Court of Appeals of Arizona, First Division, Department D
CHARLES B. PARKNAVY, a single man, Plaintiff/Appellant,
WILLIAM S. WHITE, JR. and LEE ANN WHITE, husband and wife, Defendants/Appellees.
Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Yavapai County Cause No. P1300CV20081446 The Honorable Anna C. Young.
Fortner Law Firm, P.C. Prescott By William B. Fortner Attorney for Plaintiff/Appellant.
Suits Law Firm, P.L.C. Prescott By Douglas J. Suits Attorney for Defendants/Appellees.
JON W. THOMPSON, Judge.
¶1 Plaintiff/Appellant Charles Parknavy (Parknavy) appeals the superior court's grant of summary judgment in favor of Defendant/Appellee William White (White). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 This appeal arises out of a conflict between neighbors, Parknavy and White. Parknavy and White own adjoining lots in the Appaloosa Meadows community and are bound by a recorded declaration of covenants, conditions, and restrictions for Appaloosa Meadows (Declaration). In his original complaint, Parknavy alleged that the Whites were operating a commercial dog-breeding facility in violation of the Declaration, allowed their dogs to roam at large, trespass on Parknavy's property, and harass him and his cats in violation of the Declaration and Chino Valley Town Code. The superior court dismissed Parknavy's claims that alleged a private right of action under the Chino Valley Town Codes, but held that Parknavy adequately stated a claim for breach of the Declaration and for injunctive relief. Thereafter, Parknavy sought to amend his complaint five times.
¶3 The superior court denied his fourth motion to amend the complaint, but thereafter the parties agreed to, and the court approved, the filing of Parknavy's fifth amended complaint. Parknavy's fifth amended complaint is the operative complaint here and it consists of only two counts: breach of contract (the Declaration) and negligence.
¶4 White filed a motion for summary judgment and separate statement of facts supporting his motion. Parknavy filed an opposition; but instead of filing a controverting statement of facts, he filed an affidavit identifying the exhibits he intended to use at trial and expected trial witnesses.
¶5 The superior court granted White's motion for summary judgment and his subsequent application for attorneys' fees. Parknavy timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (Supp. 2012).
¶6 Our review of summary judgment is de novo. Great Am. Mortg., Inc. v. Statewide Ins. Co., 189 Ariz. 123, 125, 938 P.2d 1124, 1126 (App. 1997). Summary judgment is appropriate if there are no genuine issues as to any material fact. Ariz. R. Civ. P. 56(c)(1); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990) . We review the evidence "in the light most favorable to the party against whom summary judgment was entered." TWE Ret. Fund Trust v. Ream, 198 Ariz. 268, 271, ¶ 11, 8 P.3d 1182, 1185 (App. 2000).
¶7 When moving for summary judgment, the moving party bears the initial burden of showing that there are no issues of fact. Berry v. Robotka, 9 Ariz.App. 461, 466, 453 P.2d 972, 977 (1969) . It is then the responsibility of the party opposing the motion to "come forward with a showing that there is competent evidence so as to create a factual issue for the trier of fact; the resisting party cannot rely upon its pleadings to meet this burden." Id. "If the party with the burden of proof on the claim or defense cannot respond to [a summary judgment] motion by showing that there is evidence creating a genuine issue of fact on the element in question, then . . . summary judgment should be granted." Orme Sch., 166 Ariz. ...