JAMES v. BANNER HEALTH

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUSAN JAMES, Plaintiff/Appellant,

v.

BANNER HEALTH, et al., Defendants/Appellees.

No. 1 CA-CV 25-0541
FILED 06-01-2026

Appeal from the Superior Court in Maricopa County
No. CV2022-007903
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

The Roll Law Office PLLC, Phoenix
By Guy P. Roll
Counsel for Plaintiff/Appellant

Coury Krolls Dean & DaPena PC, Phoenix
By Renee M. Coury
Co-Counsel for Defendants/Appellees

Jones Skelton & Hochuli PLC, Phoenix
By Rita J. Bustos
Co-Counsel for Defendants/Appellees
JAMES v. BANNER HEALTH, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Susan James appeals from the final judgment dismissing her
medical malpractice and wrongful death claims with prejudice and from
the denial of her motion for a new trial. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2020, Banner Health (“Banner”), four of its employed
physicians, Neil Mody, Nithya Krishnaswamy, Adebowole Oyelakin, and
Edward Charles (collectively “the Banner Defendants”), and two non-
Banner employed physicians, Amir Moasser, and Ariv Swaminathan,
provided healthcare services to Teyola Lynn James for septicemia, acute
kidney injury, and cardiogenic shock. Teyola died on June 21, 2020.1

¶3 In June 2022, Teyola’s mother, Susan, filed a complaint for
medical malpractice and wrongful death against the Banner Defendants,
Moasser, and Swaminathan. Susan sought and obtained three extensions
of time to serve the defendants.

¶4 The superior court placed the case on the dismissal calendar
and subsequently continued the dismissal date to June 26, 2023. In the
court’s notice of placement on the dismissal calendar, it stated the case
would be dismissed unless one of the following actions was taken: a joint
report and proposed scheduling order was filed, a comprehensive pretrial
conference was set, a final judgment was entered, or a motion to continue
on the dismissal calendar demonstrating good cause was filed. Susan
advised the court that she “anticipate[d] that [the parties] will have filed a
Joint Report and Proposed Scheduling Order” by June 26, 2023. Because
that date passed and Susan did not comply with the order, the court
dismissed the case on July 13, 2023. Not until late March 2023—nine

1 Because Teyola Lynn James and her mother share the same last name, we

respectfully refer to them by their first names for clarity and convenience.

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months after filing the complaint—did Susan serve Banner, Moasser, and
Swaminathan.2 She never served the Banner-employed physicians.

¶5 Susan moved to set aside the dismissal and reinstate the case
based on her having inadvertently missed the compliance deadline. The
court granted the motion, reinstated the case, and ordered service to be
completed by November 15, 2023. Susan ultimately never served the
Banner-employed physicians, who nonetheless answered the complaint on
February 9, 2024.

¶6 In a joint report filed in preparation for a scheduled
comprehensive pretrial conference, the Banner Defendants alerted the
superior court of the need for medical records predating Teyola’s admission
to Banner. The Banner Defendants highlighted that although the case was
“reinstated six months ago, no discovery or communication from Plaintiff
ha[d] taken place. Plaintiff has failed to file her required Rule 26.3
disclosure.” The Banner Defendants noted that Plaintiff needed to disclose
“multiple prior medical records related to [Teyola’s] condition” because she
was previously treated at a different hospital and no records from the six
years between her treatment there and at the Banner hospital had been
disclosed.

¶7 The Banner Defendants also stated the anticipated need for
legal documentation confirming that Susan is Teyola’s “legally appointed
personal representative . . . to have her execute valid authorizations related
to [Teyola’s] medical insurers to assist in discerning her prior medical care
relevant to this case.” Susan apparently completed some medical
authorizations using her maiden name and returned those authorizations
to defense counsel.

¶8 After a scheduling conference in which the superior court and
the parties addressed a dispute concerning completion of medical
authorization forms, the court ordered the defendants to disclose and email
Susan regarding “all corrections” needed on the medical authorization
forms no later than May 15, 2024. The court stayed all deadlines and
continued the conference until June 5, 2024.

2 The superior court dismissed Moasser and Swaminathan after they moved

to dismiss based on Susan’s failure to provide a qualified preliminary
expert opinion affidavit under Arizona Revised Statutes (“A.R.S.”) §§ 12-
2603 and -2604. Moasser and Swaminathan are not parties to this appeal.

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¶9 On May 1, 2024, counsel for the Banner Defendants emailed
Susan’s attorney, raised the issue of her use of two different surnames,
attached medical authorization forms for execution, and requested legal
documentation confirming Susan was either legally appointed as the
executor, next of kin, or personal representative of Teyola’s estate. Susan’s
attorney advised he had already sent some medical authorization forms to
his client and that counsel for the Banner Defendants had attached
additional forms, which he would mail to Susan. Counsel for the Banner
Defendants provided a “next of kin” affidavit for Susan to complete and
have notarized, which requested the decedent’s medical records pursuant
to A.R.S. § 12-2294(D). The statute permits a health care provider to disclose
a deceased patient’s medical records to the personal representative or
administrator of the estate of a deceased patient, or to designated
individuals, including a parent of the deceased patient. A.R.S. § 12-2294(D).
Susan’s attorney advised he “did NOT intend to have [Susan] sign the next
of kin document,” stating the statute did not require the affidavit and citing
the difficulty in obtaining notarization due to Susan’s residence on a remote
tribal reservation. On May 30, 2024, counsel for the Banner Defendants
again emailed Susan’s attorney the requested medical authorization forms
and attached a new next of kin authorization form that did not require
notarization. The night before the continued scheduling conference,
Susan’s attorney emailed what purported to be at least some of the signed
medical authorization forms to defense counsel.

¶10 At the continued scheduling conference on June 5, 2024, the
superior court ordered Susan’s counsel to “follow up with . . . [Susan]
regarding the next of kin document and the accurate completion of the
medical authorizations” and “return the completed documents to [counsel
for the Banner Defendants] by June 24, 2024.”

¶11 Effective June 21, 2024, a new judge was assigned to the case
due to judicial calendar rotations.

¶12 On November 15, 2024, the Banner Defendants moved for
dismissal based on Susan’s failure to prosecute by ignoring court orders
regarding the medical authorizations and next of kin affidavit, and by
failing to disclose preliminary expert opinion affidavits from qualified
experts as required by A.R.S. §§ 12-2603 and -2604.

¶13 Susan responded that her initial expert unexpectedly
withdrew from participating in the case and her new expert needed
additional time to review medical records before preparing his opinion.
Susan also asserted that the Banner-employed physicians were “actively

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avoiding attempts to receive service,” which prompted her requests for
extensions of time to serve them. Susan suggested that she did not need to
serve the Banner-employed physicians because Banner’s answer stated that
its attorneys represented the Banner-employed physicians and the credit
memo reflected payment for the appearance fee for both Banner and its
employed physicians. Susan asserted she “signed the various providers’
medical authorization forms that Defendants sent to her via her counsel and
provided the same to Defendants.” Susan argued that the Banner
Defendants were using delay tactics by requiring her to sign the
unnecessary next of kin affidavit and advised the court that she did not
complete the “concocted” next of kin affidavit.

¶14 On January 30, 2025, the superior court granted the motion to
dismiss in an eight-page ruling detailing Susan’s conduct, concluding she
had failed to prosecute her case. The court noted Susan’s overall dilatory
conduct included: (1) delays with service of process and in providing all the
requested medical authorizations; (2) failures to provide the next of kin
affidavits, to meet court-ordered deadlines and to provide status updates;
and (3) non-responsiveness with clarifying her expert’s qualifications. The
court concluded that the delays and failures precluded the Banner
Defendants from continuing to investigate the case and present a defense.

¶15 The court issued a judgment under Arizona Rule of Civil
Procedure (“Rule”) 54(b) dismissing the Banner Defendants. Susan moved
for reconsideration and a new trial, which the court denied.

¶16 Susan timely appealed. We have jurisdiction under A.R.S. §
12-2101(A)(1).

DISCUSSION

¶17 We note at the outset that Susan raised the superior court’s
denial of her motion for a new trial in her notice of appeal. However, in her
opening brief, she fails to develop any argument on this issue. Indeed, she
only mentions the motion for a new trial in one paragraph in the opening
brief’s statement of facts. Because she fails to develop any legal argument
on this issue, it is waived. Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App.
2009).

¶18 We review for an abuse of discretion an order granting a
motion for involuntary dismissal for the failure to prosecute. See Slaughter
v. Maricopa Cnty., 227 Ariz. 323, 326, ¶ 14 (App. 2011); Troxler v. Holohan, 9
Ariz. App. 304, 306 (1969). An abuse of discretion occurs when there is no
evidence to support a holding or the court makes an error of law in its

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discretionary decision. Dowling v. Stapley, 221 Ariz. 251, 266, ¶ 45 (App.
2009). “Even if a different court might have reached the opposite
conclusion, we cannot find an abuse of discretion unless ‘the lower court
exceeded the bounds of reason by performing the challenged act.’”
Campion v. City of Tucson, 256 Ariz. 256, 267, ¶ 36 (App. 2023) (citing Toy v.
Katz, 192 Ariz. 73, 83 (App. 1997), disapproved of on other grounds by Sholem v.
Gass, 248 Ariz. 281, 287, ¶ 21 (2020)).

¶19 Under Rule 41(b), a defendant may move to dismiss a
plaintiff’s case when the plaintiff fails to prosecute, comply with the rules,
or comply with a court order. Maricopa County Local Rule 3.6(a)(2) states
a “civil action will be dismissed for failure to prosecute upon written
motion and notice to opposing counsel, at the discretion of the court” for
“appropriate reasons.” Dismissal under Rule 41(b) for the failure to
prosecute is appropriate in cases of effective abandonment or prejudice to
the adverse party. Cooper v. Odom, 6 Ariz. App. 466, 469 (1967). “Mere delay
can be the basis of dismissal.” Id. The superior court should consider both
parties’ conduct, impediments to service, the provision of case status
updates, and other factors explaining a lack of diligent prosecution. Jepson
v. New, 164 Ariz. 265, 276 (1990). The failure to comply with a court order
can also form the basis for involuntary dismissal under Rule 41(b). See
Carman v. Hefter, 136 Ariz. 597, 601 (1983).

I. Law of the Case Doctrine

¶20 Susan argues the law of the case doctrine prevented the
superior court from dismissing the action because the court’s initial ruling
setting aside dismissal and granting an extension to serve precluded the
later-assigned judge from finding that delays in service warranted
dismissal. The doctrine provides that “the decision of a court in a case is
the law of that case on the issues decided throughout all subsequent
proceedings in both the trial and appellate courts, provided the facts, issues
and evidence are substantially the same as those upon which the first
decision rested.” Dancing Sunshines Lounge v. Indus. Comm’n, 149 Ariz. 480,
482 (1986). The doctrine is inapplicable here. Nothing about the superior
court’s ruling setting aside the dismissal based on Susan’s inadvertent
missed deadline precluded a different judge from later dismissing the case
for lack of prosecution based on additional dilatory conduct that was not at
issue at the time of the initial ruling.

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II. Challenges to the Superior Court’s Factual Findings

¶21 Susan contends the superior court incorrectly determined
several facts underlying its dismissal ruling. Susan’s challenge to the
court’s factual findings is unavailing.

¶22 Susan asserts that, contrary to the superior court’s finding,
she supplied all the requested signed medical authorizations to defense
counsel on June 4, 2024. In support of her argument, she references an email
she sent to the Banner Defendants’ counsel on June 4, 2024, the night before
the continued scheduling conference. But the email contained in the record
contains no signed medical authorizations, so we cannot determine if Susan
provided all the requested authorizations.3 The court ordered Susan to
provide more medical authorizations the day after her attorney
purportedly mailed the documents to the Banner Defendants' counsel. It
does not follow that if she provided all the requested documents, the court
would then order her to execute more authorizations. Indeed, the court
specifically found that Susan had not provided “all” the requested medical
authorizations. Susan has not provided us with a transcript of the June 5,
2024, hearing, and so we presume the record supports the court’s factual
findings. Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 8 n.1 (App. 2005).

¶23 Susan also asserts the superior court erred in basing its ruling
on her failure to return the next of kin affidavit, which the court found was
necessary for the health care providers to release the medical records.
Rather than addressing her failure to comply with the court’s order to
provide the affidavit, Susan challenges the basis for requiring it. While it is
true that A.R.S. § 12-2294(D) does not require a next of kin affidavit in order
for medical records of a decedent to be disclosed, the court’s basis for
requiring the affidavit is sound: Banner was trying to prevent further delays
in obtaining medical records based on a health care provider’s anticipated
refusal to provide records absent proof Susan was the decedent’s mother,
who is a person authorized by the statute to receive the decedent’s medical
records. Additionally, Banner waived the notary requirement and emailed
Susan’s attorney a version of the next of kin affidavit that did not require
notarization. The record supports a finding that Susan willfully refused to
provide the court-ordered next of kin affidavit.

3 The email says it is attaching the authorizations and shows an image of

documents titled “Medical Authorizations.”

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III. Overall Failure to Prosecute

¶24 Ultimately, the record supports the superior court’s overall
findings that Susan was dilatory in prosecuting her case. It took Susan
approximately nine months to serve Banner and, despite a court-ordered
service extension, she never served Banner’s employed physicians, who
chose to waive service and answer despite the lack of service. Susan’s
motion for extensions to serve never raised issues of evasion of service or
sought permission to serve via alternative means.

¶25 Service issues notwithstanding, Susan waited almost a month
after the initial dismissal to move to set it aside. She failed to comply with
court orders to return all medical authorizations and the next of kin
affidavit, thus inhibiting defense preparation. More than two and a half
years passed from the time Susan filed her complaint until the court
dismissed the case. Susan thus failed in her duty to ready her case for trial
in a “reasonable time.” Cooper, 6 Ariz. App. at 469 (quoting Price v. Sunfield,
57 Ariz. 142, 148 (1941)).

¶26 As previously noted, Susan failed to provide us with the
necessary transcript of the June 5, 2024, scheduling conference regarding
the parties’ joint report. See ARCAP 11(b)(1) (placing responsibility on
appellant to include necessary transcripts in the record on appeal).
Therefore, we must assume the evidence was sufficient to support the
court’s findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73 (App.
1995) (“When a party fails to include necessary items, we assume they
would support the court’s findings and conclusions.”). Given this
presumption and the record before us, we cannot say the court abused its
discretion in dismissing the action for the failure to prosecute. Ariz. Local
R. Prac. Super. Ct. (Maricopa) 3.6(a)(2).

CONCLUSION

¶27 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to Banner upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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