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Suing a licensed real estate professional requires you to do your homework

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Posted: Monday, January 20, 2014 6:45 am

A lawyer must have a good faith belief, after reasonable inquiry, that a lawsuit he files is grounded in fact and warranted by existing law. Ariz. R. Civ. P. 11. In other words, lawyers violate Arizona’s rules of civil procedure when they file frivolous lawsuits. In Arizona, the Legislature has, at least in some cases, added an additional layer of scrutiny to lawsuits filed against licensed professionals. Specifically, a plaintiff must certify whether or not expert testimony is necessary to prove the licensed professional’s standard of care or liability for the claim. See A.R.S. § 12-2602(A). When expert testimony is necessary, the plaintiff is required to serve a preliminary expert opinion affidavit with their Rule 26.1 initial disclosure. The consequences for failing to comply with the statute are severe — dismissal of any claims against the licensed professional.

Preliminary Expert Opinion Affidavit: What is required?

The preliminary expert opinion affidavit is more than a mere formality. A.R.S. § 12-2602 requires the expert to provide “at least” the following information:

1. The expert’s qualifications to express an opinion on the licensed professional’s standard of care or liability for the claim.

2. The factual basis for each claim against a professional.

3. The licensed professional’s acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability.

4. The manner in which the licensed professional’s acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.

See A.R.S. § 12-2602(B)(1-4).

Preliminary Expert Opinion Affidavit Not Delivered: What’s next?

It is not uncommon for a plaintiff to inadvertently fail to comply with the requirements of A.R.S. § 12-2602. In most cases, plaintiffs will provide a preliminary expert opinion affidavit upon written demand. But if they refuse, defendants may move the Court for an order compelling production of a preliminary expert opinion affidavit. Defendants are required to provide the following information in their motion:

1. The claim for which expert testimony is necessary.

2. The prima facie elements of the claim.

3. The legal or factual basis for why expert opinion testimony is required to establish the standard of care or liability for the claim.

See A.R.S. § 12-2602(D)(1-3).

Motion to Compel Compliance with A.R.S. § 12-2602: The consequences?

Filing a motion to compel compliance with A.R.S. § 12-2602 brings the pending litigation to a halt. The court “shall stay all other proceedings and applicable time periods concerning the claim pending the Court’s ruling on the motion to compel compliance with [A.R.S. § 12-2602.]” A.R.S. § 12-2602(E).

Failure to Provide the Preliminary Expert Opinion Affidavit: Dismissal of claims.

If a plaintiff still refuses to comply with A.R.S. § 12-2602 after the Court orders compliance, the Court is required to dismiss a plaintiff’s claims against a licensed professional. See A.R.S. § 12-2602(F).

Preliminary Expert Opinion Affidavits: Application in Real Estate Litigation.

In real estate litigation matters, A.R.S. § 12-2602 most often applies to claims against two groups of licensed professionals: (1) designated brokers and real estate agents; and (2) appraisers. Thus, if you intend to assert a claim against either a designated broker (or real estate agent) or an appraiser, you would be wise to consider the elements of the potential claims you intend to bring and to determine whether expert testimony will be necessary to establish the applicable standard of care or liability. Once this homework is completed, you can comfortably turn in your certification and, when appropriate, produce a preliminary expert opinion affidavit.

• Brian Foster is a 20-year Ahwatukee resident and senior partner at Snell & Wilmer L.L.P. in Phoenix. Reach him at (602) 382-6242 or bfoster@swlaw.com. Cory L. Braddock is also a partner at Snell & Wilmer L.L.P.

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