Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOHN PAVLAK, et al., Plaintiffs/Appellants,
v.
FUNK FAMILY ENTERPRISES LLC, Defendant/Appellee.
No. 1 CA-CV 25-0891
FILED 08-28-2026
Appeal from the Superior Court in Maricopa County
No. CV2025-009180
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL
Combs Law Group, PC, Scottsdale
By Christopher A. Combs
Counsel for Plaintiffs/Appellants
Ellsworth Cobb PLC, Phoenix
By Richard L. Cobb
Counsel for Defendant/Appellee
OPINION
Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Andrew J. Becke and Judge Kent E. Cattani joined.
PAVLAK, et al., v. FUNK
Opinion of the Court
T H U M M A, Judge:
¶1 Plaintiffs Tina and John Pavlak appeal from a judgment
dismissing their common law nuisance claim against defendant Funk
Family Enterprises LLC for failure to state a claim. Because the Pavlaks
have shown no error, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In 2014, the Pavlaks purchased residential property in Mesa
called Lot 11, which is part of the Mountain Ranch Homeowners
Association (HOA). The Pavlaks have lived there ever since. When they
bought Lot 11, an adjacent property (Lot 10), which is also part of the HOA,
was vacant. The Pavlaks claim they purchased Lot 11 relying on the original
“building envelope” for Lot 10 shown in the City of Mesa’s plat. The City
of Mesa defines a building envelope as “the specified area on a lot within
which all areas of disturbance, including structures, driveways, walkways,
patios, pools, walls, construction work access, grading, slopes, and riprap
are located.” Mesa City Code § 9-6-6(J)(1) (2026).1
¶3 A few years later, the Pavlaks learned that the owner of Lot
10 obtained HOA design approval for a house within the original building
envelope for Lot 10. The Pavlaks allege they made significant
improvements to their Lot 11 in reliance on the expectation that any house
built on Lot 10 would be within the original building envelope for Lot 10.
No house, however, was built on Lot 10.
¶4 In 2023, Funk purchased Lot 10. In 2024, the HOA and the
City of Mesa approved Funk’s requests to modify the Lot 10 building
envelope to move it uphill to improve the view for a home on Lot 10. In
March 2025, Funk applied for a permit to build a house on the modified Lot
10 building envelope.
¶5 The Pavlaks then filed this action against Funk. The superior
court denied the Pavlaks’ request for a preliminary injunction and granted
Funk’s motion to dismiss the Pavlaks’ claims for fraudulent schemes and
artifices under Arizona Revised Statutes (A.R.S.) section 13-2310; unjust
enrichment; and fraudulent misrepresentation.
1 Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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Opinion of the Court
¶6 The Pavlaks then filed an amended complaint, alleging
violations of the Arizona Consumer Fraud Act (ACFA), A.R.S. § 44-1521 et
seq., and a private nuisance claim. The Pavlaks again sought a preliminary
injunction to prevent any construction on Lot 10. Funk moved to dismiss,
alleging the amended complaint failed to state a claim upon which relief
could be granted. See Ariz. R. Civ. P. 12(b)(6). Asserting the Pavlaks’ claim
“boils down to a single issue – [the Pavlaks’] backyard can be seen from
Funk’s property,” Funk argued that “[a]s a matter of law, this is insufficient
to establish that a nuisance exists.”
¶7 After an evidentiary hearing, the superior court denied the
Pavlaks’ request for a preliminary injunction. The court then granted
Funk’s motion to dismiss the amended complaint. After rejecting the ACFA
claim as frivolous, the court then rejected the nuisance claim:
The facts alleged, if true, are that the
home Funk plans to build will adversely affect
the Pavlaks’ use and enjoyment of their home.
But a home next door that impedes one’s view
or which—like most two-story homes—allows
a neighbor to see into one’s back yard is not
alone substantial and unreasonable interference
with the use and enjoyment of property. The
Pavlaks cite no Arizona case in which a
nuisance claim has been upheld on facts like
these.
The Pavlaks relied on O’Neil v. Atwell, 598 N.E.2d 110 (Ohio Ct. App. 1991),
which the superior court found was “not persuasive.” Noting the HOA and
the City approved Funk’s request to modify the Lot 10 building envelope,
the court concluded:
The Pavlaks object that the home they
bargained for had a next-door neighbor with
one building envelope, and now the home being
built is different. But because the HOA has a
process for modifying building envelopes, a
homeowner has no reasonable expectation that
a neighbor’s building envelope is
unchangeable. Rather, they buy their home with
notice that existing building envelopes can be
changed through the process set forth in the
CC&R’s.
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PAVLAK, et al., v. FUNK
Opinion of the Court
¶8 This court has jurisdiction over the Pavlaks’ timely appeal
from the resulting final judgment pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶9 The Pavlaks do not challenge the dismissal of their claims in
their original complaint, the dismissal of their ACFA claim, or the denial of
their preliminary injunction requests. Instead, their argument on appeal is
limited to the dismissal of their private nuisance claim. They argue that
dismissal was error “absent any Arizona” case dismissing such a claim
“under similar circumstances,” and was contrary to O’Neil, the “Ohio case
granting a nuisance claim under similar circumstances.”
¶10 This court reviews de novo the grant of a motion to dismiss
for failure to state a claim. See Coleman v. City of Mesa, 230 Ariz. 352, 355-56
¶¶ 7, 9 (2012). This court accepts as true all well-pled factual allegations and
indulges all reasonable inferences from those facts. Id. at ¶ 9. Dismissal is
appropriate “if, ‘as a matter of law . . . plaintiffs would not be entitled to
relief under any interpretation of the facts susceptible of proof.’” CVS
Pharmacy, Inc. v. Bostwick, 251 Ariz. 511, 515–16 ¶ 10 (2021) (citation
omitted).
I. The Standard for a Private Nuisance Claim Under Arizona Law.
¶11 “A private nuisance is strictly limited to an interference with
a person’s interest in the enjoyment of real property. The Restatement
defines a private nuisance as ‘a nontrespassory invasion of another’s
interest in the private use and enjoyment of land.’” Armory Park
Neighborhood Ass’n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 4 (1985)
(quoting Restatement (Second) of Torts (Restatement) § 821D (1979)). The
noninvasive nature of a private nuisance claim distinguishes it from a
trespass claim, recognizing that “[a] trespass is an invasion of the interest
in the exclusive possession of land, as by entry upon it.” Restatement § 821D
cmt d.
¶12 A party seeking to press a cognizable private nuisance claim
under Arizona law must plead and prove “actions” that “unreasonably
interfered with their use and enjoyment of their property, causing
significant harm.” Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482,
489 ¶ 32 (App. 2007) (citations omitted). “[T]he complained-of interference
must be substantial, intentional and unreasonable under the
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Opinion of the Court
circumstances.” Armory Park, 148 Ariz. at 7 (citations omitted). “What
constitutes an unreasonable interference with another person’s use and
enjoyment of his property is determined by the injury caused by the
condition and is not determined by the conduct of the party creating the
condition.” Graber v. City of Peoria, 156 Ariz. 553, 555 (App. 1988) (citation
omitted). “Use and enjoyment” of property includes the “pleasure, comfort
and enjoyment that a person normally derives from the occupancy of land.”
Restatement § 821D cmt. b.
¶13 Under Arizona law, not every interference with use and
enjoyment of property is a nuisance. “Since the rules of a civilized society
require us to tolerate our neighbors, the law requires our neighbors to keep
their activities within the limits of what is tolerable by a reasonable person.”
Armory Park, 148 Ariz. at 7. Because “[t]he law does not concern itself with
trifles,” a claimed nuisance “must constitute more than slight
inconvenience or petty annoyance.” Nolan, 216 Ariz. at 489 ¶ 32 (quoting
Restatement § 821F cmt. c). “[T]here must be a real and appreciable invasion
of the plaintiff’s interests” to present a cognizable private nuisance claim
under Arizona law. Id.
¶14 The Pavlaks argue that Funk’s modification of the Lot 10
building envelope constitutes a private nuisance because it “would cause
the Pavlaks (1) a loss of use and enjoyment of their home, (2) a $300,000
diminution of value of Lot 11 and the loss of $287,107 in recent
improvements to their backyard, (3) a loss of privacy, (4) a loss of views,
and (5) potential rainwater runoff issues.” The first two of these grievances
are alleged consequences, not alleged “unreasonable interference,”
recognizing not every action by a neighbor that alters the use and
enjoyment or value of a neighboring home is a private nuisance. See, e.g.,
Myrick v. Peck Elec. Co., 164 A.3d 658, 664 (Vt. 2017) (“[A] decrease in
property value does not mean there has been an interference with that
property’s use, a requisite for a nuisance claim.”); Oliver v. AT&T Wireless
Servs., 90 Cal. Rptr. 2d 491, 500 (App. 1999) (“A diminution in value does
not interfere with the present use of property and cannot alone constitute a
nuisance.”); Nolan, 216 Ariz. at 489 ¶ 32 (similar). Accordingly, this court
addresses the remaining three grievances in determining whether the
Pavlaks have stated a cognizable Arizona common law private nuisance
claim.
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Opinion of the Court
II. Arizona Does Not Recognize Loss of Privacy as Alleged as a Basis
for a Private Nuisance Claim.
¶15 The Pavlaks argue that the superior court “failed to follow”
Graber and Armory Park. The record shows otherwise. In applying Graber
and Armory Park, the superior court correctly noted no Arizona case was
cited “in which a nuisance claim has been upheld on facts like these.”
¶16 Graber, unlike this case, affirmed private nuisance verdicts in
favor of homeowners when a city allowed “the repeated entry of raw
sewage into their homes” for years. 156 Ariz. at 554. Unremarkably, Graber
affirmed those private nuisance verdicts for a physical intrusion on the
homeowners’ land. Graber did not, however, involve a nuisance claim based
on an alleged loss of privacy. Nor did Graber suggest that a claimed loss of
privacy could provide the basis for a private nuisance claim under Arizona
law.
¶17 Although Armory Park discussed public and private nuisance
claims, it addressed a claim that a food distribution center was a public
nuisance, declaring “plaintiff’s claim must stand or fall on the public
nuisance theory alone.” 148 Ariz. at 2, 5. Armory Park involved physical
intrusion of land as a basis for the public nuisance claim, noting
“[t]ransients frequently trespassed onto residents’ yards, sometimes
urinating, defecating, drinking and littering on the residents’ property.” Id.
at 3. As in Graber, Armory Park did not involve a nuisance claim based on an
alleged loss of privacy, or suggest that a claimed loss of privacy could
provide the basis for a private nuisance claim under Arizona law.
¶18 Arguing Funk “had the burden of proof,” the Pavlaks assert
the superior court should have noted that “Funk has not cited any Arizona
case in which a nuisance claim has been denied with similar
circumstances.” The Pavlaks, as plaintiffs, have the burden to plead and
prove a cognizable private nuisance claim. See Nolan, 216 Ariz. at 489 ¶ 32.
Recognizing this court reviews the issue de novo, Arizona has never
recognized a private nuisance claim based on an alleged loss of privacy.
Moreover, the Pavlaks have not shown that this should be the case to do so.
¶19 Tacitly recognizing that lack of supporting Arizona law, the
Pavlaks argue the superior court erred in applying O’Neil. Under Ohio law,
O’Neil found a condominium deck was “an annoyance and a nuisance.” 598
N.E.2d at 114. The Pavlaks argue O’Neil “shares many similarities with”
their allegations. Although noting O’Neil is “similar,” the superior court
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Opinion of the Court
concluded it was “not persuasive.” This court agrees, for three primary
reasons.
¶20 First, O’Neil, applied Ohio law and is not binding here. See,
e.g., Kotterman v. Killian, 193 Ariz. 273, 291 ¶ 68 (1999). Second, O’Neil
primarily defined a private nuisance broadly as anything that “persons of
ordinary tastes and sensibilities would regard as an inconvenience or
interference materially affecting their physical comfort to a degree which
would constitute a nuisance.” 598 N.E.2d at 113. That definition is far more
expansive than Arizona’s definition. See Armory Park, 148 Ariz. at 7
(requiring “substantial, intentional and unreasonable under the
circumstances”); Nolan, 216 Ariz. at 489 ¶ 32 (“The law does not concern
itself with trifles.”). Third, as an alternative basis for its holding, O’Neil
noted that the challenged deck violated the applicable CC&Rs. 598 N.E.2d
at 114. Here, by contrast, the Pavlaks admit Lot 10’s modified building
envelope was approved by both the HOA and the City. For these reasons,
the Pavlaks have shown no error in the superior court’s treatment of O’Neil.
¶21 Authority from other jurisdictions shows that the Pavlaks
have failed to allege a cognizable private nuisance claim under Arizona’s
common law based on a claimed loss of privacy. Armory Park looks to
Restatement § 821D in defining a private nuisance claim under Arizona
common law. 148 Ariz. at 4. The Comments to Restatement § 821D do not
mention a loss of privacy as a proper basis for a private nuisance claim. See
Restatement § 821D Comments. The Reporter’s Note to Restatement § 821D
lists several dozen cases recognizing private nuisances in a wide variety of
contexts, none of which include a loss of privacy. See Restatement § 821D
Reporter’s Note (listing cases from various jurisdictions). Nor is loss of
privacy listed as a permissible basis for a private nuisance claim in a time-
worn secondary source. See 58 Am. Jur. 2d Nuisances § 159 (2026) (“Other
objects or activities that may constitute nuisance.”).
¶22 On very rare occasions, a few reported appellate decisions
from other jurisdictions recognize potential common law private nuisance
liability for repeated, harassing, intrusive undertakings that compromise
privacy. See Borg v. Cloutier, 239 A.3d 1249, 1256 (Conn. Ct. App. 2020)
(affirming counterclaim verdict recognizing plaintiff’s liability for private
nuisance for “directing flood lights at the defendant’s residence for
extended periods of time”); Blevins v. Sorrell, 589 N.E.2d 438, 439-40 (Ohio
Ct. App. 1990) (affirming private nuisance judgment based on “a
surveillance scheme which apparently knew no bounds,” including a
telescope, camera and a “platform ladder in a tree to gain a better vantage
point” over a privacy fence, but rejecting an invasion of privacy claim);
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PAVLAK, et al., v. FUNK
Opinion of the Court
Pritchett v. Bd. of Comm’rs, 85 N.E. 32, 35 (Ind. Ct. App. 1908) (jail built over
neighbor’s objection allowing prisoners to view into plaintiff’s residence,
“constitute[s] a nuisance. The facts show, too, that appellant’s right of
privacy has been invaded.”). The Pavlaks, however, have alleged no such
conduct here.
¶23 Nor do the Pavlaks allege that Funk’s modification of the Lot
10 building envelope was done out of spite or malice. That is significant in
concluding that Arizona does not recognize loss of privacy as the Pavlaks
allege as a basis for a private nuisance claim. See Coty v. Ramsey Assocs., Inc.,
546 A.2d 196, 202 (Vt. 1988) (“[T]he great majority of jurisdictions have held
that where a defendant has acted solely out of malice or spite, such conduct
is indefensible on social utility grounds, and nuisance liability attaches.”)
(citing Prosser, Law of Torts § 87, 598–99 (4th ed. 1971)); see also Newton v.
MJK/BJK, LLC, 469 P.3d 23, 33 (Idaho 2020) (similar). For all of these reasons,
the Pavlaks have shown no error in the superior court dismissing their
Arizona common law private nuisance claim based on their alleged loss of
privacy.
III. Arizona Does Not Recognize Loss of View as a Basis for a Private
Nuisance Claim.
¶24 The Pavlaks allege that a home built within the Lot 10
modified building envelope would unreasonably interfere with their
peaceful use and enjoyment of their home and cause them significant harm
because it would deprive them of their scenic view and diminish the value
of their property. Relying on several California cases, Funk argues the
Pavlaks have no protectable legal interest in the scenic view from their
property and, therefore, their claim fails as a matter of law.
¶25 No appellate opinion has recognized loss of view as a basis
for a private nuisance claim under Arizona common law. Elsewhere, the
general rule is that, absent a statute or easement (neither of which are at
issue here), loss of view does not provide the basis for a private nuisance
claim. See, e.g., Eisen v. Tavangarian, 248 Cal. Rptr. 3d 744, 752-53 (Ct. App.
2019) (citing cases); Blackwell v. Lucas, 271 So. 3d 638, 640-41 ¶ 7 (Miss. Ct.
App. 2018); Ceynar v. Barth, 904 N.W.2d 469, 476-78 ¶¶ 26-28 (N.D. 2017)
(citing cases); Bubis v. Kassin, 733 A.2d 1232, 1240 (N.J. Super. Ct. App. Div.
1999) (citing cases); Collinson v. John L. Scott, Inc., 778 P.2d 534, 538 (Wash.
Ct. App. 1989); Mohr v. Midas Realty Corp., 431 N.W.2d 380, 383 (Iowa 1988);
see also 2 C.J.S. Adjoining Landowners § 26 (2026) (“[A] residence is not a
private nuisance based solely on fact that it blocks a neighbor’s mountain
view since the neighbors do not have a property right in the view across
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Opinion of the Court
their neighbor’s land.”); 1 Am. Jur. 2d Adjoining Landowners § 100 (2026)
(similar).
¶26 As noted elsewhere, “[t]he general rule is that a lawful
building or structure cannot be complained of as a private nuisance merely
because it obstructs the view of neighboring property.” Kruger v. Shramek,
565 N.W.2d 742, 747 (Neb. Ct. App. 1997) (citing opinions from Missouri,
Washington, Iowa, California, Texas and Indiana). This general rule
repudiates “the traditional English doctrine of ancient lights,” which “as
applied to claims involving views has been repudiated by every state
considering it,” including to prevent courts from imposing “what is
essentially an unwritten negative prescriptive easement over a neighbor’s
property,” which would also frustrate the purpose of real property
recording statutes. Kruger, 565 N.W.2d at 747 (citations omitted).
¶27 Arizona has never recognized a right to an unobstructed or
scenic view across a neighbor’s property and this court does not recognize
such a right here. Accordingly, the Pavlaks cannot state a nuisance claim
based on the loss of a view caused by the construction of a house in the Lot
10 modified building envelope.
IV. The Pavlaks Have Not Alleged an Actionable Private Nuisance
Claim Based on Potential Water Runoff Issues.
¶28 The Pavlaks alleged that Funk’s construction of a home
within the Lot 10 modified building envelope would create “potential[]
significant rainwater runoff issues.” In a declaration attached to the
amended complaint, the Pavlaks stated that they had spent $50,000 to
protect their home from storm water intrusion, and that Funk’s relocation
of the Lot 10 building envelope would generate a new rainwater flow
pattern and create a “significant chance” of repeat water intrusions on their
Lot 11. Although interference with the flow of surface water may constitute
a nuisance, see Restatement § 833 cmt. a, the Pavlaks have alleged nothing
more than the possibility that a home built within the Lot 10 modified
building envelope (which has not yet occurred) could cause surface water
to enter their property (which has not yet happened). That is insufficient to
state a cognizable nuisance claim under Arizona law. Nolan, 216 Ariz. at 489
¶ 32; Restatement §§ 821D & 821F.
V. Attorneys’ Fees and Costs Incurred on Appeal.
¶29 The Pavlaks and Funk both request an award of attorneys’
fees as sanctions on appeal, citing A.R.S. § 12-349. Section 12-349 provides
that attorneys’ fees shall be assessed if an attorney or party engages in any
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Opinion of the Court
one of several unjustified actions. Because neither party has shown an
entitlement to such sanctions, those requests are denied. Funk, however, is
awarded his taxable costs incurred on appeal upon his compliance with
ARCAP 21.
CONCLUSION
¶30 The judgment is affirmed.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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