DeHerrera v. Memorial Hospital of Carbon County

• Decision Date: 05 March 1979
• Docket Number: No. 4996,4996
• Citation: 590 P.2d 1342
• Parties: Juan L. DeHERRERA, as the Administrator of the Estate of Mary June Martinez, Deceased, on behalf of her heirs, Appellant (Plaintiff below), v. MEMORIAL HOSPITAL OF CARBON COUNTY and Fredrick B. Fishburn, Appellees (Defendants below), Arturo Archuleta and Jean Archuleta, d/b/a Art's Plumbing and Heating Service, Steve Archuleta, Donald Garcia, Leo Martinez, (Defendants below).
• Court: Wyoming Supreme Court

Page 1342

590 P.2d 1342

Juan L. DeHERRERA, as the Administrator of the Estate of Mary June Martinez, Deceased, on behalf of her heirs, Appellant (Plaintiff below), v. MEMORIAL HOSPITAL OF CARBON COUNTY and Fredrick B. Fishburn, Appellees (Defendants below) Arturo Archuleta and Jean Archuleta, d/b/a Art's Plumbing and Heating Service, Steve Archuleta, Donald Garcia, Leo Martinez, (Defendants below).

No. 4996.

Supreme Court of Wyoming.

March 5, 1979.

Juan L. DeHerrera, Cheyenne, Philip Whynott, Cheyenne (argued), for appellant.

Weston W. Reeves, of Cardine, Vlastos & Reeves, Casper, for appellee, Memorial Hospital of Carbon County.

Frank D. Neville and Richard L. Williams (argued), of Wehrli & Williams, Casper, for appellee, Fredrick B. Fishburn.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice, delivered the opinion of the court.

Plaintiff, the administrator of the estate of Mary June Martinez, deceased, brought a wrongful death action in district court against defendants, Fredrick B. Fishburn (hereinafter "Fishburn") and Memorial Hospital of Carbon County (hereinafter "Hospital"), for damages resulting from their alleged malpractice. The district court granted a motion for summary judgment by defendants with a declaration that there was no just reason for delay in entering a final judgment. Plaintiff appeals, presenting several vaguely defined issues, but the general question is whether there was a genuine issue as to a material fact, the negative of which is required for a summary judgment. Since we find the existence of a material, genuine factual dispute herein, we reverse.

The decedent was brought to defendant Hospital's emergency room after receiving an automobile related injury. Defendant Fishburn was called to be the attending physician. In a rather rambling complaint, the plaintiff alleges several acts and failures to act on the part of Fishburn and the Hospital as constituting negligence. The same were denied in the answers of Fishburn and the Hospital. Discovery in the form of interrogatories was made by, and to, all three of the parties to this appeal.

Defendant Fishburn filed his motion for summary judgment on January 24, 1978. It was served on January 23, 1978. Defendant Hospital filed a similar motion on January 23, 1978, and it was served January 20, 1978. Neither motion was accompanied by supporting affidavits, but defendant Fishburn filed an affidavit made by himself in support of his motion on March 20, 1978, serving it on March 17, 1978. In it, he controverted negligence allegations of the complaint, specifically stating, among other things, that:

"11. It is my opinion that nothing more could have been done for Mary June Martinez while under my care, and that all of the actions which I took in treating Mary June Martinez were medically reasonable and adequate, and no further medical treatment could have been administered that would have saved her life."

Since the hearing on the motions for summary judgment was scheduled for March 31, 1978, the Fishburn affidavit was filed ten days prior to that date.

On the date of the hearing, plaintiff filed an affidavit (there was no certificate of service or indication of service, but it was apparently delivered to opposing counsel at the hearing). The affidavit was dated March 24, 1978, before a Fairfax, Virginia, Notary Public, and it was made by H. Barry Jacobs, who was indicated in the affidavit to be a practicing physician holding an M.D. degree and licensed to practice medicine in the state of Virginia. In it Jacobs stated, among other things, that defendant Fishburn "would have saved" Mary June Martinez's life if he would have taken certain specified medical actions, and in which he stated that proper therapy by defendant Fishburn "would have prevented the brain stem irreversible damage that occurred."

The two affidavits, then, presented an issue as to the proximate cause of death.

In its summary judgment, the district court found that defendant Fishburn's affidavit was timely filed, but that the Jacobs affidavit of plaintiff was not timely filed. The court found, in the alternative, that, even if the Jacobs affidavit were timely filed, it would not have presented competent evidence showing a genuine issue of a material fact because it lacked the necessary foundation to the effect that the affiant was familiar with the standard of care required of a general practitioner, or of a hospital, in the community of Rawlins or in a similar community (the locality rule).

The Jacobs affidavit was not timely served in accordance with the provision of Rule 56(c), W.R.C.P., which provides that the adverse party may serve opposing affidavits "prior to the day of the hearing." Plaintiff acknowledges that such was not timely served.

The answer to the question as to the timeliness of the affidavit of defendant Fishburn is more involved. Rule 56(a) and (b), W.R.C.P., provides that a party may "move with or without supporting affidavits" for a summary judgment. Rule 56(c) of the same rules directs that the determination of the existence or nonexistence of material facts be based on "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Standing alone, these rules would seem to require that the affidavits be submitted With the motion. This was not here done.

However, Rule 6(b), W.R.C.P., provides that (except for enumerated rules which do not include Rule 56):

"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court, or a commissioner thereof, for cause shown may at any time In its discretion (1) with or without motion or notice order the period enlarged If request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; * * * " (Emphasis added.)

And in subsection (d) of the same rule:

" * * * When a motion is supported by affidavit, the affidavit shall be served with the motion; and * * * opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time."

For the purposes of this case, the fact that the court can exercise its discretion under Rule 6(b) Only if a request to do so is made, is determinative. The record is devoid of any request by defendant Fishburn for permission to file his late affidavit, either before the expiration of the permissible period or thereafter, on the basis of excusable neglect. The affidavit was therefore not timely. Nationwide Mutual Insurance Company v. Chantos, 21 N.C.App. 129, 203 S.E.2d 421 (1974).

To reach this result, it was necessary to resolve the following threshold question in the negative. Do the rules authorize the service of a supporting affidavit at a time subsequent to the service of a motion for summary judgment, but within the time in which such motion may be served?

As indicated, the language of Rule 56(b) that the motion shall be served "with or without" affidavits, standing alone, requires the filing of an affidavit, if there is to be one, With the motion. Such is also required by Rule 6(d).

"According to Rule 6(d), any affidavits in support of the summary judgment motion also should be served at the time the motion is served, * * *." 10 Wright and Miller, Federal Practice and Procedure: Civil, § 2719, p. 450.

"If an affidavit is used to support a motion, the affidavit must be served with the motion. * * * " 2 Moore's Federal Practice, P 6.11, p. 1500.163 (2d Ed.).

" * * * If the party seeking summary judgment desires to use affidavits, he should serve supporting affidavits that meet the testimonial requirements of Rule 56(e) with his motion. * * * " 6 Moore's Federal Practice, P 56.14(1), p. 56-358 (2d Ed.).

See Canning v. Star Publishing, (Del.) 19 F.R.D. 281 (1956); and Price v. Hal Roach Studios, Inc., S.D.N.Y., 400 F.Supp. 836 (1975).

The rule is, of course, subject to the provisions that out-of-time filing, both of the affidavits in support of the motion for summary judgment and of that in opposition thereto, may be made in discretion of the trial court if request is made to the court for such. Dabney v. Cunningham (E.D.Va.) 317 F.Supp. 57 (1970); and Woods v. Allied Concord Financial Corporation (Delaware) (5th Cir. 1967), 373 F.2d 733. And if the court does not abuse its discretion in granting or denying the request. Alghanim v. Boeing Company (9th Cir. 1973), 477 F.2d 143.

" * * * Original rule 6(b) expressly provided that the court may not enlarge the times for serving opposing affidavits prescribed in Rule 59(c) except as stated in that rule. Amended Rule 6(b) now makes the time periods prescribed in Rule 59(c) subject to enlargement. * * * " 2 Moore's Federal Practice, P 6.11, p. 1500.163 (2d Ed.).

Similar language is in 6 Moore's Federal Practice, p 56.14, supra. It is by virtue of the discretion of the trial judge that motions to dismiss become motions for summary judgment under Rule 12(b), W.R.C.P., and it is likewise when supplemental or additional affidavits are allowed under Rule 56(e), W.R.C.P., once affidavits are properly submitted.

Since both affidavits were untimely, the question as to the existence of genuine issues of material fact, if any, must be determined from the other portions of the record. The allegations of the complaint denied by the answers, without more, establish several issues of fact. The interrogatories and the answers thereto contain only one reference...