any arguments concerning the court s entry 5 of summary judgment in favor of MEC on the remaining claims in the complaint and on MEC s counterclaim. See Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, 462, ¶ 26, 27 P.2d 814, 819 (App. 2001). 2 B. Wrongful Termination of Electrical Service. ¶12 The Chantels argue they are entitled to injunctive relief and money damages for MEC s alleged wrongful termination of their electrical service, claiming it constitutes actionable tortious conduct. raise this Although MEC argues the Chantels failed to argument in the superior court, we construe the Chantels argument as a challenge to the summary judgment on their negligence claim, which alleged in part that MEC wrongfully disconnect[ed] the electricity to their home. ¶13 A plaintiff must prove four elements to establish a claim for negligence: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant s conduct and the resulting injury; and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). 2 We also decline to address the various issues the Chantels raise for the first time in their reply brief, including their request that we issue an injunction requiring MEC to reinstate the Chantels power service. See Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91, 163 P.3d 1034, 1061 (App. 2007). 6 ¶14 The Chantels do not identify any legal duty owed by MEC to provide them electrical service. Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. at ¶ 11. Id. The only authority the Chantels cite as imposing a duty upon MEC is Arizona Administrative Code ( A.A.C. ) R14-2208(A)(1), which provides that a utility shall be responsible for the safe transmission and distribution of electricity until it passes the point of delivery to the customer. That regulation does not impose a duty on MEC to provide service that might give rise to a breach for disconnecting service. A.A.C. R14-2-208(A)(1) simply requires a utility Rather, to safely and Water deliver electricity if it is providing such a service. ¶15 The Division v. Chantels Craft, 436 cite U.S. Memphis 1 Light, (1978), and Gas Walton Electric Membership Corp. v. Snyder, 508 S.E.2d 167 (Ga. 1998), for the proposition that a utility may not terminate service nonpayment without affording a customer due process. for We do not consider this argument because the Chantels did not raise it in the superior court. See Best v. Edwards, 217 Ariz. 497, 504, ¶ 28, 176 P.3d 695, 702 (App. 2008). ¶16 Moreover, electrical service undisputed evidence MEC did because in not of an support 7 disconnect unpaid of its the Chantels bill. MEC offered motion for summary judgment that it disconnected the Chantels service because the county directed MEC to do so because of safety concerns caused by the structure the Chantels had built directly beneath the electrical lines. 875-76 (Miss. See Tucker v. Hinds County, 558 So. 2d 869, 1990) (utility company properly may shut off customer s power when acting pursuant to directive from county official). than Additionally, MEC provided the Chantels with more adequate A.A.C. notice of the pending shut-off. a utility may R14-2-211(B)(1)(a), Pursuant disconnect to service without notice when there is an obvious hazard to the safety or health of the consumer or the general population, and MEC provided the Chantels both written and personal notice prior to de-energizing the lines. ¶17 We therefore affirm the grant of summary judgment on the Chantels negligence claim. C. ¶18 Recovery of Rent for Chantels Property. MEC s Use and Occupancy of the The Chantels also contend they are entitled to rent from MEC pursuant to A.R.S. § 12-1271(A)(2) (West 2013) because they did not grant MEC an easement allowing MEC s electrical lines over their property. ¶19 for MEC argues the Chantels withdrawal of their claims quiet title and ejectment deprives jurisdiction to address the claim for rent. 8 this court of See Osuna v. Wal- Mart Stores, Inc., 214 Ariz. 286, 289, ¶ 9, 151 P.3d 1267, 1270 (App. 2007) ( Generally, an order granting a voluntary dismissal without prejudice to its being refiled is not an appealable, final judgment. (quotation omitted)). In the recovery of rents count of their complaint, however, the Chantels alleged they were entitled under A.R.S. § 12-1271 to the rents or the fair and reasonable satisfaction for MEC s unauthorized use and possession of the Property. ¶20 In their application for membership to MEC, the Chantels agreed to grant MEC easements of right of way across [their] property, for construction, use and operation of power lines necessary for the servicing of members in this area. On appeal, the Chantels point to no evidence that would show why this easement grant was not effective. Moreover, the superior court declining did not abuse its discretion in to consider additional arguments the Chantels made for the first time in their motion for reconsideration of the entry of summary judgment against them on this claim. ¶21 Accordingly, we affirm the grant of summary judgment on the Chantels claim for rent. D. ¶22 Attorney s Fees. Finally, the Chantels contend the superior court erred in awarding MEC its attorney s fees pursuant to A.R.S. § 12341.01(A) because their claims did not arise out of contract. 9 In the superior court, however, the Chantels took the contrary position, and in fact described their claims concerning the placement of power lines and their entitlement to service as arising out of their contract with MEC. The Chantels also failed to argue in the superior court that § 12-341.01(A) did not apply to fees incurred in defending any litigation that did not arise out of contract. claims in the Neither did the Chantels object to the reasonableness of the fees MEC sought; they merely argued they should not be punished for exercising their right to pursue a claim. The failure to challenge the reasonableness of a fee establishes its reasonableness. See Boltz & Odegaard v. Hohn, 148 Ariz. 361, 366, 714 P.2d 854, 859 (App. 1985); see also United States v. Globe Corp., 113 Ariz. 44, 51, 546 P.2d 11, 18 (1976) (because the appellant did not object to the award of costs and attorneys fees in the court below, the asserted error will not be considered in this Court ). 3 CONCLUSION ¶23 We affirm judgment in favor the of superior MEC on all complaint and on MEC s counterclaim. 3 court s counts grant in of the summary Chantels We grant MEC s request for Because we conclude the superior court did not err in awarding fees to MEC as the successful party pursuant to A.R.S. § 12-341.01(A), we need not address the court s alternate ruling imposing fees pursuant to A.R.S. § 12-349. 10 costs and reasonable attorney s fees on appeal pursuant to A.R.S. § 12-341.01(A), upon its compliance with Arizona Rule of Civil Appellate Procedure 21. ______________/s/________________ DIANE M. JOHNSEN, Judge CONCURRING: _______________/s/_________________ SAMUEL A. THUMMA, Presiding Judge _______________/s/_________________ MICHAEL J. BROWN, Judge 11

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