Edwards v. Smith ( 2017 )


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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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