Scholtes v. Gonzales

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES SCHOLTES, et al., Plaintiffs/Appellants,

v.

MICHAEL GONZALES, et al., Defendants/Appellees.

No. 1 CA-CV 21-0290
FILED 2-1-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-004071
The Honorable Andrew J. Russell, Judge

AFFIRMED

COUNSEL

Law Office of Brian K. Stanley, Phoenix
By Brian K. Stanley
Counsel for Plaintiffs/Appellants

Burch & Cracchiolo, P.A., Phoenix
By Gregory A. Rosenthal, Matthew J. Skelly
Counsel for Defendants/Appellees
 SCHOLTES, et al. v. GONZALES, et al.
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.

W I L L I A M S, Judge:

¶1 James, Lorraine, and Danielle Scholtes appeal from the
superior court’s grant of summary judgment for Michael and Linda
Gonzales. For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2015, the Gonzaleses moved next door to the Scholtes.
Shortly after moving in, the Gonzales’ exterior wall closest to the Scholtes
home began to have “sticky spots on the wall” that “smelled like urine.”
Over the next several months, the smell became stronger and the sticky
spots on the wall near their trash and recycling bins increased. During the
same period-of-time, the Gonzaleses found “moldy food” thrown onto their
roof, “adult sex toys bearing Mrs. Gonzales’ name” on their driveway, and
“30-45 used syringes” near their trash bin and in their side yard. In 2016, a
package “disguised” as having been delivered by the postal service, and
addressed to Mrs. Gonzales, was left at the Gonzales home. The package
contained a letter stating the sender had an affair with Mr. Gonzales and
contained a pair of women’s underwear.

¶3 The Gonzaleses placed a security camera on their roof that
overlooked their side yard and “captured a portion” of the Scholtes’ side
and back yard. In May 2016, the camera recorded Mr. Scholtes (hereinafter
“James”), a diabetic who used syringes regularly, “urinating into a bucket”
in his side yard. James also admitted to doing so on other occasions. Within
minutes of relieving himself, James walked out of view of the camera while
holding the bucket -- then the surveillance recording shows “a splash of
liquid” traveling over the six-foot tall cinderblock wall separating the two
properties and onto the Gonzales’ property. According to the Scholtes,
Danielle, their adult disabled daughter with the mental capacity of a
one-year-old, could not be left alone. James stated he relieved himself in
front of his daughter in his side yard so he would not leave her unattended.

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¶4 In 2018, the Scholtes sued the Gonzaleses for the placement of
the camera overlooking portions of their side and back yards and for
recording James. The complaint alleged negligence, invasion of privacy,
and intentional infliction of emotional distress (“IIED”).

¶5 The Gonzaleses moved for judgment on the pleadings. The
superior court granted judgment in favor of the Gonzaleses only on the
negligence claim.

¶6 Once discovery was complete, the Gonzaleses moved for
summary judgment on both remaining claims (invasion of privacy and
IIED). With their motion for summary judgment, the Gonzaleses provided
a statement of facts that included several exhibits such as affidavits,
deposition transcripts, and still frame photos from the surveillance
recording. The Scholtes opposed the motion, noting their objection to some
of the Gonzales’ offered exhibits, but provided no controverting evidence
of their own. After oral argument the superior court granted summary
judgment for the Gonzaleses, stating, in part:

[O]n summary judgment, you don’t have to present your
whole case, but you have to present evidence to show . . . that
there is a disputed issue of fact that the jury needs to decide.

And there was no evidence attached to [the Scholtes’]
response to the motion for summary judgment. There is no
affidavits, no photographs, no nothing. And so because of
that, all the allegations in the motion and in the [Gonzaleses]
statement of facts attached to the motion for summary
judgment are uncontroverted.

. . . [T]here’s no evidence on the record of any damages.

There’s no evidence in the record that the actions rise to the
level that would support an [IIED] claim.

. . . [I] don’t think that we have a reasonable expectation of
privacy to urinate on the side of our house.

. . . So I am granting the motion for summary judgment . . . .

¶7 The Scholtes unsuccessfully moved for reconsideration, and
then timely appealed. This court has jurisdiction under Article 6, Section 9,
of the Arizona Constitution and A.R.S. § 12-2101(A)(1).

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DISCUSSION

I. Summary Judgment

¶8 This court reviews a grant of summary judgment de novo,
Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 16 (App. 2010),
“view[ing] the facts and reasonable inferences in the light most favorable to
the non-prevailing party,” Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11
(2017).

¶9 Summary judgment is appropriate when 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). A party opposing a properly supported motion for summary
judgment cannot “rely merely on allegations or denials of its own pleading”
but “must, by affidavits or as otherwise provided in [Rule 56 of the Arizona
Rules of Civil Procedure], set forth specific facts showing a genuine issue
for trial.” Ariz. R. Civ. P. 56(e); see also Sato v. Van Denburgh, 123 Ariz. 225,
228 (1979) (providing that a non-moving party must “present, either by
affidavit or some other evidence, facts controverting the [moving party’s]
affidavit”). Evidence that “may provide a ‘scintilla’ or create the ‘slightest
doubt’” is not sufficient to withstand a motion for summary judgment.
Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). “If the opposing party does
not [properly] respond [to a properly supported motion for summary
judgment], summary judgment, if appropriate, shall be entered against that
party.” Ariz. R. Civ. P. 56(e); see also Schwab v. Ames Const., 207 Ariz. 56, 60,
¶ 16 (App. 2004) (providing that when the non-moving party fails to
properly respond the superior court “will presume that any uncontroverted
evidence favorable to the movant, and from which only one inference can
be drawn, is true”).

a. The superior court appropriately considered evidence submitted by the
Gonzaleses.

¶10 In their opening brief, the Scholtes contend the superior court
erred by considering the following evidence in granting summary
judgment for the Gonzaleses: 1) Michael Gonzales’ affidavit which the
Scholtes argue lacked foundation of “personal knowledge of the identities
of persons who had made complaints to Glendale city departments”; 2) an
out-of-court statement by a peace officer; 3) a “photo for which no
foundation was laid”; and 4) various exhibits or statements of fact that were
“not probative.” The Scholtes, however, provide no legal authority to
support their position.

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¶11 In deciding a motion for summary judgment, the superior
court considers “those portions of the verified pleadings, deposition,
answers to interrogatories and admissions on file which are brought to the
court’s attention by the parties.” Tilley v. Delci, 220 Ariz. 233, 236, ¶ 10 (App.
2009) (alteration in original) (quoting Choisser v. State ex rel. Herman, 12 Ariz.
App. 259, 261 (1970)). When the Scholtes elected to provide no competent
evidence of their own to create a genuine issue of material fact, they did so
at their own peril. See Choisser, 12 Ariz. at 261 (“[A]n adverse party who fails
to respond does so at his peril because uncontroverted evidence favorable
to the movant, and from which only one inference can be drawn will be
presumed to be true.”). The superior court did not err in considering the
evidence provided by the Gonzaleses.

b. The superior court appropriately granted the Defendants summary
judgment on the Plaintiffs’ invasion of privacy claim.

¶12 An invasion of privacy claim based on intrusion upon
seclusion requires proof that the defendant “intentionally intrude[d],
physically or otherwise, upon the solitude or seclusion of another or his
private affairs or concerns, . . . [and] the intrusion would be highly offensive
to a reasonable person.” Restatement (Second) of Torts § 652B (1977); see
also Hart v. Seven Resorts Inc., 190 Ariz. 272, 279-80 (App. 1997) (recognizing
and adopting § 652B). A defendant can be liable under this section only
when they have “intruded into a private place, or has otherwise invaded a
private seclusion that the plaintiff has thrown about his person or affairs.”
Restatement (Second) of Torts § 652B cmt. c.

¶13 The uncontroverted record shows the Gonzaleses recorded
portions of the Scholtes side and back yards after urine was repeatedly
thrown onto the Gonzales’ home, moldy food onto their roof, and sex toys
onto their property. The uncontroverted record also shows James urinating
outside into a bucket shortly before a liquid is tossed over the wall and onto
the Gonzales property. Certainly the “intrusion” of the camera and
recording on this record would not be highly offensive to a reasonable
person. And even if arguendo it were, the Scholtes have shown no damages.
The superior court did not err in granting summary judgment on the
invasion of privacy claim. See Ariz. R. Civ. P. 56(e).

c. The superior court correctly granted the Defendants summary
judgment on the Plaintiffs’ IIED claim.

¶14 “To prevail [in an IIED claim], plaintiff must show: (1) that the
defendant[‘s] conduct could be characterized as ‘extreme and outrageous’;

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(2) that [the] defendant[] either intended to cause or recklessly disregarded
the near certainty that emotional distress would result from their conduct;
[and] (3) that the defendant[‘s] conduct actually caused severe emotional
distress.” Nelson v. Phx. Resort Corp., 181 Ariz. 188, 199 (App. 1994). The
court must preliminarily determine whether the conduct may be
considered so outrageous and extreme to permit recovery. Id.; see also
Restatement (Second) of Torts § 46 (1965). This issue may only go on to the
jury where “reasonable [minds] may differ.” Restatement (Second) of Torts
§ 46 cmt. h.

¶15 As with the invasion of privacy claim, the record contains
uncontroverted facts. Nowhere within the record is there any evidence of
the Scholtes suffering emotional distress or damages of any kind. Summary
judgment for the Gonzaleses on the IIED claim was appropriate.

II. Attorneys’ Fees, Costs, and Sanctions on Appeal

¶16 The Gonzaleses request their attorneys’ fees and costs on
appeal under A.R.S. § 12-349, as well as sanctions under Arizona Rule of
Civil Appellate Procedure (“Rule”) 25. In our discretion, we deny the
request for sanctions but award the Gonzaleses their reasonable attorney’s
fees and costs upon compliance with Rule 21.

CONCLUSION

¶17 We affirm summary judgment for the Gonzaleses.

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

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