Mohave v. Messner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MOHAVE COUNTY, Plaintiff/Appellee,

v.

BARRY MESSNER, Defendant/Appellant.

No. 1 CA-CV 23-0775
FILED 08-20-2024

Appeal from the Superior Court in Mohave County
No. S8015CV202301355
The Honorable Steven C. Moss, Judge

AFFIRMED

COUNSEL

Barry Messner, Fort Mohave
Defendant/Appellant

Mohave County Attorney’s Office, Civil Division, Kingman
By Ryan H. Esplin
Counsel for Plaintiff/Appellee
 MOHAVE v. MESSNER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 This is an appeal from an order authorizing Mohave County
(the County) to abate a nuisance on Barry Messner’s property at his
expense. We affirm.

BACKGROUND

¶2 Messner owns three parcels of property on the same road in
Fort Mohave, Mohave County. In 2023, the County served Messner with
multiple notices to abate a public nuisance created by
“trash/debris/rubbish/filth” on his land. Messner appealed, and the Board
of Supervisors denied relief.

¶3 The County then filed a complaint and application for
preliminary injunction in the superior court. A two-day order to show cause
hearing followed. Messner represented himself at the hearing, at which he
testified, offered exhibits, and cross-examined witnesses.

¶4 The court found that Messner, contrary to applicable zoning
restrictions, was essentially running a salvage yard and that the many items
stored there—including inoperable vehicles, scrap metal, and
miscellaneous trash, rubbish, and debris—created a public nuisance. The
court authorized the County to abate the nuisance at Messner’s expense
under A.R.S. § 11-268 and Mohave County Ordinance 2020-07(VI) (the
Ordinance). Messner appealed.

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Decision of the Court

DISCUSSION1

¶5 We review a grant of injunctive relief for abuse of discretion,
and we defer to the court’s factual findings absent clear error. Flying
Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 47, ¶ 9 (App. 2007). But we
consider de novo the court’s legal conclusions and the interpretation of
statutes and ordinances. Id.; Sedona Grand, LLC v. City of Sedona, 229 Ariz.
37, 40, ¶ 8 (App. 2012).

¶6 Messner first challenges the validity of the Ordinance. The
Ordinance provides a way for the County to ensure the cleanup of public
nuisances: i.e., any “accumulation of rubbish, trash, weeds, filth, or debris
that constitutes a hazard to the public health and safety.” See Ordinance
2020-07(III)(12), (V)–(VI). Consistent with A.R.S. § 11-268, the Ordinance
requires the County to give a landowner written notice to abate a nuisance
and time to comply. See A.R.S. § 11-268(A)(1); Ordinance 2020-07(VI)(2)–(5).
Only if the landowner fails to abate the nuisance in the given time is the
County permitted to abate the nuisance at the landowner’s expense. See
A.R.S. § 11-268(B)–(D); Ordinance 2020-07(VI)(8). The landowner has the
right to appeal the abatement notice and cost assessments. See A.R.S.
§ 11-268(A)(2); Ordinance 2020-07(VI)(6).

¶7 Messner argues that the Ordinance is nonetheless void
because (as the County apparently concedes) it was not published upon
adoption as required by A.R.S. § 11-251.05(C). We hold that Messner
waived this argument by not making it in the proceedings below. See
Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109–10, ¶ 17
(App. 2007).

¶8 But even on the merits, Messner’s argument fails. When a
statute requiring ordinances to be published does not specify that
publication is a condition precedent for effectivity, the statute is generally
construed as merely directory. Burton v. City of Tucson, 88 Ariz. 320, 324
(1960), superseded by statute as recognized in Salt River Project Agric.
Improvement & Power Dist. v. City of St. Johns, 149 Ariz. 282, 284–85 (1986).
That is the case here. Although A.R.S. § 11-251.05(C) provides that

1 The County asks us to find Messner’s arguments waived because his
pro per opening brief does not include record and legal citations as required
by Arizona Rule of Civil Appellate Procedure 13. Though we agree that
Messner’s brief is deficient, we exercise our discretion to decide the appeal
on the merits. See Clemens v. Clark, 101 Ariz. 413, 414 (1966).

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 MOHAVE v. MESSNER
Decision of the Court

ordinances must be published when adopted, the statute specifies no
consequence for nonpublication. Accordingly, the failure to publish the
Ordinance did not invalidate it. See Burton, 88 Ariz. at 324.

¶9 Messner next argues that the County needed to follow the
time provisions in the Ordinance. The Ordinance provides that a notice to
abate must give the landowner at least 30 days to comply, and that an
appeal to the Board of Supervisors pauses the clock until a decision issues.
Ordinance 2020-07(VI)(2)–(3), (6)(d). Here, the notices gave Messner 30
days to abate the nuisance. He appealed the notices 15 days after receiving
them, meaning he still had 15 days to comply after the Board issued its
decision. The County did not wait for that period to expire before filing its
complaint and application for a preliminary injunction. But by the time the
matter came to a hearing, the compliance deadline had passed. At that
point, the court properly authorized the County to abate the nuisance at
Messner’s expense.2 See Ordinance 2020-07(VI)(8).

CONCLUSION

¶10 We affirm.

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

2 To the extent that Messner argues there was no nuisance to abate, we
disagree. The court’s summary of the land’s condition describes an
actionable nuisance and is supported by photographs in the record. See
A.R.S. § 11-268(A); Ordinance 2020-07(III)(12), (V). Further, because
Messner failed to provide transcripts, we assume that the hearing testimony
also supported the court’s nuisance findings. See Baker v. Baker, 183 Ariz. 70,
73 (App. 1995).

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