Opinion
No. 32840-2-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 00-2-12941-1, Daniel J. Berschauer, J. Pro Tem., entered January 7, 2005.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, C.J., and Hunt, J.
A jury awarded Teresa Schmidt $212,000 in damages on her legal malpractice claim against her attorney, Timothy Coogan. The claim arises from Coogan's failure to timely file Schmidt's personal injury case against the grocery store where she allegedly slipped and fell. Schmidt now appeals the trial court's order granting Coogan's motion for a new trial on damages. Coogan cross-appeals, arguing that the trial court should have dismissed the action because Schmidt presented insufficient evidence of (1) the store's notice, an essential element of the underlying "case within a case" and of (2) the standard of care applicable to attorneys practicing in Washington. The Supreme Court took review of the first issue, holding that there was sufficient evidence to submit it to the jury. The Court remanded to us to consider the remaining issues. We affirm the trial court's denial of Coogan's motion to dismiss and its grant of a new trial on damages.
See Schmidt v. Coogan, 162 Wn.2d 488, 173 P.3d 273 (2007).
FACTS
One day in December 1995, Teresa Schmidt, while grocery shopping, allegedly stepped in a puddle of shampoo and fell. As a result, Schmidt suffered pain and numbness in her arm, migraines, and back spasms that prevented her from engaging in her usual activities.
Schmidt retained Timothy Coogan to take her case against the grocery store where she fell. In part because he failed to identify the proper defendant, Coogan was unable to file and serve the complaint within the statutory period. After the court dismissed Schmidt's personal injury action, she sued Coogan for malpractice. As part of her case, Schmidt presented excerpts of Coogan's videotaped deposition in which he stated that he could not imagine a situation where an attorney's failure to sue the correct defendant would not be negligent. She also presented evidence that she incurred $3,840 in medical bills, plus interest and finance charges of over $2,000, as a result of her injuries. She offered no other evidence of economic damages.
Coogan moved for judgment as a matter of law at the end of Schmidt's case, arguing that Schmidt had failed to establish the standard of care in the malpractice claim because she presented no expert testimony. The trial court denied the motion, ruling that Coogan's admission was sufficient to establish the applicable standard of care.
The jury found Coogan liable and awarded Schmidt $32,000 for past economic damages and $180,500 for non-economic damages. Coogan moved for (1) reconsideration of his previous motion for judgment as a matter of law, (2) remittitur, or (3) a new trial. The trial court granted the motion for a new trial limited to damages.
ANALYSIS I. Standard of Care for Legal Malpractice
We review de novo a trial court's decision to deny judgment as a matter of law. Alejandre v. Bull, 159 Wn.2d 674, 681, 153 P.3d 864 (2007). The court may grant judgment as a matter of law only if "there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict." Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995) (quoting Brashear v. Puget Sound Power Light Co., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983) (quotations omitted)). . .
Generally, a plaintiff can prove legal malpractice without expert testimony "when the negligence charged is within the common knowledge of lay persons." Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979). Here, Coogan, himself, admitted that he could not imagine a scenario in which the failure to identify the proper defendant in a personal injury case would not be negligent. As a licensed attorney, Coogan presumptively had the level of "knowledge, skill, experience, training, or education" justifying an opinion on standards of practice in Washington. See ER 702. He argues on appeal that his deposition testimony was an incorrect statement of the law. But Coogan could have testified at trial that his deposition testimony was wrong, leaving the jury to resolve the dispute. Coogan did not testify at trial, so the jury had only his uncontroverted deposition testimony on the applicable standard. No legal rule prevented the jury from basing its negligence finding on such "common knowledge" evidence; thus, the trial court did not err.
II. New Trial Regarding Damages
Schmidt claims that the trial court erred in granting Coogan's motion for a new trial on damages.
CR 59(a) allows a trial court to grant a motion for a new trial for several enumerated "causes materially affecting the substantial rights of [the] parties." We review the trial court's ruling on such a motion for abuse of discretion. Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 165, 178, 116 P.3d 381 (2005). And we give greater deference to a trial court's decision to grant a new trial than a decision to deny one because denial of a new trial concludes the parties' rights. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997); Mega v. Whitworth Coll., 138 Wn. App. 661, 671, 158 P.3d 1211 (2007).
One valid basis to grant a new trial is where "there is no evidence or reasonable inference from the evidence to justify the verdict." CR 59(a)(7). Here, the trial court found that the jury's award of $32,000 for past economic damages was "absolutely unsupported by any evidence presented." Clerk's Papers at 235. We agree.
"Economic damages" are objectively verifiable monetary losses. RCW 4.56.250(1)(a). Here, Schmidt proved no economic damages other than $3,840 in medical bills plus interest and finance charges that no more than doubled that amount.
Providing that, "'[e]conomic damages' means objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities."
Schmidt argues that we may not question the jury's "deci[sion] to segregate its aggregate award of $212,000 into $180,000 for general damages and $32,000 for special damages" because that decision "inheres in the verdict." Br. of Appellant at 49. According to Schmidt, "[the jury] could have determined that $32,000 represented the value of the underlying claim and $180,000 represented the value of the abuse to which Mr. Coogan subjected Ms. Schmidt." Br. of Appellant at 49. This argument lacks merit; the trial court correctly instructed the jury on the definitions of both economic and non-economic damages, and the jury was bound to use only those categories in separating its verdict. And while Schmidt is correct that we do not "delve into the jury's thought processes," she overlooks our proper inquiry of "identifying the factual basis for the jury's award." Conrad v. Alderwood Manor, 119 Wn. App. 275, 292, 78 P.3d 177 (2003) (citing Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)). Because Schmidt proved no factual basis for $32,000 in special damages, the trial court did not abuse its discretion in granting a new trial.
We affirm the trial court's denial of Coogan's motion to dismiss and its grant of a new trial on damages.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Hunt. J. and Van Deren, C.J., concur.