                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                 STEVE W. BOSWELL, Plaintiff/Appellant,

                                    v.

           ROBERT FINTELMANN, et al., Defendants/Appellees.

                          No. 1 CA-CV 15-0859
                            FILED 3-9-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-009402
            The Honorable J. Richard Gama, Judge (Retired)

                       AFFIRMED AS MODIFIED


                                COUNSEL

Steve W. Boswell, Phoenix, In propria persona
Plaintiff/Appellant

Broening Oberg Woods & Wilson, PC, Phoenix
By James R. Broening, Megan E. Gailey, Kevin R. Myer
Counsel for Defendants/Appellees



                                OPINION

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

T H O M P S O N, Judge:

¶1            Steve W. Boswell (Boswell) appeals from the dismissal with
prejudice of his medical malpractice action based on his failure to serve a
preliminary expert opinion affidavit. For the following reasons, we affirm
the judgment as modified to reflect that the dismissal is without prejudice.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            In July 2014, Boswell filed a complaint in superior court
alleging medical malpractice against Robert Fintelmann, M.D., Robert
Pinkert, O.D., Thomas R. Wolf, Barnet Dulaney Surgery Center, LLC,
Barnet Dulaney Perkins Eye Center, PLLC and others (appellees). Boswell
certified pursuant to Arizona Revised Statutes (A.R.S.) section 12-2603
(2016)1 that medical expert testimony was necessary to prove his claims. If
a claimant certifies that expert opinion is necessary, A.R.S. § 12-2603(B)
(2016) requires a claimant to serve a preliminary expert opinion affidavit at
the same time as initial disclosures.

¶3            Boswell did not provide an initial disclosure statement and a
preliminary expert opinion affidavit, and appellees moved for an order
compelling him to do so. The superior court granted appellees’ motion and
ordered Boswell to serve his initial disclosure statement within twenty days
and his preliminary expert opinion affidavit within thirty days.

¶4            Boswell did not comply with the court order, and appellees
moved for dismissal. Boswell cross-moved for a ruling that A.R.S. § 12-2603
is unconstitutional. The superior court granted appellees’ motion to
dismiss, denied Boswell’s cross-motion, and dismissed Boswell’s claim
with prejudice. We have jurisdiction over Boswell’s timely appeal pursuant
to A.R.S. § 12-2101(A)(1) (2016).

                               DISCUSSION

¶5           We review de novo a dismissal for failure to serve a
preliminary expert opinion affidavit required by A.R.S. § 12-2603, Romero v.
Hasan, __ Ariz. __, __, ¶ 6, 388 P.3d 22, 23 (App. 2017) (citing Coleman v. City
of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012)), because a
claimant’s failure to properly certify the non-frivolous nature of the
complaint pursuant to A.R.S. § 12-2603 is a pleading failure. Dismissal for

1 We cite the current versions of the applicable statutes and rules unless
revisions material to this opinion have occurred since the events in
question.


                                       2
                        BOSWELL v. FINTELMANN
                           Opinion of the Court

failure to serve the expert affidavit is not tantamount to dismissal for failure
to prosecute, which operates as an adjudication on the merits. See Ariz. R.
Civ. P. 41(b). Nor is it a dismissal as a sanction for a discovery violation,
because the affidavit requirement is “meant to certify that the action . . . is
not meritless,” and it is not required “that the expert giving the preliminary
affidavit serve as the expert at trial.” Jilly v. Rayes, 221 Ariz. 40, 42-43, ¶ 6,
209 P.3d 176, 178-79 (App. 2009) (citation omitted). See also Gorney v.
Meaney, 214 Ariz. 226, 228, ¶ 4, 150 P.3d 799, 801 (App. 2007) (court of
appeals reviewed de novo trial court’s grant of summary judgment to
defendant on the basis that plaintiff’s expert opinion affidavit did not
conform with A.R.S. § 12-2603(B)).

¶6            Although Boswell argues the superior court erred by
dismissing his complaint because the court erroneously concluded that he
failed to serve his initial disclosure statement, we reject this argument
because the court properly dismissed based on Boswell’s failure to serve
the preliminary expert affidavit required by A.R.S. § 12-2603.2

¶7            Section 12-2603(F) requires the superior court to dismiss
without prejudice a claim when the claimant fails to file and serve a
preliminary expert opinion affidavit after certifying an affidavit is
necessary or the court has ordered compliance.3 Because Boswell failed to
comply with the order to serve the affidavit, the court appropriately
dismissed his claim.

¶8             However, the statute does not authorize dismissals with
prejudice. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323–24, ¶¶
20, 22, 25, 183 P.3d 1285, 1291–92 (App. 2008). Although appellees correctly

2 Appellees acknowledged in their motion to dismiss that Boswell had
provided his initial disclosure statement prior to the deadline ordered by
the court.

3  Because Boswell fails to develop and support his conclusory arguments
that A.R.S. § 12-2603 and related statutes are unconstitutional and that the
superior court improperly sealed an “investigative report,” he waives them.
See ARCAP 13(a)(7); Polanco v. Indus. Comm'n of Ariz., 214 Ariz. 489, 491 n.2,
¶ 6, 154 P.3d 391, 393 n.2 (App. 2007). Additionally, to the extent Boswell
argues he cannot afford to hire an expert to make an affidavit, he offers no
evidence that any qualified expert would have provided the information
required by A.R.S. § 12-2603. See Romero, __ Ariz. at __ n.4, ¶ 9, 388 P.3d at
23 n.4.



                                        3
                      BOSWELL v. FINTELMANN
                         Opinion of the Court

assert that the superior court referred to Arizona Rule of Civil Procedure
37(b)(2)4 in its ruling dismissing Boswell’s claim, that rule also does not
authorize dismissals with prejudice for the failure to comply with A.R.S. §
12-2603. Thus, the court erred by dismissing Boswell’s claim with
prejudice.

                              CONCLUSION

¶9           For the foregoing reasons, we affirm the judgment as
modified to reflect that dismissal is without prejudice.




                       AMY M. WOOD • Clerk of the Court
                        FILED: AA




4 Rule 37(b)(2)(A)(v) provides that if a party fails to obey an order to
provide or permit discovery, the court may dismiss the action.



                                       4
