Nava-Amaya v. Horstman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DORA ELIZABETH NAVA-AMAYA, Plaintiff/Appellant,

v.

JANICE HORSTMAN, Defendant/Appellee.

No. 1 CA-CV 22-0736
FILED 11-30-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-052444
The Honorable Gary L. Popham, Judge Pro Tempore

AFFIRMED IN PART, DISMISSED IN PART

COUNSEL

Dora Elizabeth Nava-Amaya, Phoenix
Plaintiff/Appellant

Vial Fotheringham, LLP, Mesa
By Christina N. Morgan
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 Dora Elizabeth Nava-Amaya appeals the superior court’s
dismissal of her injunction against harassment and award of attorneys’ fees
in favor of Janice Horstman. For the following reasons, we affirm the
dismissal of the injunction, but dismiss the attorneys’ fee appeal because
we lack jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2022, Nava-Amaya petitioned for an injunction
against harassment against Horstman, who served as the president of the
community homeowner’s association (“HOA”) board where Nava-Amaya
and Horstman lived. Nava-Amaya alleged Horstman stole Nava-Amaya’s
property, verbally harassed Nava-Amaya, and instructed a contractor to
take Nava-Amaya’s property. The superior court granted the ex parte
injunction, and Nava-Amaya served Horstman the next month. Horstman
requested a contested hearing, and the superior court held the hearing over
three days in October and November 2022.

¶3 Several days before the first hearing date, Nava-Amaya
moved to continue to subpoena witnesses. The superior court denied the
motion, but Nava-Amaya later subpoenaed five witnesses, all of whom
appeared on the second day of the hearing.

¶4 On the first day of the hearing, the superior court granted
some of Nava-Amaya’s accommodation requests, including her request for
an interpreter.

¶5 On the second day, Nava-Amaya complained about
perceived issues with the interpreter, including that she was hearing “a lot
of interference” and “noise.” Nava-Amaya also alleged that Horstman was
trying to coach a witness’s testimony during Nava-Amaya’s direct
examination. The superior court acknowledged Nava-Amaya’s allegation
but said the court did not see Horstman doing so. Finally, Nava-Amaya
sought to amend her petition, but the superior court denied her request.

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¶6 Less than a week before the third day, Nava-Amaya moved
to continue the hearing until January 2023, stating she scheduled surgery
and would be unable to appear at the November 10 hearing. The superior
court denied the motion.

¶7 Nava-Amaya failed to appear on the third hearing day. The
superior court dismissed the injunction after finding Horstman’s actions
did not meet the definition of harassment under Arizona Revised Statutes
(“A.R.S.”) section 12-1809(T).1 The court reasoned that Horstman, as board
president, had Nava-Amaya’s property removed to comply with the
HOA’s prohibition on residents placing personal property in common
areas.

¶8 Horstman filed a motion for attorneys’ fees and mailed the
motion to Nava-Amaya on November 14, 2022. The superior court granted
the motion on December 1, 2022 and the clerk filed the judgment the next
day.

DISCUSSION

I. We have jurisdiction to review the injunction against harassment,
but we lack jurisdiction over the attorneys’ fees award.

¶9 We have jurisdiction over Nava-Amaya’s timely appeal of the
superior court’s dismissal of the injunction against harassment under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(5)(b). See also Ariz. R. Prot. Order P. 42.

¶10 Although Horstman concedes that the superior court
prematurely granted her motion, we lack jurisdiction over the attorneys’
fees award.2 The attorneys’ fees judgment resolved the last issue before the
court, so it should have been certified as a final judgment under Rule 54(c)
of the Arizona Rules of Civil Procedure. See Ariz. R. Civ. P. 54(c); Brumett
v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 426, ¶ 6 (App. 2016). The
attorneys’ fee judgment directed the clerk to “enter judgment forthwith as

1 As is relevant here, A.R.S. § 12-1809(T)(1)(a) defines harassment as: “[a]

series of acts over any period of time 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 and serves no legitimate purpose.”

2 Neither party has raised the issue, but we have an independent duty to

assess jurisdiction. Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13 (App. 2019).

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there exists no cause or reason for delay” but the court did not certify it
under Rule 54(c). Thus, we have no jurisdiction.

II. Nava-Amaya’s arguments involving pre-hearing errors and
errors during the contested hearing are not moot.

¶11 Nava-Amaya alleges she was denied due process and the
superior court committed other errors before and during the contested
hearing. Nava-Amaya served the injunction against harassment on
Horstman on September 1, 2022. An injunction against harassment expires
one year after the defendant is served. See Ariz. R. Prot. Order P. 25(i);
A.R.S. § 12-1809(J). Thus, if it had not been dismissed, Nava-Amaya’s
injunction would have expired on September 2, 2023. See State v. Lychwick, 222 Ariz. 604, ¶ 1 (App. 2009) (“[I]n determining the validity of an
injunction against harassment, the date of service is not included in the ‘one
year’ calculation.”).

¶12 We generally do not consider moot questions.3 See Cardoso v.
Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012). An appeal is moot when our
decision will not impact the parties. Id. Even so, we may consider the
merits when it raises an issue of great public importance or one capable of
repetition but evading review. Id.; see also LaFaro v. Cahill, 203 Ariz. 482,
485, ¶ 9 (App. 2002). We may also consider the merits when the party risks
suffering collateral consequences. Cardoso, 230 Ariz. at 618–19, ¶¶ 10–14.
Moreover, we prefer to resolve a case on its merits, so we will address Nava-
Amaya’s arguments. Ramos v. Nichols, 252 Ariz. 519, 523, ¶ 13 (App. 2022).

III. Nava-Amaya has either waived her arguments, or they are
meritless.

¶13 Nava-Amaya argues she was denied due process because the
superior court denied her accommodations under the Americans with
Disabilities Act, allowed her interpreter to use malfunctioning equipment,
and dismissed her allegation that Horstman was directing a witness’s
testimony. Nava-Amaya also argues that the superior court erred by
dismissing her two motions to continue. Nava-Amaya, however, did not
object on due process grounds in the superior court, and she has cited no
legal authority supporting her argument the superior court erred by
denying her motions to continue, so she has waived these claims on appeal.

3 The parties have not raised mootness as an issue, but we may raise it on

our own initiative. See Contempo-Tempe Mobile Home Owners Ass’n v.
Steinert, 144 Ariz. 227, 230 (App. 1985).

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See Romero v. Sw. Ambulance, 211 Ariz. 200, 203–04, ¶¶ 6–7 (App. 2005)
(“[W]e generally do not consider issues, even constitutional issues, raised
for the first time on appeal.” (citations omitted)); Arizona Rules of Civil
Appellate Procedure (“ARCAP”) 13(a)(7)(A); Cruz v. City of Tucson, 243
Ariz. 69, 75, ¶ 23 (App. 2017).

¶14 Finally, Nava-Amaya argues the superior court erred in
denying her request to amend her petition. We review the application and
interpretation of court rules de novo. Duckstein v. Wolf, 230 Ariz. 227, 231,
¶ 8 (App. 2012). Rule 38(d) of the Arizona Rules of Protective Order
Procedure states:

At a contested hearing, if a plaintiff seeks to testify or present
evidence about relevant allegations that were not included in the
petition, the court must:

(1) allow the plaintiff to amend the petition in writing on a form
provided by the court, a copy of which the court must immediately
provide to the defendant . . .

Ariz. R. Prot. Order P. 38(d).4

¶15 The superior court denied Nava-Amaya’s amendment,
stating she “would have had to amend [her] petition in advance of [the]
hearing.” The court should have considered the allegation and, if relevant,
provided Nava-Amaya with a form to amend her petition. But Nava-
Amaya was not harmed by the denial because the court could have
dismissed the injunction when she failed to appear on the third day of the
hearing. See Ariz. R. Prot. Order P. 38(f)(2) (“If the defendant appears for
the contested hearing and the plaintiff fails to appear, and the plaintiff
received actual notice of the hearing, the protective order will be
dismissed.”). Nava-Amaya had actual notice of the continued hearing date
because she was present when the court scheduled it. Accordingly, the
exclusion of evidence was harmless. See Town of Paradise Valley v. Laughlin, 174 Ariz. 484, 486–87 (App. 1992) (“[A]n error is harmless if there is no
reasonable probability the verdict might have been different.” (citation
omitted)).

4 The Arizona Rules of Protective Order Procedure govern cases brought

under A.R.S. § 12-1809. Ariz. R. Prot. Order P. 1.

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IV. We decline to award attorneys’ fees, but we award Horstman her
taxable costs.

¶16 Horstman requests attorneys’ fees pursuant to ARCAP 21(a),
but she has not articulated a legal basis for the award, so we decline the
request. See Grubb v. Do It Best Corp., 230 Ariz. 1, 5, ¶ 17 (App. 2012) (“[W]e
will not award attorney fees when a party ‘has failed to separately articulate
an appropriate statutory basis for that request.’” (citation omitted)). See also
ARCAP 21(a)(2) (“This Rule only establishes the procedure for claiming
attorneys’ fees and does not create any substantive right to them.”).

¶17 Horstman may recover her taxable costs incurred in this
appeal upon compliance with ARCAP 21. A.R.S. § 12-1809(P).

CONCLUSION

¶18 For the reasons stated, we affirm the dismissal of the
injunction but dismiss the attorneys’ fee appeal because we lack
jurisdiction.

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

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