Hunter v. Barna

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HEIDI HUNTER, Plaintiff/Appellee,

v.

SZILVIA BARNA, Defendant/Appellant.

No. 1 CA-CV 22-0307
FILED 01-24-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-050682
The Honorable Mary Collins Cronin, Judge Pro Tempore

AFFIRMED

COUNSEL

Szilvia Barna, New River
Defendant/Appellant

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
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Decision of the Court

T H U M M A, Judge:

¶1 Defendant Szilvia Barna appeals from the grant of plaintiff
Heidi Hunter’s petition for an injunction against harassment. Because
Barna has shown no error, the injunction is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Barna and Hunter are neighbors in New River, Arizona, and
share a water well that has caused significant strife. In November 2021,
Hunter sued Barna, alleging contract breaches related to the well,
harassment, fraud and other claims. That 2021 case remains pending.

¶3 In January 2022, on behalf of Barna and her children, Barna’s
husband filed a petition for an injunction against harassment against
Hunter, which was dismissed before resolution. Then, in March 2022,
Hunter filed a petition for an injunction against harassment against Barna.
Hunter alleged Barna sent her e-mail messages with “hostile, threatening
language [] and defamation,” physically blocked Hunter’s contractors from
accessing her property and trespassed on Hunter’s property at night and
posted signs on the contractors’ tractor stating the contractors needed a
permit and were being surveilled.

¶4 At a March 2022 evidentiary hearing on Hunter’s petition,
Hunter testified about the e-mails Barna sent, describing them as
“alarming.” Hunter also testified that Barna blocked Hunter’s contractors
from accessing her property and that Barna trespassed onto Hunter’s
property at night to post signs on the contractors’ tractor. Barna denied
sending one of the e-mails Hunter submitted, testifying her husband sent
it. Barna also denied blocking the contractors, trespassing property or
posting a sign on the tractor, again testifying her husband was responsible.

¶5 At the end of the hearing, the court found Hunter had proven,
by a preponderance of the evidence, that Barna “has committed an act of
harassment or may commit an act of harassment in the future,” based on
the e-mail messages and contact with Hunter’s contractors. The court
issued the injunction against harassment and ordered the parties not to
communicate directly, other than “through attorneys, legal process, and
court proceedings” as well as through the U.S. Mail regarding the 2021 case
or regarding the well, and via e-mail in case of an emergency. The
courtroom clerk served Barna with the injunction against harassment.

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¶6 Barna timely appealed. This court has appellate jurisdiction
under Article 6, Section 9, of the Arizona Constitution and Ariz. Rev. Stat.
(A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(5)(b)(2023).1

DISCUSSION

¶7 Hunter’s failure to file an answering brief on appeal may be
considered a confession of error. See In re Marriage of Diezsi, 201 Ariz. 524,
525 ¶ 2 (App. 2002). Given a preference to resolve cases on their merits,
however, this court will address the issues Barna raises. Adams v. Valley
Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App.1984). Although reviewing issues
of law de novo, an order granting an injunction is reviewed for an abuse of
discretion. Mahar v. Acuna, 230 Ariz. 530, 534 ¶ 14 (App. 2012). A court
abuses its discretion “‘when the record, viewed in the light most favorable
to upholding the trial court’s decision, is devoid of competent evidence to
support the decision.’” Id. (citations omitted).

I. The Evidence Supports the Injunction Against Harassment.

¶8 Barna argues the evidence was insufficient to support the
injunction against harassment. Under A.R.S. § 12-1809, an injunction
against harassment may be granted “to prevent a person from committing
acts of harassment against another.” Ariz. R. Protect. Order P. 4(c). As
applicable here, “harassment” is defined as a “series of acts . . . directed at
a specific person” that would cause, and does cause, “a reasonable person
to be seriously alarmed, annoyed or harassed . . . and serves no legitimate
purpose.” A.R.S. § 12-1809(T)(1)(a). A “series of acts” requires at least two
incidents. LaFaro v. Cahill, 203 Ariz. 482, 486 ¶ 14 (App. 2002).

¶9 Hunter testified that Barna has a “long-standing pattern” of
“harassing communications” via e-mail. In one e-mail, Barna accused
Hunter of lying to the court about the 2021 case. In another, Barna accused
Hunter of forging bills, which Hunter described as “alarming” and a lie.
Hunter testified she had asked Barna to stop sending her e-mails due to
their “aggressive” nature, but Barna’s second e-mail came after that request.
Both e-mails were signed by Barna, who did not deny sending them. A third
e-mail was from a different e-mail address and not signed by Barna. Hunter,
however, testified that “Barna’s been known to use [this e-mail address] for
well business.” The e-mail called Hunter “stupid and insane,” told Hunter

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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to “cease and desist yourself” and asked Hunter to “stop sending e-mails.”
Barna denied sending this e-mail, stating her husband sent it.

¶10 Apart from these e-mail messages, Hunter testified Barna
physically blocked contractors from accessing Hunter’s property. When
contractors parked their tractor on Hunter’s property overnight, Barna
trespassed and posted signs on the tractor. The signs stated the contractors
needed a permit to work on the well and that Barna had recorded their
license plate numbers. Pictures of these signs were submitted into evidence.
Hunter testified the contractors did not do any work on the well site. Barna
admitted to stopping the contractors to ask what they were doing, but
testified she then left them alone without any “physical altercation.” Barna
denied trespassing, stating the tractor was not on Hunter’s property,
adding that her husband put the signs on the tractor. Barna also disputed
Hunter’s testimony about the work done by the contractors.

¶11 On this record, the superior court weighed the credibility of
the witnesses, and the conflicting evidence, and granted the injunction
against harassment. In doing so, the court cited Barna’s e-mails, describing
them as “very aggressive and not appropriate and [that they] serve no
legitimate purpose” and that Hunter’s contractors could perform work on
her property without a permit. This court defers to the superior court’s
weighing of evidence and determinations of witness credibility, Gutierrez v.
Fox, 242 Ariz. 259, 272 ¶ 49 (App. 2017), and will not reweigh credibility and
conflicting evidence on appeal, Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App.
2009). The record supports the court finding at least two acts of harassment
and, because Barna has not shown the court abused its discretion, the
injunction against harassment is affirmed.

II. Barna’s Other Arguments Show No Error.

¶12 Barna argues she did not receive proper notice of the hearing.
The record, however, shows Barna received notice of the deadline to submit
evidence in advance of the hearing and that she actively participated in the
hearing. Furthermore, Barna did not object to the notice in the superior
court, meaning it is waived on appeal. See Cont’l Lighting & Contracting, Inc.
v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011).

¶13 Barna next argues she submitted lettered exhibits that “were
dismantled and assigned numbers by the court on the date of the hearing
for reasons unexplained.” Consistent with apparent custom and practice,
the court used numbers (not letters) for exhibits at the hearing. The court
provided Barna with an exhibit worksheet for her to use and explained to

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Barna several times how her exhibits were numbered. Barna has shown no
error in the court’s use of numbers (not letters) for the exhibits.

¶14 Barna also argues the court communicated with Hunter ex
parte after she left the courtroom. After issuing the injunction against
harassment prohibiting Barna and Hunter from having contact, the court
had the parties leave the courtroom separately, with Barna leaving first and
Hunter leaving second. The court remained on the record, which shows
that, after Barna left, Hunter asked the clerk of court about scheduling for
an appeal. The transcript shows the court stated, “and if a hearing date gets
set, you’ll have to ask for a continuance” and “you might want to have
somebody check your mail.” The hearing then adjourned.

¶15 The court has the authority to control its courtroom, including
taking measures so that Hunter and Barna did not have contact with each
other as they were leaving court. Cf. Ariz. R. Evid. 611(a). The statements
by the court after Barna left were captured on the record, were non-
substantive and occurred after the court issued the injunction. See Ariz. R.
Sup.Ct. 81 E.R. 2.9(A); In re Est. of Long, 229 Ariz. 458, 463 ¶ 16 n.14 (App.
2012). On this record, Barna has shown no error.

¶16 Finally, Barna argues the superior court improperly
addressed issues in the 2021 case. The record, however, is to the contrary.
Several times, the court warned the parties not to discuss the 2021 case. And
the injunction against harassment makes clear that the parties can
communicate for the purposes of the 2021 case. Again, Barna has shown no
error.

CONCLUSION

¶17 The injunction against harassment is affirmed.

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

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