Hamilton v. Thompson, No. 00SC705.

• Decision Date: 15 May 2001
• Docket Number: No. 00SC705.
• Citation: 23 P.3d 114
• Parties: Donald D. HAMILTON, DVM, Petitioner, v. John THOMPSON, d/b/a the Buckskin Stallion Station, Respondent.
• Court: Colorado Supreme Court

23 P.3d 114

Donald D. HAMILTON, DVM, Petitioner, v. John THOMPSON, d/b/a the Buckskin Stallion Station, Respondent.

No. 00SC705.

Supreme Court of Colorado, En Banc.

May 15, 2001.

Dickinson, Everstine & Prud'Homme, LLP, Michelle R. Prud'Homme, Denver, CO, Attorney for Petitioner.

John Thompson, Waterloo, IA, Pro Se.

PER CURIAM.

We accepted certiorari in this appeal from the district court's judgment upholding a judgment of the small claims court awarding damages in the amount of $5,000.00 in favor of John Thompson on his counterclaim against Dr. Donald D. Hamilton.¹ We reverse, set aside the damage award, and order dismissal of the counterclaim.

Hamilton filed suit in the small claims court seeking recovery of $2,861.10 in unpaid veterinary fees. A bench trial was held on May 23, 2000. On the day of trial, Thompson filed his answer denying liability for payment of the fees as well as a $5,000.00 counterclaim against Hamilton for damages due to negligent performance of the contracted services. The small claims court proceeded with the trial forthwith.

Both parties testified at trial. Hamilton testified that Thompson had hired him to perform ultrasound services to determine whether mares being bred at Thompson's horse breeding facility were pregnant. The parties agreed upon a charge of $20.00 per ultrasound. The arrangement called for a technician to take the ultrasound pictures at the breeding facility and for Hamilton, a licensed veterinarian, to read the pictures and report the results to Thompson.

Thompson's defense and counterclaim rested on the assertion that the technician, Kim Parrington, was not licensed to take ultrasounds and diagnose pregnancies; nevertheless, she did so. Thompson testified that the ultrasound printer malfunctioned often and that Parrington, contrary to the contract, had performed the diagnosis function that was reserved to Hamilton, resulting in false reports of pregnancies, with the result that Thompson had to provide rebreeding services at his own expense. The trial court's ruling on the counterclaim is the only matter before us on certiorari review.

Thompson's counterclaim, injected into the case on the day of trial, stated that: "He [Hamilton] hired a person to perform vet medicine who is not a license[d] vet." We have reviewed the transcript of the trial, including the trial court's oral ruling and the exhibits, together with the district court's written ruling upholding the $5,000.00 damages award. The trial court ruled that the professional services were substandard:

The court concludes on the basis of the evidence and testimony that has been given, that the services that were provided were not up to the agreed contract. That in fact, they were substantially below the standards that one could expect and substantially below that which I think that Mr. Thompson had a right to expect.

The district court's judgment upholding the trial court's damages award characterized the counterclaim as involving negligence in the delivery of professional services:

Plaintiff sued on a contract to perform pregnancy testing on horses owned [by] defendant. An assistant of plaintiff who is unlicensed to diagnose pregnancy in horses did tests. There is evidence that many of these diagnoses were in error and some performed by an unlicensed technician. The Court concluded that services were not performed satisfactorily pursuant to the contract, therefore, plaintiff should not recover on his claim. The Court further found that because of the missed diagnoses, defendant became liable for over $5,000 in stud fees for which plaintiff was responsible. There is sufficient evidence to support these findings on the record.

When a claim seeking damages for failure to perform professional services may sound in either tort or contract, see Bailey v. Harmon, 74 Colo. 390, 391, 222 P. 393, 393 (1924), the trial court must determine whether the "gist of the action" is a claim for professional negligence. Maercklein v. Smith, 129 Colo. 72, 78, 266 P.2d 1095, 1098 (1954). Thompson asserted a claim for damages against a licensed professional based on his technician performing veterinary services that she was unqualified to perform. The district court agreed with the trial court that the crux of Thompson's counterclaim was "missed diagnoses" and upheld the damages award on that basis.

We hold that the district court erred in upholding the...