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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STEPHEN S. EDWARDS
, Plaintiff/Appellant
,

v.

SANDRA L. SMITH et al.
, Defendant s /Appellee s

.
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 Ca nna ta, Jr., Lori L. Voepel C ounsel 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. SmithEDWARDS 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 loc ated with in 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, t he 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

c ould 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,
t he superior court ordered him to “ make himself available for deposition by Febru ary 29, 2016

. ” When he failed to make himself available to be depos ed by th e court

- ordered date , defendants again sought dismissal under R ules 37(f) and 41(b). After briefing, t he court found Edwards “ ha [d] unreasonably refused to participate in discovery
, ” and tacitly conclud ing 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. Decision of the Court

3 court ha s 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

- 2 101 (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 discover y.

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 inflic tion 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

. ” “‘ A n absolute privilege

3 Edwards ’ brief also discusses claims not asserted in the pleadings, and purported wrongful acts by non

- parties not proper ly 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 O ld Pueblo Plastic Surgery, P.C. v. Fields , 146 Ariz. 178, 179 (App. 1985).EDWARDS v, SMITH et al. Decision of the Court

4 exists for participants in judicial proceedings. ’” Linder v. Brown & Herrick
, 189 Ariz. 398, 406 (App. 1997) (citation omitted ) ; s ee 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 Ed wards 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 Cas e With Prejudice Pursuant To Ariz ona R ules Of Civ il P rocedure 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 app eal. 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 omitt ed). T hat is precisely what the court did here

. B y 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 B ia s 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 fail ed to preserve the matter for appeal

. Howev er, e ven 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. Decision of the Court

5 had jurisdiction to address the issue, Edwards has provided no evidence supporting such a n assertion and none appears in the record. T he 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.