hertz/coy v. Coy

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RHONDA JEAN HERTZ, a single woman,
Plaintiff/Counterdefendant/Appellee,

v.

LAURA LYNN COY, Defendant/Counterclaimant/Appellant.
___________________________________________________

LAURA LYNN COY, Cross-Claimant/Appellant,

v.

SAMUEL F. COY, Cross-Defendant/Appellee.

No. 1 CA-CV 12-0608
FILED 07-22-2014

Appeal from the Superior Court in Navajo County
No. S0900CV20060113
The Honorable Monica L. Stauffer, Judge

AFFIRMED

COUNSEL

The Hendrickson Law Firm, PLLC, Tempe
By Brian W. Hendrickson

Law Office of Mark J. Leonardo, Malibu, CA
By Mark J. Leonardo, Pro Hac Vice
Co-Counsel for Defendant/Counterclaimant/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By William D. Holm, Lori L. Voepel, Eileen Dennis GilBride
Counsel for Plaintiff/Counterdefendant/Appellee

Samuel F. Coy, Show Low
Cross-Defendant/Appellee In Propria Persona

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

G E M M I L L, Judge:

¶1 This appeal arises out of rulings made during an eleven-day
jury trial on breach of contract and intentional infliction of emotional
distress claims. Finding no abuse of discretion or error of law, we affirm.

BACKGROUND

¶2 Laura Lynn Coy (“Laura”) 1 and her husband, Samuel F. Coy
(“Sam”), moved from Show Low to Port Hueneme, California, in 2001.
They soon discovered that pigeons had infested their California house and
five hundred gallons of droppings remained between the attic’s framing
and drywall. The Coys sued the seller and eventually recovered
$593,471.17 in damages (the “Wachtel litigation”).

¶3 Rhonda Hertz (“Rhonda”), Sam’s former supervisor at Show
Low Pontiac-GMC-Buick-Nissan, LLC (“SLP”), loaned Sam and Laura
various amounts totaling $129,387.39 to pay attorneys’ fees incurred
during the Wachtel litigation. Laura signed a notarized letter in April
2004 acknowledging debts to Rhonda in the amounts of $60,000 due at
that time, as well as liability for $15,000 Rhonda would be advancing.

¶4 Sam returned to Arizona in 2002 and resumed employment
at SLP, while Laura remained in California with their two children. Sam

1 For clarity and brevity, we refer to the parties by their first names
because two of them have the same last name. We intend no disrespect by
the usage of first names.

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and Laura executed a separation agreement requiring Sam to pay monthly
child and spousal support and to give Laura his share of the Wachtel
litigation proceeds.

¶5 Laura filed for divorce in California in 2005. During the
divorce proceeding, Laura claimed that she had signed the notarized
document acknowledging her obligation to Rhonda under duress. The
California family court, however, declined to hold Sam solely responsible
for the loans from Rhonda, and dissolved the marriage in 2010.

¶6 Rhonda sued Sam and Laura for breach of contract in 2006
and obtained a default judgment against Sam. Laura answered the
complaint and also filed a counterclaim against Rhonda, a cross-claim
against Sam, and a third-party complaint against SLP.

¶7 In the cross-claim and counterclaim, Laura alleged that (1)
Rhonda’s and Sam’s actions intentionally caused her emotional distress,
(2) Rhonda induced Sam to breach the Coys’ separation agreement and
interfered with a contract and prospective economic advantage, (3) Sam
engaged in fraud and conspired to defraud Laura, (4) Sam interfered with
Laura’s prospective economic advantage and breached their separation
agreement as well as the covenant of good faith and fair dealing, (5) Laura
was entitled to indemnity and declaratory relief from Sam, and (6)
Rhonda aided and abetted tortious conduct and conspired to defraud
Laura. Laura’s third-party complaint against SLP similarly asserted
claims for intentional interference with contract and prospective economic
advantage, aiding and abetting tortious conduct, and conspiracy to
defraud.

¶8 The trial court granted summary judgment in SLP’s favor on
all claims in the third-party complaint. It later granted summary
judgment in Rhonda’s favor on all claims between Laura and Rhonda
except for Rhonda’s breach of contract claim and Laura’s intentional
infliction of emotional distress claim.

¶9 During the subsequent trial, Laura testified that Sam and
Rhonda’s behavior reactivated trauma she had suffered as a child.
Specifically, Laura claimed that Rhonda threatened to make Laura
homeless if Laura didn’t “get [her] claws out of Sam.” Laura also testified
that she suffered emotional distress when Sam reported her to the Social
Security Administration for working and earning money notwithstanding
her receipt of Social Security disability benefits. According to Laura, Sam,
Rhonda, and others hid Sam’s income using loans and funneled money to

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help Sam avoid paying Laura additional child support.

¶10 The jury returned a verdict in favor of Rhonda on the breach
of contract claim and in favor of Sam and Rhonda on the intentional
infliction of emotional distress claim. The trial court incorporated the
verdict in a final judgment with Rule 54(b) language. 2 This appeal
followed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) and -2101(A)(1).

ANALYSIS

¶11 Laura challenges several trial rulings on appeal. We view
the evidence and all reasonable inferences therefrom in the light most
favorable to upholding the jury’s verdict. See Romero v. Sw. Ambulance,
211 Ariz. 200, 202, ¶ 2, 119 P.3d 467, 469 (App. 2005).

I. The Trial Court Did Not Abuse Its Discretion In Precluding
Experts and a Report

A. Emotional Distress Expert

¶12 Laura challenges the exclusion of expert testimony from
psychiatrist Dr. Carole Lieberman, as well as Dr. Lieberman’s report,
based on untimely disclosure. Citing Laura’s “systemic delay,
obstruction, and noncompliance” throughout the course of the litigation,
the trial court rejected Laura’s claim that the failure to disclose was
inadvertent and thus should have been excused. See Ariz. R. Civ. P.
26.1(a)(6) (requiring disclosure of expert witnesses expected to testify at
trial and the substance of their opinions). We review the trial court’s
ruling on discovery and disclosure matters for abuse of discretion. Link v.
Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998).

¶13 Arizona Rule of Civil Procedure (“Rule”) 37(c)(1) provides,
in relevant part, that “[a] party who fails to timely disclose information
required by Rule 26.1 shall not, unless such failure is harmless, be
permitted to use as evidence at trial . . . the information or witness not
disclosed, except by leave of court for good cause shown.” Laura first
disclosed Dr. Lieberman as an expert on January 3, 2012 and Dr.
Lieberman’s report on January 12, 2012, just thirty-nine days before trial.
Both disclosures were past the disclosure deadline of December 23, 2011,

2 The trial court did not resolve Laura’s indemnity claim against Sam.

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and Laura had not requested an extension under Rule 26.1(b)(2) before the
deadline.

¶14 Once the trial court concluded that the disclosure deadline
violation was not harmless because Rhonda would then have to subpoena
Dr. Lieberman’s file, take her deposition and provide all the information
to her expert, the trial court was authorized to impose sanctions unless
Laura established good cause. See Ariz. R. Civ. P. 37(c)(1). Factors
relevant to good cause include: (1) the reason for the failure to properly
disclose evidence, (2) the willfulness or inadvertence of the party’s or
attorney’s conduct, (3) prejudice to either side that may result from
excluding or allowing the evidence; (4) the opposing party’s or attorney’s
action or inaction in attempting to resolve the dispute short of exclusion;
and (5) the overall diligence with which a case has been prosecuted or
defended. Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258
(1995).

¶15 Laura argued that her attorney mistakenly believed that he
had served a disclosure statement identifying Dr. Lieberman on
November 1, 2011, and thus the disclosure violation was inadvertent. But
even if counsel had notified opposing counsel on November 1, 2011 that
Dr. Lieberman would be a witness, the export report could not be
provided by the December 12, 2011 deadline because Dr. Lieberman had
yet to evaluate Laura and did not do so until January 2012. Laura did not
timely seek to extend the December 12 deadline for expert reports.
Moreover, Laura did not provide a compelling basis for the trial court to
excuse her failure to comply with the December 12 deadline.

¶16 The other factors set forth in Allstate also support the finding
that Laura failed to establish good cause. Not only did Rhonda promptly
bring the issue to the trial court’s attention and request enforcement of the
court’s deadlines, Laura used the videotaped deposition of a different
expert, Dr. Jeff Titcher, at trial.

¶17 Although Laura now claims prejudice from the preclusion of
the Lieberman evidence, she did not present that argument to the trial
court, and we decline to consider her argument made for the first time on
appeal. See Sobol v. Marsh, 212 Ariz. 301, 303 n.4, ¶ 6, 130 P.3d 1000, 1002
n.4 (App. 2006) (noting that “absent exceptional circumstances, we will
not consider arguments raised for the first time on appeal.”) Even
without the Lieberman evidence, the jury evaluated Laura’s case because
both Laura and Dr. Titcher testified. The jury had to determine the
credibility of the witnesses in determining whether Laura proved her case.

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The fact that Dr. Lieberman was precluded from testifying was not
because of any error made by the trial court, but Laura’s failure to disclose
the information and the prejudice that would result. 3

¶18 Because the trial court was in the best position to determine
the appropriate sanctions given the history of the case, the court did not
abuse its discretion by precluding Laura’s expert on finding that Laura
failed to establish good cause for her untimely disclosure. See Zuern v.
Ford Motor Co., 188 Ariz. 486, 489, 937 P.2d 676, 679 (App. 1996) (affirming
exclusion of an expert opinion on an alternate theory disclosed more than
three months after the disclosure deadline); accord Wong v. Regents of Univ.
of Cal., 410 F.3d 1052, 1062 (9th Cir. 2004) (holding that district court did
not abuse its discretion by refusing to permit supplemental disclosure of
other expert witnesses when the discovery and disclosure deadlines had
expired, even though trial was still months away, because such
disruptions to the parties and court’s schedule are not harmless).

¶19 Laura alternatively argues that she was entitled to an
evidentiary hearing. “Due process does not require that a hearing be held
in every case” prior to imposing Rule 37(b)(2) sanctions, and when the
“fault of the party is clear from the record a hearing may not be
necessary.” Robinson v. Higuera, 157 Ariz. 622, 624, 760 P.2d 622, 624 (App.
1988). In this case, because Laura’s counsel admitted that he failed to
timely provide the disclosure, there was no need for a hearing.

¶20 Moreover, an evidentiary hearing is only required when the
contemplated sanction will prevent a party from presenting the case. See
Zimmerman v. Shakman, 204 Ariz. 231, 237, ¶ 23, 62 P.3d 976, 982 (App.
2003); Perguson v. Tamis, 188 Ariz. 425, 429, 937 P.2d 347, 351 (App. 1996).
“If a plaintiff cannot introduce evidence of any kind because of
nondisclosure the obvious outcome is the dismissal of the case.”
Zimmerman at 236, ¶ 19, 62 P.3d at 981. In that event, the court must
employ the “procedural protections required under” Rule 37(c)(1). Id.

3 The discovery violation was not the first one to occur during the six
years of litigation. Laura failed to timely execute releases for her Social
Security file, and her delayed disclosure of financial information required
that she had to be deposed a second time. Laura also failed to disclose the
name of a prior counselor whom she had seen for childhood trauma and
the funds she had received from a friend to finance plastic surgery.
Additionally, Rhonda had to file a motion to compel to obtain Laura’s
required expert witness disclosures.

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¶21 Unlike the plaintiff in Zimmerman, Laura was able to present
her case, including mental health evidence, using her own testimony and
testimony by Dr. Tichter. And, unlike Perguson, where the expert had
been timely disclosed but the affidavit was only filed forty days before
trial, Perguson, 188 Ariz. at 426, 429, 937 P.3d at 348, 351, Laura had not
disclosed her expert or the report by the discovery cutoff date.

¶22 Laura further contends that the trial court erroneously failed
to consider imposing alternative sanctions. She relies upon Wayne Cook
Enterprises, Inc. v. Fain Properties Ltd. Partnership, which holds that, prior to
dismissing a case, a trial court must consider whether lesser sanctions
could remedy the prejudice from the untimely disclosure. 196 Ariz. 146,
149, ¶ 14, 993 P.2d 1110, 1113 (App. 1999). Laura, however, did not
propose any alternatives. Moreover, the trial court noted in imposing
the sanction that it struggled with the sanction but thought it was
appropriate given the violation, stating:

Mr. Leonardo, the claim was filed five and a half years ago.
And I agree and I struggled with this myself, because of the harsh
result, but to fashion a remedy after I’ve seen such a pattern of
noncompliance and abuse, as well as, repeated requests . . . if this
wasn’t a case where the other lawyer and [sic] sit back and
waited to see what they could ask the judge to do at a later
time, there was time after time after time after time after
time and I could go on that you were asked repeatedly by
Mr. Holm to supplement or provide the necessary disclosure
over the course of the last five and a half years. I have not
seen a case such as this, where there was such systematic
delay, obstruction, and noncompliance and that is the ruling
of the Court, and I stand by my ruling[.]

(Emphasis added). The trial court recognized it had alternatives, but it
concluded that exclusion was the proper remedy. Because the trial court
had to determine whether good cause was shown for the late disclosure,
Zimmerman, 204 Ariz. at 236, ¶ 16, 62 P.3d at 981, it did not abuse its
discretion by excluding Dr. Lieberman and her report.

B. Handwriting Expert

¶23 Laura also contests the exclusion of a handwriting expert
and a forensic handwriting analysis of her alleged signature on a GMAC
credit application. She fails to develop or articulate her precise argument
as required by Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13.

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See Ariz. R. Civ. App. P. 13(a)(6) (requiring a party to support an
argument with the “reasons therefor, with citations to the authorities,
statutes and parts of the record relied on”). We therefore decline to
address the argument. See Polanco v. Indus. Comm’n, 214 Ariz. 489, 492 n.2,
¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (holding that a party waived an
issue by only mentioning it in passing in the opening brief, citing no
supporting legal authority, and failing to further develop the argument).

II. The Trial Court Did Not Abuse Its Discretion By Ordering
Production Of The Social Security Investigation Materials

¶24 Laura challenges the admission of her Social Security
Administration file into evidence at trial. She argues that the trial court
disregarded a federal warning against disclosing such materials and
allowed the jury to consider an incomplete investigation of Laura’s
alleged fraud. This court will review an evidentiary ruling for an abuse of
discretion and resulting prejudice. Selby v. Savard, 134 Ariz. 222, 227, 655
P.2d 342, 347 (1982). The prejudice “must affirmatively appear from the
record.” Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980).

¶25 If Laura believed that the Social Security Administration file
was protected or privileged, Rule 26.1(f)(1) required her to assert that
privilege “expressly” and support that claim with a description of the
file’s contents. Laura failed to comply with this rule, and she made no
such request prior to trial.

¶26 Even assuming that the contents of Laura’s Social Security
file were protected, she waived the protection by repeatedly placing her
entitlement to Social Security benefits at issue. She claimed that Sam had
inflicted emotional distress by jeopardizing her disability benefits in
reporting her income-producing activities to the Social Security
Administration. In addition, Laura’s counsel suggested to the jury that
Social Security records confirmed that Laura had several significant health
issues. These actions opened the door for Rhonda and Sam to introduce
the file for purposes of (1) establishing the truth of the report, which was
relevant to whether Sam engaged in extreme and outrageous conduct in
making it and (2) determining the source of Laura’s claimed emotional
distress. See State v. Garcia, 133 Ariz. 522, 526, 652 P.2d 1045, 1049 (1982)
(holding that counsel who opens the door to further inquiry “may not
assign its fruits as error on appeal”). The trial court therefore did not err in
admitting this evidence.

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III. Laura Did Not Preserve Her Argument Concerning The
Preclusion Of Intentional Acts Evidence Based Upon The
Summary Judgment

¶27 Laura additionally argues that the trial court abused its
discretion by precluding evidence of Rhonda’s and Sam’s alleged
intentional conduct while at SLP based upon the grant of summary
judgment to SLP. Laura fails to specify, however, what evidence was
excluded and she does not develop the argument as required by ARCAP
13(a)(6). We therefore decline to address her argument. See Polanco, 214
Ariz. at 492 n.2, 154 P.3d at 393 n.2.

IV. The Trial Court Did Not Commit Prejudicial Error In Allowing
Laura The Breaks She Had Requested

¶28 Invoking the Americans with Disabilities Act of 1990, Laura
requested that the trial court accommodate her need to take breaks during
the trial. See 42 U.S.C. § 12132 (“no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity”). The trial
court granted that request and told the jurors that:

[F]rom time to time one or more of the parties may or may
not be here or may have to leave the Courtroom for any
particular reason. That is certainly their prerogative, and
I’ve told them that’s their prerogative unless they’re a
witness that is testifying and about to be called. So don’t
hold that against them if a party is or is not here.

¶29 Laura concedes that the trial court allowed her requested
breaks, but she challenges the “manner” in which she was accommodated.
She alleges, and the record confirms, that the trial court did not always
excuse the jury when Laura took her breaks.

¶30 The trial judge has the discretion and the duty to control trial
proceedings. Brown v. U.S. Fidelity and Guar. Co., 194 Ariz. 85, 91, ¶ 33, 977
P.2d 807, 813 (App. 1998). Here, the trial court was not required to stop
the trial for each of Laura’s breaks, but only to accommodate Laura’s need
for breaks. The trial court amply did so while remaining mindful that the
jury’s time was valuable. Moreover, Laura did not object to the court’s
practice until the eighth day of trial when, after returning from a break,
she remarked that it was “so rude to the Jury” to make it wait for her. She
does not cite any instance of breaks given to her alone thereafter. On this

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record, the trial court did not abuse its discretion in accommodating
Laura’s need for breaks.

V. The Trial Court Did Not Abuse Its Discretion In Enforcing The
Motions In Limine

¶31 Laura next contends that the trial court failed to enforce a
motion in limine. Before trial, the parties agreed to limit evidence of
Laura’s other lawsuits to the Wachtel litigation, Laura and Sam’s divorce,
Laura’s malpractice suit against a prior attorney, and her medical
malpractice case. According to Laura, Rhonda violated that agreement by
questioning Laura about information derived from a proceeding to obtain
a temporary restraining order against an ex-boyfriend.

¶32 Using a document from another proceeding to refresh her
recollection, Laura was questioned about whether she had paid a parking
ticket for her ex-boyfriend, who had illegally parked at the airport while
they were on a vacation.

BY [RHONDA’S COUNSEL]:

Q. Do you see here Airport Parking Ticket. You were
complaining because you had to pay for his truck, $277.

A. And Mark –

Q. Ma’am, do you see that?

[LAURA’S COUNSEL]: Your Honor, I point out we had an
M-I-L on this, as well.

[RHONDA’S COUNSEL]: I’m just asking for some dates in
here.

Laura was not questioned about the temporary restraining order against
the ex-boyfriend. Instead, and outside of the presence of the jury, the trial
court was told that Rhoda was attempting to establish only that Laura had
a boyfriend in January 2002, a time when she was allegedly suffering from
emotional distress due to Sam’s alleged infidelity. The trial court did not
have to enforce its motion in limine because Laura’s counsel stated:
“Well, if you – I don’t have a problem with the parking ticket, but if he
mentions the lawsuit or shows the Court or shows the Jury that it is a
lawsuit, I have a problem with that.” Accordingly, there was no issue for
the trial court to resolve.

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¶33 Laura also complains that the trial court repeatedly chastised
her counsel for violations of motion in limine rulings and court deadlines,
but was forgiving of similar transgressions by Rhonda’s counsel. Our
review of the record shows that the trial court proportionally responded
to each deadline and motion in limine issue. Laura had a full and fair
opportunity to present her case. Consequently, the trial court’s resolution
of those issues individually or cumulatively does not require a new trial.

VI. The Trial Court Did Not Abuse Its Discretion By Excluding
Laura’s Rebuttal Witness

¶34 The trial court refused to allow Laura’s friend, Teri Reaman,
to testify on rebuttal because Laura had failed to disclose the witness. We
review the issue for an abuse of discretion. See Waddell v. Titan Ins. Co.,
Inc., 207 Ariz. 529, 536, ¶ 28, 88 P.3d 1141, 1148 (App. 2004). We will not
reverse the trial court’s decision on appeal absent a showing of prejudice.
Rimondi, 124 Ariz. at 565, 606 P.2d at 416.

¶35 After the jury heard testimony that Laura got a parking
ticket in 2002, Laura testified that the expense was incurred in 2003. Laura
sought Reaman’s testimony to corroborate Laura’s testimony that she had
taken the 2002 trip with Reaman, and not with a boyfriend. Rhonda
objected that Laura had not disclosed Reaman as a witness pursuant to
Rule 26.1. The trial court agreed and precluded Reaman from testifying.
Laura now argues the ruling was prejudicial.

¶36 Rule 26.1(a)(3) requires seasonable disclosure of all trial
witnesses, but ultimately the trial court retains the discretion to determine
whether failing to disclose a witness requires that witness be precluded.
Here, Laura failed to disclose Reaman, and although Laura now argues
that she had no reason to disclose Reaman because Rhonda had not
disclosed the existence of the parking ticket, Laura did not make the
objection at trial. We will not therefore consider it on appeal. See Callanan
v. Sun Lakes Homeowners’ Ass’n No. 1, Inc., 134 Ariz. 332, 337, 656 P.2d 621,
626 (App. 1982) (holding an argument as a basis for reversal waived
because the appellant failed to object at the trial court). On this record, we
find that the trial court did not abuse its discretion by excluding Reaman’s
testimony.

VII. The Trial Court Did Not Abuse Its Discretion By Failing To Take
Judicial Notice Of The California Family Court’s Findings

¶37 Laura also challenges the trial court’s refusal to take judicial
notice of factual findings from her divorce from Sam in a California

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superior court. Laura requested the trial court to take notice of the
California court’s finding that Sam’s testimony about the reasons or
necessity for his change of position to a lower paying manager job at SLP
was not credible, which resulted in the California court’s rejection of his
request to modify the support orders.

¶38 Arizona Rule of Evidence 201(b) authorizes a court to take
judicial notice of a fact “that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” In civil cases, “the court must instruct
the jury to accept the noticed fact as conclusive.” Ariz. R. Evid. 201(f). In
construing Rule 201(b), we have authorized judicial notice of the falsity of
specific allegations if established by a final judgment. In re Pima County
Mental Health No. MH-959-10-85, 149 Ariz. 7, 9, 716 P.2d 68, 70 (App. 1986).
But here, as this court noted in another case, “no authority has been cited
which would extend this reasoning so as to permit the taking of judicial
notice of the truth of testimony received in that other action.” State v.
Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977). Furthermore,
judicial notice is generally not appropriate when the notice sought
concerns the truth of judicial findings of fact. See Charles Alan Wright et
al., 21B Federal Practice & Procedure Evid. § 5106.4 (Supp. 2013)
(analyzing the analogous federal rule and noting that “most courts agree
that Rule 201 does not permit courts to judicially notice the truth of
findings of fact”); Lynch, 115 Ariz. at 22, 562 P.2d at 1389 (noting that
judicial notice is appropriate only for facts “so notoriously true as not to
be subject to reasonable dispute,” and citing unfavorably an argument
that judicial notice must extend to the truth of testimony as found by
another court).

¶39 Laura contends that her position is supported by Fidelity
Nat’l Fin., Inc. v. Friedman, 855 F.Supp.2d 948 (D. Ariz. 2012). Fidelity,
however, only holds that a court may judicially notice court records to
show that a prior proceeding occurred or what positions were asserted.
Id. at 955. Importantly, the District Court stated: “The parties are not
requesting that the court take judicial notice of factual findings made by
other courts; and, indeed, the court could not do that.” Id. Consequently,
the trial court did not err by refusing to take judicial notice of findings of
fact made to reject Sam’s California request to modify support.

VIII. The Trial Court Did Not Exhibit Bias

¶40 Finally, Laura argues that the trial court exhibited judicial

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bias against her and her counsel. She uses several rulings as support for
her claim.

¶41 Judges are presumed free of bias and prejudice. State v.
Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005). As the
party asserting bias, Laura had the burden to rebut the presumption and
establish a disqualification. See Pavlik v. Chinle Unified Sch. Dist. No. 24,
195 Ariz. 148, 152, ¶ 11, 985 P.2d 633, 637 (App. 1999). Importantly, the
bias and prejudice required for disqualification “must arise from an extra-
judicial source and not from what the judge has done in [the judge’s]
participation in the case.” Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266,
1270 (App. 1977). Here, Laura did not seek to disqualify the judge for
cause pursuant to Arizona Rule of Civil Procedure 42. Moreover, just
because Laura does not agree with the trial court’s ruling does not
demonstrate bias. Accordingly, she has waived the issue on appeal. See
Smith v. Rabb, 95 Ariz. 49, 54, 386 P.2d 649, 652 (1963) (holding that parties
may not assert judicial bias for the first time on appeal).

IX. Attorneys’ Fees

¶42 Rhonda requests an award of attorneys’ fees on appeal
pursuant to A.R.S. § 12-341.01(A). Rhonda, however, is not the successful
party concerning any contractual liability. Rhonda’s successful defense
against Laura’s claim for intentional infliction of emotional distress, a tort,
likewise does not support an award of attorneys’ fees. Moreover, a
successful defense against Laura’s claim for interference with a contract is
not the type of claim upon which fees can be awarded under § 12-341.01.
“The duty not to interfere with the contract of another arises out of law,
not contract.” Bar J Bar Cattle Co. v. Pace, 158 Ariz. 481, 486, 763 P.2d 545,
550 (App. 1988). We therefore deny Rhonda’s request for attorneys’ fees
on appeal. We will, however, award taxable costs to Rhonda and Sam
contingent upon their compliance with ARCAP 21(b).

CONCLUSION

¶43 We affirm the judgment of the trial court.

:gsh

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