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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEE HARDING, et al., Plaintiffs/Appellants,

v.

DAVID NATHAN STERNSHER, dba SMART SMILES AZ, dba GREAT 

BRACES FOR LESS, dba GREAT BRACES 4 LESS, Defendant/Appellee.

No. 1 CA-CV 16-0127

Appeal from the Superior Court in Maricopa County

No. CV2013-010869

The Honorable Christopher T. Whitten, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH 

INSTRUCTIONS

COUNSEL

Law Offices of David W. Dow, Phoenix

By Carmen A. Chenal

Counsel for Plaintiffs/Appellants

Israel & Gerity, PLLC, Phoenix

By Michael E. Gerity

Counsel for Defendant/Appellee
HARDING, et al. v. STERNSHER, et al.

Decision of the Court

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MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Patricia K. Norris1 and Judge Jay M. Polk joined.2

J O H N S E N, Judge:

¶1 Plaintiffs Lee Harding, Julie Harding and Kidz Connextion, 

P.C., appeal the superior court's judgment in favor of defendant David 

Nathan Sternsher. For the following reasons, we reverse the court's 

summary judgment for Sternsher on conversion and remand for further 

proceedings solely on that claim. We affirm the remainder of the judgment.

FACTS AND PROCEDURAL BACKGROUND

¶2 Lee Harding owned Kidz Connextion, a dental practice 

specializing in pediatric dentistry that, until June 2012, employed dentist 

David Sternsher. Beginning in September 2012 and continuing through 

August 2013, several negative reviews of Kidz Connextion were posted 

anonymously on the internet. The online reviews complained about long 

wait times, poor customer service and unprofessional behavior at Kidz 

Connextion and alleged that employees improperly restrained patients. In 

addition, in December 2012, an unidentified person sent a letter to Phoenix 

Health Plan ("PHP"), a program that contracts with the Arizona Health Care 

Cost Containment System ("AHCCCS"), alleging that Kidz Connextion was 

committing insurance fraud and abusing patients. In response to the letter, 

PHP suspended Kidz Connextion from treating any PHP patients and 

commenced an investigation. PHP ultimately reinstated Kidz Connextion's

credentials.

¶3 After he left Kidz Connextion, Sternsher and five other former 

Kidz Connextion employees filed a complaint with the Arizona State Board 

 

1 The Honorable Patricia K. Norris, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3, of the Arizona Constitution.

2 The Honorable Jay M. Polk, Judge of the Arizona Superior Court, has 

been authorized to sit in this matter pursuant to Article VI, Section 3, of the 

Arizona Constitution.
HARDING, et al. v. STERNSHER, et al.

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3

of Dental Examiners in which they alleged Lee Harding and Kidz 

Connextion over-diagnosed and over-treated patients, and used improper 

material for restorations. They also alleged Kidz Connextion allowed 

dentists who were not credentialed by a patient's insurance plan to perform 

dental work, and then fraudulently billed the insurance plan by having a 

credentialed dentist sign the paperwork. Sternsher also sent a copy of this 

letter to AHCCCS and other AHCCCS service providers.

¶4 The plaintiffs filed this action against Sternsher and the other 

former Kidz Connextion employees who signed the Dental Board 

complaint, alleging they were responsible for the negative online reviews 

and the anonymous letter to PHP. The complaint alleged defamation, 

tortious interference with business relations, conversion, intentional 

infliction of emotional distress and negligent infliction of emotional 

distress. In his answer, Sternsher alleged a counterclaim for breach of 

contract.

¶5 Before trial, the plaintiffs dismissed their claims against all the 

defendants except Sternsher. The superior court granted Sternsher 

summary judgment on the claims alleging conversion, intentional infliction 

of emotional distress and negligent infliction of emotional distress. That 

left for trial Sternsher's counterclaim for breach of contract for failure to 

reimburse him for orthodontic supplies, and the plaintiffs' claims for 

defamation and tortious interference with business relations. The plaintiffs 

did not assert any damages arising out of the letter to the Dental Board and 

AHCCCS, but instead confined themselves to the online reviews and the 

PHP letter.

¶6 The jury found in favor of Sternsher on all claims, awarding 

him $1,997 on his counterclaim. The plaintiffs timely appealed. We have 

jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-

2101(A)(1) (2017).

3

DISCUSSION

A. Summary Judgment on the Plaintiffs' Tort Claims.

¶7 In reviewing a grant of summary judgment, this court will 

determine de novo whether any genuine issues of material fact exist and 

whether the superior court incorrectly applied the law. L. Harvey Concrete, 

Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997). We review 

 

3 Absent material revision since the relevant events, we cite the 

current version of applicable statutes.
HARDING, et al. v. STERNSHER, et al.

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the facts in the light most favorable to the parties against whom summary 

judgment was entered. Id. Summary judgment is appropriate "if the facts 

produced in support of the claim or defense have so little probative value, 

given the quantum of evidence required, that reasonable people could not 

agree with the conclusion advanced by the proponent of the claim or 

defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

1. Conversion.

¶8 In their claim for conversion, the plaintiffs alleged Sternsher

stole dental supplies while he was working for Kidz Connextion.

¶9 "Conversion is an intentional exercise of dominion or control 

over a chattel which so seriously interferes with the right of another to 

control it that the actor may justly be required to pay the other the full value 

of the chattel." Miller v. Hehlen, 209 Ariz. 462, 472, ¶ 34 (App. 2005) (citing 

Restatement (Second) of Torts § 222A(1) (1965)). To prove conversion, a 

plaintiff must show that the defendant improperly and intentionally 

exerted control and dominion over plaintiff's goods, thereby causing 

damage. Focal Point, Inc. v. U-Haul Co. of Ariz., 155 Ariz. 318, 320 (App. 

1986).

¶10 In his motion for summary judgment, Sternsher argued the 

plaintiffs had not produced any evidence to support their claim. In 

response, Lee Harding offered his declaration that Sternsher had access to 

Kidz Connextion's dental supplies before the company terminated him and 

certain supplies and instruments that were particularly related to 

Sternsher's work disappeared at times that corresponded to his shifts at 

Kidz Connextion. The superior court ruled that the plaintiffs did not set 

forth any evidence that Sternsher took the dental supplies and Lee 

Harding's speculation that Sternsher was the most likely suspect was not 

sufficient to create a material question of fact.4

 

4 Sternsher argues the superior court rejected Lee Harding's 

declaration because it was produced after the discovery deadline and in 

response to Sternsher's motion for partial summary judgment. Sternsher, 

however, did not move to strike the declaration, and the record does not 

contain any indication that the court disregarded it. To the contrary, it 

appears the court considered the declaration but found it insufficient to 

create a material question of fact.
HARDING, et al. v. STERNSHER, et al.

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¶11 Contrary to the ruling of the superior court, the plaintiffs 

offered sufficient evidence to allow a reasonable jury to find that Sternsher 

converted the supplies. A party may support its conversion claim by 

circumstantial evidence, so long as it is not mere suspicion or conjecture. 

Performance Sys., Inc. v. Kahl, 24 Ariz. App. 92, 94 (1975). The evidence the 

plaintiffs offered went beyond speculation, as Lee Harding averred that he 

inventoried Kidz Connextion's dental supplies weekly and the 

discrepancies "always corresponded" to when Sternsher worked at Kidz 

Connextion. In addition, Lee Harding's declaration established that the 

missing supplies were specialized equipment that had "no value to anyone 

other than a dentist who owns a pediatric clinic" and disappeared at a time 

when Sternsher was opening his own clinic. The plaintiffs therefore offered 

not just suspicion and conjecture, but circumstantial evidence that 

established a motive and a pattern from which a reasonable jury could infer 

that Sternsher took the supplies. Orme Sch., 166 Ariz. at 309 (summary 

judgment is only appropriate when reasonable people could not agree with 

the conclusion advanced by the non-moving party).

2. Emotional distress claims.

a. Intentional infliction of emotional distress.

¶12 The Hardings alleged Sternsher intentionally caused them 

severe emotional distress through extreme and outrageous conduct. The 

superior court ruled that because the Hardings had failed to produce any 

evidence of severe emotional distress, they could not recover on this claim. 

The Hardings argue the court erred because Sternsher's conduct aggravated 

Lee Harding's blocked artery condition and caused him insomnia for which 

his physician prescribed a sleep medication.5

¶13 To establish a claim for intentional infliction of emotional 

distress, a plaintiff must show that (1) the defendant's conduct was extreme 

and outrageous, (2) the defendant either intended to cause emotional 

distress or recklessly disregarded the near certainty that such distress

would result from his conduct, and (3) the defendant's actions caused the 

plaintiff to suffer severe emotional distress. Ford v. Revlon, Inc., 153 Ariz. 

 

5 Julie Harding argues she "suffered as a result of [Sternsher's] 

outrageous conduct and the resulting consequence," but does not identify 

the nature of her alleged suffering or any evidence in the record that 

supports her claim. Because she did not adequately develop this argument, 

we do not consider it. Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 

Ariz. 161, 167 (App. 1996).
HARDING, et al. v. STERNSHER, et al.

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38, 43 (1987). Arizona courts apply a case-by-case analysis to determine 

whether a plaintiff has offered sufficient proof of severe emotional distress. 

Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79 (1986). "A line of 

demarcation should be drawn between conduct likely to cause mere 

'emotional distress' and that causing 'severe emotional distress.'" Midas 

Muffler Shop v. Ellison, 133 Ariz. 194, 199 (App. 1982) (citation omitted); see 

also Restatement (Second) of Torts § 46 cmt. j (1965) (liability only arises 

when emotional distress is extreme; "Complete emotional tranquility is 

seldom attainable in this world, and some degree of transient and trivial 

emotional distress is a part of the price of living among people."). Thus, 

crying, being stressed and upset, and having occasional trouble sleeping is 

not enough to establish severe emotional distress. Midas Muffler Shop, 133 

Ariz. at 199. On the other hand, anxiety that results in physical symptoms 

such as high blood pressure, a nervous tic, chest pains, fatigue and 

dizziness may constitute severe emotional distress. Ford, 153 Ariz. at 41; see 

also Pankratz v. Willis, 155 Ariz. 8, 12, 17 (App. 1987) (anger and depression 

coupled with physical ailments such as headaches and hemorrhoids 

supported claim for emotional distress).

¶14 In support of his claim for intentional infliction of emotional 

distress, Lee Harding submitted his own declaration that Sternsher's 

actions had aggravated his existing medical condition (a vertebral artery 

blockage) "to the point of [it] being an emergent condition," but he did not

explain how (or if) the supposed exacerbated condition had any physical 

manifestations or avow that he had received any medical treatment for it. 

Moreover, Harding claimed he suffered from insomnia due to "job stress 

and anxiety" but did not offer any evidence that it was Sternsher's conduct, 

and not other employment-related stressors, that caused the stress and 

anxiety leading to the insomnia.

¶15 This evidence did not create a material question of fact

regarding whether Sternsher's actions caused Lee Harding severe 

emotional distress. See Midas Muffler Shop, 133 Ariz. at 199 (citing as 

examples of severe emotional distress cases in which (1) plaintiff suffered 

heart attack and nervous exhaustion, (2) plaintiff's fright resulted in 

premature birth of a dead baby, (3) plaintiff was found writhing in bed in a 

state of extreme shock and hysteria, (4) plaintiff suffered severe headaches 

and stress and her state of anxiety ultimately required hospitalization, (5) 

plaintiff suffered from multiple sclerosis, and stress caused by the 

defendant's conduct caused a relapse that resulted in permanent 

impairment of her condition).
HARDING, et al. v. STERNSHER, et al.

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b. Negligent infliction of emotional distress.

¶16 The Hardings likewise did not present sufficient evidence to 

create a material issue of fact regarding negligent infliction of emotional 

distress. To establish this claim, the plaintiff must prove that he or she 

"witnessed an injury to a closely related person, suffered mental anguish 

manifested as physical injury, and was within the zone of danger so as to 

be subjected to an unreasonable risk of bodily harm created by the 

defendant." Rodriguez v. Fox News Network, L.L.C., 238 Ariz. 36, 39, ¶ 7 (App. 

2015). The Hardings did not present any evidence that they witnessed 

injury to a loved one or were in a zone of danger. In addition, as discussed, 

Lee Harding's declaration did not substantiate his claim that Sternsher's 

conduct caused him emotional distress of such severity that it resulted in 

physical manifestations. See also Gau v. Smitty's Super Valu, Inc., 183 Ariz. 

107, 109 (App. 1995) (transitory physical symptom such as insomnia does 

not support a claim for negligent infliction of emotional distress).

B. Exclusion of Audio Recordings.

¶17 The plaintiffs also argue the superior court abused its 

discretion at trial by excluding certain audio recordings of Sternsher that 

reflected his animus toward Lee Harding and Kidz Connextion. We review 

the court's exclusion of evidence for an abuse of discretion and will not 

disturb such a ruling "unless a clear abuse of discretion appears and 

prejudice results." Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996).

¶18 In Spring 2013, Kidz Connextion employee Felix Lucero 

secretly recorded several conversations in which Sternsher asked him to 

gather evidence to support Sternsher's planned Dental Board complaint 

(the "Lucero recordings"). In the recordings, Sternsher repeatedly 

expressed his hostility toward Lee Harding, stating he wanted to "bury"

him and put him and Kidz Connextion out of business. Sternsher moved 

in limine to exclude the audio recordings, arguing they were not relevant to 

any element of the defamation and tortious interference claims and their 

prejudicial effect would outweigh any probative value. The plaintiffs

maintained the recordings were not unfairly prejudicial and showed 

Sternsher's malicious intent, a matter relevant to both claims and their

request for punitive damages.

¶19 At the superior court's request, the plaintiffs designated the 

specific portions of the Lucero recordings they intended to introduce in 

evidence at trial. Sternsher objected to the admission of any portion of the 

Lucero recordings, but submitted counter-designations that he asserted 
HARDING, et al. v. STERNSHER, et al.

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also should be presented to the jury if the court allowed the recordings. On 

the first day of trial, the court excluded the Lucero recordings, ruling the 

proffered sections were confusing, misleading and unfair and that the 

recordings were more prejudicial than probative. Nevertheless, the court 

allowed the plaintiffs to impeach Sternsher with portions of the recordings 

several times during his testimony.

¶20 The plaintiffs argue the superior court abused its discretion 

by excluding the Lucero recordings because the probative value of the 

recordings (demonstrating Sternsher's malicious intent toward Lee 

Harding and Kidz Connextion) outweighed their prejudicial nature. The 

superior court may exclude relevant evidence under Arizona Rule of 

Evidence 403 if its probative value is "substantially outweighed by a danger 

of unfair prejudice, confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative evidence." State v. 

Hardy, 230 Ariz. 281, 291, ¶ 49 (2012). The superior court has considerable 

discretion when weighing these factors, State v. Gibson, 202 Ariz. 321, 324, ¶ 

17 (2002), and we will not disturb its ruling absent an abuse of discretion 

and resulting prejudice. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 404, ¶¶ 

28-30 (App. 2000).

¶21 We conclude the superior court abused its discretion by 

ruling that the probative value of the Lucero recordings was outweighed 

by a danger of unfair prejudice and confusion. The recordings, which over 

and over captured Sternsher using profane language to describe his disdain 

for Lee Harding and Sternsher's desire to put Kidz Connextion out of 

business, constituted powerful evidence of Sternsher's intent, which was 

relevant both to the plaintiffs' claim for defamation and their claim for 

tortious interference with business relations. See, e.g., Reynolds v. Reynolds, 

231 Ariz. 313, 317, ¶ 8 (App. 2013); Antwerp Diamond Exch. of America, Inc. v. 

Better Bus. Bureau of Maricopa County, Inc., 130 Ariz. 523, 529-30 (1981). 

Nevertheless, the court's ruling did not prejudice the plaintiffs because the 

court allowed them to use key portions of the recordings as impeachment 

during their cross examination of Sternsher. For example, the passages the 

plaintiffs used to impeach Sternsher included his statements that he wanted 

to "bury" Lee Harding by shutting down his business and leaving him 

"broke" and, possibly, in jail. The court also allowed the plaintiffs to 

impeach Sternsher with his statement that he expected his own business to 

benefit if he was able to "bury" Lee Harding and Kidz Connextion. These

excerpts amply demonstrated Sternsher's animus toward Lee Harding and 

Kidz Connextion.
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¶22 Accordingly, because the superior court's ruling excluding 

the Lucero recordings did not prejudice the plaintiffs, we will not reverse 

the jury's verdict on that ground. Yauch, 198 Ariz. at 404, ¶¶ 28-30.

C. Breach of Contract Claim.

¶23 Finally, the plaintiffs argue the superior court erred by 

granting judgment on the jury's verdict in favor of Sternsher on his 

counterclaim for breach of contract because no written contract existed. 

Arizona law permits the enforcement of an oral contract, see A.R.S. § 12-543

(2017), and Sternsher testified that Lee Harding agreed that Kidz 

Connextion would reimburse him for one-half of the costs of the 

orthodontic supplies and materials he used for Kidz Connextion patients, 

but it failed to pay the last invoice.

CONCLUSION

¶24 For the foregoing reasons, we reverse the superior court's 

summary judgment for Sternsher on the plaintiffs' conversion claim and 

remand for further proceedings solely on that claim. We affirm the 

remainder of the judgment.

¶25 Both parties request an award of attorney's fees on appeal 

pursuant to A.R.S. § 12-341.01 (2017), which allows a court to award the 

successful party reasonable attorney's fees in a contested action arising out 

of contract. In our discretion, we decline to award fees to either party. See 

Munger Chadwick, P.L.C. v. Farwest Dev. & Const. of the Sw., LLC, 235 Ariz. 

125, 128, ¶ 14 (App. 2014). We also decline to award costs to either party. 

Although we are remanding the plaintiffs' conversion claim, we cannot 

know whether the plaintiffs ultimately will prevail on that claim. See A.R.S. 

§ 12-342(A) (2017).