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Williamson v. O'Brien

Court of Appeals of Arizona, First Division

May 16, 2017

PATRICIA L. WILLIAMSON, Plaintiff/Appellant,
v.
KEVIN J. O'BRIEN, DPM, Defendant/Appellee.

         Appeal from the Superior Court in Mohave County No. L8015CV201307206 The Honorable Derek C. Carlisle, Judge

          Patricia L. Williamson, Lake Havasu City Plaintiff/Appellant

          Broening Oberg Woods & Wilson, PC, Phoenix By James R. Broening, Michelle L. Donovan, Kevin R. Myer Counsel for Defendant/Appellee

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

          OPINION

          HOWE, Judge

         ¶1 Patricia L. Williamson appeals the trial court's order dismissing her medical malpractice action with prejudice for failure to serve a preliminary expert opinion affidavit as A.R.S. § 12-2603 requires. For the following reasons, we affirm the judgment as modified to reflect that the dismissal is without prejudice.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In October 2013, Williamson filed a medical malpractice action against Kevin J. O'Brien, DPM, stemming from a podiatry surgery. Williamson did not certify whether an expert opinion was necessary to prove her claim as A.R.S. § 12-2603(A) requires.

         ¶3 O'Brien moved for an order compelling Williamson to serve a preliminary expert opinion affidavit in compliance with A.R.S. § 12-2603. The trial court determined that expert testimony was necessary to prove Williamson's claim and ordered her to serve a preliminary expert opinion affidavit. Williamson did not comply with the order, so O'Brien moved for dismissal. Williamson then requested additional time to comply with the order, which the court granted. The trial court told Williamson that "if you fail to comply with the court's order by October the 6th, 2014, and that if the defendant moves to dismiss this lawsuit with prejudice . . . you can anticipate that the court will grant that motion to dismiss and your case will be over."

         ¶4 Before the extended deadline, Williamson filed a document titled "Order-Medical Expert Affidavit" that contained almost 70 pages of medical records purporting to be a medical expert affidavit by Ronald Killian, DPM. The trial court acknowledged that Williamson filed the document but stated that it "takes no action." O'Brien again moved for dismissal arguing that the document Williamson submitted did not meet A.R.S. § 12-2603(B)'s requirements. The court dismissed the complaint with prejudice and entered judgment in favor of O'Brien for costs.

         ¶5 After the trial court entered an order containing finality language pursuant to Arizona Rule of Civil Procedure ("Rule") 54(c), Williamson timely appealed.

         DISCUSSION

         ¶6 We review de novo dismissal for a failure to serve a preliminary expert opinion affidavit required by A.R.S. § 12-2603. Romero v. Hasan, 241 Ariz. 385, 386 ¶ 6, 388 P.3d 22, 23 (App. 2017). We discern Williamson's arguments as best we can and consider only those that are adequately supported. In re Aubuchon, 233 Ariz. 62, 64-65 ¶ 6, 309 P.3d 886, 888-89 (2013). Unsupported arguments are considered waived. Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62, 211 P.3d 1272, 1289 (App. 2009).

         ¶7 To the extent Williamson argues that the court improperly granted dismissal because it overlooked the "affidavit" she filed, we reject her argument. Before dismissing the action, the court acknowledged receiving the document titled "Order-Medical Expert ...


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