Martinez v. Badis
| Decision Date | 14 December 1992 |
| Docket Number | No. 91SC489,91SC489 |
| Citation | 842 P.2d 245 |
| Parties | Larry MARTINEZ, an individual, and Martinez & Allman, a Colorado partnership, Petitioners, v. A. Lonnie BADIS and A. Lynne Badis, individuals, and J & L Ventures, Inc., a Colorado corporation, Respondents. |
| Court | Colorado Supreme Court |
Thomas J. Tomazin, P.C., Thomas J. Tomazin, Englewood, for petitioners.
White and Steele, P.C., Glendon L. Laird, Allan Singer, Lina George-Sauto, Denver, for respondents.
In Badis v. Martinez, 819 P.2d 551 (Colo.App.1991), the Colorado Court of Appeals reversed the trial court's judgment dismissing a complaint filed against petitioners Larry Martinez and Martinez & Allman, a partnership (the defendants), by respondents A. Lonnie Badis, Lynne Badis and J & L Ventures, Inc. (the plaintiffs). The Court of Appeals concluded that provisions of section 13-20-602, 6A C.R.S. (1987), requiring plaintiffs to file a certificate of review in civil actions against licensed professionals, are not applicable to two of the three claims asserted by the plaintiffs and that with respect to their third claim the plaintiffs may establish good cause for failure to file such certificate within the time period provided by the statute. 1 Having granted certiorari to review the propriety of these conclusions, we affirm in part, reverse in part and remand with directions.
On July 6, 1988, A. Lonnie Badis and A. Lynne Badis, owners of J & L Ventures, Inc., filed a civil action asserting three claims against the defendants. The complaint alleged that during 1985 and 1986 Martinez represented the plaintiffs with respect to the sale of Ataraxia Photographics, Inc., a business operated and controlled by the Badises. The transaction also encompassed the sale of a building and certain real property owned by the Badises and the infusion of capital into J & L Ventures, Inc. from the proceeds of the sale. The complaint alleged that Martinez misinformed the plaintiffs about critical aspects of the transaction, that as a result the transaction was renegotiated, and that the plaintiffs suffered damages totaling $350,000 as a result of Martinez's conduct.
The complaint set forth three claims for relief: legal malpractice, breaches of fiduciary duties, and breaches of contracts. 2 The complaint also contained the following statement:
The foregoing [c]omplaint will be the subject of a certification pursuant to [§ 13-20-602, 6A C.R.S. (1987),] within the time required by that statute.
The complaint was served on the defendants on September 1, 1988. Sixty-two days later, on November 2, 1988, the plaintiffs filed a certificate of review "pursuant [to section 13-20-602, 6A C.R.S. (1987) ]." The statute referred to in the complaint and in the certificate states as follows:
Actions against licensed professionals--certificate of review required. (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, counterclaim, or cross claim 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) A certificate of review shall be executed by the attorney or 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 [§ 13-17-102(4), 6A C.R.S. (1987) ].
....
(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.
§ 13-20-602(1)-(4), 6A C.R.S. (1987). 3
On August 31, 1989, after the plaintiffs' initial attorney had withdrawn due to a conflict of interest and after several motions had been filed by the parties with respect to discovery matters, the defendants filed a motion to dismiss the complaint pursuant to C.R.C.P. 37(d), 41(b)(1), 41(b)(2), and 121 § 1-10. The plaintiffs' timely filed a response to this motion. 4
On September 21, 1989, the defendants filed a motion to dismiss the action on the ground that the plaintiffs failed to file a certificate of review within the time period required by section 13-20-602, 6A C.R.S. (1987). The plaintiffs timely filed a response to this motion. The response stated that the plaintiffs did not know why, over ten months before the filing of the defendants' motion, the certificate had been filed two days beyond the sixty-day period by prior counsel. The response requested denial of the defendants' motion on the ground of laches and an award of attorney fees to the plaintiffs for the cost of responding to the allegedly frivolous motion.
On November 7, 1989, the trial court entered a one-sentence order dismissing the action with prejudice for failure to comply with section 13-20-602. The plaintiffs appealed this ruling.
On appeal, the Court of Appeals first determined that some negligence claims filed against licensed professionals do not require expert testimony. Observing that section 13-20-602(2) recognized the fact that the parties to an action might disagree with respect to the necessity of expert testimony, the court held that the provisions of section 13-20-602(4) permit, but do not require, the dismissal of actions in which a certificate of review is not filed within sixty days of the service of the complaint. Concluding that section 13-20-602 did not apply to the plaintiffs' breaches of fiduciary duties and breaches of contracts claims, the court remanded the case to the trial court for a determination of whether expert testimony would be necessary to establish a prima facie case on the plaintiffs' negligence claim and, if so, to permit the plaintiffs to establish that good cause existed for the late filing of their certificate of review with respect to that claim.
Several well-established principles of statutory construction aid our resolution of the issues here presented. When interpreting statutes courts must effectuate the intent of the legislature. State Bd. of Medical Examiners v. Saddoris, 825 P.2d 39, 42 (Colo.1992); Triad Painting Co. v. Blair, 812 P.2d 638, 644 (Colo.1991); In re M.S. v. People, 812 P.2d 632, 635 (Colo.1991); Bynum v. Kautzky, 784 P.2d 735, 737 (Colo.1989). Courts look first and foremost to the language of the statute itself to discern legislative intent. R.E.N. v. City of Colorado Springs, 823 P.2d 1359, 1364 (Colo.1992). It is presumed that the General Assembly intended that the entire statute be effective and that the result be just and reasonable. § 2-4-201, 1B C.R.S. (1980). With these principles in mind, we must determine whether, as the defendants assert, the plaintiffs' failure to file a certificate of review within the sixty-day time period established by § 13-20-602(1), 6A C.R.S. (1987), required the trial court to dismiss the complaint.
Section 13-20-602(1) provides that a certificate of review shall be filed within sixty days of the date of the service of the complaint unless the trial court "determines that a longer period is necessary for good cause shown." § 13-20-602(1), 6A C.R.S. (1987). The defendants first contend that the sixty-day filing requirement is applicable to every claim of professional negligence. We disagree.
The defendants' argument focuses primarily on the language of section 13-20-602(1). However, a statute must be construed as a whole, and courts must endeavor to give reasonable meaning to all provisions of a statute. City of Florence v. Board of Waterworks of Pueblo, 793 P.2d 148, 151 (Colo.1990); Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 691 (Colo.1990); Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988); City of Ouray v. Olin, 761 P.2d 784, 788 (Colo.1988). Section 13-20-601 sets forth the purpose of the entire statutory scheme, as follows:
Legislative declaration. The general assembly hereby declares that, in enacting this part 6, the general assembly has determined that the certificate of review requirement should be utilized in civil actions for negligence brought against those professionals who are licensed by this state to practice a particular profession and regarding whom expert testimony would be necessary to establish a prima facie case.
§ 13-20-601, 6A C.R.S. (1987). This statutory language describes a particular class of claims against licensed professionals: those in which expert testimony is necessary to establish a prima facie case. Section 13-20-601(3) provides that the certificate of review must contain information supplied by an expert "in the area of the alleged negligent conduct." When read together, these provisions establish that the certificate of review is required only with respect to those claims of professional negligence which require the plaintiff to establish a prima facie case by means of expert testimony. Some claims of professional negligence do not require expert testimony. See Daly v. Lininger, 87 Colo. 401, 405, 288 P. 633, 636 (19...
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