Arrington v. Detroit Osteopathic Hosp. Corp.

• Decision Date: 02 November 1992
• Docket Number: Docket No. 132885
• Citation: 196 Mich.App. 544,493 N.W.2d 492
• Parties: Jessie M. ARRINGTON, Personal Representative of the Estate of Michael Arrington, Deceased, Plaintiff-Appellee, v. DETROIT OSTEOPATHIC HOSPITAL CORPORATION, a Michigan non-profit Corporation, and Dr. B. Faber, D.O., Dr. Eichert, D.O., Dr. G. Haase, D.O., Jointly and Severally, Defendants-Appellants, and Dr. Brent Gillum, D.O., and Dr. H.J. Coleman, D.O., Defendants. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 492

493 N.W.2d 492

196 Mich.App. 544

Jessie M. ARRINGTON, Personal Representative of the Estate of Michael Arrington, Deceased, Plaintiff-Appellee, v. DETROIT OSTEOPATHIC HOSPITAL CORPORATION, a Michigan non-profit Corporation, and Dr. B. Faber, D.O Dr. Eichert, D.O., Dr. G. Haase, D.O. Jointly and Severally Defendants-Appellants and Dr. Brent Gillum, D.O., and Dr. H.J. Coleman, D.O., Defendants. (On Remand)

Docket No. 132885.

Court of Appeals of Michigan.

Submitted May 21, 1992, at Detroit.

Decided Nov. 2, 1992, at 9:20 a.m.

Released for Publication Jan. 19, 1993.

Karbel, Brukoff, Rothstein, Stewart & Wallace, P.C. (by Jeffrey T. Stewart and Ronald M. Rothstein), Southfield, for plaintiff-appellee.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Anthony G. Arnone, Susan H. Zitterman, and Daniel R. Corbet), Detroit, for Detroit Osteopathic Hosp. Corp., and Doctors Faber, Eichert, and Haase.

Before SHEPHERD, P.J., and MURPHY and HOUK, ^* JJ.

SHEPHERD, Presiding Judge.

In this medical malpractice case, defendants appeal from the granting of a motion for a new trial following a jury verdict of no cause of action. The trial court ruled that the verdict was against the great weight of the evidence. Upon defendants' application for leave to appeal, this Court, Gillis, P.J., and Hood and Brennan, JJ., peremptorily reversed the decision of the trial court pursuant to MCR 7.205(D)(2). (Docket No. 115807.) The Supreme Court, in lieu of granting leave to appeal, vacated this Court's order and remanded the case to this Court for plenary consideration. 435 Mich. 882, 459 N.W.2d 504 (1990). We affirm and hold that the trial court did not abuse its discretion when it found that the verdict was against the great weight of the evidence.

Michael Arrington died while undergoing medical attention by defendants following a gunshot wound. There seems to be little dispute that if Arrington was not experiencing profuse internal bleeding when he first appeared for medical care, the procedures followed by defendants were appropriate. However, if he was experiencing such bleeding, he should have been given care of a different nature and it should have been given within a short interval after he came under the care of medical personnel. The single most significant factual question at trial, therefore, related to the extent of Arrington's bleeding when he first sought medical care and during approximately the first hour thereafter.

I

Defendants first argue that because plaintiff's motion for a new trial was served two days after the expiration of the twenty-one-day period set forth in MCR 2.611(B), "the circuit court was without authority to consider, or grant, that motion." We disagree.

The judgment upon the jury's verdict of no cause of action was entered on December 28, 1988. Plaintiff filed his motion for a new trial, brief in support of the motion, and notice of hearing on January 13, 1989. The motion was noticed for hearing on January 20, 1989. After appearing in court to argue the motion, plaintiff's counsel contacted counsel for defendants and learned that defendants had not been served with the motion and other papers. That day, January 20, 1989, plaintiff's counsel effectuated service and filed and served a motion for an extension of time to serve the motion for a new trial, pursuant to MCR 2.108(E). The motion for the extension of time was heard and granted on January 27, 1989 (an order was entered subsequently).

The record below regarding argument concerning this motion is sparse. Plaintiff's counsel argued that because of a miscommunication, counsel's employee failed to deliver the motion in person on January 13, 1989, the day counsel filed it with the court. Defendants concede that the trial court found "good cause" for granting the motion. On appeal, defendants rely on In re Norwood Estate, 178 Mich.App. 345, 443 N.W.2d 798 (1989), for the proposition that the circuit court was without authority to hear or grant the motion, and that the court should have dismissed the motion as untimely, as was done in Norwood.

Initially, we note that no motion for an extension of time was filed in Norwood. In this case, defendants fail to address the applicability of MCR 2.108(E) and the propriety of the court's extension of time thereunder. MCR 2.108(E) provides:

A court may, with notice to the other parties who have appeared, extend the time for serving and filing a pleading or motion or the doing of another act, if the request is made before the expiration of the period originally prescribed. After the expiration of the original period, the court may, on motion, permit a party to act if the failure to act was the result of excusable neglect. However, if a rule governing a particular act limits the authority to extend the time, those limitations must be observed. MCR 2.603(D) applies if a default has been entered.

Nothing in the plain language of MCR 2.611(B) limits a court's authority to extend the time for filing a motion for a new trial. Accordingly, it appears that the court properly proceeded under MCR 2.108(E) in considering the requested extension of time.

We find no support in Norwood for the proposition that a trial court lacks the authority or jurisdiction to grant a motion for a new trial after the expiration of the twenty-one-day period provided in MCR 2.611(B). Rather, we find that the Supreme Court, in Uhrstadt v. Sauer Cooperage Co., 309 Mich. 201, 204, 14 N.W.2d 834 (1944), rejected the contention that it was error for the trial court to consider a motion for a new trial after the expiration of the limitation period, applicable to the motion:

There is no merit to this contention. Clearly it was within the discretion of the trial court to grant an extension of time; and since the court heard and disposed of the motion on its merits, it should be considered that the court in effect extended the time for making the motion.

See also People v. Barrows, 358 Mich. 267, 273, 99 N.W.2d 347 (1959).

In light of the foregoing authorities, we hold that MCR 2.611(B) prescribes the time in which a party may file a motion for a new trial as of right; it does not limit the authority of a trial court to extend the time for filing or serving such a motion. Inasmuch as defendants do not argue that they were prejudiced by the trial court's extension of time or that the court abused its discretion, we find no error in the trial court's grant of an extension in this case.

II

Defendants next argue that "it was clear error for the trial judge to set aside the jury's verdict of no cause for action and grant plaintiff's motion for new trial based upon his belief that the verdict was against the great weight of the evidence." The very framing of this issue by defendants ignores, inadvertently or otherwise, the proper standard of review.

It is well known that the decision on a motion for a new trial is committed to the trial court's discretion. The standard of review is not "clear error." However, that discretion is plainly curtailed by various inconsistent appellate pronouncements regarding when a new trial is appropriate. It is apparent from the opinions that these rules often function as standards for reviewing the trial court's exercise of discretion. As often happens, the standard of appellate review and the standard by which the trial court is to act in the first instance have become entangled. If it were possible to address and attempt to reconcile all the conflicting rules in this area it would probably do little good. We can only forge what we believe is the correct path through the most frequently recurring maze of standards and precepts that seem to have applicability to the task at hand.

Virtually every decision in this area starts with the proposition that judicial discretion is involved. See, e.g., Bosak v. Hutchinson, 422 Mich. 712, 737, 375 N.W.2d 333 (1985):

The grant or denial of a motion for new trial on the ground that the verdict is against the great weight of the evidence rests within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless a clear abuse is shown.

The next step in the appellate analysis is usually to cite a rule of law that qualifies and limits this grant of discretion to the trial court in an attempt to more precisely explain the real standard to be employed. This is often done by setting forth a test for finding an "abuse of discretion" in the new trial context, apparently because that term standing alone is too amorphous or deferential. The results can be confusing. For example, the standards set forth in Lester N. Turner, P.C. v. Eyde, 182 Mich.App. 396, 398, 451 N.W.2d 644 (1990), seem to clash:

A decision on a motion for a new trial is within the discretion of the trial court and will not be overturned absent a clear abuse of discretion. Stallworth v. Hazel, 167 Mich App 345, 353, 421 NW2d 685 (1988). This Court reviews such a decision to determine whether the jury's verdict was against the overwhelming weight of the evidence. Troyanowski v. Village of Kent City, 175 Mich App 217, 223, 437 NW2d 266 (1988).

If the second sentence quoted above truly sets forth the standard of review, then appellate review of the trial court's determination regarding the great weight of the evidence is de novo. This simply cannot be reconciled with the statement that a decision regarding a motion for a new trial is committed to the trial court's discretion and will not be overturned absent an abuse thereof. But Turner v. Eyde is not an aberration in this respect. See, e.g., Murchie v. Standard Oil Co., 355 Mich. 550, 557-558, 94 N.W.2d 799 (1959), where, after quoting authority for " 'the general rule that the granting of a new trial rests on the sound discretion of the trial court,' " the Court said: "we only grant a new trial when we conclude from a review of the evidence that the verdict is manifestly against...