Cavness v. Ortega

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LAURA ANN CAVNESS, Plaintiff/Appellant,

v.

ALANE M ORTEGA, Defendant/Appellee.

No. 1 CA-CV 24-0289
FILED 01-07-2025

Appeal from the Superior Court in Maricopa County
No. CV2022-008172
The Honorable John L. Blanchard, Judge

AFFIRMED IN PART AND REVERSED IN PART; REMANDED

COUNSEL

Laura Ann Cavness, Phoenix
Plaintiff/Appellant

Harmon Law Office, Tempe
By Emile J. Harmon
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Angela K. Paton joined.

F O S T E R, Judge:

¶1 Plaintiff Laura Ann Cavness appeals the dismissal of her
malpractice claim against Alane Ortega. Cavness claims Arizona Revised
Statutes (“A.R.S.”) § 12-2602’s preliminary expert affidavit requirement is
unconstitutional. For the following reasons, this Court affirms in part,
reverses in part and remands.

FACTS AND PROCEDURAL HISTORY

¶2 In 2021, the superior court appointed Ortega as appellate
counsel for Cavness in a family court matter. After the appeal concluded,
Cavness, without counsel, brought this action in June 2022 alleging Ortega
committed legal malpractice by failing to meet deadlines, review the record,
provide effective assistance of counsel and apply the correct law.

¶3 Ortega moved to dismiss for failure to comply with § 12-2602.
Ortega claimed that because she was a licensed professional Cavness was
required by statute to “certify with her complaint whether expert opinion
testimony was necessary to prove [Cavness’] claims.” The court denied
Ortega’s motion to dismiss and ordered Cavness to comply with the
affidavit requirement. Cavness filed a “Motion to Allow Plaintiff to Proceed
Without a Professional Opinion” noting she could not afford to hire an
expert witness. The court denied Cavness’ motion. Ortega again moved to
dismiss for failure to comply with § 12-2602. In response, Cavness reasoned
“§ 12-2602 is unconstitutional on its face” because she could not afford the
services necessary for the completion of an expert opinion affidavit, and
therefore “the state of Arizona is denying her access to the court.” Cavness
filed two motions to reconsider the court’s denial of her “Motion to Allow
Plaintiff to Proceed Without a Professional Opinion” and the court denied
both motions.

¶4 In December 2023, the court granted Ortega’s second motion
and dismissed the case with prejudice. The court found Cavness’
constitutional arguments against § 12-2602 were resolved by this Court in

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Bertleson v. Sacks Tierney, P.A., 204 Ariz. 124 (App. 2002), and Kestenbaum v.
Ford, 1 CA-CV 23-0071, 2023 WL 6845128 (Ariz. App. Oct. 17, 2023) (mem.
decision). The court also determined that Cavness’ “failure to provide an
expert affidavit or otherwise disclose expert opinions against Defendant
preclude[d her] negligence claim from proceeding against [Ortega].”

¶5 Cavness filed a notice of appeal on December 27, 2023. This
Court dismissed the appeal as premature because the superior court’s
ruling was unsigned and did not include Arizona Rule of Civil Procedure
54(c) (“Rule 54”) language. Eventually, the superior court issued a signed
Minute Entry Order satisfying Rule 54. Cavness timely appealed and this
Court has jurisdiction under A.R.S. § 12-1201(A)(1).

DISCUSSION

I. Constitutionality of A.R.S. § 12-2602.

¶6 Cavness argues that “dismissing a case because a litigant
cannot afford to pay for a professional opinion under A.R.S. §[ ]12-2602(a)
raises significant constitutional concerns” including equal protection and
due process violations under the Fourteenth Amendment. See U.S. Const.
amend. XIV, § 1 (due process and equal protection). Ortega did not file an
answering brief. “When debatable issues exist and an appellee fails to file
an answering brief, [this Court] may consider such failure a confession of
reversible error. However, [this Court is] not required to do so, and [it may]
address the substance of [the] appeal in [its] discretion.” Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014) (citations omitted). The interpretation of
a statute and the determination of a statute’s constitutionality are subject to
de novo review. Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015) (statutory
interpretation); Bertleson, 204 Ariz. at 126, ¶ 6 (statute’s constitutionality).

A. Equal Protection

¶7 Cavness contends § 12-2602 violates the Federal
Constitution’s Equal Protection Clause because “the state effectively
discriminates against poorer litigants” when it “dismiss[es] cases solely
based on a litigant’s financial inability to pay for a professional opinion.”
However, this Court previously reviewed § 12-2602’s validity under
Arizona’s Equal Protection Clause. See Bertleson, 204 Ariz. at 126–29,
¶¶ 6–19. Despite the difference in language between federal and state
constitutional provisions, Arizona’s Equal Protection Clause provides “the
same general effect and purpose as the” Federal Equal Protection Clause.
State v. Mixton, 250 Ariz. 282, 290, ¶ 31 (2021) (court compared Arizona’s
Right to Privacy with its relevant federal amendment to determine that the

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supreme court can provide construction to state constitution
“notwithstanding [its] analogy to the Federal Constitution”); see also U.S.
Const. amend. XIV, § 1; Ariz. Const. art. 2, § 13 (equal protection). Arizona’s
Equal Protection clause provides that “[n]o law shall be enacted granting to
any citizen . . . privileges or immunities which, upon the same terms, shall
not equally belong to all citizens.” Ariz. Const. art. 2, § 13. Likewise, the
Fourteenth Amendment to the United States Constitution provides, in
relevant part, “[n]o State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States . . . nor deny to
any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. Under both provisions, the state and federal
guarantees “require similarly situated people be treated alike.” State v.
Coleman, 241 Ariz. 190, 192, ¶ 7 (App. 2016) (citation omitted).

¶8 Here, the superior court relied on Bertleson to find that
Cavness’ equal protection claims fail. See Bertleson, 204 Ariz. at 129, ¶ 19. In
Bertleson, this Court held § 12-2602’s affidavit requirement does not violate
Arizona’s Equal Protection Clause because the statute neither “implicate[s]
a fundamental right or a suspect class.” Id. at 128–29, ¶¶ 18–19. This Court
concluded the state has a legitimate interest that is rationally related to the
statute—preventing frivolous lawsuits against licensed professionals. Id. at
128, ¶ 19. The superior court did not err in relying on Bertleson in finding
that § 12-2602 is constitutional. See id. at 128, ¶ 16 (“Dismissal under [§ 12-
2602] no more violates the constitution than dismissal based upon a statute
of limitations or summary judgment.’’).

B. Due Process

¶9 Cavness claims § 12-2602 violates the Federal Due Process
Clause because the statute’s affidavit requirement “deprives [her of her]
right to be heard and to seek redress for grievances.” The Fourteenth
Amendment’s Due Process Clause provides that no “State [shall] deprive
any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “‘The touchstone of due process . . . is fundamental
fairness.’” Martin v. Reinstein, 195 Ariz. 293, 313, ¶ 66 (App. 1999) (quoting
State v. Melendez, 172 Ariz. 68, 71 (1992)). Under rational basis review, this
Court considers “whether the requirement [to provide an affidavit
regarding an expert testimony in a legal malpractice claim] is rationally
related to ‘any legitimate legislative goal.’” Coleman, 241 Ariz. at 193, ¶ 10
(citations omitted). Cavness further claims “access to the courts is a
fundamental right” and cites Griffin v. Illinois, 351 U.S. 12 (1956) (violation
of due process where indigent criminal defendants could not obtain
transcripts of court proceedings to appeal their convictions), and Bobbie v.

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Connecticut, 401 U.S. 371 (1971) (state monopolization of means for
dissolving marriage implicated due process of law when an inability to pay
court fees and costs prohibited access to its courts by indigent litigants), to
support her argument. But the underlying issues in those cases involve
fundamental rights—not a civil dispute as this case presents. Cavness does
not develop her argument in support of her access to justice claim. Thus,
this Court declines to address this issue. See City of Tucson v. Clear Channel
Outdoor, Inc., 218 Ariz. 172, 185, ¶ 88 (App. 2008) (inadequately developed
arguments are waived).

¶10 This Court’s review of “equal protection and substantive due
process claims are conceptually similar, with the level of scrutiny
dependent upon the classification or right at issue.” Coleman, 241 Ariz. at
193, ¶ 9 (cleaned up). When the claimant is not a member of a suspect class,
and no fundamental right is at issue, this Court “will uphold the statute so
long as it is rationally related to a legitimate government purpose.” Id.
(cleaned up); accord Schuff Steel Co. v. Indus. Comm’n of Ariz., 181 Ariz. 435,
443 (App. 1994) (equal protection guarantees “require a rational
relationship between every statutory classification and a legitimate
statutory purpose”). As discussed above, § 12-2602 does not implicate a
fundamental right or a suspect class and so will be upheld because it serves
a legitimate purpose. The expert opinion affidavit requirement does
nothing to violate individual rights but instead ensures that plaintiffs
“make individualized and informed determinations when naming
defendants.” Bertleson, 204 Ariz. at 128, ¶ 19 (quotation omitted) (analyzing
the statute under equal protection). Because Cavness is not a member of a
suspect class, no fundamental right is at issue and the statute is rationally
related to a legitimate government purpose, the superior court did not err
in finding that § 12-2602 does not violate Cavness’ due process rights.

II. Court’s dismissal under § 12-2602.

¶11 Cavness next claims the court’s dismissal under § 12-2602 was
improper. This Court reviews the dismissal of a complaint de novo. Coleman
v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). This Court “assume[s] the truth
of all well-pleaded factual allegations and” only grants the dismissal if the
non-moving party “would not be entitled to relief under any interpretation
of the facts susceptible of proof.” Id. at 356, ¶ 8–9 (citation omitted). Cavness
claims the superior court erred by “dismissing [her] case because a litigant
cannot afford to pay for a professional opinion under A.R.S. §[ ]12-2602.”

¶12 In a malpractice claim against a licensed professional, a
claimant must provide “a written statement that is filed and served with

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the claim whether or not expert opinion testimony is necessary to prove the
licensed professional’s standard of care or liability for the claim.” A.R.S.
§ 12-2602(A). If the claimant deems expert testimony is necessary, the
claimant must provide “a preliminary expert opinion affidavit with the
initial disclosures.” A.R.S. § 12-2602(B). If a claimant deems expert
testimony unnecessary, the defending licensed professional may move “the
court for an order requiring the claimant to [provide] a preliminary expert
opinion affidavit.” A.R.S. § 12-2602(D). Once the court determines the
claimant must file an expert affidavit, it may dismiss the claim “without
prejudice if the claimant fails to file and serve a preliminary expert opinion
affidavit.” A.R.S. § 12-2602(E), (F).

¶13 Ortega argued in her motion to dismiss that § 12-2602(F)
mandated the court dismiss the case because Cavness did not file the
required affidavit. Following Ortega’s first motion to dismiss which
asserted that “expert testimony [was] absolutely mandatory to establish a
standard of care or liability” for Cavness’ claim, the court ordered Cavness
to comply with § 12-2602. Despite the court’s order and the court’s
extension of time for Cavness to comply, she did not file and serve the
required affidavit. As a result, the court dismissed the case pursuant to § 12-
2602(F). However, the court’s dismissal was with prejudice in contradiction
to § 12-2602(F)’s language. A.R.S. § 12-2602(F). Therefore, although the
court properly dismissed the case, doing so “with prejudice” was error.

CONCLUSION

¶14 For the reasons above, this Court affirms the dismissal on the
equal protection and due process claims, reverses the dismissal with
prejudice and remands with directions that Cavness’ complaint be
dismissed without prejudice.

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

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