Ohmstedt v. Ohmstedt

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re The Matter of

ADRIEL OHMSTEDT, Petitioner/Appellee,

v.

THOMAS OHMSTEDT, Respondent/Appellant.

No. 1 CA-CV 19-0408 FC
FILED 6-30-2020

Appeal from the Superior Court in Maricopa County
No. FN2019-052896

The Honorable Brian S. Rees, Judge Pro Tempore

AFFIRMED

COUNSEL

Canterbury Law Group, LLP, Scottsdale
By Jonathan P. Ibsen & Craig P. Cherney
Counsel for Petitioner/Appellee

MAYESTELLES, PLLC, Phoenix
By Candy Marrufo
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.

P E R K I N S, Judge:

¶1 Thomas Ohmstedt appeals the superior court’s grant and
affirmation of an order of protection against him. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the record in the light most favorable to upholding
the trial court’s decision. Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App.
2014).

¶3 Thomas is the half-brother of Adriel Ohmstedt. Around
February 2016, Thomas was the acting manager of Phoenix Custom Mobile
Home Park (“Park”). During his tenure, he resided in the office trailer at the
Park (“Office Unit”), which is an ordinary trailer with an office extension
attached. The Park is a family business; Thomas, Adriel and other members
of the family own shares of the entire enterprise.

¶4 After a falling out that February, the family voted to remove
Thomas as acting manager. They told Thomas to remove his belongings
from the Office Unit. Thomas voluntarily left the Park for three or four
months to travel. He then returned to live in the Office Unit, however, and
refused to vacate. Thomas did not pay rent during this period, nor did he
receive a salary after his 2016 termination, though he did receive a portion
of the business profits as a shareholder.

¶5 Between 2016 and 2019, Thomas constantly badgered Adriel
with obscene and offensive comments, often calling him a “fucking piece of
shit,” threatened Adriel with a “finger to the throat gesture,” and placed
Adriel in physical danger by swerving his bike into Adriel’s path to cause
a collision.

¶6 Thomas also racked his rifle around Adriel. On April 4, Adriel
and his co-worker Ed were in the office extension of the Office Unit when

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they heard what Adriel later characterized as the “slide of a gun, the ch-ch.”
Adriel asked Ed what he heard, to which Ed responded, “Yeah. That’s a
gun.” As they left the office, they saw Thomas, but did not see a gun in his
hand. Thomas followed Adriel “breathing down [Adriel’s] shoulder, down
[Adriel’s] neck” until they reached the bottom of the stairs outside the
trailer. At the bottom of the stairs, Thomas opened a mailbox, slammed it
shut, glared at Adriel and went back inside. Adriel testified that Thomas
owns a .30 caliber rifle.

¶7 Adriel then filed a petition for an order of protection to bar
Thomas from the Office Unit and the Park generally. The court issued an
order of protection (the “Order”), excluding Thomas from the Park as a
whole (as Adriel’s workplace), and Adriel’s unit in particular. Thomas
requested a hearing on the order of protection. Adriel testified on his own
behalf and Thomas’s counsel cross-examined him. At the conclusion of the
hearing the judge found Adriel credible and affirmed the Order based on
the continuing harassment, as well as the gun-racking and bike-swerving
incidents. The court denied a motion by Thomas’s counsel to have the office
trailer excluded from the Order. Thomas filed a motion for reconsideration,
which the court denied. Thomas timely appealed.

DISCUSSION

¶8 As the trial court is in the best position to evaluate the
credibility of witnesses, we generally defer to its findings of fact. Goats v.
A.J. Bayless Markets, Inc., 14 Ariz. App. 166, 170 (1971). We will not reweigh
evidence or credibility determinations on appeal. Clark v. Kreamer, 243 Ariz.
272, 276, ¶ 14 (App. 2017). We review the grant of an order of protection for
abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). We
review due process claims de novo. Mack v. Cruikshank, 196 Ariz. 541, 544,
¶ 6 (App. 1999).

I. Due Process

¶9 Thomas first argues that the trial court violated his due
process rights by “effectively evicting” him from the office trailer that
served as his residence. Both the United States and Arizona Constitutions
prohibit the deprivation of life, liberty, or property without due process of
law. U.S. Const. amend. XIV; Ariz. Const. art. 2, § 4. Due process protections
include a substantive component, which “protects an individual from
government interference with ‘rights implicit in the concept of ordered
liberty.’” Simpson v. Owens, 207 Ariz. 261, 267, ¶ 17 (App. 2004) (quoting
United States v. Salerno, 481 U.S. 739, 746 (1987)).

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¶10 Thomas argues that the trial court violated his due process
rights by excluding him from the Office Unit despite Adriel’s failure to
present evidence of harm. But this argument misstates the test. “A judicial
officer . . . may grant the plaintiff exclusive use of the parties’ residence if
there is reasonable cause to believe that physical harm otherwise may
result.” Ariz. R. Protective Ord. P. (“ARPOP”) 23(h)(2) (emphasis added).
Adriel established that he worked in the Office Unit and that Thomas
threatened and harassed him there. Thus, the record supports a finding that
allowing Thomas to remain in the Office Unit “may result” in harm to
Adriel. The trial court did not abuse its discretion.

II. Allegation of Domestic Violence

¶11 Next, Thomas argues that the trial court abused its discretion
by granting a petition that did not include an allegation of domestic
violence. A petition for an order of protection must allege an act of domestic
violence as defined by A.R.S. § 13-3601. Savord, 235 Ariz. at 259, ¶ 12. To
grant an order when a petition has not alleged an act of domestic violence
constitutes an abuse of discretion. Id.

¶12 The court entered the Order after finding Thomas committed
harassment against Adriel. The offense of harassment constitutes domestic
violence when committed against persons including “[victims] related. . .
to the defendant. . . by blood” or “between . . . persons residing or having
resided in the same household.” A.R.S. § 13-3601(A) (listing harassment
under A.R.S. § 13-2921 as a domestic violence offense); (A)(1)–(A)(4)
(describing relationships necessary for an offense to constitute domestic
violence). “A person commits harassment if, with intent to harass or with
knowledge that the person is harassing another person, the person . . .
communicates . . . with another person . . . in a manner that harasses.” A.R.S.
§ 13-2921(A), (A)(1).

¶13 As relevant here, the statute defines “harassment” as
“conduct 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.” A.R.S. §
13-2921(E). Thomas argues that Adriel failed to allege in his petition that he
was “in fact” alarmed, annoyed, or harassed, and that Adriel thus failed to
allege the complete offense of harassment.

¶14 But Adriel’s petition satisfies Rule 8’s requirement that a
petition contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” “Under Arizona’s notice pleading rules, it is

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not necessary to allege the evidentiary details of plaintiff’s claim for relief.”
Verduzco v. Amer. Valet, 240 Ariz. 221, 225 (App. 2016); see also Ariz. R. Civ.
P. 8(a)(2). “[K]nowledge, and other conditions of a person's mind may be
alleged generally.” Ariz. R. Civ. P. 9(b). The court did not abuse its
discretion.

III. Trial Court’s Findings of Fact

¶15 Thomas contends that the trial court did not make the factual
findings necessary to exclude him from the Office Unit. We review a trial
court’s decision to affirm an order of protection for abuse of discretion.
Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). “To find an abuse of
discretion, there must either be no evidence to support the superior court's
conclusion or the reasons given by the court must be ‘clearly untenable,
legally incorrect, or amount to a denial of justice.’” Charles I. Friedman, P.C.
v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006) (quoting State v.
Chapple, 135 Ariz. 281, 297 n.18 (1983). A court may grant an order of
protection if “reasonable cause exists that to believe that the defendant may
commit an act of domestic violence or has committed an act of domestic
violence within the past year . . . .” ARPOP 23(e). The court made these
necessary findings.

¶16 Thomas’s counsel correctly points out that “even squatters
have rights.” But there is no authority that mandates a trial court must
proceed with eviction proceedings after issuing the Order. In an order of
protection, the court may “grant the plaintiff exclusive use of the parties’
residence if there is reasonable cause to believe that physical harm
otherwise may result.” ARPOP 23(h)(1). The court appropriately granted
exclusive control of the Office Unit to Adriel, even though Thomas used a
portion of the Office Unit as his residence. The court did not abuse its
discretion.

IV. Hearsay

¶17 Finally, Thomas first argues on reply that the court accepted
inadmissible hearsay evidence when Adriel testified that his co-worker Ed
heard the gun-racking. By failing to raise and develop this issue in his
opening brief, Thomas waived this argument. Ariz. Dep’t of Revenue v.
Ormond Builders, Inc., 216 Ariz. 379, 385, ¶ 24 n.7 (App. 2007) (“We will not
address arguments raised for the first time in the reply brief.”).

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V. Attorney’s Fees

¶18 Adriel requested attorney’s fees on appeal pursuant to A.R.S.
§ 25-324(A), ARCAP 25, and A.R.S. §§ 12-349(A)(1) and (3). Section 25-
324(A) does not apply to this case. In our discretion, we decline to award
fees under ARCAP 25 or A.R.S. § 12-349(A).

CONCLUSION

¶19 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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