County District Court No. 13CV32156 Honorable Robin L.
Anderson Hemmat McQuinn, LLC, Julie E. Anderson, Chad P.
Hemmat, Ethan A. McQuinn, Jason G. Alleman, Greenwood
Village, Colorado, for Plaintiff-Appellee
& Evans, L.L.C., Malcom S. Mead, John E. Bolmer II,
Andrew P. Reitman, Denver, Colorado, for
1 A legal malpractice case is based on a claim that an
attorney breached his or her professional duty of care in a
way that proximately injured a client. See Hopp &
Flesch, LLC v. Backstreet, 123 P.3d 1176, 1183 (Colo.
2005). Sometimes, such as in this case, the client claims
that the attorney's breach of duty denied the client
success in a lawsuit against the defendant. (For the purposes
of clarity, we will call such a lawsuit the "underlying
case.") To prevail in this type of malpractice case, the
client must prove that the attorney would have been
successful in the underlying case by, for example, winning a
favorable judgment against a defendant. Bebo Constr. Co.
v. Mattox & O'Brien, P.C., 990 P.2d 78, 83
(Colo. 1999). Lawyers call this requirement proving the
"case within a case." Id. (citation
2 It is clear to us that part of the case within a case may
include resolving the question of whether any judgment that
the attorney might have won in the underlying case would have
been "collectible." Colorado law provides that, if
the defendant in the underlying case was insolvent and the
client would not have been able to collect on the judgment,
then the client cannot prevail in the malpractice case
against the attorney.
3 This appeal raises the issue of who bears the burden of
proving that the judgment would have been collectible. Must
the client prove that the judgment was collectible as part of
establishing a prima facie case? Or must the attorney, as an
affirmative defense, prove that the judgment was not
collectible? See Welsch v. Smith, 113 P.3d 1284,
1289 (Colo.App. 2005)(In a civil case, "[o]nce a prima
facie case is established, the opposing party . . . carries
the burden of establishing any affirmative defenses.").
We conclude that the attorney must raise the issue of
collectibility as an affirmative defense, which means that he
or she also bears the burden of proving that the judgment was
4 In this case, the plaintiff, Della Gallegos, sued
defendants Patric J. LeHouillier, an attorney, and his law
firm, LeHouillier & Associates, P.C., for legal
malpractice. (We shall refer to the attorney and the law firm
together as "Mr. LeHouillier" because their
interests are congruent in this appeal.) The jury found that
Mr. LeHouillier had negligently breached his duty of
professional care when handling an underlying case for Ms.
5 As part of the case within a case, the trial court decided
that Ms. Gallegos bore the burden of proving that any
judgment in the underlying case - a medical malpractice case
against a radiologist named Dr. Steven Hughes - was
collectible. But our review of the record convinces us that
there is no evidence to show that the judgment was
collectible. So we must reverse the judgment.
6 But that does not mean that we must enter judgment in favor
of Mr. LeHouillier. We also conclude that the trial court
erred when it placed the burden of collectibility on Ms.
Gallegos because it should have placed the burden on Mr.
LeHouillier to prove that a judgment against Dr. Hughes was
not collectible. So we remand this case for a new
trial. We additionally instruct the trial court that, at any
new trial, Mr. LeHouillier must (1) raise the issue of
collectibility as an affirmative defense; and (2) bear the
burden of proving that any judgment against Dr. Hughes would
not have been collectible.
7 Ms. Gallegos's malpractice case against Dr. Hughes
stems from a 2006 MRI that he performed on Ms. Gallegos's
brain. Ms. Gallegos claimed that Dr. Hughes overlooked a
clearly visible meningioma. (A meningioma is a tumor that
forms on the membranes that cover the brain or on the spinal
cord inside the skull. Although meningiomas are frequently
benign, meaning that they are not cancerous, they can
nonetheless cause serious problems, or even death, as they
8 Three years later, a different doctor spotted the
meningioma during another MRI. By this time, it had grown
three times larger than it had been in 2006.
9 Ms. Gallegos could have undergone noninvasive radiosurgery
to treat the meningioma if Dr. Hughes had diagnosed it in
2006. But, by 2009, this treatment was no longer a viable
option. So surgeons performed three craniotomies, or surgical
openings, of Ms. Gallegos's skull to remove as much of
the tumor as possible.
10 Ms. Gallegos retained Mr. LeHouillier to sue Dr. Hughes.
Mr. LeHouillier investigated the case, but he decided in 2010
that he would not proceed with the case because it did not
make "dollars and cents sense."
11 Mr. LeHouillier claimed that he had informed Ms. Gallegos
of his decision in a meeting, adding that he would no longer
represent her. But he did not keep any written records to
memorialize what had been discussed at the meeting, and he
did not send Ms. Gallegos a letter to inform her that he was
no longer her attorney.
12 The statute of limitations ran on any medical malpractice
case that Ms. Gallegos might have brought against Dr. Hughes.
13 Ms. Gallegos then filed this legal malpractice lawsuit
against Mr. LeHouillier. Among other things, the jury found
that Dr. Hughes had been negligent, that Mr. LeHouillier had
been negligent, that Ms. Gallegos had been partly negligent,
but less negligent than either Dr. Hughes or Mr. LeHouillier,
and that Ms. Gallegos was entitled to an award of damages
from Mr. LeHouillier.
14 Turning to the issue of collectibility, during the trial
and after Ms. Gallegos had rested her case-in-chief, Mr.
LeHouillier moved for a directed verdict. He asserted that
Ms. Gallegos bore the burden of proving that any judgment
against Dr. Hughes would have been collectible, and that she
had not carried her burden. The trial court agreed that Ms.
Gallegos bore the burden of proving that the judgment would
have been collectible, but it ruled that Ms. Gallegos had
provided sufficient evidence to prove that point.
15 After the trial, Mr. LeHouillier raised the same point in
a motion for judgment notwithstanding the verdict (JNOV). The
court made the same ruling.
There Was No Evidence That the Judgment Was Collectible
16 Mr. LeHouillier contends that we must reverse the judgment
because collectibility is an element that a plaintiff must
prove in a legal malpractice case, and Ms. Gallegos did not
prove that any judgment that she would have received in the
underlying case against Dr. Hughes would have been
17 Ms. Gallegos counters that the question of collectibility
is an affirmative defense, and that the court should have
required Mr. LeHouillier to prove that the judgment was not
collectible. Ms. Gallegos does not dispute that, if a 1927
Colorado Supreme Court case is read as she suggests, a new
trial would be appropriate. Even though the trial court
wrongly assigned the burden to her, she continues, she
shouldered the burden by providing sufficient proof that the
judgment was collectible.
18 As we have indicated above, we agree with Mr. LeHouillier
that the record does not contain sufficient evidence that the
judgment was collectible. But we agree with Ms. Gallegos that
(1) the trial court erroneously placed the burden on her to
prove that fact; and (2) the court should have required Mr.
LeHouillier to (a) raise the question of collectibility as an
affirmative defense; and (b) prove that any judgment that Ms.
Gallegos would have received would not have been collectible.
Standard of Review
19 We review de novo the grant or denial of a motion for
directed verdict or JNOV. See Vaccaro v. Am. Family Ins.
Grp., 2012 COA9M, ¶ 40. We view the evidence
"in the light most favorable to the party against whom
the motion [was] directed, " id. at ¶ 45,
and "indulge every reasonable inference that can be
drawn from the evidence in that party's favor, "
Hall v. Frankel, 190 P.3d 852, 862 (Colo.App. 2008).
Evidence of Collectibility
20 Ms. Gallegos contends that she provided sufficient
evidence to support an "inference" that Dr. Hughes
carried professional liability insurance, which would mean
that the judgment would have been collectible. She points to
the following facts in the trial record that establish this
. Mr. LeHouillier wrote Dr. Hughes a letter
in which he explained that he was representing Ms. Gallegos
in a potential medical malpractice case against the doctor.
The letter encouraged Dr. Hughes to "contact [his]
professional liability insurer." According to Ms.
Gallegos, after Mr. LeHouillier sent this letter,
"neither Dr. Hughes nor any other person ever informed
[Mr.] LeHouillier that Dr. Hughes lacked insurance
. When Dr. Hughes did not diagnose Ms.
Gallegos's meningioma in 2006, he was a licensed doctor
who was practicing medicine at a hospital. Section
13-64-301(1)(a.5)(I), C.R.S. 2016, required all practicing
doctors to maintain professional liability insurance covering
each incident up to one million dollars.
21 We conclude, for the following reasons, that this evidence
did not create the inference that Ms. Gallegos suggests.
Turning first to the letter, although Dr. Hughes may not have
informed Mr. LeHouillier that he did not have liability
coverage, he did not inform Mr. LeHouillier that he
possessed liability coverage, either. Indeed, Dr.
Hughes said nothing at all. He did not respond to the letter
in any way; he did not provide any other information to Mr.
LeHouillier or to Ms. Gallegos; and Ms. Gallegos did not
offer any proof that Dr. Hughes had even received the letter.
Like Godot, Dr. Hughes's appearance in the case may have
been much anticipated, but it never came to pass.
22 Ms. Gallegos's reliance on section
13-64-301(1)(a.5)(I) fares no better. True enough, the record
supports the conclusion that Dr. Hughes was a doctor who was
practicing medicine when he performed the MRI on Ms.
Gallegos, so the statute may well have applied to him. But we
cannot find anywhere in the record - and Ms. Gallegos does
not provide us with any direction to a specific place - where
the jury learned about section 13-64-301(1)(a.5)(I). And we
do not know whether Dr. Hughes had complied with the statute
by maintaining liability insurance. We cannot infer that the
jury reached its verdict based on the requirements of a
statute that it never heard anything about.
23 We recognize that we must view the evidence in the light
most favorable to Ms. Gallegos and draw every reasonable
inference in her favor. See Hall, 190 P.3d at 862.
But the record contains no evidence on collectibility at all.
So we conclude that the "record is devoid of any
proof" that any judgment against Dr. Hughes in the
underlying case would have been collectible. Green v.
Castle Concrete Co., 181 Colo. 309, 314, 509 P.2d 588,
24 But our job is not yet over. In other situations, we would
simply enter judgment in Mr. LeHouillier's favor because
Ms. Gallegos did not satisfy her burden of proof. But, in
this case, we must next decide whether the trial court erred
when it allocated that burden of proof by requiring Ms.
Gallegos to prove that any judgment against Dr. Hughes in the
underlying case would have been collectible.
The Attorney Bears the Burden of Proving That a Judgment
Would Not Be Collectible as an Affirmative Defense in a Legal
Strange Case of Lawson v. Sigfrid
25 We encountered a mystery on the road to answering the
central question in this case. The mystery concerns a
ninety-year-old, one-and-one-quarter-page Colorado Supreme
Court case, Lawson v. Sigfrid, 83 Colo. 116, 262 P.
1018 (1927). ¶ 26 Courts from other jurisdictions and
some commentators have cited Lawson for the
proposition that a plaintiff in a legal malpractice case
bears the burden of proving that any judgment in the
underlying case would have been collectible. See Beeck v.
Aquaslide 'N' Dive Corp., 350 N.W.2d 149, 160
(Iowa 1984); Paterek v. Petersen & Ibold, 890
N.E.2d 316, 321 (Ohio 2008); Kituskie v.
Corbman, 714 A.2d 1027, 1031 n.6 (Pa. 1998);
Taylor Oil Co. v. Weisensee, 334 N.W.2d 27, 29 n.2
(S.D. 1983); see also, e.g., 4 Ronald E. Mallen,
Legal Malpractice § 33:32, at 747 n.5 (2017
ed.); 7 John W. Grund, J. Kent Miller & David S. Werber,
Colorado Personal Injury Practice - Torts and
Insurance § 22:22, at 540 n.7 (3d ed. 2012); Elisa
Recht Marlin, Recent Decision, Kituskie v. Corbman, 714
A.2d 1027 (Pa. 1998), 37 Duq. L. Rev. 521, 530, 530 n.77
27 But, after studying Lawson carefully, we conclude
that it does not stand for the entire proposition for which
it has been cited. Although we agree that Lawson
held that the collectibility of a judgment in the underlying
case is pertinent to a legal malpractice case, we
respectfully disagree with those who think that
Lawson allocated the burden of proving
collectibility to the plaintiff.
28 We begin our analysis by summarizing Lawson's
facts. The plaintiff hired a lawyer in 1919 to sue Bessie
Kennedy for an unpaid debt. Lawson, 83 Colo. at
116-17, 262 P. at 1018. The case lingered until 1923, when
the plaintiff and the lawyer discovered that the trial court
had dismissed the case for failure to prosecute it.
Id. at 117, 262 P. at 1018.
29 The plaintiff then sued the lawyer for "neglect of
professional duty." Id. The trial court granted
the lawyer's motion for a directed verdict. Id.
In doing so, it decided that the plaintiff had to prove three
. the lawyer had been negligent;
. the plaintiff had "a good cause of
action" against Ms. Kennedy; and