PARKNAVY v. WHITE

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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 CHARLES B. PARKNAVY, a single man, ) ) ) Plaintiff/Appellant, ) ) v. ) ) WILLIAM S. WHITE, JR. and LEE ANN ) WHITE, husband and wife, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 06/18/2013 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CV 12-0542 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yavapai County Cause No. P1300CV20081446 The Honorable Anna C. Young AFFIRMED Fortner Law Firm, P.C. By William B. Fortner Attorney for Plaintiff/Appellant Prescott Suits Law Firm, P.L.C. By Douglas J. Suits Attorney for Defendants/Appellees Prescott T H O M P S O N, Judge ¶1 Plaintiff/Appellant Charles Parknavy (Parknavy) appeals the superior court s grant of summary judgment in favor of Defendant/Appellee William White (White). We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 This appeal arises neighbors, Parknavy and White. lots in the Appaloosa out of a conflict between Parknavy and White own adjoining Meadows community and are bound by a recorded declaration of covenants, conditions, and restrictions for Appaloosa Meadows (Declaration). In his original complaint, Parknavy alleged that the Whites were operating a commercial dog-breeding facility in violation of the Declaration, allowed their dogs to roam at large, trespass on Parknavy s property, and harass him and his cats in violation of the Declaration and Chino Valley Town Code. The superior court dismissed Parknavy s claims that alleged a private right of action under the Chino Valley Town Codes, but held that Parknavy adequately stated a claim for breach of the Declaration and for injunctive relief. 1 Thereafter, Parknavy sought to amend his complaint five times. ¶3 The superior court denied his fourth motion to amend the complaint, but thereafter the parties agreed to, and the court 1 approved, Parknavy s denied. the request filing for a of Parknavy s preliminary 2 fifth injunction amended was later complaint. Parknavy s fifth amended complaint is the operative complaint here and it consists of only two counts: breach of contract (the Declaration) and negligence. ¶4 White filed a motion for summary judgment and separate statement of facts supporting his motion. Parknavy filed an opposition; but instead of filing a controverting statement of facts, he filed an affidavit identifying the exhibits he intended to use at trial and expected trial witnesses. ¶5 The superior court granted White s motion for summary judgment and Parknavy timely his subsequent appealed. application We have for attorneys jurisdiction fees. pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (Supp. 2012). DISCUSSION ¶6 Our review of summary judgment is de novo. Great Am. Mortg., Inc. v. Statewide Ins. Co., 189 Ariz. 123, 125, 938 P.2d 1124, 1126 (App. 1997). Summary judgment is appropriate there are no genuine issues as to any material fact. if Ariz. R. Civ. P. 56(c)(1); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We review the evidence in the light most favorable to the party against whom summary judgment was entered. TWE Ret. Fund Trust v. Ream, 198 Ariz. 268, 271, ¶ 11, 8 P.3d 1182, 1185 (App. 2000). 3 ¶7 When moving for summary judgment, the moving party bears the initial burden of showing that there are no issues of fact. Berry v. Robotka, 9 Ariz. App. 461, 466, 453 P.2d 972, 977 (1969). It is then the responsibility of the party opposing the to motion come forward with a showing that there is competent evidence so as to create a factual issue for the trier of fact; the resisting party cannot rely upon its pleadings to meet this burden. Id. If the party with the burden of proof on the claim or defense cannot respond to [a summary judgment] motion by showing that there is evidence creating a genuine issue of fact on the element in question, then . . . summary judgment should be granted. P.2d at 1009. Parknavy Orme Sch., 166 Ariz. at 310, 802 argues that his affidavit presented enough evidence that there is a material fact in dispute to avoid summary judgment. Breach of contract ¶8 We contract. because first analyze Parknavy s claim for breach of The superior court granted White summary judgment it held that Parknavy had not met his burden of producing sufficient evidence to show that there is a genuine issue of material fact to try. We will generally affirm the superior court s judgment if it can be sustained on any theory framed by the pleadings and supported 4 by the evidence. Coronado Co., Inc. v. Jacome's Dept. Store, Inc., 129 Ariz. 137, 139, 629 P.2d 553, 555 (App. 1981). ¶9 Deed restrictions are a contract between the subdivision's property owners as a whole and the individual lot owners. Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 47, ¶ 19, 226 P.3d 411, 416 (App. 2010) (citation omitted). Interpretation of a contract is a question of law, which we resolve independently of the trial court. See Ariz. Biltmore Estates Ass'n v. Tezak, 177 Ariz. 447, 448, 868 P.2d 1030, 1031 (App. 1993). The long-established rule in Arizona is that when a restrictive covenant is unambiguous, it is enforced so as to give effect to the intent of the parties. Powell v. Washburn, 211 Ariz. 553, 556, ¶ 9, 125 P.3d 373, 376 (2006); Biltmore Estates, 177 Ariz. at 449, 868 P.2d at 1032 ( [T]he cardinal principle in construing restrictive covenants is that the intention of the parties to the instrument is paramount. ). ¶10 Parknavy argues that he presented evidence of a valid contract between the parties which prohibited White from allowing his dogs to enter Parknavy s property, and that his affidavit included sufficient evidence that White s dogs entered his property to avoid summary judgment. ¶11 The Declaration is not a contract between Parknavy and White, as Parknavy asserts. Rather, it is a contract between 5 the Appaloosa Meadows community and White. 224 Ariz. at 47, ¶ 19, 226 P.3d at 416. See Dreamland Villa, Section 2.05(C) of the Declaration requires homeowners to keep their pets confined or under their control: [a]ll domestic household pets shall be kept on a leash not to exceed six (6) feet in length when outside its Owner s Lot and all animals shall be directly under the Owner s Declaration control when provides that not if on an the owner Owner s Lot. violates any The of its provisions, the board may impose an assessment against the owner of up to two hundred dollars payable to the association for each violation. Additionally, Section 6.04(A) provides that any owner has the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens or charges now or hereafter imposed by provision of this Declaration. ¶12 Thus, under the clear and unambiguous terms of the Declaration, even though the Declaration is not a contract between Parknavy and White, Parknavy had the right to bring a lawsuit to Declaration. enforce the restrictions set forth in the The problem is that Parknavy s breach of contract claim seeks to collect damages he suffered personally due to White s failure to confine or control his dogs as required by Section 2.05(C). Section 6.04(A) only allows an owner to sue to 6 enforce the covenants, conditions, and restrictions set forth in the Declaration, or assessments imposed due to violations of the Declaration. It does not provide that an owner has a right to sue for a breach of the Declaration and recover damages on his own behalf for another owner s violation of the Declaration. See Coll. Book Ctrs., Inc. v. Carefree Foothills Homeowners' Ass'n, 225 Ariz. 533, 537, ¶ 11, 241 P.3d 897, 901 (App. 2010) ( We interpret Restatement restrictive (Third) of covenants Property: in accordance Servitudes § with 4.1(1) the (2000), which gives effect to the intention of the parties as determined from the language, as well as the circumstances and purposes relating to its creation. ). Therefore, as a matter of law, Parknavy recover is not entitled to damages he personally suffered as a result of White s violation of the Declaration. For this reason, White was entitled to summary judgment on Parknavy s breach of contract claim. Negligence ¶13 Parknavy s second claim is for negligence. Specifically, he alleges that on one occasion when White failed to control his dogs, one of the dogs came onto his property and injured him. To prevail on a claim for negligence, Parknavy must prove four elements: (1) a duty requiring White to conform to a certain standard of care; 7 (2) White s breach of that standard; (3) a causal connection between White's conduct and the resulting injury; and (4) actual damages. See Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). ¶14 and Parknavy claimed that when White s dog attacked him his cats on January 5, 2009, as he turned he felt tremendous pain in his back on the left side and also twisted his knee. 2 that In his motion for summary judgment, White claimed Parknavy Parknavy could suffered not was provide evidence proximately caused that by any injury White s dog attacking him. ¶15 Parknavy s To support deposition his motion, testimony White attached establishing portions that of before the January 5th incident, Parknavy suffered from the following preexisting injuries: (1) a herniated disc requiring surgery in 1979; (2) chronic sciatica and back pain; (3) leg surgery in 1994 requiring plates and screws; (4) general pain off and on in his left leg; and (5) arthritis throughout his body. Parknavy also testified at his deposition that no medical provider had said that the injuries he was suffering from at the time of the deposition were directly related to the January 5th incident. 2 These specific complaint. details were not 8 included in the operative ¶16 White argues that Parknavy was required to designate a medical expert to testify as to causation, and his failure to identify any such expert requires summary adjudication. 3 Although the general rule is that an expert witness must provide medical causation negligence cases. testimony, that rule applies to medical And, even in a medical negligence case, a medical expert is not necessary to establish proximate causation if a causal relationship is readily apparent to the trier of fact. Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16, 231 P.3d 946, 951 (App. 2010) (quoting Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d negligence 925, 928 action. (App. No 1985)). expert This testimony is is not needed proximate causation in a general negligence case. a medical to prove Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990) (A plaintiff need only present probable facts from which the causal relationship reasonably may be inferred. ). 3 White relies on Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000), to support this proposition. In Logerquist, the plaintiff appealed the trial court s order precluding expert testimony of her alleged repressed memory that she was sexually abused by her pediatrician. Id. at 472, ¶ 5, 1 P.3d at 115. The Supreme Court granted review to clarify Rule 702, Arizona Rules of Evidence, which governs the admissibility of opinion testimony. Id. at 471, ¶ 1, 1 P.3d at 114. Logerquist has no application to this case. 9 ¶17 jury Causation is generally a question of fact for the unless plaintiff reasonable had proved persons this could element. not conclude Barrett v. Ariz. 374, 378, ¶ 12, 86 P.3d 954, 958 (App. 2004). that Harris, a 207 A plaintiff may prove proximate causation by presenting facts from which a causal connection can be inferred, but cannot leave causation to the jury s speculation. Salica, 224 Ariz. at 419, ¶ 16, 231 P.3d at 951. ¶18 After White called into question the issue of proximate causation, the burden was on Parknavy to present some evidence of proximate causation. The only evidence offered in opposition to White s motion for summary judgment was Parknavy s affidavit, and it contains no facts that would allow us to infer a causal connection between the incident and his injuries. In his reply brief, Parknavy argues that he intended to testify at trial to the pain and suffering he experienced as a result of White's dog s attack. In order to avoid summary judgment, it was incumbent on Parknavy to submit an affidavit to that effect in opposition to White s motion. his unverified pleadings. Parknavy cannot simply rest on See Berry, 9 Ariz. App. at 466, 453 P.2d at 977. ¶19 Nor does the January 5th police incident report, which Parknavy attached as an exhibit to his affidavit, provide any 10 facts from which we may infer proximate cause. In that report, Parknavy told the officer that White s dog scared his cat and his cat clawed him (Parknavy) on the leg. Parknavy reported no other injury despite the fact that both he and White had informed the officer that they had hired attorneys and the officer advised both parties [he] was going to document the incident. 4 Because Parknavy failed to provide any evidence establishing a causal connection between the incident and his injuries, the superior court properly granted summary judgment in favor of White on the negligence claim. ¶20 White seeks an award of attorneys fees on appeal under A.R.S. § 12-341 (2003) and Arizona Rule of Civil Appellate Procedure 12. 5 In our discretion, we decline to award attorneys fees. 4 The officer testified at the preliminary injunction hearing that being clawed by his cat was the only injury that he could recall that Parknavy complained of suffering as a result of the January 5th incident. 5 We presume White meant Arizona Rule of Civil Appellate Procedure 21. 11 CONCLUSION ¶21 For the foregoing reasons, we affirm. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ JOHN C. GEMMILL, Presiding Judge /s/ DONN KESSLER, Judge 12

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