Schmidt v. Coogan

• Citation: 287 P.3d 681,171 Wash.App. 602
• Decision Date: 30 October 2012
• Docket Number: No. 41279–9–II.,41279–9–II.
• Court: Court of Appeals of Washington
• Parties: Teresa SCHMIDT, Respondent/Cross–Appellant, v. Timothy P. COOGAN and Deborah Coogan, and the marital community comprised thereof; and The Law Offices of Timothy Patrick Coogan and all partners thereof, Appellants/Cross–Respondents.

171 Wash.App. 602

287 P.3d 681

Teresa SCHMIDT, Respondent/Cross–Appellant,

v.Timothy P. COOGAN and Deborah Coogan, and the marital community comprised thereof; and The Law Offices of Timothy Patrick Coogan and all partners thereof, Appellants/Cross–Respondents.

No. 41279–9–II.

Court of Appeals of Washington, Division 2.

Oct. 30, 2012.

John Patrick Mcmonagle II, Attorney at Law, Fox Island, WA, Robert Spajic, Gordon & Polscer LLC, Portland, OR, for Defendant.

Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, Tacoma, WA, for Appellants/Cross–Respondents.

Dan'l Wayne Bridges, McGaughey Bridges Dunlap PLLC, Bellevue, WA, Christopher Alfred J. Wong, King County Prosecutor's Office, Seattle, WA, for Respondent/Cross–Appellant.

JOHANSON, A.C.J.

[171 Wash.App. 604]¶ 1 In 1995, Teresa Schmidt was injured when she slipped and fell at a Tacoma grocery store. She retained attorney Timothy P. Coogan to handle her personal injury suit against the grocery store, but Coogan failed to file Schmidt's suit before its statute of limitations expired. Schmidt sued Coogan, and a jury found Coogan liable for malpractice. On appeal, we affirmed the trial court's order granting a new trial to determine damages only. At the damages-only trial, a jury awarded Schmidt damages, and Coogan now appeals various trial court rulings, including its denial of his CR 50 motion for judgment as a matter of law, because Schmidt failed to prove collectibility at trial. Schmidt never proved collectibility, an essential component of damages in a legal malpractice claim, so we reverse the trial court's denial of Coogan's CR 50 motion as a matter of law because there was insufficient evidence to support the jury's verdict. We remand for dismissal of Schmidt's action and need not address Coogan's other claims on appeal.

¶ 2 Schmidt cross-appeals (1) the trial court's denial of her motion to amend her complaint and (2) its denial of her motion to seek general damages. First, we do not address availability of general damages because, absent proof of collectibility, Schmidt cannot collect any damages. Second, the trial court did not abuse its discretion in denying Schmidt's motion to amend her complaint because she only sought amendment after an undue delay, and an amended complaint would have worked an undue hardship on Coogan's defense. Accordingly, we affirm the trial court actions that Schmidt challenges on cross-appeal.

FACTS

¶ 3 On December 23, 1995, Schmidt slipped and fell at a Tacoma grocery store. On January 8, 1996, Coogan agreed to represent Schmidt in her slip-and-fall tort case. Coogan failed to properly perfect Schmidt's tort claim within the statute of limitations, and Schmidt sued Coogan and his associates, alleging legal malpractice. Schmidt filed her suit on November 3, 2000, claiming negligence and breach of contract. The case finally went to trial in November 2003, and a jury entered a verdict against Coogan for $32,000 in past economic damages and $180,500 for non-economic damages. Coogan filed a series of post-trial motions, and the trial court granted his motion “for a new trial on the issues of Damages Only.” Clerk's Papers (CP) at 27. Schmidt appealed and we issued an unpublished opinion affirming the trial court's “grant of a new trial on damages.” See Schmidt v. Coogan, noted at 145 Wash.App. 1030, 2008 WL 5752059 (2008). Schmidt's trial against Coogan to determine damages was set for August 2010.

¶ 4 In March 2010 Schmidt sought to amend, under CR 15, her complaint against Coogan. She sought to add a cause of action for outrage/reckless infliction of emotional distress against Coogan. The trial court denied this motion because it deemed the motion untimely. Then in May 2010, Schmidt filed motion for summary judgment, asking the trial court to determine whether she could pursue general damages. The trial court denied this motion as well. Before the damages-only trial, both parties filed motions in limine. Schmidt pursued general damages, and Coogan sought to prevent Schmidt from obtaining general damages and to confine her damages award to the amount originally collectible from the grocery store. In support of his motions in limine, Coogan filed an article that detailed a plaintiff's need to prove collectibility in a legal malpractice action. And while arguing this motion, Coogan alluded to collectibility, “The only issues remaining in this case under case-within-a-case theories is simply what—if Mr. Coogan had done his job successfully, what would [Schmidt] have gotten in her claim against the [the grocery store].” Verbatim Report of Proceedings (VRP) (Aug. 20, 2010) at 21.

¶ 5 After Schmidt rested her case in the damages trial, Coogan filed a CR 50 motion for a judgment as a matter of law asserting, among other things, that Schmidt failed to present any evidence that, had Coogan originally filed this case within the statute of limitations and won a jury verdict, the verdict would have been collectible.¹ Coogan stated:

There has been no evidence presented in this case, none whatsoever, as to whether or not even if Mr. Coogan had handled this case right, even if Mr. Coogan had taken it to a jury trial and got a verdict for Ms. Schmidt that that verdict would have been collectible. That is an essential element of their case, they put on no proof; therefore, dismissal is warranted.

3 VRP at 504. Schmidt responded to Coogan's motion:

I think what the argument of defendant ignores is that the issue of malpractice or negligence has already been tried, and that if this issue was to have any merit, or to be argued, or when it should have been argued was at the first trial. If Ms. Schmidt could not have demonstrated that any judgment would have been collectible, that would have been a liability defense. It's not an issue of quantum of damages and people often ignore this. You can have liability and be liable but there'd be no damages. That's a fine result. Or you could have damage, but no proximate cause and, therefore, no liability.

.... The first trial established and I think, I hope, and I've heard defendant argue this many times already, this is a damages only trial. Division II has already indicated duty, breach, proximate cause. That's what the first trial established. Now we are only here to talk about the damages Ms. Schmidt sustained.

....

To inject a new element at this time, which frankly has already been tried and resolved, would itself be an ambush even if it were a proper argument to make, and it's simply not a proper argument to make in the first place.

3 VRP at 505–06. The trial court denied this motion, finding that Coogan should have raised questions of collectibility at the first trial, not at this damages-only trial:

The motion is denied. The element of proximate cause with regard to damages will be an instruction given to this jury.... I believe it is a fine line, however, this case is not about any element of malpractice other than damages and proximate cause as it relates to damages.

If there was a question as to collectibility, that should have been addressed at the first trial. This trial is about damages only.

3 VRP at 508.

¶ 6 On August 27, 2010, the jury ultimately awarded Schmidt $3,733.16 in past economic damages and $80,000 in non-economic damages. Coogan filed a motion under CR 50 and/or CR 59 for judgment as a matter of law and/or a new trial, and he again claimed that Schmidt failed to establish collectibility ² The trial court ultimately denied Coogan's motion without issuing findings of fact or conclusions of law.

[171 Wash.App. 608]¶ 7 Coogan now appeals, on various grounds, the trial court's denial of his CR 50 motion for judgment as a matter of law and his CR 50 and/or CR 59 motion for a new trial. Schmidt cross-appeals the trial court's denial of her motion to amend her complaint and its denial of her motion to include a jury instruction on general damages arising from legal malpractice.

ANALYSIS

I. Denial of Motion for Judgment as a Matter of Law

¶ 8 Coogan first argues that the trial court improperly denied his CR 50 motion for a judgment as a matter of law because Schmidt failed to establish collectibility, a necessary element of damages in a legal malpractice claim. We agree.

¶ 9 Judgment as a matter of law is appropriate where a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on a specific issue. SeeCR 50(a). We review de novo a trial court's ruling on a CR 50 motion for judgment as a matter of law, applying the same standard as the trial court. Goodman v. Goodman, 128 Wash.2d 366, 371, 907 P.2d 290 (1995).

II. Collectibility

¶ 10 Coogan argues that Schmidt failed to establish the essential element of collectibility that he contends is necessaryfor Schmidt's damages claim. Because collectibility is a component in determining legal malpractice damages, and Schmidt failed to prove collectibility at trial, the trial court improperly denied his CR 50 motion for judgment as a matter of law.

¶ 11 As an initial matter, we must decide whether Coogan preserved this issue for appeal. Coogan did not challenge Schmidt's failure to prove collectibility at the first trial. Instead he raised this issue during the damages-only trial.³ But because this second trial involved damages only, and collectibility is a “component of damages in a legal malpractice action,” Coogan validly pursued his collectibility challenge during the second trial. See Matson v. Weidenkopf, 101 Wash.App. 472, 484, 3 P.3d 805 (2000). Accordingly, Coogan validly raises this issue on appeal, and we will consider the merits of his claim.

¶ 12 The measure of damages for legal malpractice is the amount of loss actually sustained as a proximate result of the attorney's conduct. Matson, 101 Wash.App. at 484, 3 P.3d 805. And collectibility of the underlying judgment is a “component of damages...