Woo v. Baez

522 P.3d 739

2022 COA 113

James WOO, Plaintiff-Appellant,

v.Jose Angel BAEZ, Michelle Medina, and Richard Bednarski, Defendants-Appellees.

Court of Appeals No. 21CA0343

Colorado Court of Appeals, Division III.

Announced September 29, 2022

Rehearing Denied November 3, 2022

James Woo, Pro Se

Haddon, Morgan & Foreman, P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver, Colorado, for Defendants-Appellees Jose Angel Baez and Michelle Medina

Mulliken Weiner Berg & Jolivet P.C., Murray I. Weiner, Colorado Springs, Colorado, for Defendant-Appellee Richard Bednarski

Opinion by JUDGE TOW

¶ 1 Plaintiff, James Woo, appeals the judgment dismissing his claims against defendants Jose Angel Baez and Michelle Medina for lack of personal jurisdiction and his claims against defendant Richard Bednarski due to Woo's failure to file a certificate of review.

¶ 2 We reverse the dismissal as to the claims against Baez and Medina because we agree with Woo that the district court erred by denying substituted service. And we reverse the dismissal as to the replevin claim against Bednarski. As to the dismissal of Woo's other two claims against Bednarski, Woo's appellate contention requires us to address, as a matter of first impression, an "as-applied" challenge to the constitutionality of the certificate of review requirement in section 13-20-602, C.R.S. 2021. Rejecting that challenge, we affirm the dismissal of the remaining claims against Bednarski.

I. Background

¶ 3 Woo filed a civil complaint against Baez, Medina, and Bednarski — the lawyers who represented him in his underlying criminal case — alleging inadequacies in how they represented him.¹ Specifically, Woo brought claims against Baez and Medina for (1) fraud, (2) breach of contract, (3) willful breach of fiduciary duty, (4) professional negligence, (5) negligent misrepresentation, and (6) unjust enrichment. Woo brought claims against Bednarski for (1) willful breach of fiduciary duty, (2) professional negligence, and (3) replevin. The district court allowed Woo to file his complaint without prepayment of the filing fee, pursuant to section 13-17.5-103, C.R.S. 2021, because it found he was indigent. Woo was required to pay the fee in installments.

¶ 4 In addition, because Woo is incarcerated, the court granted his request for the court to assist in effectuating service, subject to Woo's payment of the expenses over time pursuant to section 13-17.5-103. Process was delivered to the Miami-Dade Police Department to serve Baez and Medina at a Miami business address Woo had provided. Woo later provided a new office address for Baez and Medina in Miami, as well as an alternate business address in Orlando. Local law enforcement was never able to serve either Baez or Medina at these addresses, apparently due in part to business interruptions resulting from the COVID-19 pandemic and Hurricane Eta. The El Paso County Sheriff's Department successfully served Bednarski.

¶ 5 After the case had been pending for more than a year without service on Baez and Medina, Woo filed a motion for substituted service pursuant to C.R.C.P. 4(f). In his motion, Woo asked the district court to authorize service on Jeffrey Pagliuca — a Colorado lawyer who was at that time representing Baez and Medina in a proceeding before the Colorado Office of Attorney Regulation Counsel that involved the same allegations of misconduct as in this case.

¶ 6 The district court denied the motion, explaining:

Plaintiff claims substitute[d] service on an attorney allegedly defending Baez and Medina in an investigation by the Office of Regulatory Counsel. However, the Plaintiff has failed to show that either of these procedures is reasonably calculated to give actual notice to the Defendants. Minshall v. Johnston , 417 P.3d 957 (Colo. App. 2018). The claims here are for monetary relief and not a challenge to the conviction and sentence. The Court finds that the State has expended considerable time and effort to accomplish out of state service and the Defendants could not be located. Given the nature of the claims here, this motion is denied.

¶ 7 Because Baez and Medina were never served, the district court dismissed the claims against them. The district court also dismissed the claims against Bednarski because, despite being given an extension of time to do so, Woo never filed a certificate of review containing an expert's conclusion that the claims against Bednarski did not lack substantial justification. See § 13-20-602(3)(a).

II. Substituted Service — Baez and Medina

¶ 8 We agree with Woo that the district court erred by denying his motion for substituted service.

¶ 9 If, despite having exercised due diligence, a plaintiff is unable to accomplish personal service on a defendant, they may move the court to allow substituted service of the defendant on a different person. See C.R.C.P. 4(f). Among other requirements, the court must "authorize delivery to be made to the person deemed appropriate for service" if it is

satisfied that due diligence has been used to attempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective.

C.R.C.P. 4(f)(1).

¶ 10 The district court found, with record support, that Woo had exercised due diligence. We agree.² Nothing in the record, however, indicates that serving Pagliuca would not have provided Baez and Medina with notice of Woo's civil lawsuit. To the contrary, serving Pagliuca, who at that time was representing Baez and Medina in Colorado in a closely related proceeding arising from the same factual allegations , was reasonably calculated to give actual notice to Baez and Medina of the civil case. See Warrender Enter., Inc. v. Merkabah Labs, LLC , No. 1:20-cv-00155-SKC, 2020 WL 2306856, at *2 (D. Colo. May 8, 2020) (unpublished order) (recognizing that courts have authorized substituted service on an attorney who represented the unserved party in other matters when the service on the attorney was reasonably calculated to give actual notice to the unserved party). The fact that the relief sought differed in the two proceedings is immaterial. Indeed, nothing in C.R.C.P. 4(f) suggests that substituted service is only available for certain types of claims. Thus, we reverse the district court's order denying the motion for substituted service.³

¶ 11 In light of that conclusion, we further conclude that the district court erred by granting Baez and Medina's motion to dismiss for lack of personal jurisdiction. We review de novo a motion to dismiss for lack of personal jurisdiction. Align Corp. Ltd. v. Boustred , 2017 CO 103, ¶ 8, 421 P.3d 163. Since the dismissal was partially rooted in the district court's erroneous determination that substituted service on Pagliuca was not reasonably calculated to give notice to Baez and Medina, it was error. Thus, we reverse the judgment dismissing the claims against Baez and Medina.

III. Certificate of Review — Bednarski

¶ 12 We disagree with Woo that the district court erred by granting Bednarski's motion to dismiss given Woo's failure to file a certificate of review as to the negligence and willful breach of contract claims. However, we agree with Woo that the district court erred by dismissing his replevin claim because no certificate of review is required for that claim.

A. Standard of Review

¶ 13 We review the district court's ruling requiring a certificate of review for an abuse of discretion. Redden v. SCI Colo. Funeral Servs., Inc. , 38 P.3d 75, 84 (Colo. 2001). And, as noted, we review de novo a district court's ruling on a motion to dismiss. State ex rel. Suthers v. Mandatory Poster Agency, Inc. , 260 P.3d 9, 12 (Colo. App. 2009) ; see Williams v. Boyle , 72 P.3d 392, 397-402 (Colo. App. 2003).

B. Applicable Law

¶ 14 A plaintiff who asserts a professional negligence claim must, within sixty days after commencing the action,⁴ file a certificate of review certifying that they have "consulted a person who has expertise in the area of the alleged negligent conduct," and that the person "has reviewed the known facts" and "has concluded that the filing of the claim ... does not lack substantial justification." § 13-20-602(3)(a). "Lack of substantial justification" is defined as "substantially frivolous, substantially groundless, or substantially vexatious." § 13-17-102(4), C.R.S. 2021. "The requirement applies to any claim against a licensed professional that is based upon allegations of professional negligence and that requires expert testimony to establish a prima facie case, regardless of the formal designation of such claim." Williams , 72 P.3d at 397. This requirement "should be broadly read and applied." Id. And it applies to pro se parties. Yadon v. Southward , 64 P.3d 909, 912 (Colo. App. 2002).

¶ 15 Further, upon the defendant's request, the court must dismiss a claim that requires a certificate of review if the plaintiff has not complied with the statute. § 13-20-602(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.") (emphasis added); see Miller v. Rowtech, LLC , 3 P.3d 492, 495 (Colo. App. 2000).

C. The Necessity of a Certificate of Review for Woo's Claims against Bednarski

¶ 16 Woo brought claims against Bednarski for (1) willful breach of fiduciary duty, (2) professional negligence, and (3) replevin (seeking return of Woo's property in Bednarski's possession). Bednarski moved to dismiss for failure to file a certificate of review. In granting the motion, the district court said,

All of the claims against Bednarski would require expert testimony in order to establish the standard of professional competence that the plaintiff alleges were violated by Bednarski. Those claims don't need to specifically assert

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