Martinez v. Badis ( 1992 )

Justice ERICKSON,

specially concurring:

I concur with most of the analysis of the court of appeals in Badis v. Martinez, 819 P.2d 551 (Colo.App.1991). In my view, the sole issue in this case is whether the failure to file a certificate of review required by section 13-20-602, 6A C.R.S. (1987), mandates the dismissal of the respondent’s complaint pursuant to section 13-20-602(4), 6A C.R.S. (1987).¹ Subsection (4) was substantively amended in 1989 and the opinion in this case is of little practical significance because the only cases affected will be those filed prior to April 12,1989, the effective date of the amendment.²

(1) In every action for damages or indemnity based upon the alleged professional negligence of a licensed professional, the plaintiff's or complainant’s attorney shall file with the court a certificate of review, as specified in subsection (3) of this section, within sixty days after the service of the complaint ... against such licensed professional unless the court determines that a longer period is necessary for good cause shown.

(2) In the event of failure to file a certificate of review in accordance with this section and if the licensed professional defending the claim believes that an expert is necessary to prove the claim of professional negligence, the defense may move the court for an order requiring filing of such a certificate. The court shall give priority to deciding such a motion, and in no event shall the court allow the case to be set for trial without a decision on such motion.

(3) A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring:

(I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and

(II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known facts relevant to the allegations of negligent conduct and, based on such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of section 13 — 17— 102(4).

I agree with the majority that the court of appeals improperly concluded that the breach of contract and breach of fiduciary duty claims asserted by the respondent never require the filing of the certificate of review required by section 13-20-602.³ However, I do not agree with the majority’s extended discussion and analysis of the breach of contract and breach of fiduciary duty claims. Rather, I would remand the case to the trial court for further proceedings to determine whether either of the claims is in fact “based upon” negligence requiring expert testimony to establish a prima facie case. If either of the claims is a negligence claim requiring the filing of a separate certificate of review, I would allow the trial court discretion, consistent with this concurrence, to either order that a certificate of review be filed or to dismiss the respondent’s claims against the petitioner.

(4)The failure to file a certificate of review in accordance with this section shall be grounds for dismissal of the complaint, counterclaim, or cross claim.

As to the professional negligence claim which admittedly requires a certificate of review to be filed, I would hold that the statute which was in effect at the time the respondent’s lawsuit was filed does not mandate, but does provide grounds for, dismissal of the respondent’s claim of professional negligence because the respondent failed to file the certificate of review within sixty days.

Here, the certificate of review required by section 13-20-602(1), 6A C.R.S. (1987), was not filed until sixty-two days after the complaint was served on the petitioner. In accordance with the statute, the certificate which was filed verifies that the respondent’s previous counsel conferred with two professionals with expertise in the area of the negligent conduct that was alleged in the complaint and that those professionals concluded that the claim did not lack substantial justification. See § 13-20-602(3), 6A C.R.S. (1987). Section 13-20-602(2), 6A C.R.S. (1987), permitted the petitioner, a licensed professional charged with negligence, to seek an order requiring that a certificate of review be filed in the event the respondent failed to file the certificate. Section 13-20-602(2), 6A C.R.S. (1987), also allowed the trial court, in its sound discretion, to determine the action necessary to insure that the petitioner was provided with the proper notice and information to defend against the respondent’s claim of negligence.

If the respondent wilfully failed to comply with the sixty day filing requirement, dismissal of the claim could be ordered. However, because the statute is structured to permit both the respondent and the petitioner access to the court to determine the need for a certificate of review, I believe that under section 13-20-602(4), 6A C.R.S. (1987), the trial judge’s automatic dismissal for failure to comply with the sixty-day filing requirement was not justified in this case. Good cause for the delay in filing the certificate may have been established by the need of the respondent to obtain new counsel, however that issue must be resolved by the trial court on remand.

In my view, the trial judge in this case, applying the law that was then in effect, possessed the same discretion in ruling on the sanctions to be imposed for failure to comply with section 13-20-602, 6A C.R.S. (1987), that he had in addressing motions for sanctions under C.R.C.P. 37. Accordingly, the court of appeals properly remanded the issue of compliance with the statute to the district court for further proceedings. However, on remand, I would also require that the district court conduct further proceedings to determine whether either of the respondent’s breach of fiduciary duty or breach of contract claims falls within section 13-20-602, 6A C.R.S. (1987), which would then require the filing of a certificate of review. In my view, section 13-20-602 is replete with inconsistent and contradictory terms that defy logical application and require reevaluation and amendment by our General Assembly.

I am authorized to say that QUINN and YOLLACK, JJ., join in this special concurrence.

1 .Section 13-20-602 provides in pertinent part:

2 . Section 13-20-602(4) now provides:

(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.

13-20-602(4), 6A C.R.S. (1992 Supp.). The General Assembly also amended subsections (1) and (3) in 1989.

The plain wording of subsection (4) as amended requires dismissal if a certificate of review is not filed in accordance with section 13-20-602, provided that the plain wording of subsections (1), (2), and (3) are ignored.

3 . In my view, under section 13-20-602(4); 6A C.R.S. (1987), a trial judge, in reviewing section 13-20-602 in its entirety, should not dismiss a claim for professional negligence until a determination has been made that expert testimony is required to establish a prima facie case of professional negligence. In certain instances, a breach of contract and breach of fiduciary duty claim may require that a certificate of review be filed pursuant to section 13-20-602. The court of appeals erred in holding that these two types of claims never require that a certificate be filed.