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Woo v. Baez.

2022 COA 113. No. 21CA0343. Actions Against Licensed Professionals—Service of Process—Indigency—Certificate of Review—Fourteenth Amendment—Due Process—Equal Protection.

September 29, 2022

Woo filed a civil complaint against Baez, Medina, and Bednarski, the lawyers who represented him in his underlying criminal case. He sued Baez and Medina for fraud, breach of contract, willful breach of fiduciary duty, professional negligence, negligent misrepresentation, and unjust enrichment. He sued Bednarski for willful breach of fiduciary duty, professional negligence, and replevin. After more than a year, during which he never served Baez and Medina, Woo filed a motion for substituted service on Pagliuca, a Colorado lawyer who was then representing Baez and Medina in a Colorado Office of Attorney Regulation Counsel proceeding involving the same allegations of misconduct as in this case. The court denied the motion, and because Baez and Medina were never served, it dismissed the claims against them. The court also dismissed the claims against Bednarski because, despite being given an extension of time, Woo never filed the required certification from an expert regarding validity of the claims.

On appeal, Woo argued that the district court erred by denying his motion for substituted service. A plaintiff who uses due diligence to accomplish personal service on a defendant but is unsuccessful may move the court to allow substituted service of the defendant on a different person. Here, the plaintiff had exercised due diligence, and no evidence suggested that serving Pagliuca was insufficient to provide Baez and Medina with notice of Woo’s civil lawsuit. Therefore, the district court erred by denying substituted service on Pagliuca and by dismissing the claims against Baez and Medina’s for lack of personal jurisdiction.

Woo also argued that the district court erred by granting Bednarski’s motion to dismiss. Woo’s professional negligence and willful breach of fiduciary duty claims required expert testimony. Thus, a certificate of review was required, and the district court properly dismissed those claims. However, plaintiff’s replevin claim is not based on allegations of professional negligence, nor is expert testimony required to establish a prima facie case. Accordingly, a certificate of review is not required for this claim, and the district court erred by requiring one and dismissing this claim.

Woo further contended that, because he is indigent, the district court’s dismissal of his claims against Bednarski violated his federal and state constitutional rights. Requiring expert substantiation of a plaintiff’s professional negligence claims early in the case is rationally related to furthering the state’s interest in limiting frivolous lawsuits. Accordingly, the certificate of review requirement does not violate constitutional guarantees of due process or equal protection. Nor does it create an insurmountable barrier to a litigant whose case has substantial justification. Further, Woo did not show that being indigent was his only obstacle to obtaining an expert certification. Accordingly, the certificate of review requirement is not unconstitutional as applied.

The judgment dismissing the claims against Baez and Medina was reversed and the case was remanded with instructions to authorize substituted service. The judgment dismissing the replevin claim against Bednarski was reversed and the case was remanded for further proceedings on that claim. The judgment dismissing the remaining claims against Bednarski was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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