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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                STEPHEN S. EDWARDS, Plaintiff/Appellant,

                                        v.

 THE LAKEWOOD COMMUNITY ASSOCIATION, Defendant/Appellee.

                             No. 1 CA-CV 16-0379
                               FILED 4-4-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-009257
              The Honorable Robert H. Oberbillig, Judge

                                  AFFIRMED


                                   COUNSEL

Stephen Edwards, Phoenix
Plaintiff/Appellant

Vial Fotheringham, LLP, Tempe
By Quinten T. Cupps
Counsel for Defendant/Appellee



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Chief Judge Michael J. Brown and Judge Kenton D. Jones joined.
                        EDWARDS v. LAKEWOOD
                          Decision of the Court

T H U M M A, Judge:

¶1           This case arises out of a dispute between appellant Stephen S.
Edwards and The Lakewood Community Association. Edwards appeals
from a judgment dismissing his claims against Lakewood with prejudice.
Because he has shown no error, the judgment is affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            In December 2015, Edwards filed this case alleging various
contract and tort claims against Lakewood. Lakewood successfully moved
to have the case reassigned to a different judge, arguing this case was “the
exact same lawsuit” (CV2015-094117) Edwards previously filed against
Lakewood that the different judge had dismissed.

¶3            Following reassignment, Lakewood moved to dismiss,
arguing (among other things) that the lawsuit was barred by res judicata
based on the judgment in CV2015-094117, which dismissed the same claims
with prejudice. Although Edwards filed an opposition, he did not address
res judicata. The court granted the motion to dismiss, noting Edwards’
opposition

              fails to address the obvious. The complaint in
              this case is identical to the complaint that was
              dismissed in CV2015- 094117 except for a slight
              word change in paragraph 9 from “unfair
              meetings” to “unfair elections” and finishing
              the sentence.

              Under Arizona law principles of issue
              preclusion, it is improper to file a lawsuit on the
              same issues that were previously decided
              against the Plaintiff herein.

The court dismissed with prejudice, and awarded fees as sanctions. See
Ariz. Rev. Stat. (A.R.S.) § 12-349 (2017).1 After additional motion practice,
the court entered a final appealable judgment. This court has jurisdiction
over Edwards’ timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                      2
                         EDWARDS v. LAKEWOOD
                           Decision of the Court

                                DISCUSSION

¶4            Whether Edwards alleged actionable claims is a legal issue
this court reviews de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7
(2012). A dismissal for a failure to state a claim upon which relief can be
granted will be affirmed if “‘it appears certain that the plaintiff would not
be entitled to relief under any state of facts susceptible of proof under the
claim stated.’” Stanhope v. State, 170 Ariz. 404, 405 (App. 1991) (citation
omitted).

I.     Edwards’ Claims Are Barred By Res Judicata.

¶5            Edwards argues the superior court erred by “misapply[ying]
issue preclusion.” Edwards is correct that the applicable doctrine, as noted
in Lakewood’s motion, is claim preclusion, often referred to as res judicata.
Edwards, however, failed to address Lakewood’s res judicata argument in
briefing before the superior court, meaning he has waived the issue on
appeal. See Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utilities,
LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011); Schurgin v. Amfac Elec. Distribution
Corp., 182 Ariz. 187, 190 (App. 1995).

¶6             Even absent waiver, res judicata “has three elements: (1) an
identity of claims in the suit in which a judgment was entered and the
current litigation, (2) a final judgment on the merits in the previous
litigation, and (3) identity or privity between parties in the two suits.” In re
Gen. Adjudication of All Rights to Use Water In Gila River Sys. & Source, 212
Ariz. 64, 69–70 ¶ 14 (2006) (citing cases). On the record provided, the
superior court properly could conclude the claims in this case were
identical to the claims in CV2015-094117; that a final judgment was entered
in CV2015-094117 in favor of Lakewood and against Edwards and that
Edwards and Lakewood were the same parties in both cases. Therefore,
because Edwards’ complaint was barred by res judicata, the judgment in
this case was proper.2




2 Given this conclusion, this court need not address Edwards’     subject matter
jurisdiction argument. Similarly, although claiming the superior court
should have held him to a less stringent standard because he was a self-
represented litigant, the law is to the contrary. See Old Pueblo Plastic Surgery,
P.C. v. Fields, 146 Ariz. 178, 179 (App. 1985).



                                       3
                        EDWARDS v. LAKEWOOD
                          Decision of the Court

II.    Edwards Did Not Move To Amend His Complaint.

¶7            Edwards argues that he should have been permitted to
amend his complaint. Because Edwards never filed a motion for leave to
amend, he has waived this argument. See Harris v. Cochise Health Sys., 215
Ariz. 344, 349 ¶ 17 (App. 2007) (“argument waived on appeal when not
briefed” with the superior court, meaning that “court had no opportunity
to consider it”) (citations omitted).

¶8             Although Edwards made a reference to filing a motion to
amend in his opposition to Lakewood’s motion to dismiss, he filed no such
motion. And although his motion to vacate the order of dismissal referred
to leave to file an amended complaint, that reference did not comply with
the requirements for filing a motion for leave to amend. See Ariz. R. Civ. P.
15(a)(2). Finally, Edwards has failed to show how an amended complaint
would mean his allegations were not barred by res judicata.

III.   Edwards Has Shown No Bias By The Superior Court.

¶9              Edwards claims the superior court was biased against him
and was required to recuse from consideration of this case. Edwards failed
to raise this issue with the superior court. Even absent that waiver, Edwards
has provided no evidence supporting such a claim and none appears in the
record. The mere fact that the court ruled against Edwards fails to show
improper bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial
rulings alone almost never constitute a valid basis for a bias or partiality
motion”). On this record, Edwards has shown no bias by the superior
court.3




3Edwards appears to argue, for the first time on appeal, that Lakewood
violated the Fair Debt Collection Practice Act. Because Edwards failed to
make such a claim with the superior court, it was waived and will not be
considered by this court.


                                      4
                       EDWARDS v. LAKEWOOD
                         Decision of the Court

IV.   Attorneys’ Fees And Taxable Costs On Appeal.

¶10           Lakewood requests an award of attorneys’ fees and taxable
costs on appeal. Because Lakewood is the prevailing party on appeal, this
court grants its request for reasonable attorneys’ fees pursuant to A.R.S. §
12-341.01 and taxable costs on appeal, contingent upon its compliance with
Arizona Rule of Civil Appellate Procedure 21.

                              CONCLUSION

¶11          The judgment is affirmed.




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




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