BISBEE — Roger Barnett is taking his case to a higher court.

In a ruling released earlier this week, the Arizona Court of Appeals upheld the decision of a civil jury that found Barnett responsible for threatening the Morales family members with an assault-type rifle, battery, false imprisonment, negligence, gross negligence and intentional infliction of emotional distress in an October 2004 incident. Damages totaling $98,775 were awarded to the Morales family, even though the jury placed some of the blame for the incident on Ronald Morales and his father Arturo Morales.

The Morales men were found guilty of trespassing, as Barnett alleged in his countersuit, but no monetary damages were awarded to Barnett.

David T. Hardy, who is Barnett’s attorney, said Thursday that he’s making an appeal on behalf of his client on the most recent ruling. “We’ll appeal to the Arizona Supreme Court,” he said. “Ordering someone off your land simply is not false imprisonment.”

Ronald Morales, a Navy veteran, had been deer hunting with his father, his two young daughters, 9-year-old Angelique and 11-year-old Venese Morales, and a friend of Vanese, 11-year-old Emma English. They crossed Barnett’s private land to get to public lands that Barnett was leasing for his cattle. Barnett spotted them through binoculars and drove out to their location and ordered them off his property, allegedly at rifle point.

Arizona law permits property owners to threaten trespassers, but not with deadly force.

Morales said Barnett was threatening and that he feared for his life. He also said his daughters and their young friend were terrified that the man would shoot them as he followed them back to a public road.  They testified that he held the rifle aimed at them as they drove down the road.

But Hardy said that false imprisonment involves confinement, not necessarily physical.

“To tell someone ‘move from this spot and I’ll hit you’ is enough to qualify for confinement. But ‘go away’ cannot qualify,” he said.

Hardy also said the plaintiffs sprung a theory of negligent infliction of emotional distress at the end of the trial. “They never pleaded it and never disclosed it prior to that point at the end of the trial,” added Hardy.

Barnett took his case to the Appeals Court seeking to have the decision overturned on the basis that the jury had insufficient evidence to support the claims of false imprisonment, intentional infliction of emotional distress and negligent infliction of emotional distress. Since negligent emotional distress was not in the original suit, Barnett felt the law was not followed and he should be granted a new trial.

Appeals Court Judge Joseph W. Howard saw it differently.

“If a reasonable person would conclude that the defendant intends to control the plaintiff’s action, and, if necessary, to use force for that purpose and thereby restrain the plaintiff from acting upon [his] own volition, and if by reason thereof, the plaintiff submits to the control of the other party, then proof is sufficient to sustain a charge of false arrest,” the judge wrote in his ruling.

As far as false imprisonment, Howard states, “The foregoing constitutes substantial evidence from which a reasonable person could conclude that Barnett had intended to force the Moraleses at gunpoint to submit to his control and that the Moraleses had been confined in that they had no choice but to do as Barnett commanded. Barnett intended to invade the liberty interest that the tort of false imprisonment is designed to protect. Thus, there is sufficient evidence to support a finding of liability of false imprisonment …”

As for the matter of Barnett’s infliction emotional distress on the three girls, Howard said there was sufficient evidence presented during the trial to prove the claim.

And in Barnett’s protest of the claim of negligent emotional distress since it was not forwarded on discovery, Howard says “a trial court has a duty to instruct the jury on all legal theories that are framed by the pleadings and supported by substantial evidence …”

Hardy has already filed a petition to the Arizona Supreme Court. He said the Moraleses can file an opposition to the review of the case and have until the end of April to respond. “It’s up to the judges whether they will review the case. We have a fair chance at a review,” he said. “There were some remarkable rulings, like the false imprisonment.”

Speaking for the Moraleses, David Urias of Mexican American Legal Defense Fund said they believe the second appeal should not go forward.

“We believe justice was done at the time of the verdict,” he said. “The evidence is overwhelming. This was not a case of protecting private property, it was racially motivated. He has now lost twice and we feel it is a moot point. There is no basis for an appeal. All his claims were baseless. That is apparent now that the court of appeals has rejected his claim as did Judge (Jim) Conlogue.”

If the Supreme Court justices decide to hear the case, it may be some time in May before Barnett gets to argue his side, Hardy said.

Urias said the money Barnett was ordered to pay after the first ruling will not be paid to the Morales family until all Barnett’s appeals have been exhausted.