Frazier v. Bryan Memorial Hosp. Authority
| Citation | 775 P.2d 281,1989 OK 73 |
| Decision Date | 09 May 1989 |
| Docket Number | 67294,Nos. 65360,s. 65360 |
| Parties | Howard K. FRAZIER, Bobbie Gattis and Evelyn Self, as children and next of kin of Robert W. Frazier, deceased, and Carrie Frazier, deceased, Plaintiffs-Appellants, v. BRYAN MEMORIAL HOSPITAL AUTHORITY d/b/a Bryan Memorial Hospital, Ruth Prough, Edith Burchfield, Karen Mackey, Defendants-Appellees, Hospital Corporation of America, Republic Health Corporation of Oklahoma, Inc. d/b/a Bryan Memorial Hospital, Joy Shockley, Norman Dearnbarger and John Does, Defendants. Howard K. FRAZIER, Bobbie Gattis and Evelyn Self, as children and next of kin of Robert W. Frazier, deceased, and Carrie Frazier, deceased, Plaintiffs-Appellants, v. HOSPITAL CORPORATION OF AMERICA, Defendant-Appellee, Bryan Memorial Hospital Authority d/b/a Bryan Memorial Hospital, Ruth Prough, Edith Burchfield, Karen Mackey, Republic Health Corporation of Oklahoma, Inc. d/b/a Bryan Memorial Hospital, Joy Shockley, Norman Dearnbarger and John Does, Defendants. |
| Court | Supreme Court of Oklahoma |
On Appeal from the District Court, Bryan County; Joe C. Taylor, Judge.
In a wrongful death action against a hospital and other entities, both individual and corporate, the trial court dismissed from the suit the defendants-appellees in Cause No. 65,360; summary judgment was given to the defendant-appellee in Cause No. 67,294. Plaintiffs seek corrective relief from both decisions. The appeals are consolidated for disposition by a single opinion.
TRIAL COURT'S DISMISSAL AND ITS SUMMARY JUDGMENT REVERSED; CAUSES REMANDED WITH DIRECTIONS.
Ronald A. Schaulat, Michael H. Brady, Oklahoma City, for appellants.
Page Dobson, John R. Denneny, Messrs. Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellees, Bryan Memorial Hosp. Authority d/b/a Bryan Memorial Hosp., Ruth Prough, Edith Burchfield and Karen Mackey.
Diane L. Worsham, Messrs. Kern, Worsham & McPhail, Ardmore, for appellee, Hospital Corp. of America.
The issues to be resolved are: 1) Was the appeal in Cause No. 65,360 timely brought? 2) If so, did the trial court err when it dismissed the defendants from the lawsuit? and 3) Was summary judgment on appeal in Cause No. 67,294 incorrectly given to another defendant in the case? We consolidate the two appeals and answer all three questions in the affirmative.
The appellants in both appeals [collectively called Frazier] sued all the appellees in a Frazier alleged below that the harm sought to be redressed was caused by the negligence of Hospital and HCA when they created and implemented various employment and administrative policies and performed certain health care-related tasks. A wholly-owned subsidiary of HCA, HCA Management Company, Inc. [Company]--an entity not included as a party-defendant below--had a management agreement with Authority for the operation of Bryan Memorial Hospital, where the harm allegedly occurred. Frazier's claim against HCA rests on its alleged control of Company during the operations within that contract's term.
single action for wrongful death. The appellees in Cause No. 65,360 are collectively called Hospital. 1 One of them, Bryan Memorial Hospital Authority d/b/a Bryan Memorial Hospital, is individually called Authority. The sole appellee in Cause No. 67,294, Hospital Corporation of America, is referred to as HCA
Hospital moved for dismissal for failure to state a claim upon which relief can be granted on the grounds that 1) Authority should be treated as a political subdivision of the state and 2) the action against all the defendants collectively called Hospital is barred because, contrary to the mandatory provisions of 51 O.S.1981 § 156 2 of the Political Subdivision Tort Claims Act [Act], 3 Frazier had failed to give timely notice of his claim before filing the suit. With its dismissal motion, Hospital tendered evidentiary materials which were not excluded from the trial court's consideration. 4
On May 22, 1985 the trial judge dismissed the claim against Hospital but later gave Frazier leave to replead by his second amended petition. In the latter pleading Frazier alleged, in essence, that the Act posed no obstacle to his recovery. 5 This was the only significant change from Frazier's last petition. In an effort to have itself excluded from the case, Hospital then addressed to the second amended petition a "motion to strike." This procedural device is generally viewed as designed for judicial exclusion of insufficient defenses 6 and unsigned In the meantime, HCA had moved for summary judgment, arguing it was erroneously joined in lieu of its subsidiary, Company. In the alternative, HCA argued that should the Political Subdivision Tort Claims Act apply to Frazier's demand against Hospital, and Company were to be treated as both an "employee" of Authority within the meaning of the Act 10 as well as HCA's agent or instrumentality, then HCA would be entitled to the same immunity as that enjoyed by Authority. Frazier opposed HCA's motion for summary judgment, arguing, among other things, that HCA and Company both held, vis-a-vis Authority, the status of an independent contractor. The trial court gave judgment to HCA. Frazier seeks corrective relief by appeal in Cause No. 67,294. 11
"pleadings, motions and other papers." 7 Since that was not the object sought to be achieved here, and Hospital's motion is but a request to be let out of the lawsuit based on the May 22 dismissal, we treat its motion to strike as if it were one to dismiss. 8 The trial court granted this relief on October 1, 1985. Within thirty days of that disposition, Frazier brought an appeal in Cause No. 65,360. 9
THE MAY 22 DECISION WAS A NONAPPEALABLE INTERLOCUTORY ORDER,
Hospital contends that the first appeal in this action, Cause No. 65,360, which was filed October 29, 1985, should be dismissed for untimeliness, because Frazier seeks review of the May 22, 1985 dismissal rather than of the one that occurred on October 1, 1985. 12 Since the petition-in-error was filed here within 30 days of the October 1 disposition, but after the 30-day period following the May 22 dismissal, the first question to be answered is whether the latter judicial act amounted to summary judgment that a) terminated the lawsuit as to Hospital, b) at once became appealable and hence c) caused all post-May 22 proceedings against Hospital to be unauthorized. We answer in the negative and hold that, for reasons to be stated, our The May 22 order addressed Hospital's first dismissal quest which was rested on 1) failure to state a claim upon which relief can be granted and 2) absence of statutorily required notice of the claim. The journal entry of that ruling contains findings based on the evidentiary materials Hospital tendered "without objection" from Frazier. The trial court expressly found that 1) appellee, Bryan Memorial Hospital Authority [Authority], 14 qualifies as a political subdivision according to the terms of 51 O.S.1981 § 152(6)(d), 15 2) before filing his lawsuit against Authority, Frazier failed to give timely notice of his claim, which is required by § 156 of the Act 16 and 3) the remaining appellees, who may qualify as Authority's employees, are also entitled to assert the lack-of-notice defense. 17
reviewing cognizance over the October 1 dismissal was timely invoked. 13
While, up to this point, the May 22 order may in spots bear the earmarks of a terminal summary adjudication, 18 its text concludes with a contrary recitation. It explicitly provides that Hospital's motion to dismiss is
"sustained for want of subject matter jurisdiction and for failure of plaintiffs to state a claim ...; and said action is thereby ordered dismissed as against each and all of said Defendants." [Emphasis added.]
The order does not state whether the dismissal is with or without prejudice, and there is no facial indication that either a summary judgment or a final order was intended. 19
When construing the terms of an unclear, doubtful or ambiguous order this court will examine the four corners of the We will not construe an order as granting more relief than that which was demanded. 23 Neither the trial judge nor the parties intended the May 22 dismissal to be a final order within the meaning of § 2012(G). 24 A dismissal for failure to state a claim upon which relief may be granted cannot be held to have been effected with prejudice to future amendment, if leave to replead was in fact granted a short time later by the same judge. 25 Because the trial judge's construction of his May 22 order offends no legal principle and is entirely consistent with the statutory pleading regime, we let it stand undisturbed. 26
record proper to interpret the trial judge's decision. 20 The materials may include postdecisional pleadings. 21 Within 30 days after the May 22 dismissal, Frazier was given leave (on June 21, 1985) to replead by an amended petition. The latter judicial act is entirely consistent not only with the May 22 order's express terms, but also with the provisions of 12 O.S.Supp.1984 § 2012(G), 22 which require that a litigant be granted leave to amend his pleading within a stated time if the defect in the pleading can be cured. Since Frazier's amendment was sanctioned below, we conclude the nisi prius court must itself have determined the defect in the dismissed petition was curable. Hospital's May 22 dismissal from the case clearly was not intended to be a terminal action against the defendants comprised within this appellation.
FRAZIER'S POSTDISMISSAL AMENDED PLEADING STATES A CLAIM UPON
Following Frazier's postdismissal amendment to his pleading, filed with leave A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate...
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