Opinion
No. 1 CA-CV 16-0598
10-05-2017
STEPHEN S. EDWARDS, Plaintiff/Appellant, v. BOB GOTTLIEB, Defendant/Appellee.
COUNSEL Stephen S. Edwards, Phoenix Plaintiff/Appellant Schneider & Onofry, P.C., Phoenix By Timothy B. O'Connor Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2016-002986
The Honorable Kerstin G. LeMaire, Judge
AFFIRMED
COUNSEL Stephen S. Edwards, Phoenix
Plaintiff/Appellant Schneider & Onofry, P.C., Phoenix
By Timothy B. O'Connor
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined. THUMMA, Judge:
¶1 This case arises out of a dispute between appellant Stephen S. Edwards and appellee Bob Gottlieb. Edwards appeals from a judgment dismissing with prejudice his trespass to chattels claim against Gottlieb. Because Edwards has shown no error, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 One June 2015 morning, Edwards discovered Gottlieb's vehicle parked in the driveway of his recently vacant rental property. Edwards confronted Gottlieb, who said Edwards' tenant gave him permission to park on the property. Unbeknownst to Gottlieb, the tenant had vacated the property the previous day. Edwards also accused Gottlieb of using a pool on the property. Edwards reported the alleged trespass to the Phoenix Police Department. The investigating officer's report confirmed that the tenant had given Gottlieb permission to park in the driveway and closed the investigation. The report did not mention the alleged pool trespass.
¶3 Edwards sued Gottlieb and, as amended, his complaint alleged trespass to chattels. Gottlieb moved to dismiss, arguing Edwards' trespass claim failed because Gottlieb had permission to enter the property. After hearing oral argument, the superior court granted the motion, determining Edwards failed to state a claim upon which relief could be granted. See Ariz. R. Civ. P. 12(b)(6)(2017). After entry of a final judgment, see Ariz. R. Civ. P. 54(c), Edwards timely appealed. This court has appellate jurisdiction 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).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶4 Edwards argues he alleged a viable trespass claim, that he should have been allowed an opportunity to amend his claim and that the superior court was biased against him. This court reviews de novo whether Edwards alleged an actionable claim. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012).
Edwards' brief also discusses issues not asserted in his operative pleading or raised with the superior court (including fraud upon the court), which are not properly part of this appeal and which 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).
I. Edwards Failed To State A Claim Upon Which Relief Can Be Granted.
¶5 Edwards argues his complaint alleged sufficient facts to put Gottlieb on notice of the nature of the claim. A motion to dismiss should not be granted "unless it appears certain the plaintiff would not be entitled to relief under any state of facts susceptible of proof under the claim stated." Sun World Corp. v. Pennysaver, Inc., 130 Ariz. 585, 586 (App. 1981). A trespasser is a person who enters or remains on property without actual or implied permission. See Webster v. Culbertson, 158 Ariz. 159, 161 n.3 (1988). Edwards' amended complaint, and the police report he attached to it, show Gottlieb had permission to park on the property. As to the swimming pool claim, Edwards never saw Gottlieb using the pool on the dates of the alleged trespass and does not allege Gottlieb's pool use was without permission. On this record, the superior court did not err in concluding Edwards failed to state a viable trespass claim.
Given this conclusion, this court need not address Edwards' subject matter jurisdiction or res judicata arguments. Edwards also argues, for the first time on appeal, that Gottlieb knew that the tenant no longer lived at the property. Edwards' operative pleading, however, did not make this claim, meaning it will not be considered on appeal. See Lemons v. Showcase Motors, Inc., 207 Ariz. 537, 541 n.1 (App. 2004). --------
II. Edwards Was Afforded An Opportunity To Amend His Pleading.
¶6 Edwards argues he should have been permitted to amend his pleading. Edwards, however, amended his original complaint at the same time he opposed Gottlieb's motion to dismiss. Edwards filed no other motion for leave to amend, and thus he waived any argument that he should have been given leave to further amend his pleading. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349 ¶ 17 (App. 2007) ("argument waived on appeal when not briefed" with superior court, meaning that "court had no opportunity to consider it") (citations omitted).
III. Edwards Has Shown No Bias By The Superior Court.
¶7 Edwards claims the superior court judge was biased against him and was required to recuse from consideration of this case. Edwards did not raise the issue until after entry of the judgment and thereby failed to preserve the issue for appeal. Even absent waiver, 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.
IV. Attorneys' Fees And Taxable Costs On Appeal.
¶8 Gottlieb requests an award of attorneys' fees and taxable costs on appeal, citing A.R.S. § 12-341.01, 12-342 and ARCAP 21. Although Gottlieb is the successful party on appeal, he has not shown that this is a "contested action arising out of a contract," which is a prerequisite for an award of fees under A.R.S. § 12-341.01. Although neither A.R.S. § 12-342 nor ARCAP 21 provide an independent basis for an award of fees, Gottlieb is awarded his taxable costs on appeal, contingent upon his compliance with ARCAP 21.
CONCLUSION
¶9 The judgment is affirmed.