author: PERKINS, Judge:

text:
    In re the Matter of: Kerry Lynn DAVIS, Petitioner/Appellee, v. Nathan Trent DAVIS, Respondent/Appellant.
    No. 1 CA-CV 18-0037 FC
    Court of Appeals of Arizona, Division 1.
    FILED December 11, 2018
    Ellsworth Family Law, P.C., Mesa, By Glenn D. Halterman, Steven M. Ellsworth, Counsel for Respondent/Appellant
    Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined.
   PERKINS, Judge:

¶ 1 Nathan Davis ("Father") appeals the superior court's order modifying legal decision-making, parenting time, and child support. Father contends that the court should not have admitted into evidence a report from the appointed advisor because she did not record her interviews with the children. Because Arizona Rule of Family Law Procedure ("ARLFP") 10 does not require such recordings and, in any event, Father failed to demonstrate prejudice resulting from the evidentiary ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Father and Kerry Davis ("Mother") have two children (the "Children") for whom they exercised joint legal decision-making pursuant to a Decree of Dissolution of Marriage entered in 2010. In 2016, Mother petitioned for a modification of parenting time alleging on-going disagreements between Father and the Children. Mother later requested that a therapist evaluate the Children; Father disagreed about which therapist the Children should see.

¶ 3 The superior court appointed a Court Appointed Advisor ("CAA"), pursuant to Rule 10, to "submit a report setting forth the advisor's recommendations" after completing an independent investigation which could include interviews of the parties and the Children and a review of relevant records. The CAA interviewed Mother, Father, and the Children before issuing a 17-page written report, detailing those interviews and including a recommendation. At Father's request, the court issued a minute entry ordering the CAA to release her recordings of the Children's interviews. When the CAA responded that no such recordings existed, Father moved in limine to preclude the CAA's report and testimony, arguing that Rule 12 required the CAA to record the interviews with the Children and release the recordings to the parties. Because that did not happen, Father argued, the CAA's report and testimony were inadmissible. The court denied Father's motion, holding that Rule 10 governed and Rule 12 did not apply.

¶ 4 After an evidentiary hearing on Mother's petition, the superior court modified the existing orders regarding legal decision-making, parenting time, and child support. The court ordered that Mother have final decision-making authority for medical decisions but that the parties share joint legal decision-making authority in all other decisions. The court modified the parties' parenting time schedule to give Mother more time with the Children and accordingly modified the existing Child Support order. Father now appeals.

DISCUSSION

¶ 5 Father argues that Rule 12 required the CAA to record any interview she conducted with either child and, because she did not, the superior court should have excluded the CAA's report and testimony. Moreover, Father argues that absent such recordings the superior court's orders should be vacated.

¶ 6 We review evidentiary rulings, including the denial of a motion in limine , for abuse of discretion, Warner v. Southwest Desert Images, LLC , 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App. 2008), and generally affirm "absent a clear abuse or legal error and resulting prejudice," John C. Lincoln Hosp. & Health Corp. v. Maricopa Cty. , 208 Ariz. 532, 543, ¶ 33, 96 P.3d 530, 541 (App. 2004). However, we review the application and interpretation of court rules de novo . Duckstein v. Wolf , 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App. 2012). We interpret court rules according to their plain language where that language is clear and unambiguous. Stout v. Taylor , 233 Ariz. 275, 278, ¶ 11, 311 P.3d 1088, 1091 (App. 2013).

¶ 7 Rule 10 provides, in relevant part, that the superior court "may appoint" a CAA and requires that the court "ensure that any" CAA appointed "has an opportunity to testify or submit a report setting forth[ the advisor]'s recommendations regarding the best interests of the child[ren]" and "the basis for the ... recommendations." ARFLP 10(A)(1)(c) ; 10(E)(4). Although directing that the CAA shall "have immediate access to the child," id. at 10(D)(1), Rule 10 does not require a CAA to record such contact electronically or in any other fashion. In contrast, Rule 12 allows the court to "conduct an in camera interview with a minor child who is the subject of a legal decision-making or parenting time dispute to ascertain the child's wishes as to both." ARFLP 12(A). Rule 12 directs that "[t]he interview must be recorded by a court reporter or" by electronic means and that "[t]he record of the interview must be made available to the parties." Id.

¶ 8 Rule 10 's plain language applies to CAAs, while Rule 12 's plain language applies to court interviews of a child. Father identifies no authority that imports Rule 12 's requirements into Rule 10. Instead, Father argues that, as with a court interview under Rule 12, any child interview conducted by a CAA must be recorded in order to allow rebuttal of the CAA's report. Father also argues CAA's are included within the definition of "court" under Rule 12(C) and are therefore required to record any child interview they conduct in the course of their Rule 10 investigation.

¶ 9 "As used in [ Rule 12 ], 'court' includes any Conciliation Services department, agency or other third-party professional ordered by the assigned judge to conduct a child interview pursuant to Ariz. Rev. Stat. § 25-405 or the Arizona Rules of Family Law Procedure." ARFLP 12(C) (2016). While this broad definition could be construed to include CAA's within the term "court," the definition is explicitly limited to the usage of "court" in Rule 12 and applies only to third-party professionals ordered to conduct a child interview "to ascertain the child's wishes as to the child's custodian and as to parenting time." Ariz. Rev. Stat. ("A.R.S.") § 25-405 ; see also ARFLP 12. Thus, Rule 12 allows a court, if it so chooses, to ascertain the child's wishes with respect to parenting time through a direct interview conducted by the court itself or by a qualified third-party as ordered by the court consistent with A.R.S. section 25-405. ARFLP 12. In contrast, an appointed CAA must conduct an investigation and submit a report to the court containing the CAA's recommendations. ARFLP 10(C), (E)(3)-(5). The report may be introduced at trial and the CAA may be called to testify. ARFLP 10(E)(4). Nothing in Rule 10 or 12 indicates that a Rule 10 CAA appointment or report is subject to the requirements applicable to a Rule 12 court interview. Compare ARFLP 10with ARFLP 12. The superior court did not err in rejecting Father's motion in limine , finding that Rule 12 did not govern.

¶ 10 Even assuming the CAA was required to record her interviews with the Children, Father fails to show resulting prejudice. Although Father claims prejudice by the admission of the CAA report, the record indicates the superior court considered numerous items of evidence before making its decision on Mother's petition. Indeed, the court did not simply adopt the recommendations of the CAA report. Rather, the court issued new orders based on the evidence adduced at the evidentiary hearing. In many areas, the court issued orders contrary to the CAA's recommendations by refusing to order additional therapy, granting Mother final medical care decision-making authority, and changing the parenting time schedule. Accordingly, Father has shown no "resulting prejudice." John C. Lincoln Hosp. , 208 Ariz. at 543, ¶ 33, 96 P.3d 530 ; see also ARFLP 86 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.")

CONCLUSION

¶ 11 For the foregoing reasons, we affirm the ruling of the superior court. Pursuant to Arizona Rule of Civil Appellate Procedure 21, Father is not entitled to an award of costs. In our discretion, we decline to award Father his attorney fees.

      Subsequent to the superior court proceedings in this case, the Arizona Supreme Court modified the Arizona Rules of Family Law Procedure to expressly exclude CAAs from the definition of "Court." ARFLP 12(b) (effective January 1, 2019). Recognizing that change is not yet effective, it further demonstrates the requirements of court interviews under Rule 12 do not apply to CAAs under Rule 10. See 2018 Arizona Court Order 0023 (noting that the January 1, 2019 amendments primarily serve to restyle and clarify the existing rules).


source: Caselaw Access Project

license: Public Domain

text:
    Patric J. LEHOUILLIER and LeHouillier & Associates, P.C., Petitioners/Cross-Respondents v. Della GALLEGOS, Respondent/Cross-Petitioner.
    Supreme Court Case No. 17SC312
    Supreme Court of Colorado.
    January 28, 2019 Rehearing Denied February 19, 2019
    Attorneys for Petitioners/Cross-Respondents: Hall & Evans, L.L.C., Malcolm S. Mead, John E. Bolmer, II, Andrew P. Reitman, Denver, Colorado
    Attorneys for Respondent/Cross-Petitioner: Anderson Hemmat, LLC, Chad P. Hemmat, Jason G. Alleman, Cameron O. Hunter, Greenwood Village, Colorado
    Attorneys for Amicus Curiae Colorado Bar Association: Montgomery, Little & Soran, P.C., Christopher B. Little, Michael R. McCormick, Christopher T. Carry, Greenwood Village, Colorado
    Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Ogborn Mihm, LLP, Michael T. Mihm, Thomas D. Neville, Denver, Colorado, Saliman Law, LLC, Mark E. Saliman, Denver, Colorado
    En Banc
   JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In 2009, Della Gallegos had to undergo three cranial surgeries after her radiologist, Dr. Steven Hughes, failed to detect an obvious brain tumor on an MRI scan three years earlier. Had Dr. Hughes discovered the tumor in 2006, Gallegos could have treated it with cheaper, and less invasive, radiosurgery. The highly invasive cranial surgeries damaged Gallegos's vision, hearing, and memory.

¶2 Gallegos retained an attorney, Patric LeHouillier, to sue Dr. Hughes for medical malpractice. But LeHouillier later decided not to proceed with the suit, concluding it did not make economic sense. He and Gallegos disagree over whether he actually informed her of this decision. In any event, the statute of limitations lapsed on the claims Gallegos could have brought against Dr. Hughes.

¶3 Gallegos then brought this attorney malpractice case against LeHouillier and his firm, claiming that LeHouillier's negligence prevented her from successfully suing Dr. Hughes for medical malpractice. The question before us is who bears the burden to prove that any judgment that could have been obtained against Dr. Hughes would have been collectible? In other words, must a client who alleges her attorney was negligent prove that any lost judgment was collectible? Or must the attorney raise collectability as an affirmative defense and prove that the lost judgment was not collectible?

¶4 Because the collectibility of the underlying judgment is essential to the causation and damages elements of a client's negligence claim against an attorney, we hold that the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible. Here, the record reflects that Gallegos failed to present sufficient evidence of collectibility. However, given the absence of a clear statement from this court regarding the plaintiff's burden to prove collectibility at the time of trial, and given that the issue was not raised in this case until after Gallegos had presented her case-in-chief, we reverse the judgment of the court of appeals and remand the case for a new trial.

I. Facts and Procedural History

¶5 In 2006, Dr. Steven Hughes performed a magnetic image resonance (MRI) on Gallegos's brain. Dr. Hughes failed to detect a clearly visible meningioma (a type of tumor). Three years later, a different doctor noticed the tumor during another MRI. By this time, the tumor had grown substantially and was exerting pressure on Gallegos's optic nerves, brain stem, and other vital structures.

¶6 Had Dr. Hughes diagnosed the tumor in 2006, Gallegos could have undergone noninvasive radiosurgery to treat it. By 2009, however, noninvasive radiosurgery was no longer a viable option. Instead, surgeons had to perform three craniotomies, or surgical openings of the skull, to remove much of the tumor. Gallegos alleges that the surgeries cost her over $661,000, and resulted in permanent damage to her vision, hearing, and memory.

¶7 After her first craniotomy surgery in 2009, Gallegos retained an attorney, LeHouillier, to sue Dr. Hughes for medical malpractice. In early 2010, LeHouillier wrote a letter notifying Dr. Hughes that LeHouillier's law firm was investigating a medical malpractice case against him. The letter encouraged Dr. Hughes to "contact [his] professional liability insurer." Dr. Hughes never responded to the letter. Later that same year, LeHouillier decided not to proceed with the case because it did not make "dollar and cents sense."

¶8 LeHouillier claims that he met with Gallegos and informed her of his decision to end his representation of her, but he kept no written records memorializing the meeting or his decision. Gallegos contends that the alleged conversation never took place and that she was not aware that LeHouillier had dropped her case. The statute of limitations then lapsed on the medical malpractice claims that Gallegos could have brought against Dr. Hughes.

¶9 Gallegos then brought this legal malpractice action against LeHouillier and his firm, LeHouillier & Associates, P.C. (collectively, "LeHouillier"). Gallegos alleged that LeHouillier negligently failed to pursue her medical malpractice claim against Dr. Hughes. At trial, after Gallegos rested her case-in-chief, LeHouillier moved for a directed verdict, arguing that Gallegos bore the burden of proving the collectability of any judgment she could have obtained against Dr. Hughes, and that she had not carried this burden.

¶10 Gallegos's counsel initially disputed that Gallegos had the burden of proving collectibility, but nevertheless argued that she had met that burden. Counsel first pointed to LeHouillier's 2010 letter to Dr. Hughes urging him to contact his professional liability insurance. Counsel argued that, because Dr. Hughes never responded that he lacked insurance, it could be reasonably inferred from his silence that he did carry professional liability insurance. Gallegos's counsel also argued that Dr. Hughes must have carried insurance because section 13-64-301(1)(a.5)(I), C.R.S. (2018), requires all practicing doctors in Colorado to maintain professional liability insurance.

¶11 The trial court agreed with LeHouillier that Gallegos bore the burden of proving collectibility. But it ruled that Gallegos had provided sufficient evidence to permit the jury to decide whether the judgment against Dr. Hughes was collectible. The letter to Dr. Hughes was admitted into evidence, but the jury was not instructed or otherwise informed about the requirements of section 13-64-301(1)(a.5)(I).

¶12 The jury ultimately found that Dr. Hughes had committed medical malpractice by failing to diagnose Gallegos's brain tumor in 2006. It also found that LeHouillier and his firm had breached their professional duty of care by not pursuing the case against Dr. Hughes. Finally, the jury found that Gallegos suffered over $1.6 million in present and future damages.

¶13 After trial, LeHouillier moved for judgment notwithstanding the verdict, emphasizing that "without any evidence on [collectibility], the elements of causation and damages were left to speculation." The trial court denied the motion, again concluding that Gallegos had provided sufficient evidence for the jury to decide whether the judgment against Dr. Hughes was collectible.

¶14 In a 2-1 decision, the court of appeals reversed and remanded for a new trial. Gallegos v. LeHouillier , 2017 COA 35, --- P.3d ----. The division unanimously agreed that there was no evidence at trial to show that the underlying judgment was collectible. Id. at ¶¶ 3, 71 (Webb, J., concurring in part and dissenting in part). Correctly noting that this court had never expressly addressed which party carries the burden of proving collectibility in an attorney malpractice case, the division majority held that the burden should not fall on the client-plaintiff. Instead, it concluded that collectibility should be an affirmative defense for the attorney-defendant to raise and prove. Id. at ¶¶ 66, 68.

¶15 The division majority's holding rested on several policy rationales. Id. at ¶¶ 58-64. Chief among them was the majority's view that requiring client-plaintiffs to prove the collectibility of an underlying judgment allocates the burden of proof unfairly because any need to prove collectibility arises only as "the result of an attorney's established malpractice." Id. at ¶ 57 (quoting Schmidt v. Coogan , 181 Wash.2d 661, 335 P.3d 424, 428 (2014) ). The majority also reasoned that the attorney-defendant is better positioned to prove uncollectibility because the attorney should have investigated the solvency of the defendant in the underlying case at the beginning of the client's case. Id. at ¶ 58. Accordingly, it remanded the case for a new trial, requiring LeHouillier to prove that the judgment against Dr. Hughes was not collectible. Id. at ¶ 6.

¶16 In his dissent, Judge Webb disagreed with the division majority that collectibility should be relegated to an affirmative defense. First, he reasoned that the issue of collectibility is inextricably bound up with the causation and damages elements of a negligence claim. Id. at ¶¶ 75-77. Thus, he concluded, requiring an attorney-defendant to prove uncollectibility would "erase[ ] both damages and causation from the plaintiff's side of the ledger and ... write[ ] them on the defendant's side." Id. at ¶ 78. Second, Judge Webb reasoned that placing the burden on the attorney-defendant to prove uncollectibility would effectively require the attorney to prove the insolvency of the underlying defendant. Noting that "insolvency is more than the reciprocal of collectibility[,]" Judge Webb reasoned that this burden would require the attorney to recreate all of the underlying defendant's assets and liabilities-a much more onerous task than proving collectibility. Id. at ¶¶ 101-02.

¶17 We granted the parties' cross-petitions for writs of certiorari to determine which party should bear the burden to prove that the underlying judgment would or would not have been collectible.

II. Analysis

¶18 Determining which party bears the burden of proof is a question of law, which we review de novo. Allen v. Steele , 252 P.3d 476, 481 (Colo. 2011).

¶19 A legal malpractice claim founded on professional negligence asserts 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). In cases such as this one, the client claims that her attorney's malpractice prevented her from prevailing in a lawsuit. For clarity, we refer to that separate lawsuit as the "underlying case." To prevail on this type of attorney malpractice claim, the client must prove that but for the attorney's negligence, she would have won a favorable judgment against the underlying defendant. Bebo Constr. Co. v. Mattox & O'Brien, P.C. , 990 P.2d 78, 83 (Colo. 1999). This requirement is often referred to as proving the "case within a case." Id.

¶20 Over ninety years ago, in Lawson v. Sigfrid , 83 Colo. 116, 262 P. 1018 (1927), we recognized that if an attorney malpractice plaintiff could not have collected a judgment from the defendant in the underlying case because that defendant was insolvent, then the plaintiff was not entitled to damages in the attorney malpractice case. Id. at 1019. We reasoned that if the plaintiff could not have collected on the underlying judgment, she could not be said to have suffered any loss from the attorney's breach of duty. Id. Thus, it has long been clear that proving the case within a case in an attorney malpractice suit includes resolving the question of whether the judgment in the underlying case would have been collectible.

¶21 What our cases have not expressly clarified is which party-the client-plaintiff or the attorney-defendant-bears the burden of establishing that the judgment in the underlying suit would or would not have been collectible. That is, must the client prove that any lost judgment was collectible? Or must the attorney prove uncollectibility as an affirmative defense?

¶22 Because the collectibility of the underlying judgment is essential to the causation and damages elements of a client's professional negligence claim against her attorney, we now expressly hold that the client-plaintiff bears the burden to prove that the underlying judgment was collectible.

¶23 We first examine Lawson and conclude that it did not squarely address the issue of who bears the burden of proving that the judgment in the underlying suit would have been collectible. We then explain why placing the burden of proving collectibility on the client-plaintiff aligns with tort law by requiring her to prove all prima facie elements-duty, breach, causation, and damages-of her professional negligence malpractice claim, and why this requirement is not unfair or unduly burdensome. Finally, we explain why requiring the attorney-defendant to raise and prove uncollectibility as an affirmative defense is not logically sound.

A. Lawson v. Sigfrid

¶24 Several cases and legal commentators have suggested that our 1927 decision in Lawson established that in a legal malpractice suit, the client-plaintiff bears the burden of establishing that any judgment in the underlying case would have been collectible. Indeed, at least five state appellate courts have cited Lawson for the proposition that Colorado allocates the burden of proving collectibility to the client-plaintiff. See Paterek v. Petersen & Ibold , 118 Ohio St.3d 503, 890 N.E.2d 316, 321 (2008) ; Kituskie v. Corbman , 552 Pa. 275, 714 A.2d 1027, 1031 n.6 (1998) ; Beeck v. Aquaslide 'N' Dive Corp. , 350 N.W.2d 149, 160 (Iowa 1984) ; Taylor Oil Co. v. Weisensee , 334 N.W.2d 27, 29 n.2 (S.D. 1983) ; McDow v. Dixon , 138 Ga.App. 338, 226 S.E.2d 145, 147 (1976). Numerous legal treatises and other authorities do the same. See , e.g. , 4 Ronald E. Mallen, Legal Malpractice §§ 33.29 n.4, 33.32 n.5 (2018 ed.); Elisa Recht Marlin, Recent Decision, Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027 (1998) , 37 Duq. L. Rev. 521, 530, 530 n.77 (1999).

¶25 As the court of appeals correctly recognized, these sources are misguided. LeHouillier , ¶¶ 25-38. In Lawson , we merely recognized that if a plaintiff could not have collected from the defendant in the underlying matter because the defendant was insolvent, then the plaintiff was not entitled to damages in the attorney malpractice case. Lawson , 262 P. at 1019. But we did not actually allocate the burden of proving collectibility to the plaintiff. We agree with the court of appeals that a close reading of Lawson shows that we never reached the issue of who bears the burden of proving the collectibility of any judgment in the underlying suit. LeHouillier , ¶¶ 35-37.

¶26 In Lawson , the plaintiff hired a lawyer to sue his debtor, Bessie Kennedy, for an unpaid debt. Lawson , 262 P. at 1018. Four years later, the plaintiff discovered that the trial court had dismissed the case for failure to prosecute. Id. The plaintiff then sued the lawyer for "neglect of professional duty." Id.

¶27 The trial court granted the lawyer's motion for a directed verdict. Id. The court reasoned that the plaintiff had to prove that (1) the lawyer had been negligent, (2) the plaintiff had "a good cause of action" against Kennedy, and (3) if the plaintiff had obtained a judgment against Kennedy, the judgment "could have been executed." Id. However, the court found that the plaintiff's proof that the judgment could have been executed "had failed." Id.

¶28 On appeal to this court, the plaintiff asserted that the attorney-defendant bore the burden to prove that Kennedy had been insolvent, and that the plaintiff was therefore entitled to recover his costs and expenses from the attorney. Id. We first noted that the plaintiff's evidence had shown that Kennedy had been insolvent and that Kennedy's insolvent status was "presumed to have continued until the contrary appear[ed]." Id . Because Kennedy was insolvent, we concluded that the plaintiff could not have "lost" any of his costs or expenses because of the attorney's negligence. Id. at 1019. Having determined that the plaintiff's own evidence established that the underlying defendant was insolvent, we did not have to reach the issue of whether the trial court had properly allocated the burden of proof.

¶29 Lawson therefore established that the question of collectibility matters in a legal malpractice case: Because Kennedy was insolvent, the attorney's negligence did not cause the plaintiff to lose his costs and expenses. Id. But Lawson did not expressly hold that a plaintiff in a legal malpractice suit bears the burden of proving that any judgment in the underlying case would have been collectible. In other words, Lawson did not allocate the burden of proving collectibility at all.

¶30 This court has never cited Lawson in a subsequent decision, and our later cases have not clearly answered who bears the burden of proving collectibility. For the reasons below, we now expressly hold that the client-plaintiff must prove collectibility of the underlying judgment as part of her prima facie case.

B. Requiring Plaintiff to Prove Collectibility Aligns with Tort Theory

¶31 Where, as here, a legal malpractice claim is founded on professional negligence, the plaintiff must prove duty, breach, causation, and damages (as in every negligence case). See , e.g. , Hopp & Flesch, LLC , 123 P.3d at 1183 ; Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 266 P.3d 412, 416 (Colo. App. 2011).

¶32 As Judge Webb noted in his dissent, the collectibility of the underlying judgment implicates both the causation and damages elements of a negligence claim. See Schmidt, 335 P.3d at 428. In order to prove that the attorney's negligence caused the client harm, the client-plaintiff must show that "the claim underlying the malpractice action would have been successful 'but for' the attorney's negligence." Gibbons v. Ludlow , 2013 CO 49, ¶ 16, 304 P.3d 239, 245 (quoting Bebo Const. Co., 990 P.2d at 83 ); see also Restatement (Second) of Torts § 431 cmt. a (Am. Law Inst. 1965) (stating that a necessary condition of legal causation is that the "harm would not have occurred had the actor not been negligent").

¶33 But "[i]f the underlying judgment was uncollectible, for example, due to insufficient assets or bankruptcy, the lost value of the judgment is not the proximate result of an attorney's negligence." Schmidt , 335 P.3d at 428 ; see also Klump v. Duffus , 71 F.3d 1368, 1374 (7th Cir. 1995) ("To predicate an award of damages upon both the requirement that a judgment would have been recovered and that it would have been collectible ... requires a showing of causation ... that is conceptually no different from that required in negligence cases generally." (quoting Joseph H. Koffler, Legal Malpractice Damages in a Trial Within a Trial-A Critical Analysis of Unique Concepts: Areas of Unconscionability , 73 Marq. L. Rev. 40, 52 (1989) ) ). Proving collectibility, therefore, necessarily follows from the rule that plaintiffs must prove causation.

¶34 Relatedly, in a legal malpractice claim alleging that an attorney mishandled an underlying case, the measure of a client-plaintiff's damages is the amount of the underlying judgment that could have been collected. A plaintiff must prove "by a preponderance of the evidence that [she] has in fact suffered damage." W. Cities Broadcasting, Inc. v. Schueller , 849 P.2d 44, 48 (Colo. 1993). Such damages must be actual, not "mere speculation or conjecture." Id. (quoting Tull v. Gundersons, Inc. , 709 P.2d 940, 943 (Colo. 1985) ). If the lost judgment was uncollectible, then the client-plaintiff has not incurred any legally cognizable damages. The Ohio Supreme Court summed up the reasoning for this approach in Paterek : "[C]ollectibility is logically and inextricably linked to the legal-malpractice plaintiff's damages, for which the plaintiff bears the burden of proof." Paterek , 890 N.E.2d at 321. For the plaintiff to show "what was lost, the plaintiff must show what would have been gained." Id.

¶35 Indeed, a majority of courts that have addressed this issue have recognized that placing the burden to prove collectibility on the client-plaintiff better aligns with the tort law paradigm by requiring a plaintiff to prove all elements of a negligence claim. See , e.g. , Schmidt , 335 P.3d at 428 ("The traditional approach rests primarily on the theory that it is consistent with tort law: plaintiffs may recover only the amount that will make them whole (and not a windfall), and the plaintiff must prove both proximate cause and injury.").

C. Requiring Plaintiff to Prove Collectibility Is Not Unfair or Unduly Onerous

¶36 Requiring a client-plaintiff to establish the collectibility of any underlying judgment is not unfair or unduly onerous.

¶37 We acknowledge that the need to prove uncollectibility arises only as "the result of an attorney's established malpractice." Schmidt , 335 P.3d at 428. And as the court of appeals majority noted, "a plaintiff in a legal malpractice case already has the burden of proving negligence twice" by showing both the lawyer and the underlying defendant were negligent. LeHouillier , ¶ 57 (citing Kituskie , 682 A.2d at 382 ). But a plaintiff is always required to prove causation and damages to prevail in a negligence case. The plaintiff's burden in an attorney malpractice case founded on professional negligence is no different.

¶38 Moreover, this burden is not especially onerous. Indeed, where, as here, the underlying defendant is a professional, the best evidence of collectibility would be proof of insurance coverage. And if the attorney had undertaken some inquiry into the defendant's insurance coverage, that information likely would be in the attorney's files and subject to the client-plaintiff's discovery.

¶39 We disagree with the court of appeals that "requir[ing] the client to introduce evidence of collectibility would often be at odds with evidence rules and case law generally excluding evidence of insurance coverage." Id. at ¶ 59. Evidence concerning a defendant's insurance or lack thereof is usually precluded because such evidence might improperly influence the jury's determination of liability. See CRE 411 ("Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance ... when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."); Johns v. Shinall , 103 Colo. 381, 86 P.2d 605, 608 (1939). The policy concerns underlying CRE 411 do not apply in a legal malpractice case because the coverage question pertains not to the attorney, but to the defendant in the underlying action. So, the risk that a jury would conflate coverage of the underlying defendant and liability of the attorney is low. Moreover, to avoid jury confusion, courts could bifurcate the trial on the collectibility issue. See Hoppe v. Ranzini , 158 N.J.Super. 158, 385 A.2d 913, 919 (1978).

¶40 Alternatively, a client-plaintiff could depose the underlying defendant to explore his or her net worth. In fact, a plaintiff could also satisfactorily prove collectibility by showing sufficient unencumbered assets-such as titled assets or real estate-information available through public records.

D. Proving Uncollectibility as an Affirmative Defense Is Not Logically Sound

¶41 We disagree with the division majority below that an attorney-defendant must raise the issue of collectibility as an affirmative defense, which would mean that he or she also bears the burden of proving that the judgment was not collectible. LeHouillier , ¶ 3. We recognize that a growing minority of states treat collectibility as an affirmative defense that an attorney-defendant must raise and prove. See Cross & Quintana, 91 Denv. U. L. Rev. Online at 57 n.27. But in our view, casting collectibility as an affirmative defense is not logically sound.

¶42 Treating collectibility as an affirmative defense to be raised and proved by the attorney disregards the tort paradigm by ignoring the link between the causation and damages elements that a malpractice plaintiff must prove as part of her prima facie case. Generally, an affirmative defense relies on legal rules or collateral facts to nullify what would otherwise constitute liability. See Affirmative defense , Black's Law Dictionary (10th ed. 2014) ("A defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true."). For example, a statute of limitations defense bars recovery on an otherwise meritorious negligence claim brought more than two years after an action accrues. See , e.g ., § 13-80-102(1), C.R.S. (2018). An affirmative defense, however, does not purport to negate an essential element of a plaintiff's case. But requiring an attorney-defendant to prove that the client's hoped-for damages in an underlying suit were uncollectible effectively forces the attorney to disprove two essential elements of the client-plaintiff's case: causation and damages. Such an approach conflicts with the basic paradigm of tort law.

¶43 Indeed, the Colorado Rules of Civil Procedure buttress the argument that affirmative defenses do not negate an essential element of a plaintiff's claim. For example, C.R.C.P. 8(c) (with limited exceptions) requires a defendant to plead an affirmative defense in a responsive pleading, not in a pre-answer motion. See also C.R.C.P. 12(b). If the trial court decides that the affirmative defense defeats the plaintiff's action, the result is usually summary judgment under C.R.C.P. 56, not dismissal for failure to state a claim under C.R.C.P. 12(b)(5). See Bristol Bay Prod., LLC v. Lampack , 2013 CO 60, ¶ 45, 312 P.3d 1155, 1164. Moreover, C.R.C.P. 8(c) lists as an affirmative defense "[a]ny mitigating circumstances to reduce the amount of damage. " (emphasis added). As Judge Webb noted in his dissent, the very language of Rule 8(c) presumes that the plaintiff has established "at least some damages" from the outset. LeHouillier , ¶ 79. In fact, if the plaintiff fails to establish any damages, the ordinary recourse for a defendant is a motion for a directed verdict. See C.R.C.P. 50.

¶44 The division majority's approach also allows plaintiffs to reap a potential windfall. A bedrock goal of tort law is to "make the plaintiff whole." See Stamp v. Vail Corp. , 172 P.3d 437, 448 (Colo. 2007) (explaining the function of compensatory damages). Tort law thus disfavors "windfall" damage awards that make the plaintiff better off than she would have been had her legal rights not been violated. See Dep't of Health v. Donahue , 690 P.2d 243, 250 (Colo. 1984). Requiring a client-plaintiff to establish collectibility ensures that the client will not reap a windfall by recovering more from the attorney-defendant than the client could ever have recovered from the hypothetical defendant in the underlying case. See , e.g. , Klump 71 F.3d at 1374 ("Hypothetical damages above the amount that [the plaintiff] could genuinely have collected from [the defendant] are not a legitimate portion of her 'actual injury;' awarding her those damages would result in a windfall."); Fernandes v. Barrs , 641 So.2d 1371, 1376 (Fla. Dist. Ct. App. 1994) (noting that the traditional rule "prevents a windfall to the client by preventing him from recovering more from the attorney than he could have actually obtained from the tortfeasor in the underlying action"), disapproved of on other grounds by Chandris, S.A. v. Yanakakis , 668 So.2d 180, 185 (Fla. 1995). By contrast, treating collectibility as an affirmative defense risks allowing the client-plaintiff to recover more than her "actual injury."

¶45 Finally, placing the burden with the attorney-defendant to prove uncollectibility forces the attorney to "prov[e] a negative," which is a much more onerous burden than requiring the client-plaintiff to prove collectibility. See, e.g., Rooks v. Robb, 871 N.W.2d 468, 471 (N.D. 2015). The attorney-defendant must first negate the underlying defendant's insurance coverage, a task arguably no more difficult than proving it. But then, to prove insolvency, the attorney must reconstruct the underlying defendant's entire financial position, accounting for all of his or her assets and liabilities. This presents a much more onerous burden.

¶46 For all of these reasons, we conclude that treating collectibility as an affirmative defense that the attorney-defendant must raise and prove does not make logical sense.

III. Application

¶47 Here, our review of the record shows that Gallegos failed to prove that the underlying judgment against Dr. Hughes would have been collectible.

¶48 Gallegos introduced the 2010 letter that LeHouillier wrote to Dr. Hughes recommending that the doctor put "[his] professional liability carrier on notice." Gallegos argues that because Dr. Hughes never responded to the letter that he lacked insurance, it can be reasonably inferred that he must have had insurance, thus evincing the collectibility of the underlying judgment.

¶49 We disagree. Although Dr. Hughes did not inform LeHouillier that he did not have liability coverage, he also did not inform LeHouillier that he did have liability coverage. Dr. Hughes simply did not respond at all.

¶50 Gallegos also argues that Dr. Hughes must have had insurance because section 13-64-301(1)(a.5)(I) requires all practicing Colorado doctors to maintain professional liability insurance. She therefore claims that the underlying judgment would have been collectible. LeHouillier, ¶ 20. But despite the statute's mandate, there is no evidence that Dr. Hughes actually complied. Moreover, the jury was not instructed about the statute's requirements. Id. at ¶¶ 21-22. In sum, the jury had no evidentiary basis from which to infer that Dr. Hughes carried professional liability insurance or that any judgment against him would have been collectible.

¶51 However, given the absence of a clear statement from this court regarding the plaintiff's burden to prove collectibility at the time of trial, and given that the issue was not raised in this case until after Gallegos had presented her case-in-chief, we reverse the judgment of the court of appeals and remand the case for a new trial.

IV. Conclusion

¶52 We hold that the court of appeals erred in concluding that in an attorney malpractice case, the attorney-defendant should bear the burden of proving that any underlying judgment would have not been collectible. Instead, we hold that in an attorney malpractice case founded on professional negligence, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.

¶53 We reverse the judgment of the court of appeals and remand for a new trial.

      The division majority also observed that to require a client-plaintiff to introduce evidence of collectibility would be at odds with evidence rules and case law generally excluding evidence of insurance coverage; that the common delay between the original injury and a legal malpractice case could harm the client's opportunity to gather evidence about collectibility; that because the underlying defendant's insolvency permits the attorney to mitigate or to avoid the consequences of his negligent act, the attorney should bear the burden to prove it; that placing the burden on the attorney does not eliminate the effect of insolvency because if the attorney proves that a judgment is not collectible, damages could be mitigated or eliminated; and that plaintiffs in the vast majority of negligence cases do not have to prove that any judgment they might win will be collectible. Gallegos v. LeHouillier , 2017 COA 35, ¶¶ 59-63, --- P.3d ----.

      We granted certiorari to review the following issues:
      1. Whether a plaintiff bringing a legal malpractice claim for damages predicated on a lost judgment in an underlying matter must establish that the judgment was collectible.
      2. Whether respondent/cross-petitioner, Ms. Della Gallegos, failed to prove that the underlying judgment was collectible.
      3. Whether the trial court's judgment should be affirmed because petitioner, Mr. LeHouillier, did not attempt to prove that the underlying judgment was not collectible.

      It appears that in 1976, the Georgia Court of Appeals included Lawson in a string citation for the proposition that "[the] requirement that solvency be shown is both longstanding and widespread." McDow v. Dixon , 138 Ga.App. 338, 226 S.E.2d 145, 147 (1976). (McDow explained that solvency in this context "is not intended to imply a bankruptcy-type standard, but rather is intended to illustrate the original defendant's ability to pay a judgment, had one been rendered against him." Id. ) The preceding sentence in McDow , at the end of the previous paragraph, stated: "A client suing his attorney for malpractice not only must prove that his claim was valid and would have resulted in a judgment in his favor, but also that said judgment would have been collectible in some amount...." Id. These consecutive sentences probably led courts and commentators who read them to think that Lawson held that the client bears the burden of proving collectability. The South Dakota Supreme Court included Lawson in a footnote after quoting McDow . See Taylor Oil Co. v. Weisensee , 334 N.W.2d 27, 29 n.2 (S.D. 1983). The Iowa Supreme Court offered it, along with McDow , as support for the proposition that assigning to the plaintiff the burden of proving collectibility is "the rule which is applied generally." Beeck v. Aquaslide 'N' Dive Corp. , 350 N.W.2d 149, 160 (Iowa 1984). Citing Lawson and McDow , a superior court in Pennsylvania included Colorado and Georgia in a list of thirteen states that "place the burden upon the plaintiff (in a malpractice action against an attorney) to prove collectibility of the underlying judgment." Kituskie v. Corbman , 452 Pa.Super. 467, 682 A.2d 378, 381 (1996), aff'd and remanded , 552 Pa. 275, 714 A.2d 1027. The Pennsylvania Supreme Court then cited Lawson and McDow for the same proposition in a footnote when addressing an appeal from the superior court's decision. Kituskie , 714 A.2d at 1031 n.6. And, although Paterek v. Petersen & Ibold , 118 Ohio St.3d 503, 890 N.E.2d 316, 321 (2008), did not cite McDow, it cited Taylor Oil Co . After this, commentators included Lawson among those cases placing the burden of proving collectibility on the plaintiff without any analysis of the case beyond a simple citation. See , e.g. , 4 Ronald E. Mallen, Legal Malpractice §§ 33.29 n.4, 33.32 n.5 (2018 ed.); Elisa Recht Marlin, Recent Decision, Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027 (1998) , 37 Duq. L. Rev. 521, 530, 530 n.77 (1999).

      Two legal commentators agree with this analysis of Lawson . See Michael P. Cross & Nicole M. Quintana, Your Place or Mine?: The Burden of Proving Collectibility of an Underlying Judgment in a Legal Malpractice Action , 91 Denv. U. L. Rev. Online 53, 54 (2014) (explaining that Lawson "established the relevancy of the question of whether an underlying judgment is collectible in a legal malpractice action," but that it did not allocate the burden of proof on this point).


author: Opinion by CHIEF JUDGE BERNARD

text:
    IN RE the MARRIAGE OF Ronald L. THORSTAD, Appellee, and Randie J. Thorstad, n/k/a Randie J. Randell, Appellant.
    Court of Appeals No. 17CA2293
    Colorado Court of Appeals, Division IV.
    Announced January 24, 2019 Rehearing Denied February 14, 2019
    Elizabeth Henson, Attorney Mediator P.C., Elizabeth Henson, Greenwood Village, Colorado, for Appellee
    Schaffner Law LLC, Jennifer A. Schaffner, Denver, Colorado, for Appellant
   Opinion by CHIEF JUDGE BERNARD

I. Introduction

¶ 1 Colorado statutes establish how courts set, modify, and terminate maintenance orders. The decision to modify or to terminate a maintenance order is often governed by the effect of changed circumstances on the payor spouse's ability to pay.

¶ 2 More specifically, section 14-10-122(1)(a), C.R.S. 2018, states that, subject to certain enumerated exceptions, "the provisions of any decree respecting maintenance may be modified ... only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair." When deciding whether changes have been sufficiently substantial and continuing as to render a maintenance order unfair, "the court is required to examine all circumstances pertinent to awarding maintenance" under section 14-10-114, C.R.S. 2018. In re Marriage of Nelson , 2012 COA 205, ¶ 26, 292 P.3d 1214.

¶ 3 This case examines the statutory structure that courts apply when dealing with the effect of one potential substantial and continuing changed circumstance upon a maintenance order: a payor's decision to retire. We recognize that, in some cases, there could be an ulterior motive behind this decision: to reduce or to eliminate the obligation to pay maintenance by reducing or eliminating the payor's income. The law gives a name to such an ulterior motive: "voluntary underemployment or unemployment."

¶ 4 Courts frown on voluntary underemployment and unemployment because these stratagems constitute an attempt to avoid paying maintenance. They may counter such stratagems by, for example, considering "whether [a payor] spouse is voluntarily underemployed in determining whether reduced income is a substantial and continuing circumstance that would justify modification or termination of his [or her] maintenance obligation." In re Marriage of Swing , 194 P.3d 498, 500 (Colo. App. 2008) ; see also In re Marriage of Barnthouse , 765 P.2d 610, 613 (Colo. App. 1988) ("[W]e find no error in the court's [finding] that the father ... was voluntarily earning less than he was capable of earning. Therefore, there is no merit to the father's contention that the ... maintenance award[ ] [was] erroneous.").

¶ 5 There is also the prospect that a payor's decision to retire was not the product of an ulterior motive, but was, instead, a product of good faith. See § 14-10-114(8)(c)(V)(B) ("[A] party shall not be deemed 'underemployed if ... [t]he employment is a good faith career choice....' "); cf. § 14-10-115(5)(b)(III)(B), C.R.S. 2018 ("[A] parent shall not be deemed 'underemployed' if ... [t]he employment is a good faith career choice that is not intended to deprive a child of support and does not unreasonably reduce the support available to a child...."). In those situations, the decision to retire may nonetheless pose a dilemma for the payor-which we shall call the "payor's dilemma"-prompting him or her to worry, "If I decide to retire, thus reducing my income, will a court view my retirement as voluntary underemployment or unemployment when deciding whether to grant my motion to modify or to terminate my maintenance obligation?"

This dilemma may be especially problematic when decisions to retire are irrevocable.

¶ 6 Swing addressed this concern. The division first recognized the payor's dilemma: "Unless the effect of retirement on maintenance has been addressed in the parties' separation agreement, a spouse contemplating retirement who is either paying or receiving maintenance faces considerable uncertainty." Swing , 194 P.3d at 500. The uncertainty is generated, on the one hand, by the reduction in income that almost "irrevocably" accompanies retirement, and, on the other hand, by the lack of Colorado law "assur[ing] that maintenance will be modified based on the retiree's lower wage income." Id.

¶ 7 To ameliorate the payor's dilemma, the division surveyed decisions from other states, and it discovered a majority rule: "[R]educed income due to a spouse's objectively reasonable decision to retire, made in good faith and not with the intention of depriving the other spouse of support, should be recognized as a basis for modifying maintenance." Id. at 501. The division then concluded that a court should not find a payor to be voluntarily underemployed if the payor's decision to retire (1) "was made in good faith, meaning not primarily motivated by a desire to decrease or eliminate maintenance," id. ; and (2) "was objectively reasonable based on factors such as the [spouse's] age ... [and] health, and the practice of the industry in which the [spouse] was employed," id.

¶ 8 Apparently following the division's lead, the legislature took a similar approach to solving the payor's dilemma when, in 2013, it amended section 14-10-122(2)(a), (b), and (c). Ch. 176, sec. 2, § 14-10-122(2)(a), (b), (c), 2013 Colo. Sess. Laws 652.

¶ 9 As a result of the amendments, subsection 122(2)(a) now states that,

[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of:
(I) The death of either party;
(II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;
(III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or
(IV) A court order terminating maintenance.

¶ 10 Subsection 122(2)(b) adds that "[a] payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith." Subsection 122(2)(c) defines the term "full retirement age" to be "the payor's usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age." But, according to subsection 122(2)(c), " '[f]ull retirement age' shall not mean 'early retirement age' if early retirement is available to the payor spouse, nor shall it mean 'maximum benefit retirement age' if additional benefits are available as a result of delayed retirement."

¶ 11 We must next make a point about the statutes that we consider in this appeal. In 2013, section 14-10-114 was repealed and reenacted. Ch. 176, sec. 1, 14-10-114, 2013 Colo. Sess. Laws 639-52. The considerations relevant to determining maintenance in this case used to appear in subsections (3) and (4) before the 2013 amendments, but they now appear in subsection (3).

¶ 12 The petition for dissolution of marriage in this case was filed on September 17, 2001, so the new version of section 14-10-114 applicable to petitions filed on or after January 1, 2014, does not apply. See § 14-10-114(9). Rather, "[a]ctions filed before January 1, 2014, are determined pursuant to the provisions of this section as it existed at the time of the filing of the action." Id. This means that from this point on, unless otherwise noted, when we refer to any of the subsections of section 14-10-114, we are referring to those that existed in September 2001.

¶ 13 Section 14-10-122 does not contain similar language. So, when we discuss any of the subsections of section 14-10-122, we are concerned with those in existence when husband filed his motion to terminate his maintenance obligation in May 2017.

¶ 14 Turning to this case, a former husband, Ronald L. Thorstad, suffered from some health problems, which contributed to his decision to retire from his job. He therefore asked a magistrate to terminate his maintenance obligation to his former wife, Randie J. Thorstad, who is now known as Randie J. Randell. (For readability purposes, we shall dispense with the adjective "former" and simply call the parties to this appeal "husband" and "wife.") The magistrate granted husband's request; wife sought the district court's review; and the district court denied her petition. (Because the district court denied wife's petition, essentially affirming the magistrate's decision, we will refer to the district court and the magistrate cumulatively as "the trial court" unless we need to make a specific point about either one.)

¶ 15 Wife filed this appeal.

¶ 16 We conclude that the magistrate's order, as affirmed by the district court, partially misapplied subsections 122(2)(a), (b), and (c). We therefore reverse the court's order, and we remand the case for further proceedings, including ruling on wife's request for appellate attorney fees under section 14-10-119, C.R.S. 2018.

II. Background

¶ 17 The decree in this case dissolved the marriage between husband and wife in May 2002. Their separation agreement included a "step down" schedule for husband's maintenance obligation to wife, meaning that the amount husband paid decreased over time. He was paying wife $3000 per month when he asked the trial court to terminate his maintenance obligation.

¶ 18 In the separation agreement, husband and wife agreed that the trial court would have jurisdiction to modify the amount of maintenance if wife's medical condition worsened or if her medical costs substantially increased. The agreement contained the following succession of sentences:

• "Maintenance shall be subject to review and modification by the [c]ourt under [ section 14-10-114 ], without the requirement of proving a substantial and continuing change of circumstances making the existing [o]rder unfair."
• Husband and wife "have assumed ... that wife will be able to work full-time without disability from her [medical condition], and that husband will retire completely from paid employment on or before he reaches age sixty."
• Husband and wife "understand that a worsening of ... wife's [medical condition] which interferes with her ability to work full time, or a substantial increase in the wife's medical costs, will require a re-evaluation of maintenance in connection to ... wife's needs."

¶ 19 These sentences do not include any reference to the termination of maintenance, and they do not refer to section 14-10-122 at all, let alone to subsections 122(2)(a), (b), or (c). Indeed, they could not refer to those subsections because they did not exist in their present form when husband and wife entered into their separation agreement.

¶ 20 In May 2017, relying on subsections 122(2)(a), (b), and (c), husband asked the magistrate to terminate his maintenance obligation, alleging that he intended to retire and that his health had deteriorated. The magistrate granted this request.

¶ 21 Unbeknownst to the magistrate, wife had filed a response to husband's motion to terminate maintenance after the time for responding had lapsed. She did not ask for the magistrate's permission to do so. The response asked the court to deny husband's request to terminate his maintenance obligation and that the court take a "wider view" of subsections 122(2)(a), (b), and (c) and section 14-10-114.

¶ 22 The magistrate granted husband's motion without a hearing before wife's response reached the court's electronic filing system.

¶ 23 Employing C.R.M. 7(a), wife then filed a petition that asked the district court to review the magistrate's order. She raised two points: first, it was unclear from the magistrate's order whether husband had relied on the proper statute when he asked the magistrate to terminate his maintenance obligation; and, second, the magistrate erred when he granted husband's motion without considering her response.

¶ 24 Wife contended that section 14-10-114 governed husband's request to terminate maintenance, instead of subsections 122(2)(a), (b), and (c), because the court had reserved jurisdiction to modify maintenance by approving the parties' separation agreement. She also observed that the district court had determined, during prior modification proceedings in this case, that section 14-10-114 governed its decision to modify maintenance.

¶ 25 Although the magistrate did not have wife's response prior to ruling on husband's motion, the district court noted in its order that it had taken her response into account when ruling on her C.R.M. 7(a) petition. The district court, rejecting wife's contentions, denied her petition.

III. Standard of Review

¶ 26 A district court's review of a magistrate's order is like appellate review, and the magistrate's findings of fact cannot be altered unless clearly erroneous. C.R.M. 7(a)(9) ; In re Parental Responsibilities Concerning G.E.R. , 264 P.3d 637, 638-39 (Colo. App. 2011). Our review of the district court's decision is effectively a second level of appellate review, and we apply the same clearly erroneous standard. In re Marriage of Dean , 2017 COA 51, ¶ 8, 413 P.3d 246 ; G.E.R. , 264 P.3d at 639.

¶ 27 We review a district court's order modifying maintenance for an abuse of discretion. In re Marriage of Ward , 740 P.2d 18, 21 (Colo. 1987). However, we review de novo whether the district court applied the correct legal standard. In re Marriage of Atencio , 47 P.3d 718, 720 (Colo. App. 2002).

IV. Wife's Contentions and Our Conclusions

¶ 28 Wife raises three contentions. She asserts that the trial court erred when it

1. relied on section 14-10-122 instead of section 14-10-114 in the course of granting husband's motion to terminate his maintenance obligation;
2. terminated husband's maintenance obligation without making sufficient factual findings; and
3. treated husband's motion as confessed even though wife had submitted an untimely response.

¶ 29 Addressing these contentions, we reach the following conclusions, which we will explain below in detail.

• The question of what statute applies to resolve husband's motion is one of law, which we review de novo. See Atencio , 47 P.3d at 720.
• Section 14-10-122 was the right statute for the trial court to use when deciding whether to grant husband's motion. But a court cannot automatically terminate a maintenance obligation under subsection 122(2)(a)(IV) if a payor satisfies the retirement provisions found in subsections 122(2)(b) and (c). Rather, a payor's good faith retirement simply becomes a factor for the court to consider in the analysis of whether, under subsection 122(1)(a), the payor can show that there has been a substantial and continuing change of circumstances that makes the existing maintenance order unfair.
• A court can, in specified circumstances, reserve jurisdiction over a maintenance order. But husband and wife's separation agreement in this case, which the court had approved, did not reserve jurisdiction over the question of what effect husband's retirement would have on his maintenance obligation. So the separation agreement did not require the trial court to use section 14-10-114 to resolve husband's motion instead of subsections 122(1)(a), (2)(a), (2)(b), and (2)(c).
• We do not need to address wife's assertion that the trial court erred when it decided that wife had confessed husband's motion.

V. Analysis

A. The Decision to Award Maintenance

¶ 30 In 2001, before a court could award maintenance, section 14-10-114(3) required the court to "make a threshold determination that the requesting spouse lacks sufficient property, including marital property, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment." In re Marriage of Rose , 134 P.3d 559, 561 (Colo. App. 2006). Once the court found that this statutory threshold had been satisfied, it would turn to section 14-10-114(4) to figure out the amount and duration of maintenance. To do so, it would consider "the parties' financial resources; the recipient's need for education or training; the standard of living established during the marriage; the age and condition, both physical and emotional, of the recipient; and the payor spouse's ability to meet his or her own needs while meeting those of the recipient." Rose , 134 P.3d at 561.

B. Incorporating a Payor's Retirement into the Decision to Modify Maintenance

¶ 31 Based upon the relevant facts and law, we ask and answer three questions concerning how the 2001 version of section 14-10-114(3) and (4) and subsection 122 (1)(a) interact with subsections 122(2)(a), (b), and (c) for the purposes of resolving this appeal.

¶ 32 Do Subsections 122(2)(a), (b), and (c) Create a Reason-Good Faith Retirement-That Automatically Terminates a Payor's Duty to Pay Maintenance?

¶ 33 We answer this question "no."

¶ 34 To remind the reader, when discussing retirement, subsection 122(2)(b) creates a "rebuttable presumption" that a payor who retires "after reaching full retirement age" has retired in "good faith." Subsection 122(2)(c) adds a definition of "full retirement age."

¶ 35 "[W]e 'must read and consider the statutory scheme as a whole to give consistent, harmonious[,] and sensible effect to all its parts.' " People v. Stellabotte , 2018 CO 66, ¶ 32, 421 P.3d 174 (quoting Martin v. People , 27 P.3d 846, 851 (Colo. 2001) ). When we look at the entirety of subsection 122(2), we see that it deals with the decision to terminate "the obligation to pay future maintenance." A court therefore considers the rebuttable presumption found in subsection 122(2)(b) when deciding to terminate the obligation.

¶ 36 But it is also clear from the statutory language that this rebuttable presumption is not conclusive on the question of whether the court should terminate the payor's maintenance obligation. Subsection 122 does not state that the court "shall" or "must" terminate a payor's maintenance obligation if the payor establishes that he or she is entitled to the rebuttable presumption.

¶ 37 Because the presumption is rebuttable, the spouse who is receiving maintenance must have the opportunity to rebut the presumption. "Rebuttable presumptions have a limited purpose." Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009). They "(1) shift[ ] the burden of going forward to the party against whom it is raised, and (2) if that burden is not met, establish[ ] the presumed facts as a matter of law." Id.

¶ 38 Once the payor satisfies the rebuttable presumption created by subsection 122(2)(b), the presumption shifts the burden of going forward to the recipient to show that the payor's decision to retire was not made in good faith. If the recipient does not meet this burden, then the court will presume, as a matter of law, that the payor's decision to retire was made in good faith. Looking to Swing , we see that "good faith" means that the retirement decision was not affected by the ulterior motive of voluntary unemployment or underemployment, as a means to reduce or eliminate a maintenance obligation. 194 P.3d at 501.

¶ 39 Do Subsections 122(2)(a), (b), and (c) Merely Set Out a Factor-Good Faith Retirement-That a Court Must Consider When Deciding, Under Subsection 122(1)(a), Whether Circumstances Have Changed in Such a Substantial and Continuing Way as to Make the Terms of the Existing Maintenance Order Unfair?

¶ 40 Looking at the language of these subsections together, we conclude that the answer to this second question is generally "yes."

¶ 41 As we point out above, subsection 122(1)(a) tells courts that, when deciding whether to modify a maintenance order, they must decide whether circumstances have changed in such a substantial and continuing way as to make the existing terms of the maintenance order unfair. A payor's decision to retire could, indeed, be such a factor. But it is only one factor among potentially many because "the court must examine all circumstances pertinent to an initial maintenance award, including all relevant circumstances of both parties" under the 2001 version of section 14-10-114(4). In re Marriage of Kann , 2017 COA 94, ¶ 73, --- P.3d ---- ; Nelson , ¶ 26. (When addressing this issue for cases filed after the 2013 amendments, courts should look to section 14-10-114(3).)

¶ 42 To determine if the parties' changed circumstances warrant modification, the court must examine them as if it were awarding maintenance for the first time under section 14-10-114. Nelson , ¶ 26. The party seeking to modify maintenance carries a heavy burden of showing that the changed circumstances warrant modification. Kann , ¶ 74. If that party makes the required showing, it is within the court's discretion to modify the maintenance order to meet the needs and abilities of the parties. Ward , 740 P.2d at 20 ; Nelson , ¶ 28.

¶ 43 In other words, if a payor asks a court to modify or to terminate a maintenance obligation because he or she intends to retire, then the court should follow a general rule. First, applying subsections 122(b) and (c), it should decide whether the payor's decision to retire was made in good faith. Second, it should then incorporate its findings concerning the payor's decision to retire as one of the factors to consider in deciding whether, under subsection 122(1)(a), circumstances have changed in such a substantial and continuing way as to make the original order unfair. In doing so, it must also consider the factors listed in the 2001 version of section 14-10-114(3) and (4).

¶ 44 We therefore conclude that the trial court erred because it did not apply the general rule in this case. Its order treated husband's good faith decision to retire as conclusive in resolving his motion to terminate maintenance. The order did not address the subsection 122(1)(a) question of whether husband's retirement and declining health were continuing and substantial changed circumstances that rendered his maintenance obligation unfair. And it did not consider husband's and wife's needs and abilities, as required by the 2001 version of section 14-10-114(3) and (4). See Nelson , ¶¶ 26, 28 ; Swing , 194 P.3d at 499 (observing that the magistrate made extensive findings on the parties' financial circumstances before modifying maintenance); Rose , 134 P.3d at 561 ; In re Marriage of Caufman , 829 P.2d 501, 502 (Colo. App. 1992).

¶ 45 We reverse the trial court's order and remand this case to the court because of this error. On remand, the court shall consider husband's good faith retirement as a factor in deciding whether, under subsection 122(1)(a), circumstances have changed in such a substantial and continuing way as to make the existing terms of husband's maintenance obligation unfair. While doing so, the court shall consider the factors found in the 2001 version of section 14-10-114(3) and (4) concerning husband's and wife's needs and abilities.

¶ 46 What Happens to This General Rule If a Separation Agreement Reserves Jurisdiction?

¶ 47 We conclude that such language might establish an exception to the general rule. But the boundaries of the exception are established by the specific language of the separation agreement. And, in this case, the separation agreement did not reserve jurisdiction for the trial court to consider husband's decision to retire or his declining health.

¶ 48 If, at the time of permanent orders, an important future contingency exists that a court can resolve in a reasonable and specific time, the court may reserve jurisdiction to modify maintenance under section 14-10-114. In re Marriage of Folwell , 910 P.2d 91, 93 (Colo. App. 1995). To do so, the court must (1) explicitly state its intent to reserve jurisdiction; (2) describe the future event upon which the reservation of jurisdiction is based; and (3) set forth a reasonably specific future time within which maintenance may be considered under section 14-10-114. Folwell , 910 P.2d at 93.

¶ 49 If the court does not properly reserve jurisdiction, it can only modify maintenance under the parameters set out under subsection 122(1)(a). See id. "[I]f the ... court merely reserves jurisdiction for modification 'as provided by law,' or fails to establish a legal standard in its order, the statutory requirements of changed circumstances and [unfairness]" in subsection 122(1)(a) "also apply." Caufman , 829 P.2d at 502.

¶ 50 In this case, although the separation agreement mentioned husband's retirement, its language did not reserve jurisdiction to the court concerning husband's decision to retire or his declining health, or state that husband's good faith retirement or declining health would automatically terminate his obligation to pay future maintenance to wife. Rather, the agreement identified two events-a worsening of wife's medical condition that interfered with her ability to work full time or a substantial increase in her medical costs-as the basis for the court's reserved jurisdiction.

¶ 51 But husband did not ask the court to terminate his maintenance obligation on the basis of either of these events; he relied, instead, on his own health complications and on his anticipated retirement. Section 14-10-114 therefore did not imbue the trial court with jurisdiction to modify or terminate husband's maintenance obligation. See Folwell , 910 P.2d at 93 (by identifying husband's retirement as a specific event, district court properly retained jurisdiction to modify maintenance under section 14-10-114 when husband retired). As a result, we disagree with wife's contention that the separation agreement reserved jurisdiction to the district court to modify maintenance under section 14-10-114 upon husband's retirement. See Folwell , 910 P.2d at 93.

VI. Magistrate's Ruling Deeming Husband's Motion Confessed

¶ 52 Wife also contends that the magistrate erred when he found that wife had confessed husband's motion to terminate maintenance. Because the district court considered wife's response before ruling on her C.R.M. 7(a) petition, and because we have reversed the order terminating maintenance and remanded the case for further proceedings, we will not address this contention.

VII. Wife's Request for Appellate Attorney Fees

¶ 53 Wife asks that we award her appellate attorney fees under section 14-10-119. She contends that husband has substantially greater financial resources than she does to litigate this appeal. Because the trial court is better equipped to resolve the factual issues regarding the parties' current financial circumstances, we remand wife's request to the trial court. See Kann , ¶ 84.

¶ 54 We reverse the trial court's order terminating husband's maintenance obligation, and we remand the case to the trial court to determine (1) whether husband's circumstances have changed in such a substantial and continuing way as to make the existing terms of husband's maintenance obligation unfair; and (2) wife's request for appellate attorney fees under section 14-10-119.

JUDGE HAWTHORNE and JUDGE TOW concur.


author: HORTON, Justice.

text:
    IDAHO POWER COMPANY, Applicant-Respondent, v. Kiki Leslie A. TIDWELL, Intervenor-Appellant, and Idaho Public Utilities Commission, Respondent.
    Docket No. 45644
    Supreme Court of Idaho, Boise, September 2018 Term.
    Opinion filed: December 28, 2018 Rehearing Denied: February 22, 2019
    Linnet Law Office, PLLC, Hailey, for Appellant. Samuel L. Linnet argued.
    Hon. Lawrence Wasden, Idaho Attorney General, Boise, for Respondents. Edith L. Pacillo argued.
   HORTON, Justice.

Kiki Leslie A. Tidwell appeals an order by the Idaho Public Utility Commission (the Commission) denying her request for intervenor funding. The underlying administrative proceeding involved an application by the Idaho Power Company (Idaho Power) for a Certificate of Public Convenience and Necessity to construct a high-voltage electric transmission line in Blaine County. The Commission granted Tidwell's petition to intervene in December 2016. In September 2017, Tidwell submitted a request for intervenor funding, which the Commission denied as untimely. Tidwell filed a petition for reconsideration, which the Commission also denied. Tidwell timely appealed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2016, Idaho Power applied to the Commission for a Certificate of Public Convenience and Necessity to build a high-voltage electric transmission line in Blaine County. The Commission subsequently initiated an administrative proceeding-designated as Case No. IPC-E-16-28-to consider Idaho Power's application and established a deadline for interested parties to intervene in the case.

Tidwell timely filed a petition to intervene in the case in December 2016. Tidwell asserted that the proposed transmission line would directly impair the value of her property. The Commission granted Tidwell's petition to intervene that same month. The Commission also granted additional petitions to intervene, including a petition by the Sierra Club.

The Commission held a technical meeting in Boise on August 8, 2017, to take evidence regarding Idaho Power's application. This was the last evidentiary hearing in the case. Tidwell and her attorney attended the meeting. Near the end of the meeting, Commissioner Anderson stated: "Intervenor funding requests under Rule 164 are due 14 days from today." Tidwell did not hear this announcement.

The Sierra Club timely submitted a request for intervenor funding on August 21, 2017. This was the only request for intervenor funding received by the Commission prior to the August 22, 2017, deadline, which Commissioner Anderson had announced. The Sierra Club's request stated: "This request is timely pursuant to the Commission's instruction at the technical hearing to submit such requests within 14 days by August 22, 2017." The Sierra Club emailed a copy of its request for intervenor funding to Tidwell's attorney on August 21, 2017.

The Commission issued a final order on September 15, 2017, granting Idaho Power's application for a Certificate of Public Convenience and Necessity to construct the transmission line. This final order also granted the Sierra Club's request for intervenor funding.

On September 16, 2017, Tidwell submitted an intervenor funding request to the Commission requesting reimbursement of the $18,538.47 that she had paid her attorney. Tidwell's request was received by the Commission on September 20, 2017. Tidwell's request stated: "I was not aware of the possibility of Intervenor funding under Idaho Code 61-617A ; my attorney never presented me this information." Tidwell's request also stated: "I apologize that this request is being submitted late due [to] the lack of communication to me that this compensation was available to me as an Intervenor."

The Commission denied Tidwell's request on October 12, 2017, explaining:

The Commission received Ms. Tidwell's late petition for intervenor funding on September 20, 2017. In her request, Ms. Tidwell states, "I was not aware of the possibility of Intervenor funding." The Commission notes that Ms. Tidwell attended the technical hearing conducted on August 8, 2017. Ms. Tidwell was present when Chair Anderson stated, "Intervenor funding requests under Rule 164 are due 14 days from today." Ms. Tidwell's petition was received almost a month after the deadline. Accordingly, we deny the petition as untimely.

Tidwell timely petitioned the Commission to reconsider its order denying her request for intervenor funding. The petition for reconsideration retracted Tidwell's earlier acknowledgement that her petition for intervenor funding was untimely, stating:

I appeal this decision on the grounds that 1) the request was timely as it was submitted during the period that a petition for reconsideration could have been submitted and 2) the PUC had a duty to "provide a full and fair representation in the proceedings to all affected customers" but the PUC failed to provide a fair proceeding by failing to provide adequate information about Section 61-617a [sic] to intervenors in advance of the written September 15, 2017 written order.

Tidwell's petition continued: "Furthermore, the PUC did not provide adequate information about Section 61-617a [sic] even to legal counsel in the case; my attorney was under the impression that only non-profits could apply for reimbursement."

The Commission denied Tidwell's petition for reconsideration on November 17, 2017, stating:

In denying Ms. Tidwell's request for intervenor funding, we noted that it "was received almost a month after the deadline." Although Ms. Tidwell now asserts her request for intervenor funding was timely, she stated in her intervenor funding request, "I apologize that this request is being submitted late due [to] the lack of communication to me that this compensation was available to me as an Intervenor." Commission Rule 164 provides, "Unless otherwise provided by order, an intervenor requesting intervenor funding must apply no later than fourteen (14) days after the last evidentiary hearing in a proceeding." The evidentiary hearing took place August 8, 2017, thus the deadline for intervenor funding requests was August 22 per Rule 164. Moreover, Chair Anderson gave explicit notice to all parties at the conclusion of the technical hearing, including Ms. Tidwell and her counsel, about the deadline for intervenor funding requests. Consequently, we find no reasonable basis for reconsideration of our prior decision finding Ms. Tidwell's request for intervenor funding untimely. We thus deny Ms. Tidwell's petition for reconsideration.

Tidwell timely appealed.

II. STANDARD OF REVIEW

"Administrative rules are interpreted the same way as statutes." Rangen, Inc. v. Idaho Dep't of Water Res. , 160 Idaho 251, 256, 371 P.3d 305, 310 (2016) (quoting Kimbrough v. Idaho Bd. of Tax Appeals , 150 Idaho 417, 420, 247 P.3d 644, 647 (2011) ). Therefore, when considering an administrative rule,

"[I]nterpretation begins with the literal language of the [rule]. Provisions should not be read in isolation, but must be interpreted in the context of the entire document. The [rule] should be considered as a whole, and words should be given their plain, usual, and ordinary meanings. It should be noted that the Court must give effect to all the words and provisions of the [rule] so that none will be void, superfluous, or redundant. When the [rule's] language is unambiguous ... the Court need not consider rules of statutory construction.

Estate of Stahl v. Idaho State Tax Comm'n , 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting State v. Schulz , 151 Idaho 863, 866, 264 P.3d 970, 973 (2011) ). Further, "[t]he determination of the meaning of [an administrative rule] and its application is a matter of law over which this [C]ourt exercises free review." Woodburn v. Manco Prods., Inc. , 137 Idaho 502, 504, 50 P.3d 997, 999 (2002).

"When we review a [lower tribunal's] decision to grant or deny a motion for reconsideration, we use the same standard of review the lower [tribunal] used in deciding the motion for reconsideration." Pandrea v. Barrett , 160 Idaho 165, 171, 369 P.3d 943, 949 (2016) (quoting Westby v. Schaefer , 157 Idaho 616, 621, 338 P.3d 1220, 1225 (2014) ). Before the Commission, "[p]etitions for reconsideration must set forth specifically the ground or grounds why the petitioner contends that the [Commission's] order or any issue decided in the order is unreasonable, unlawful, erroneous or not in conformity with the law ...." IDAPA 31.01.01.331.

III. ANALYSIS

In this appeal, we consider the following matters: Whether Tidwell waived several issues on appeal by failing to raise the issues before the Commission; whether the Commission's denial of Tidwell's petition for reconsideration was unreasonable, unlawful, erroneous or not in conformity with the law; and whether Tidwell is entitled to an award of attorney fees on appeal.

A. We will not address four issues raised by Tidwell on appeal because she failed to raise the issues before the Commission.

"It is a well-settled rule that in an appeal from the [C]ommission matters may not be raised for the first time on appeal and that where the objections were not raised in the petition for rehearing, they will not be considered for the first time by this court." McNeal v. Idaho Pub. Util. Comm'n , 142 Idaho 685, 688, 132 P.3d 442, 445 (2006) (quoting Eagle Water Co. v. Idaho Pub. Util. Comm'n , 130 Idaho 314, 316-17, 940 P.2d 1133, 1135-36 (1997) ), abrogated on other grounds by Verska v. Saint Alphonsus Reg'l Med. Ctr. , 151 Idaho 889, 265 P.3d 502 (2011). "The exception to this rule is that constitutional issues may be considered for the first time on appeal if such consideration is necessary for subsequent proceedings in the case." Murray v. Spalding , 141 Idaho 99, 101-02, 106 P.3d 425, 427-28 (2005).

Tidwell raises four new issues on appeal that were not addressed in her request for intervenor funding or her petition for reconsideration. First, Tidwell asserts that the Commission did not comply with Rule 16; thus, it "failed to provide adequate notice [by mail or email] to all parties that intervenor funding requests were due on August 22, 2017." IDAPA 31.01.01.016. Second, Tidwell asserts that the Commission's "denial of [her] intervenor request based solely on timing is arbitrary, capricious, and an abuse of discretion because the [Commission] has previously awarded intervenor funding to late applicants." Third, Tidwell asserts that the Commission violated the legislative intent behind Idaho Code section 61-617A"because it denied [her] application solely based on timing." Fourth, Tidwell asserts that "Rule 164 is unconstitutional for reason of vagueness." Tidwell did not raise these issues in her request for intervenor funding or her petition for reconsideration. Additionally, there is no compelling reason for the Court to deviate from its longstanding rule in order to consider Tidwell's claim that Rule 164 is unconstitutional for vagueness because such consideration is not necessary for subsequent proceedings in the case. See Murray , 141 Idaho at 101-02, 106 P.3d at 427-28. Thus, we will not address these issues further.

B. The Commission's denial of Tidwell's petition for reconsideration was not "unreasonable, unlawful, erroneous or not in conformity with the law."

Tidwell asserts that the Commission erred when it denied her petition for reconsideration because the Commission is misinterpreting Rule 164. Idaho Code section 61-617A(2) provides:

The commission may order any regulated electric, gas, water or telephone utility with gross Idaho intrastate annual revenues exceeding three million five hundred thousand dollars ($3,500,000) to pay all or a portion of the costs of one (1) or more parties for legal fees, witness fees, and reproduction costs, not to exceed a total for all intervening parties combined of forty thousand dollars ($40,000) in any proceeding before the commission. The determination of the commission with regard to the payment of these expenses shall be based on the following considerations:
(a) A finding that the participation of the intervenor has materially contributed to the decision rendered by the commission; and
(b) A finding that the costs of intervention are reasonable in amount and would be a significant financial hardship for the intervenor; and
(c) The recommendation made by the intervenor differed materially from the testimony and exhibits of the commission staff; and
(d) The testimony and participation of the intervenor addressed issues of concern to the general body of users or consumers.

The legislature has explicitly authorized the Commission to adopt rules to implement Idaho Code section 61-617A. I.C. § 61-617A(4). Under this authority, the Commission adopted Rule 164, which provides:

Unless otherwise provided by order, an intervenor requesting intervenor funding must apply no later than fourteen (14) days after the last evidentiary hearing in a proceeding or the deadline for submitting briefs, proposed orders, or statements of position, whichever is last. Motions in opposition to intervenor funding must be filed within fourteen (14) days after the request for intervenor funding is filed.

IDAPA 31.01.01.164.

The last evidentiary hearing on Idaho Power's application took place on August 8, 2017. Thus, the Commission announced that intervenor funding requests were due by August 22, 2017. The August 22, 2017, deadline is consistent with the plain meaning of Rule 164. There was no "deadline for submitting briefs, proposed orders, or statements of position" at the time the last evidentiary hearing concluded on August 8, 2017, thus, the Commission correctly applied the first prong of Rule 164, which states that "an intervenor requesting intervenor funding must apply no later than fourteen (14) days after the last evidentiary hearing in a proceeding ...." IDAPA 31.01.01.164.

Tidwell asserts that the Commission "failed to take into account that the date of the last deadline for submitting briefs was November 2, 2017, which is 21 days after the Final Order was served and the due date for petitions for reconsideration." Thus, Tidwell argues that "[t]he true deadline for filing intervenor funding requests was November 16, 2017, which would have been 14 days after the last opportunity to file briefs, proposed orders, or statements of position ...." In other words, Tidwell disagrees with the Commission's interpretation of Rule 164 as it applies to Idaho Code section 61-617A. However, as the Commission correctly observes, Tidwell's interpretation of Rule 164 "would mean that funding requests could never be due 14 days after the evidentiary hearing, making that provision of Rule 164 superfluous."

The Commission correctly applied the plain language of Rule 164 when it established August 22, 2017, as the deadline for requests for intervenor funding; thus, the Commission's order denying Tidwell's petition for reconsideration is not "unreasonable, unlawful, erroneous or not in conformity with the law ...." See IDAPA 31.01.01.331. The Commission explicitly announced that "[i]ntervenor funding requests under Rule 164 are due 14 days from [August 8, 2017]." Tidwell and her attorney were present when the announcement regarding the August 22, 2017, deadline was made. Nevertheless, Tidwell did not file her request for intervenor funding with the Commission until September 20, 2017. We hold that the Commission correctly denied Tidwell's request for intervenor funding as untimely.

We are not persuaded by Tidwell's contention that the Commission failed to provide her with adequate information about Idaho Code section 61-617A and Rule 164. Neither the statute nor the rule requires the Commission to notify intervenors of their right to seek funding or the deadlines governing such requests. Nevertheless, the Commission announced the August 22, 2017, deadline for intervenor funding requests at the last evidentiary hearing on August 8, 2017. Tidwell's attorney received a copy of the Sierra Club's request for intervenor funding on August 21, 2017. That document stated: "This request is timely pursuant to the Commission's instruction at the technical hearing to submit such requests within 14 days by August 22, 2017." Thus, although not required by statute or rule, Tidwell did receive adequate information about the possibility of intervenor funding and the August 22, 2017, deadline. She simply failed to meet the filing deadline. "[F]ailure to know and meet filing deadlines are inexcusable mistakes of law." Washington Fed. Sav. and Loan Ass'n v. Transamerica Premier Ins. Co. , 124 Idaho 913, 918, 865 P.2d 1004, 1009 (Ct. App. 1993).

C. Tidwell is not entitled to an award of attorney fees on appeal.

Tidwell seeks an award of attorney fees on appeal pursuant to the private attorney general doctrine, Idaho Code section 12-117, Idaho Code section 61-617A, and Idaho Appellate Rules 40 and 41. As she has not prevailed in this appeal, Tidwell is not entitled to attorney fees.

IV. CONCLUSION

We affirm the Commission's decision to deny Tidwell's request for intervenor funding, deny Tidwell's request for attorney fees on appeal, and award costs on appeal to the Commission.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      Our restrained approach to statutory construction reflects our recognition of the constitutional separation of powers. State v. Montgomery , 163 Idaho 40, 44, 408 P.3d 38, 42 (2017). The same considerations lead us to apply the four-prong test articulated in J.R. Simplot Co. v. Idaho State Tax Comm'n, 120 Idaho 849, 862, 820 P.2d 1206, 1219 (1991), when evaluating an agency's interpretation of a rule it has adopted.

      Although Tidwell did not hear the announcement, we note that Tidwell and her first attorney discussed the possibility of seeking intervenor funding, but he erroneously advised her that such funding was only available to non-profit entities.