Beruflich Dokumente
Kultur Dokumente
v.
AFFIRMED AS MODIFIED
COUNSEL
OPINION
T H O M P S O N, Judge:
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 Boswells cross-motion, and dismissed Boswells claim
with prejudice. We have jurisdiction over Boswells timely appeal pursuant
to A.R.S. 12-2101(A)(1) (2016).
DISCUSSION
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 courts grant of summary judgment to
defendant on the basis that plaintiffs expert opinion affidavit did not
conform with A.R.S. 12-2603(B)).
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 Boswells 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 Boswells claim with
prejudice.
CONCLUSION