Clark v. Baker

Decision Date15 April 2016
Docket NumberNo. 15–157.,15–157.
Citation146 A.3d 326,2016 VT 42
Parties Laura CLARK as Personal Representative of the Estate of Christopher Tylie Jackson–Clark, et al. v. Richard BAKER, M.D., Mary Beerworth, M.D., et al.
CourtVermont Supreme Court

John F. Campbell of Law Offices of John F. Campbell, PC, Quechee, for PlaintiffsAppellees.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for DefendantsAppellants Mary Beerworth, M.D., et al.

Keith Aten and Peter B. Joslin of Theriault & Joslin, P.C., Montpelier, for DefendantsAppellants Richard Baker, M.D. and Rutland Primary Care.

Present: DOOLEY, SKOGLUND and ROBINSON, JJ., and TOOR and BRYAN (Ret.), Supr. JJ., Specially Assigned.

DOOLEY, J.

¶ 1. This medical malpractice and wrongful death case comes to us on appeal from the denial of motions to dismiss filed by two sets of medical defendants, here termed the Hospital defendants1 and the Baker defendants.2 Both sets' motions were predicated on plaintiffs' failure to timely serve process. On appeal, the Baker defendants argue that the trial court's grant of an enlargement of time to serve process expired prior to plaintiffs' serving of the summons and complaint, while the Hospital defendants contend that although they signed a waiver of service, plaintiffs failed to file that waiver with the court before the expiration of the service period. Both sets of defendants also appeal from the trial court's conclusion that even if plaintiffs' service was found to be untimely, it retained the authority to retroactively grant a motion for enlargement of time and extend the period for service after the running of the statute of limitations on the basis of excusable neglect. We affirm.

¶ 2. Plaintiffs, the parents of a newborn baby, alleged that on June 23, 2012, their son died as a result of the medical malpractice of the Hospital defendants and the Baker defendants. Plaintiffs filed their complaint against both sets of defendants on June 20, 2014. It is undisputed that this filing was within the period established by the applicable statute of limitations. See 14 V.S.A. § 1492(a). Under Rule 3, plaintiffs then had sixty days to serve defendants. V.R.C.P. 3. On August 18, 2014, the day before the sixty-day period was set to expire, plaintiffs moved for an enlargement of time for service, requesting that the court extend the deadline for service of process “for an additional sixty (60) days.” The motion was based on a series of unexpected tragedies in the life of plaintiffs' counsel, including the death of his brother on May 26, 2014 and his father on June 27, 2014. The trial court signed and handwrote “Granted” on plaintiffs' motion on August 29, 2014 without providing a new specified date by which service had to be completed. The court issued this order on September 2, 2014. Plaintiffs effected service by sheriff on the Baker defendants on October 23, 2014. The returns of service were filed on November 4, 2014. Additionally, on October 23, 2014, counsel for the Hospital defendants signed and returned to plaintiffs a Rule 4(l ) notice of lawsuit and waiver of service of summons. The waiver included language stating defendants waived all “objections based on a defect in the summons or in the service of the summons.” Plaintiffs did not file this waiver with the trial court until December 3, 2014.

¶ 3. On November 19, 2014 the Baker defendants filed a motion to dismiss the claims against them under Vermont Rule of Civil Procedure 12(b)(5) on the ground that the court's extension of time began on the original deadline of August 19, 2014 rather than August 29, 2014, when the court granted the order, or September 2, 2014, when the court issued the order. They argued that this rendered service after October 20, 2014—60 days after August 19—untimely. The Hospital defendants also filed a motion to dismiss on the ground that the additional time granted by the court to complete service had expired when plaintiffs filed their waiver of service on December 3, 2014. Plaintiffs opposed the motions on December 7, 2014, arguing that the trial court had discretion to enlarge the time for service, particularly as the enlargement did not prejudice either class of defendants. On January 20, 2015, plaintiffs filed an additional motion for retroactive enlargement of time to complete service in the event the court did not find that the service was timely, asserting that any untimeliness was the result of excusable neglect. In support of his excusable neglect argument, plaintiffs' counsel cited additional personal circumstances: the marriage of his son, his separation from his wife, two eye surgeries, participation in meetings of the Judicial Nominating Board, and the campaign for re-election to his seat in the Vermont Senate, all of which had taken place between June and December 2014.

¶ 4. On February 8, 2015, the trial court denied all defendants' motions to dismiss. In its decisions, the court stated that, based on both the judge's “subjective intent” and fairness to the plaintiffs, it was “clear” the original extension of sixty days was intended to begin the day it was granted. With regard to the Hospital defendants, the court ruled that the waiver of service of summons was signed within the sixty days allowed to plaintiffs and that the case against the Hospital defendants would not be dismissed “based only” on plaintiffs' delay in filing the return given Vermont's “long-standing preference for having cases resolved on the merits.” Finally, the court ruled plaintiffs' retroactive motion for additional enlargement moot, without considering the arguments of excusable neglect.

¶ 5. On February 20, 2015, all defendants filed motions for reconsideration, or alternatively, for permission for interlocutory appeal. On April 3, 2015, the court denied all motions, acknowledging that the initial order of “Granted” was ambiguous and affirming its earlier interpretation that the grant extended the service period from the date of the order itself, rather than from the original service deadline. The court also noted that because the reasons for plaintiffs' delay were “compelling” and attributable to plaintiffs' attorney rather than plaintiffs themselves, the court would have granted the second motion for enlargement of time and retroactively extended the time for service on excusable neglect grounds even if service were to be found untimely. We granted both defendants' motions to appeal on May 21, 2015.

¶ 6. On appeal, the Baker defendants' primary argument is that the trial court's order of August 29, 2014 unambiguously established a service deadline of October 20, 2014, while the Hospital defendants contend that the deadline for service passed before the effective date of service under V.R.C.P. 4(l ) (5) : December 3, 2014, when plaintiffs filed the Hospital defendants' waiver. Finally, both sets of defendants argue that the trial court erred when it stated in the alternative that it would retroactively extend the time for service because the statute of limitations had expired prior to the plaintiffs' request and because plaintiffs did not adequately demonstrate excusable neglect.

¶ 7. The trial court's reason for denying the motions to dismiss, applicable to both defendants, is its finding of excusable neglect and the determination that it can extend the period for service retroactively despite the expiration of the limitation period set by 14 V.S.A. § 1492. If we affirm the court's decision on these issues we do not have to reach other grounds raised by the motions to dismiss. Accordingly, we start with these issues.

¶ 8. This Court reviews a motion to dismiss under the same standard as a trial court. “A motion for failure to state a claim may not be granted unless it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Dernier v. Mortg. Network, Inc., 2013 VT 96, ¶ 23, 195 Vt. 113, 87 A.3d 465 (quotation and citation omitted). We will assume that “all factual allegations pleaded in the complaint are true, accept as true all reasonable inferences that may be derived from plaintiff's pleadings, and assume that all contravening assertions in defendant's pleadings are false.” Id. (quotation and citation omitted).

¶ 9. Because plaintiffs did not file the waiver of service until December 3, 2014, after both the extension of time initially granted by the court and the limitation period had expired, plaintiffs and the trial court rely on the court's power under V.R.C.P. 6(b)(2) to extend a time limit “upon motion made after the expiration of the specified period ... where the failure to act was the result of excusable neglect.” In Bessette v. Department of Corrections, we ruled that “a properly granted Rule 6 extension can extend time for service under Rule 3.” 2007 VT 42, ¶ 10, 182 Vt. 1, 928 A.2d 514.

¶ 10. Both sets of defendants argue that any retroactive extension of time would have been invalid. Their argument is that: (1) an after-the-fact extension of time for service under V.R.C.P. (6)(b)(2) cannot revive a claim that has already expired where the statute of limitations has run; and (2) plaintiffs did not demonstrate excusable neglect.

¶ 11. We start with the first argument, recognizing that we have never explicitly addressed it in the context of a retroactive time extension. We have two precedents that particularly bear on the issue. The first is Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 596, 396 A.2d 1388, 1390 (1979), which resolves the issue in the absence of a motion to extend the service period. In short, Weisburgh holds that where, as here, a plaintiff files the case within the limitation period, the plaintiff must complete service within the time limit specified in Rule 3 or plaintiff will lose the filing date for purposes of statute of limitations compliance. Id.; see Fercenia v. Guiduli, 2003 VT 50, ¶¶ 9, 12, 175 Vt. 541, 830 A.2d 55 (mem.) (following Weisburgh ). Weisburgh notes that the case was filed...

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17 cases
  • In re K.S.
    • United States
    • Vermont Supreme Court
    • July 2, 2021
    ...discretionary and we will reverse only if the court withheld discretion altogether or exercised it for "clearly untenable" reasons. Clark v. Baker, 2016 VT 42, ¶ 20, 201 Vt. 610, 146 A.3d 326 (quotation omitted).¶ 14. In her motion for extension of time, mother attributed her untimely filin......
  • In re K.S.
    • United States
    • Vermont Supreme Court
    • July 2, 2021
    ...discretionary and we will reverse only if the court withheld discretion altogether or exercised it for "clearly untenable" reasons. Clark v. Baker, 2016 VT 42, ¶ 20, 201 Vt. 610, 146 A.3d 326 (quotation omitted). ¶ 14. In her motion for extension of time, mother attributed her untimely fili......
  • McClellan v. Haddock
    • United States
    • Vermont Supreme Court
    • March 3, 2017
    ...the period for serving a timely filed complaint even where the motion was filed past the expiration of the limitations period. See Clark v. Baker , 2016 VT 42, ¶ 15, 201 Vt. 610, 146 A.3d 326 ; see also Ying Ji v. Heide , 2013 VT 81, ¶ 6, 194 Vt. 546, 82 A.3d 1160 (noting that "the law favo......
  • McClellan v. Haddock
    • United States
    • Vermont Supreme Court
    • March 3, 2017
    ...the period for serving a timely filed complaint even where the motion was filed past the expiration of the limitations period. See Clark v. Baker, 2016 VT 42, ¶ 15, ___ Vt. ___, 146 A.3d 326; see also Ying Ji v. Heide, 2013 VT 81, ¶ 6, 194 Vt. 546, 82 A.3d 1160 (noting that "the law favors ......
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