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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    MARTIN LYNCH, Plaintiff/Appellant,

                                        v.

   DAVID WEINSTOCK, JD, PH.D.; FORENSIC COUNSELING AND
           EVALUATIONS - FCE, Defendants/Appellees.

                             No. 1 CA-CV 15-0319
                               FILED 5-19-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2015-000287
              The Honorable Lori Horn Bustamante, Judge

                                  AFFIRMED


                                   COUNSEL

Martin Lynch, Tempe
Plaintiff/Appellant

Renaud Cook Drury Mesaros, PA, Phoenix
By Michael D. Wolver, Salim A. Shleef
Counsel for Defendants/Appellees
                      LYNCH v. WEINSTOCK et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1           Martin Lynch appeals the dismissal of his malicious
prosecution lawsuit against David Weinstock and Forensic Counseling
and Evaluations (collectively, “Weinstock”). For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           The superior court appointed Weinstock as a Parenting
Coordinator (“PC”) in Lynch’s ongoing family court case in April 2013.
See Ariz. R. Fam. Law P. (“ARFLP”) 74.1 The appointment order
authorized Weinstock to, inter alia, make recommendations to the court
regarding legal decision-making and parenting time.

¶3            On January 2, 2014, Weinstock sent a report and
recommendations to the court. Among other things, he recommended
that the court appoint a new PC because Lynch did not respect him or his
process and had threatened him in several emails. The court appointed a
new PC on January 10, 2014, and it adopted Weinstock’s remaining
recommendations on February 24, 2014.

¶4             On June 13, 2014, Lynch filed a medical malpractice lawsuit
against Weinstock, alleging that he had ex parte communications with the
court after his appointment ended and had “pressed false charges”
against Lynch. The superior court granted Weinstock’s motion to dismiss
for failure to state a claim upon which relief could be granted. See Ariz. R.
Civ. P. 12(b)(6).

¶5           Approximately four months later, Appellant filed the
malicious prosecution lawsuit that is at issue in this appeal. Weinstock

1       Arizona Rule of Family Law Procedure 74 was amended in 2015
and 2016, moving the parenting coordinator immunity provision from
74(K) to 74(O), but otherwise contains no changes relevant to our analysis.



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                       LYNCH v. WEINSTOCK et al.
                          Decision of the Court

again moved to dismiss under Arizona Rule of Civil Procedure 12(b)(6).
After full briefing, the superior court granted the motion. This timely
appeal followed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

¶6             We review a dismissal order under Rule 12(b)(6) de novo.
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). The superior court
ruled that dismissing the malicious prosecution complaint was
appropriate “for three distinct reasons.” First, the court concluded Lynch
failed to state a cognizable claim for malicious prosecution and failed to
assert any damages. Second, the court found the lawsuit was barred by
the doctrine of res judicata because it involved “the same parties and the
same claims that were previously dismissed” in the medical malpractice
litigation. Third, the court ruled that Weinstock was entitled to judicial
immunity.

¶7            We agree that Weinstock was entitled to immunity. Because
that determination is dispositive, we need not reach the superior court’s
alternative bases for dismissal.

I.     Judicial Immunity

¶8             “Whether judicial immunity exists is a question of law for
the court.” Lavit v. Superior Court, 173 Ariz. 96, 99 (App. 1992). Judicial
immunity makes judges “absolutely immune from damages lawsuits for
their judicial acts, even when such acts are in excess of their jurisdiction or
are alleged to have been done maliciously or corruptly.” Burk v. State, 215
Ariz. 6, 9, ¶ 7 (App. 2007). Judicial immunity is not limited to judges. It
also “protects a non-judicial officer performing a function pursuant to a
court directive related to the judicial process.” Lavit, 173 Ariz. at 99, 101
(holding that court-appointed psychologist in domestic relations matter
was entitled to judicial immunity); see also ARFLP 74(O) (“The parenting
coordinator has immunity in accordance with Arizona law as to all acts
undertaken pursuant to and consistent with the appointment order of the
court.”). Extending judicial immunity to such individuals is intended to
remove “the possibility that a professional who is delegated judicial duties
to aid the court will become a ‘lightning rod for harassing litigation.’”
Lavit, 173 Ariz. at 99 (quoting Acevedo v. Pima Cty. Adult Prob. Dep’t, 142
Ariz. 319, 321 (1984)).

¶9            Acknowledging the existence of judicial immunity, Lynch
states in his complaint that he is “seeking relief for damages caused by


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                       LYNCH v. WEINSTOCK et al.
                          Decision of the Court

acts of malfeasance taken outside of [the] protective umbrella which
ended on Jan[uary] 9, 2014.” We therefore confine our review to events
occurring after Weinstock’s appointment terminated in January 2014,
notwithstanding Lynch’s discussion of earlier actions in his appellate
briefing.2

¶10          Lynch argues that after the PC appointment ended,
Weinstock “was not authorized to have any further involvement in our
case what so ever [sic], and was no longer sheltered by immunity of any
kind per the expired order of appointment.” He specifically complains
about Weinstock’s telephonic appearance at a hearing in May 2014.

¶11           Lynch’s argument is foreclosed by the plain language of
Arizona Rule of Family Law Procedure 74(O), which grants immunity “as
to all acts undertaken pursuant to and consistent with the appointment
order,” as well as by the family court’s appointment order, which states:
“The [PC] may appear and shall be available to testify at any court hearing .
. . regarding any issue addressed by the [PC].” (Emphasis added.) The
record reflects that Weinstock’s telephonic appearance in May related to
his prior service as PC. Moreover, judicial immunity is not forfeited even
if actions were taken in error or in excess of authority. See Mireles v. Waco,
502 U.S. 9, 12–13 (1991) (“If judicial immunity means anything, it means
that a judge will not be deprived of immunity because the action he took
was in error or was in excess of his authority.”). The superior court
properly dismissed Lynch’s complaint on immunity grounds.

¶12           Lynch’s contention that Weinstock “aligned himself with
Mother because she perfectly suited his purposes” fares no better. Claims
of bias based on the performance of protected activities are not allowed
because, without immunity, “these professionals risk exposure to lawsuits
whenever they perform quasi-judicial duties,” and a looming threat of
liability may serve to “undermine objectivity and independence.” Lavit,
173 Ariz. at 99.




2     Moreover, Weinstock’s alleged failure to act on Lynch’s requests to
enforce court orders and remediate certain behavior is not actionable. See
Widoff v. Wiens, 202 Ariz. 383, 385, 387, ¶¶ 7, 15 (App. 2002) (judicial
immunity barred claim that guardian ad litem “failed to perform his
duties”).




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                      LYNCH v. WEINSTOCK et al.
                         Decision of the Court

II.   Rule 25 Sanctions

¶13          Weinstock requests sanctions against Lynch for filing a
frivolous appeal. Under Arizona Rule of Civil Appellate Procedure 25, we
may impose sanctions if an appeal is “brought for an improper purpose or
based on issues which are unsupported by any reasonable legal theory.”
Johnson v. Brimlow, 164 Ariz. 218, 222 (App. 1990). We award such
sanctions sparingly because “the line between a frivolous appeal and one
which simply has no merit is fine.” Price v. Price, 134 Ariz. 112, 114 (App.
1982). Here, however, we have no difficulty concluding that Lynch’s
appeal — like his underlying lawsuit — is frivolous.

¶14         Lynch filed two lawsuits against Weinstock, both of which
were dismissed for failure to state a claim upon which relief could be
granted. Even assuming that the first lawsuit was not frivolous, the
second one most certainly was. In the exercise of our discretion, we will
award Weinstock a reasonable sum of attorneys’ fees upon compliance
with Arizona Rule of Civil Appellate Procedure 21.

                             CONCLUSION

¶15           We affirm the judgment of the superior court. Weinstock is
entitled to recover his taxable costs on appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21.




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