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

ROBERT J. BARON, Plaintiff/Appellant, 

v.

JAMES E. DILLARD; NINA VIERRA; ARIZONA MEDICAL TRAINING 

INSTITUTE, Defendants/Appellees. 

No. 1 CA-CV 14-0171 

Appeal from the Superior Court in Maricopa County 

No. CV2012-008010 

The Honorable Maria del Mar Verdin, Judge Retired

The Honorable John Rea, Judge 

The Honorable Arthur Anderson, Judge 

AFFIRMED 

COUNSEL 

Robert J. Baron, Phoenix 

Plaintiff/Appellant 

Manning & Kass, Ellrod, Ramirez, Trester, L.L.P., Phoenix 

By Scott A. Alles, Debora L. Verdier 

Co-Counsel for Defendants/Appellees

Schneider & Onofry, P.C., Phoenix and Yuma 

By Charles D. Onofry, Ronald D. DuBois, Luane Rosen 

Co-Counsel for Defendants/Appellees
BARON v. DILLARD et al. 

Decision of the Court 

2

MEMORANDUM DECISION 

Presiding Judge Donn Kessler delivered the decision of the Court, in which 

Judge Andrew W. Gould and Judge Patricia K. Norris joined. 

K E S S L E R, Judge: 

¶1 Appellant Robert J. Baron, appearing in propria persona,

appeals the trial court’s dismissal with prejudice of his first amended 

complaint and several collateral rulings. For the reasons set forth below, 

we affirm the dismissal of his complaint and address any issues which are 

not made moot by the dismissal. 

FACTUAL AND PROCEDURAL HISTORY 

¶2 Baron filed suit in justice court stemming from his 

participation in a phlebotomy course offered by Arizona Medical Training 

Institute (“AMTI”). AMTI had the case transferred to superior court, where 

Baron filed a first amended complaint alleging fraudulent inducement, 

negligence, and intentional infliction of emotional distress. He sought 

$600,000 in damages. Baron also named James Dillard, AMTI’s director, 

and Nina Vierra, an AMTI employee, as defendants (collectively, with 

AMTI, “Appellees”). 

¶3 Discovery was contentious from the start. Appellees first 

sought to depose Baron in the justice court case, but Baron refused to 

appear, claiming that a deposition was unduly burdensome and that he 

could not appear during regular business hours. The justice court ordered 

Baron to appear, but he again refused. After having the case transferred to 

superior court, Appellees moved for dismissal based on Baron’s refusal to 

appear for a deposition. The superior court denied Appellees’ motion, but 

ordered Baron to appear and awarded Appellees attorneys’ fees. Baron 

eventually relented. 

¶4 Appellees also requested copies of Baron’s recent tax returns 

to evaluate his lost wages claim. Baron refused to produce them, claiming 

that they were irrelevant. Baron also refused to sign releases that would 

have authorized Appellees to obtain medical records pertaining to Baron’s 

injury claim. The superior court ordered Baron to sign the releases and 

provide six years of tax returns. Baron continued to refuse both requests. 
BARON v. DILLARD et al. 

Decision of the Court 

3

¶5 Appellees also moved to require Baron to furnish security for 

their costs under former Arizona Rule of Civil Procedure (“Rule”) 67(d).1 

After considering Baron’s written response and his testimony regarding his 

alleged inability to pay, the trial court ordered Baron to post a $3,000 bond. 

Baron refused, insisting that he could not afford to pay it. 

¶6 Appellees next filed two motions to dismiss, one based on 

Baron’s continuing refusal to comply with discovery orders and one based 

on Baron’s refusal to provide the court-ordered security for costs. Around 

the same time, Baron moved for a change of judge under Rule 42(f)(2) and 

Arizona Revised Statutes (“A.R.S.”) section 12-409(B)(5) (2003), claiming 

the trial judge was biased against him. The Civil Presiding Judge denied

Baron’s motion, following which the trial court granted both of Appellees’ 

motions to dismiss without prejudice. The trial court awarded Appellees 

their costs, but denied their application for attorneys’ fees. 

¶7 On Appellees’ motion for reconsideration, the trial court 

converted the dismissal to one with prejudice. Baron moved for a new trial 

under Rule 59(a), which the trial court denied. It appears Baron then filed 

a judicial complaint against the trial judge, who voluntarily disqualified 

herself. Baron then filed two motions to set aside the dismissal under Rule 

60(c), both of which were denied by a new trial judge. 

¶8 Baron filed four notices of appeal. We dismissed Baron’s first 

notice of appeal as premature. Taking Baron’s three remaining notices of 

appeal together and reviewing them liberally, see McKillip v. Smitty’s Super 

Valu, Inc., 190 Ariz. 61, 62 (App. 1997), we gather that he intends to appeal 

the rulings set forth above, as well as a handful of collateral rulings. We 

have jurisdiction under A.R.S. §§ 12-2101(A)(1), (5)(a) (Supp. 2015)2 and 12-

2102(A)-(B) (2003). 

 

1 Rules 67(d)-(f) were deleted by Supreme Court order dated September 2, 

2014, effective January 1, 2015. The trial court entered its judgment of 

dismissal with prejudice on January 23, 2014. We therefore consider this 

issue under the former Rule 67. 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
BARON v. DILLARD et al. 

Decision of the Court 

4

DISCUSSION 

I. The trial court did not err when it dismissed Baron’s first amended 

complaint. 

¶9 The trial court dismissed Baron’s first amended complaint 

because he did not comply with the court’s discovery orders and refused to 

post a $3,000 cost bond. Baron challenges both grounds for dismissal. We 

affirm the dismissal for the reasons set forth below. 

¶10 In reviewing a dismissal for discovery violations, we will 

uphold the dismissal unless the trial court clearly abused its discretion. 

Rivers v. Solley, 217 Ariz. 528, 530, ¶ 11 (App. 2008). Under this standard, 

the question is “whether a judicial mind, in view of the law and 

circumstances, could have made the ruling without exceeding the bounds 

of reason.” Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013) (citation 

omitted). However, before dismissing a case for discovery violations, it 

must consider and reject lesser sanctions. Roberts v. City of Phoenix, 225 Ariz. 

112, 121, ¶ 31 (App. 2010). The trial court’s discretion is more limited when 

it dismisses a case for discovery violations than when the court employs 

lesser sanctions. Wayne Cook Enters., Inc. v. Fain Props. Ltd. P’ship, 196 Ariz. 

146, 147, ¶ 5 (App. 1999). 

¶11 The record amply supports the trial court’s finding that Baron 

“repeatedly failed to comply with basic discovery requests.” The superior 

court gave Baron multiple chances to provide discovery as to his lost wages 

and personal injury claims and he steadfastly refused to comply. He also 

forced Appellees to file multiple motions before he would sit for a 

deposition. 

¶12 The record also shows that the trial court considered and 

employed lesser sanctions when it denied Appellees’ first motion to dismiss 

and instead awarded attorneys’ fees as a sanction. See Roberts, 225 Ariz. at 

121, ¶¶ 31-32 (finding that trial court properly considered lesser sanctions 

by initially refusing to strike the offending party’s pleadings). Despite that 

sanction, Baron continued to refuse to produce the requested discovery. 

We therefore find no error in the trial court’s dismissal with prejudice under 

Rule 37(b)(2)(C).3 

 

3 Given our holding on the dismissal for discovery violations, we do not 

address the other ground for dismissal, Baron’s refusal to post a cost bond. 
BARON v. DILLARD et al. 

Decision of the Court 

5

II. The trial court properly denied Baron’s motion for new trial.

¶13 Baron filed a motion for new trial under Rule 59(a) on myriad 

grounds. We review the superior court’s denial of a motion for new trial 

for an abuse of discretion, Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 

568, 581, ¶ 37 (App. 2015), and consider each of Baron’s proffered grounds 

for a new trial below to the extent those grounds may have affected the 

dismissal for discovery violations. 

A. Appellees’ motion for reconsideration seeking dismissal 

with prejudice was not untimely. 

¶14 Baron first argues that the trial court should have denied 

Appellees’ motion for reconsideration as untimely because the court’s order 

dismissing the case without prejudice was a final judgment. Baron is 

incorrect; the order dismissing the amended complaint without prejudice 

was not a final judgment because the issue of attorneys’ fees had not yet 

been resolved and because the dismissal order was not certified as final 

under Rule 54(b).4 See Fields v. Oates, 230 Ariz. 411, 414, ¶ 10 (App. 2012) 

(“The superior court ordinarily should not enter judgment until claims for 

attorneys’ fees are resolved.”). Appellees’ motion for reconsideration was 

not untimely. 

B. Baron’s motion for new trial offered no new evidence or 

argument on the issues discussed above and raised other 

issues which are mooted based on our ruling on dismissal 

for discovery violations. 

¶15 A new trial should be granted only if the trial court believes 

some error in the conduct of the original trial probably affected the verdict. 

S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 512 (1936). We already have 

addressed several of Baron’s proffered grounds for a new trial, including 

his oppositions to (1) the order dismissing the amended complaint without 

prejudice, (2) the order dismissing the amended complaint with prejudice, 

and (3) the orders compelling Baron to produce tax returns and medical 

releases. We need not address these issues again because Baron asserted 

 

4 Baron argues otherwise based on the trial court’s denial of Appellees’ 

then-pending claim for attorneys’ fees. The trial court was referring to 

Appellees’ claim for fees incurred in preparing and filing their motion for 

discovery sanctions under Rule 37(a)(4). This is confirmed by the trial 

court’s subsequent consideration of Appellees’ application for attorneys’

fees. 
BARON v. DILLARD et al. 

Decision of the Court 

6

the same argument in his motion for new trial as he did in his opening brief 

on appeal. 

¶16 Baron argued in his motion for new trial that the court had 

erred in not ruling on his assertion that the Appellees were in default by 

not timely answering the complaint. That argument was not cognizable. 

Baron filed a motion for default judgment four days after Appellees 

answered the first amended complaint. Baron did not move for entry of 

default under Rule 55(a); therefore, Appellees were not in default when 

they answered. The trial court correctly took no action on Baron’s motion. 

¶17 Baron raised several other issues in his motion for new trial 

about alterations to hearing transcripts, the trial court sustaining Appellees’ 

objections to Baron’s discovery requests, and the court ordering him not to 

contact Appellees’ insurer. Although Baron raises these issues on appeal, 

our ruling affirming the dismissal for discovery violations moots these 

issues on appeal. Sandblom v. Corbin, 125 Ariz. 178, 182 (App. 1980) (finding 

a case is moot when an event occurs which renders the relief sought without 

practical effect on the parties to the action). 

III.The trial court properly denied Baron’s two motions to set aside the 

dismissal. 

¶18 Baron filed two motions to set aside the judgment of dismissal 

with prejudice under Rule 60(c). He argues that both motions were 

improperly denied. We disagree and address only the issues raised in those 

motions which might have affected the dismissal for discovery violations. 

¶19 We evaluate a trial court’s denial of a Rule 60(c) motion for an 

abuse of discretion. Ezell v. Quon, 224 Ariz. 532, 536, ¶ 15 (App. 2010). We 

limit our review to those questions raised in the motion and do not review 

generally whether the court was substantively correct in entering the 

judgment from which relief was sought. Id. at ¶ 14. 

¶20 Baron’s first Rule 60(c) motion sought relief under Rule 

60(c)(3) because of fraudulent acts allegedly committed by Appellees’ 

counsel. To obtain relief under Rule 60(c)(3), Baron must demonstrate a 

meritorious claim that he could not fully present before judgment because 

of the adverse party’s fraud, misrepresentation, or misconduct. Estate of 

Page v. Litzenburg, 177 Ariz. 84, 93 (App. 1993). Even assuming Appellees’ 

counsel engaged in misconduct, which Baron failed to establish, the alleged 
BARON v. DILLARD et al. 

Decision of the Court 

7

misconduct did not prevent Baron from asserting his claims.5 Baron’s 

claims instead were dismissed because he refused to comply with multiple 

court orders. Baron was not entitled to relief under subsection (3). 

¶21 Baron’s first motion also cited Rule 60(c)(6), under which the 

trial court can grant relief if there are extraordinary circumstances of 

hardship or injustice. See Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6 

(2000). Baron demonstrates no such circumstances; he instead argues that 

the first trial judge’s voluntary disqualification invalidated all earlier 

rulings. Baron cites no relevant authority in support of this proposition; we 

therefore deem it waived. See ARCAP 13(a)(7); Sholes v. Fernando, 228 Ariz. 

455, 461, ¶ 16 (App. 2011). In any event, the new trial judge found no bias, 

prejudice, or misconduct stemming from the voluntary disqualification, 

and Baron does not identify any error in the new judge’s findings. 

¶22 Baron’s second Rule 60(c) motion did not seek relief on any 

basis which would affect the dismissal for discovery violations. As such, 

we do not discuss any such issue because it is moot based on our affirming 

the dismissal with prejudice. 

¶23 For these reasons, we find that the trial court did not abuse its 

discretion in declining to set aside its order of dismissal with prejudice. 

IV.The other issues Baron raises on appeal do not pertain to the dismissal 

of his first amended complaint. 

¶24 Baron appeals several other orders that do not directly relate 

to either the dismissal of his first amended complaint or the denials of his 

post-trial motions. We address each order briefly below. 

A. The Civil Presiding Judge properly denied Baron’s motion 

for change of judge. 

¶25 As noted above, the Civil Presiding Judge denied Baron’s 

motion seeking a change of judge based on alleged bias. We review the 

denial of a motion for change of judge based on alleged bias for an abuse of 

 

5 The instances of “fraud” Baron cited are: (1) the “manipulated 

transcripts”; (2) an alleged false statement of costs filed by Appellees; (3) 

allegedly false statements regarding whether a certain tape recording 

existed; (4) Appellees’ counsel’s representation that the insurer was their 

client, which Baron claims was false; and (5) the trial court’s order barring 

him from directly contacting the insurer. 
BARON v. DILLARD et al. 

Decision of the Court 

8

discretion.6 Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 

568, ¶ 21 (App. 2013). We begin our review with the presumption that trial 

judges are free of bias and prejudice. Id. 

¶26 Baron’s purported evidence of bias consisted of the first trial 

judge’s discovery and cost bond rulings, as well as her ruling that Baron 

could not contact Appellees’ insurance carrier directly. Baron argued that 

each of these rulings and comments “indicate [the first trial judge’s] bias 

and prejudice against the Plaintiff . . . .” 

¶27 Judicial rulings alone do not support a finding of bias; Baron 

must show that there is an extrajudicial source of bias or deep-seated 

favoritism. Id. Moreover, pure speculation as to the trial judge’s motives is

not ground for a change of judge. Costa v. Mackey, 227 Ariz. 565, 571, ¶ 12 

(App. 2011). The Civil Presiding Judge did not abuse his discretion in 

denying Baron’s motion.

B. The trial court’s denials of Baron’s various motions for 

reconsideration are not appealable. 

¶28 Baron’s notice of appeal also included several orders denying 

various motions for reconsideration he filed throughout the proceedings. 

We review the denial of a motion for reconsideration for an abuse of 

discretion. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009). 

¶29 Baron’s notice of appeal list the denials of his motions for 

reconsideration on the following subjects: 

 

6 Appellees argue that we lack jurisdiction to review this issue because 

motions for a change of judge can only be reviewed by special action, citing

Taliaferro v. Taliaferro, 186 Ariz. 221, 223 (1996). Taliaferro involved a notice 

of change of judge as a matter of right under Rule 42(f)(1), see id. at 222, 

whereas Baron moved for a change of judge for cause under Rule 42(f)(2). 

Rule 42(f)(2) motions can be reviewed in an ordinary appeal. See Stagecoach 

Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013). 

Appellees also point out that Baron filed a separate petition for special 

action on this issue. This court declined jurisdiction over Baron’s petition, 

which does not constitute a ruling on the merits. See State v. Felix, 214 Ariz. 

110, 112, ¶ 10 (App. 2006) (“The exercise of our jurisdiction to address an 

issue raised by special action is discretionary—we may decline jurisdiction 

and thereby render no decision on the merits at all.”). We therefore 

consider Baron’s appeal on this issue.
BARON v. DILLARD et al. 

Decision of the Court 

9

 Baron’s purported inability to pay the $3,000 cost 

bond; 

 The trial court’s order sustaining Appellees’ objections 

to Baron’s discovery requests;

 The Civil Presiding Judge’s order denying Baron’s 

motion for change of judge; and 

 The trial court’s dismissal of the first amended 

complaint without prejudice while, according to 

Baron, his special action appeal remained pending.7

The first three motions for reconsideration did not raise any issues different 

from those raised in Baron’s appeal of the underlying judgment. In the 

interest of brevity, we will not repeat our analysis of those issues here. 

¶30 As for the fourth motion, Baron did not discuss it in his 

opening brief. He therefore has waived the issue. See Dawson v. 

Withycombe, 216 Ariz. 84, 100 n.11, ¶ 40 (App. 2007). In any event, the trial 

court later dismissed Baron’s first amended complaint with prejudice, 

rendering any error in dismissing the case without prejudice effectively 

moot. See Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 

227, 229 (App. 1985) (“Appellate courts do not give opinions on moot 

questions. Nor do they act as a fountain of legal advice.” (internal citation 

omitted)).

V. Appellees are entitled to attorneys’ fees on appeal. 

¶31 Appellees request an award of attorneys’ fees on appeal 

under A.R.S. § 12-341.01 (Supp. 2015), Rule 11, and A.R.S. § 12-349(A) 

(Supp. 2015). We agree that attorneys’ fees on appeal are called for here 

under A.R.S. § 12-349(A)(1) and (A)(3). Pursuant to that statute, we can 

award attorneys’ fees on appeal if a party brings a claim without substantial 

justification or unreasonably expands the proceedings. A.R.S. § 12-

349(A)(1), (3). For these purposes, “without substantial justification” is 

defined as a claim that is “groundless and is not made in good faith.” A.R.S. 

§ 12-349(F). As explained above, Baron has not raised any justification for 

his refusal to obey discovery orders and the resulting dismissal of his 

 

7 Baron’s special action was not pending. This court declined jurisdiction 

over Baron’s special action petition on July 18, 2013, and the trial court did 

not enter its order of dismissal until August 13, 2013. 
BARON v. DILLARD et al. 

Decision of the Court 

10

complaint. Many of his other arguments on appeal do not affect that 

dismissal and those issues which might have affected the result were not 

posited on any sound factual or legal argument. As such, the appeal was 

without substantial justification, cannot be considered to have been 

prosecuted in good faith, and unreasonably expanded the proceedings. See 

ABC Supply, Inc. v. Edwards, 191 Ariz. 48, 52-57 (App. 1996) (awarding fees 

on appeal where appellant’s appeal was frivolous); Larkin v. State ex rel. 

Rottas, 175 Ariz. 417, 426-27 (App. 1992) (finding fees awardable on appeal 

because the party’s actions unreasonably delayed the proceedings without 

support by any reasonable authority). Accordingly, we will award 

Appellees reasonable attorneys’ fees and taxable costs incurred on appeal 

pursuant to A.R.S. §§ 12-349 and 12-341 upon timely compliance with 

ARCAP 21. Given our ruling on this issue, we do not discuss whether fees 

are also awardable under A.R.S. § 12-341.01(A) or Rule 11. 

CONCLUSION 

¶32 We affirm the trial court’s dismissal of Baron’s first amended 

complaint, and affirm its other rulings as set forth above.