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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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 

 

1 Edwards’ attempt to add a claim for declaratory relief was denied and is 

not a part of this appeal. 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
EDWARDS v, SMITH et al.

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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).
EDWARDS v, SMITH et al.

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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).
EDWARDS v, SMITH et al.

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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.