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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               SANDRA L. SMITH et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0235
                               FILED 4-4-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-094118
               The Honorable Robert H. Oberbillig, Judge

                                   AFFIRMED


                                    COUNSEL

Stephen Edwards, Phoenix
Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix
By F. Richard Cannata, Jr., Lori L. Voepel
Counsel for Defendant/Appellee Maureen G. Mulvaney

Sanders & Parks, P.C., Phoenix
By Jeffrey L. Smith, Amanda M. Breemes
Counsel for Defendants/Appellees AAM, LLC and Sandra L. Smith
                        EDWARDS v, SMITH et al.
                          Decision of the Court



                      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.


T H U M M A, Judge:

¶1          This is a recent installment in a series of lawsuits that arose
when appellant Stephen S. Edwards apparently increased the height of a
common wall dividing properties located within a planned community.
Because Edwards has shown no error, the judgment is affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2           In this case, Edwards sued Sandra L. Smith, AAM, LLC, and
Maureen G. Mulvaney alleging (1) intentional and negligent infliction of
emotional distress based on “evidence and testimony to facilitate
Judgement against” him in a prior case and (2) defamation, libel, slander
and, as to Mulvaney only, trespass.1 On motion, the superior court found
the emotional distress claims against Smith and AAM (with analysis
equally applicable to Mulvaney) failed to state a claim upon which relief
could be granted. See Ariz. R. Civ. P. 12(b)(6) (2017).2

¶3             After Edwards failed to appear at his deposition, defendants
sought dismissal with prejudice. See Ariz. R. Civ. P. 37(f), 41(b). Finding
Edwards adequately explained why he did not appear for the deposition,
the superior court ordered him to “make himself available for deposition
by February 29, 2016.” When he failed to make himself available to be
deposed by the court-ordered date, defendants again sought dismissal
under Rules 37(f) and 41(b). After briefing, the court found Edwards “ha[d]
unreasonably refused to participate in discovery,” and tacitly concluding
he willfully failed to comply with the court’s order, granted the motion to
dismiss for failure to prosecute, dismissing the “entire action, with
prejudice,” in a final appealable judgment. See Ariz. R. Civ. P. 54(c). This


1Edwards’ attempt to add a claim for declaratory relief was denied and is
not a part of this appeal.

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                     2
                         EDWARDS v, SMITH et al.
                           Decision of the Court

court has jurisdiction over Edwards’ timely appeal pursuant to Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶4            Edwards argues his claims are factually supported and the
superior court was biased against him.3 The rulings at issue, however, are
whether (1) as a pleading matter, Edwards alleged actionable emotional
distress and (2) Edwards’ claims properly were dismissed given his failure
to properly participate in discovery.

I.     The Superior Court Did Not Err In Dismissing The Emotional
       Distress Claims.

¶5             Whether Edwards alleged actionable emotional distress
claims is a legal issue this court reviews de novo. Coleman v. City of Mesa,
230 Ariz. 352, 355 ¶ 7 (2012). A dismissal for 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).

¶6            Edwards did not allege that defendants created an
unreasonable risk of bodily harm to him, or resulting physical injury or
illness, necessary elements of a negligent infliction of emotional distress
claim. See Gau v. Smitty’s Super Valu, Inc., 183 Ariz. 107, 109 (App. 1995).
Similarly, Edwards did not allege conduct “so outrageous in character and
so extreme in degree, as to go beyond all possible bounds of decency” as is
required for an intentional infliction of emotional distress claim. Mintz v.
Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 (App. 1995) (citation
omitted).

¶7           Moreover, both claims are based on Edwards’ allegations that
defendants used “false and fraudulent evidence and testimony to facilitate
Judgment against” him and “knew, or had reason to know, that the
evidence presented to the Court was fraudulent.” “‘An absolute privilege

3 Edwards’ brief also discusses claims not asserted in the pleadings, and
purported wrongful acts by non-parties not properly a part of this case.
Those claims and purported acts will not be addressed. Similarly, although
claiming the superior court should have held him to a less stringent
standard because he is 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, SMITH et al.
                            Decision of the Court

exists for participants in judicial proceedings.’” Linder v. Brown & Herrick,
189 Ariz. 398, 406 (App. 1997) (citation omitted); see also Lewis v. Swenson,
126 Ariz. 561, 564 (App. 1980) (noting “an absolute privilege [for] . . .
witnesses to state anything at trial which relates to the matter at issue”). The
motion to dismiss asserted this privilege and Edwards has not shown this
privilege does not apply. Indeed, on appeal Edwards concedes the claims
were based on statements made in judicial hearings: “Ms. Mulvaney falsely
testified at an evidentiary hearing in case no. [CV2014-092726]” and “Ms.
Smith and Ms. Mulvaney’s defamatory statements were made under oath
in case no. [CV2014-092726].” Accordingly, the court did not err in
dismissing Edwards’ emotional distress claims. See Linder, 189 Ariz. at 406.

II.    The Superior Court Did Not Err In Dismissing The Case With
       Prejudice Pursuant To Arizona Rules Of Civil Procedure 37(f) And
       41(b).

¶8            Although Edwards appeals from the dismissal of his claims
with prejudice, his opening brief does not challenge that ruling.
Accordingly, he has waived any such challenge on appeal. See ARCAP
13(a)(7)(A); MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011); Ace
Auto. Products, Inc. v. Van Duyne, 156 Ariz. 140, 143 (App. 1987) (“It is not
incumbent upon the court to develop an argument for a party.”).

¶9            Even considering the merits, the superior court has discretion
to dismiss a matter with prejudice for a plaintiff’s willful failure to comply
with a court’s order. See Old Republic Nat. Title Ins. Co. v. New Falls Corp., 224
Ariz. 526, 531 ¶ 22 (App. 2010) (citations omitted). That is precisely what
the court did here. By failing to address that ruling on appeal, Edwards has
not shown an abuse of discretion.4 Accordingly, the dismissal with
prejudice is affirmed.

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

¶10           Edwards claims the superior court was biased against him
and was required to recuse from consideration of this case. Edwards raised
this issue with the superior court after the entry of the final judgment and
thereby failed to preserve the matter for appeal. However, even if this court


4 This same analysis also would apply to the emotional distress claims. Even

if Edwards’ pleading properly stated actionable emotional distress claims,
by failing to appear for his deposition as ordered by the court, the court had
the discretion to dismiss the claims as a consequence. See Ariz. R. Civ. P.
37(f), 41(b).


                                        4
                         EDWARDS v, SMITH et al.
                           Decision of the Court

had jurisdiction to address the issue, Edwards has provided no evidence
supporting such an assertion 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.

                               CONCLUSION

¶11           The judgment is affirmed.




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




                                         5
