Spanko v. Simmonds

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE AMANDA SPANKO, ) ) Plaintiff/Appellant, ) ) v. ) ) GAREY S. SIMMONDS, MD, doing ) business as SIMMONDS AESTHETIC ) CARE; ARIZONA CRANIOFACIAL AND ) ) PLASTIC SURGERY CENTER, P.C., ) Defendants/Appellees. ) No. DIVISION ONE FILED: 06-17-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0404 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-004834 The Honorable John C. Rea, Judge AFFIRMED Amanda Spanko Plaintiff/Appellant In Propria Persona Roseburg, OR Holloway Odegard Forrest & Kelly PC Phoenix By Vincent J. Montell and J.P. Harrington Bisceglia Attorneys for Defendants/Appellees B R O W N, Judge ¶1 Amanda Spanko appeals the court s order dismissing her action against Dr. Garey Simmonds. we affirm. For the following reasons, BACKGROUND ¶2 In March 2008, Spanko filed a complaint alleging that Simmonds negligently performed a rhinoplasty surgery that caused her serious injury and deformity. Spanko also filed a preliminary certification for expert opinion testimony, pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2602 (2003), 1 stating that expert testimony was necessary to standard of care or liability for her claim. Simmonds A.R.S. filed §§ his 12-2603 answer (Supp. and 2009), a demand -2604 for prove the In June 2008, compliance (Supp. 2009). with Spanko moved for an extension of time to allow compliance with A.R.S. § 12-2603. In support of her motion, Spanko informed the court she had been searching for an expert, but that she had been unable to find one who was willing to prepare an affidavit. The court granted Spanko an extension until October 31, 2008, to comply with the statutory requirements. ¶3 requesting On October additional 27, 2008, time filed provide to Spanko an a second expert motion affidavit. Simmonds contested the motion and requested it be denied due to the extensive amount of time Spanko had already been given to comply with the statute. In December 2008, the court granted the extension, stating that [i]n the interest of justice the 1 We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 2 [c]ourt will grant a final extension on the deadline to comply with these statutes until January 31, 2009. If [Spanko] fails to comply by that date, this matter will be dismissed. No further extensions will be granted. (Emphasis in original.) ¶4 In January 2009, Spanko filed a motion for leave to allow an amendment to the original complaint. An affidavit signed by Dr. James Nachbar was attached to the motion, stating that he had seen Spanko regarding her consideration for rhinoplasty, and regarding the rhinoplasty ultimately performed by Dr. [] Simmonds. Nachbar s office Attached to the affidavit were copies of notes that describe[d] [his] findings and opinions regarding his visits with Spanko. ¶5 for In February 2009, Simmonds moved to dismiss the case failure to comply with court orders produce an expert affidavit of merit. and for failure to Simmonds argued that the affidavit failed to meet the requirements outlined in A.R.S. § 12-2603(B) because it merely reflected the notes of a treating physician. After oral argument was held in May 2009, the court granted Simmonds motion to dismiss for failure to comply with the requirements of an expert affidavit pursuant to A.R.S. § 12- 3 2603. As a result of the dismissal, the court found that the other pending motions were moot. 2 Spanko timely appealed. 3 DISCUSSION ¶6 Spanko raises the following issues on appeal: (1) whether A.R.S. § 12-562(B) (Supp. 2009) violates Article 18, Section 6, testimony of is the Arizona required in Constitution; 4 a medical (2) battery whether claim expert when a physician performs a procedure without the patient s informed consent; (3) whether the court should appoint an expert pursuant 2 The remaining two motions before the court were Spanko s motion for leave to allow amendment to the original complaint and motion to compel Dr. Simmonds drug rehabilitation records. 3 Since the trial court s minute entry order dismissing the case was unsigned, this court suspended the appeal pursuant to Eaton Fruit Co. v. Cal. Spray-Chemical Corp., 102 Ariz. 129, 426 P.2d 397 (1967), to allow Spanko an opportunity to obtain a signed order. The trial court signed the order and filed it on August 24, 2009. 4 We note that nothing in the record shows that Spanko has provided notice to the attorney general or the legislature as required by state statute. See A.R.S. § 12-1841 (Supp. 2009) ( In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general and the speaker of the house of representatives and the president of the senate shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard. ); see also DeVries v. State, 219 Ariz. 314, 322, ¶ 24, 198 P.3d 580, 588 (App. 2008) (holding that a party raising a facial constitutional challenge to a state statute must follow the statutory service requirements). Because we find Spanko waived her constitutional challenge, we need not address the consequences of her failure to comply with this mandatory notice requirement. 4 to Arizona Rule of Evidence 706; and (4) whether the court should adopt the standards set by the Arizona Medical Board. ¶7 Spanko, however, does not cite to any portion of the record indicating where or when she raised these arguments in the trial court. Nor did Spanko provide us with any transcripts of the proceedings wherein she may have at least alluded to the issues she now asserts on appeal. See Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 189, 680 P.2d 1235, 1250 (App. 1984) ( It is, of course, the duty of the appealing party to insure that all necessary transcripts of evidence finds its way to this court. ). none of the issues Our own review of the record reveals that were waived them on appeal. 5 raised below and therefore she has Englert v. Carondelet Health Network, 199 Ariz. 21, 26-27, ¶ 13, 13 P.3d 763, 768-69 (App. 2000) (We generally do not consider issues, even constitutional issues, raised for the first time on appeal. ). ¶8 contending Spanko raises additional arguments in her reply brief, that she should have 5 been allowed to amend her These issues are also waived because Spanko failed to adequately develop and support her arguments in her opening brief. See ARCAP 13(a)(6) (The appellant s brief should include [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. ); see also Polanco v. Indus. Comm n of Ariz., 214 Ariz. 489, 492 n.2, ¶ 6, 154 P.3d 391, 394 n.2 (App. 2007) (failure to develop and support an argument waives it on appeal). 5 original complaint and that her motion to amend was timely. Because these arguments were not raised in her opening brief, we do not address them. See Dawson v. Withycombe, 216 Ariz. 84, 111, 1034, ¶ 91, 163 P.3d 1061 (App. 2007) ( We will not consider arguments made for the first time in a reply brief. ); Nelson v. Rice, 198 Ariz. 563, 567 n.3, ¶ 11, 12 P.3d 238, 242 n.3 (App. 2000) (finding an argument waived because it was not raised in the appellant s opening brief). CONCLUSION ¶9 For the foregoing reasons, we affirm the trial court s dismissal of Spanko s complaint. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ______________________________ JON W. THOMPSON, Judge /s/ ______________________________ SHELDON H. WEISBERG, Judge 6

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