Eureste v. Berrey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARY EURESTE,
Plaintiff/Appellee,

v.

DAVID BERREY,
Defendant/Appellant.

No. 1 CA-CV 23-0813, 1 CA-CV 24-0575
(Consolidated)
FILED 04-10-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-093315
The Honorable Mary Cronin, Judge Pro Tempore

AFFIRMED

APPEARANCES

David Berrey, Mesa
Defendant/Appellant

Mary Eureste
Plaintiff/Appellee
 EURESTE v. BERREY
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 David Berrey appeals from the superior court’s issuance of an
injunction against harassment (“IAH”) and subsequent refusal to set it
aside. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mary and Michael Eureste purchased vacant land next to
Berrey and began building a house. Soon after, Mary Eureste petitioned the
superior court for an IAH against Berrey alleging three incidents in which
Berrey either blocked access of an easement to their property or came on to
their property to harass construction workers. The court issued the IAH ex
parte.

¶3 Once served with the IAH, Berrey requested an evidentiary
hearing to “dismiss” it and to “issue a protective order against [the
Eurestes].” The court scheduled a hearing for two weeks later. Berrey
moved the court to continue the hearing for three months so that he could
obtain “requisite records” from the Sheriff’s Office. The court denied his
request and held the evidentiary hearing as scheduled.

¶4 At the hearing, both Mary and Michael Eureste testified, as
did Berrey—though the superior court refused to allow Berrey’s wife to
testify or consider any of Berrey’s exhibits because Berrey did not disclose
them before the hearing. At the conclusion of the hearing, the court found
that two of the three alleged incidents occurred and that neither occurrence
served a legitimate purpose. The court ordered the IAH remain in place.

¶5 Berrey timely appealed but also filed three motions with the
superior court to clarify its order. Each was denied on a procedural or
jurisdictional basis. Berrey then filed a fourth motion to clarify along with
a motion to set aside the final judgment. Berrey argued he was not able to
get “crucial evidence into the record and was denied continuance to attain
[sic] the evidence” but that he had now procured newly discovered

2
 EURESTE v. BERREY
Decision of the Court

evidence. Berrey also argued the Eurestes made misrepresentations at the
hearing.

¶6 The superior court affirmed its ruling and denied Berrey’s
motion to set aside the final judgment. In doing so, the court explained
Berrey failed to timely submit exhibits and reiterated that it kept the IAH
in place because “based on [both parties’] testimon[ies]. . . the incidents
alleged . . . served no legitimate purpose.” Berrey then filed a second appeal,
which we have consolidated with his first.

¶7 We have jurisdiction 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. Ord. P. 42(a)(2).

DISCUSSION

¶8 Mary Eureste did not file an answering brief. Because no
“debatable question is raised by the appeal,” we decline to treat that failure
as a concession of reversible error. Navarro v. State, 32 Ariz. 119, 120 (1927).

¶9 We review the superior court’s issuance of an IAH for an
abuse of discretion. LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10 (App. 2002). The
superior court abuses its discretion when, viewed in the light most
favorable to upholding the order, the record lacks any competent evidence
to support the court’s decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App.
2009).

¶10 Section 12-1809(E) instructs a court to issue an IAH if it finds
“reasonable evidence of harassment . . . during the year preceding the filing
of the petition or that good cause exists to believe that great or irreparable
harm would result . . . if the injunction is not granted.” “Harassment” is
defined 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.” A.R.S. §
12-1809(T)(1)(a). At a minimum, two incidents are required. LaFaro, 203
Ariz. at 486, ¶ 14.

¶11 Berrey asks this court to vacate the IAH because he claims
there was not a series of harassing events with no legitimate purpose. But
the superior court found reasonable evidence of two instances of
harassment. The first occurred April 10, 2023, when Berrey blocked access
of an easement that allowed the Eurestes to access their property. And the
second occurred June 5, 2023, when Berrey went on to the Eurestes’

3
 EURESTE v. BERREY
Decision of the Court

property to harass construction workers. Record evidence supports the
court’s findings.

¶12 Mary Eureste testified Berrey blocked access to their property
on April 10th by parking his car on the only easement available to access
their property. Berrey admitted to blocking the easement but claimed a
Sherriff’s deputy told him he could park his car on the road because the
road was on his property. And though Berrey insisted the Eurestes had
access to their property through another easement, Mary Eureste offered
conflicting testimony that they did not have access to their property by any
other way until months later.

¶13 Michael Eureste testified Berrey came on to their property and
harassed the construction workers on June 5th. Again, Berrey did not deny
coming on to the property. Rather, he testified he was only “asking who
[they] were [so] that [he] could hire them for another job.”

¶14 Essentially, Berrey asks this court to reweigh conflicting
testimony and to make a credibility determination between the witnesses.
Because the superior court is in the best position to judge witness
credibility, we will not reweigh the same. Hurd, 223 Ariz. at 52, ¶ 16. The
court found the Eurestes’ testimonies more credible than Berrey’s. On this
record, Berrey has shown no error.

¶15 Berrey also argues the superior court erred by denying his
motion to continue the evidentiary hearing so he could gather evidence. We
review the denial of a motion to continue for an abuse of discretion. Nordale
v. Fisher, 93 Ariz. 342, 345 (1963).

¶16 A defendant is entitled to one hearing challenging an IAH
issued against him. A.R.S. § 12-1809(H). The hearing must “be held within
ten days from the date requested unless the court finds compelling reasons
to continue the hearing.” Id.

¶17 In his motion to continue, Berrey stated he needed more time
to collect “requisite records” from the Sheriff’s Office, including incident
reports and body camera footage. He informed the court the Sheriff’s Office
gave him a timeline of at least three months before they could fulfill his
request. The superior court denied Berrey’s motion to continue because it
“did not find a compelling reason” to continue the hearing for three
months. More specifically, the court concluded Berrey failed to “identify
the records [and did not] indicate what relevance, if any, they had to issues
that would be addressed at the . . . hearing.”

4
 EURESTE v. BERREY
Decision of the Court

¶18 We cannot say the superior court abused its discretion in
denying Berrey’s motion. Berrey failed to explain why the requested
records and videos were important for the IAH hearing and, based upon
the email from the Sherriff’s Office, Berrey could have obtained incident
reports much sooner had he filed a separate request for them.

¶19 Finally, Berrey argues the superior court was obligated to
physically serve him the denial of his motion to continue rather than
emailing the denial to him. But Berrey has provided no legal citation to
support his position, and we are aware of none. See ARCAP 13(a)(7)(A);
Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022).

CONCLUSION

¶20 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

5