Goshy v. Morey, 85-177

• Decision Date: 18 December 1987
• Docket Number: No. 85-177,85-177
• Court: Vermont Supreme Court
• Parties: Tina H. GOSHY v. Jerome MOREY and Rockingham Memorial Hospital.

Page 543

539 A.2d 543

149 Vt. 93

Tina H. GOSHY v. Jerome MOREY and Rockingham Memorial Hospital.

No. 85-177.

Supreme Court of Vermont.

Dec. 18, 1987.

Theodore C. Kramer of Crispe & Crispe, Brattleboro, for plaintiff-appellant.

Miller, Norton & Cleary, Rutland, for defendant-appellee Morey.

Allan R. Keyes and Mark H. Kolter of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellee Rockingham Memorial Hosp.

Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Plaintiff appeals a superior court order denying her Rule 60(b) motion to reopen, following dismissal of her action for injuries allegedly sustained as a result of medical treatment by defendant-physician at the Rockingham Memorial Hospital. We reverse.

On June 14, 1983, plaintiff filed a complaint in Windham Superior Court alleging that in May, 1979, defendant, Dr. Jerome Morey, negligently performed medical procedures, and that both Dr. Morey and the Rockingham Memorial Hospital (Hospital) were negligent in their care and treatment of the plaintiff. With his answer, defendant Morey filed interrogatories requesting, among other things, that plaintiff identify any expert witnesses she intended to call to testify on her behalf. Plaintiff failed to respond to these interrogatories within the time permitted under V.R.C.P. 33(a). Defendant Morey filed a motion to compel on August 30, 1983. Plaintiff responded on September 9, 1983, stating that the requested information was "[t]o be furnished." In December, 1983, defendant Hospital served interrogatories on plaintiff, requesting that plaintiff identify her expert witnesses. Plaintiff's answer on January 19, 1984, stated that, although she intended to call expert witnesses, their identity was "[u]nknown at the present time." Counsel for defendant Morey requested the names of plaintiff's experts informally by letter on February 28, 1984, and on June 22, 1984, but obtained no response.

Defendant Morey filed a second motion to compel plaintiff to identify her expert witnesses in December, 1984. By this time, the case was being called for trial. Plaintiff filed a motion for continuance dated January 10, 1985. On January 14, 1985, the court granted defendant Morey's motion to compel, and ordered plaintiff to disclose her experts by January 20, 1985. On January 16, 1985 the court denied plaintiff's motion to continue.

On January 21, jury drawing for a trial on the merits was scheduled. Plaintiff's counsel was unprepared to go forward because he had no expert witness in support of plaintiff's case. He orally renewed the motion to continue that had been denied five days earlier. Defendants moved to dismiss at a hearing on these motions.

Counsel for plaintiff proposed a thirty-day continuance in order that he have an opportunity to provide defendants a report from an out-of-state medical consultant. "[I]f I don't come up with anything within the next thirty days and provide the report to the defendants," plaintiff's attorney said, "then I have no objection to the court ruling on the defendants' motion." On January 28, 1985, the court ordered that plaintiff file with the court a copy of a medical expert's report concerning defendants' alleged negligence on or before February 25, 1985. The order provided that "[i]n the event such report is not filed by that date, the plaintiff's complaint shall be dismissed...."

On February 27, 1985, plaintiff still had not identified her expert witnesses or filed the report ordered by the court. Defendants jointly moved for dismissal. Without hearing, the court granted defendants' motion to dismiss on March 1, 1985, pursuant to the court's January order.

On March 15, plaintiff filed a motion to reopen the case, together with a report from an out-of-state medical expert. The report was based on the medical records and the deposition of the plaintiff and concluded that it was the expert's "strong clinical opinion" that defendant doctor departed from "good and accepted medical care in the field of obstetrics and gynecology." The motion stated that the report was not filed within the time limit specified in the court's order because the expert did not submit it to the plaintiff on "the timetable guaranteed to the Plaintiff." The motion was denied without hearing because the trial judge's dismissal "order is the law of the case and there are no sufficient reasons to change or reopen his decision."

The sole issue on appeal is whether the court erred in denying plaintiff's motion to reopen. Plaintiff cited no rule in support of her motion to reopen. It appears, however, that plaintiff intended to ground her motion to reopen upon V.R.C.P. 60(b)(1) (excusable neglect) or (b)(6) (other reasons) which provide for relief from a judgment or order. The granting of a Rule 60(b) motion would strike the dismissal and reinstate the action.

Our decisions on relief from judgment motions lend support to both sides of this appeal. We have traditionally stated a very narrow standard of review in Rule 60(b) cases:

The power to grant relief from a final judgment rests solely in the sound discretion of the trial court, and a discretionary ruling of the trial court is not subject to review on appeal unless it clearly and affirmatively appears that such discretion has been abused or withheld.

Kotz v. Kotz, 134 Vt. 36, 40, 349 A.2d 882, 885 (1975). See Reuther v. Gang, 146 Vt. 540, 541, 507 A.2d 972, 973 (1986); Estate of Emilo v. St. Pierre, 146 Vt. 421, 423, 505 A.2d 664, 665 (1985); Cliche v. Cliche, 143 Vt. 301, 306-07, 466 A.2d 314, 316-17 (1983); Desjarlais v. Gilman, 143 Vt. 154, 157, 463 A.2d 234, 236 (1983); R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 143, 453 A.2d 83, 85 (1982); Okemo Mountain, Inc. v. Okemo Trailside Condominiums, Inc., 139 Vt. 433, 436, 431 A.2d 457, 459 (1981); Meacham v. Kawasaki Motors Corp., 139 Vt. 44, 47, 421 A.2d 1299, 1301 (1980); Waitt v. Waitt, 137 Vt. 374, 375, 406 A.2d 395, 396 (1979); Brown v. Tatro, 136 Vt. 409, 412, 392 A.2d 380, 382 (1978); Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 82, 370 A.2d 212, 213-14 (1977).

Our rules and decisions have not clearly required that trial courts use specific procedures in ruling on relief from judgment motions. Under V.R.C.P. 78(b)(2), a hearing is waived unless requested and "in any case" the court can decline to hear oral argument and may dispose of the motion without hearing, or argument. In this case, plaintiff never requested argument on her Rule 60(b) motion. In any event, the court could dispense with a hearing on finding that all of the claims in the motion, even if fully supported, would not warrant relief. See Alexander v. Dupuis, 140 Vt. 122, 125, 435 A.2d 693, 695 (1981).

Nor have our decisions required detailed findings for Rule 60(b) motion rulings although we have held that the "practice [of making findings] is commendable" particularly where there has been an evidentiary hearing. Merchants Nat'l Bank v. Considine, 135 Vt. 416, 417, 377 A.2d 1390, 1391 (1977). See V.R.C.P. 52(a) (findings are "unnecessary on decisions of motions"). Plaintiff never requested findings in this case.

In addition, there were adequate grounds in this case for the trial judge to dismiss the case in the first instance. Plaintiff had failed to prepare her case so that she still did not have the basic testimony to prove negligence by the defendants and had failed to meet discovery obligations. Essentially, the plaintiff had failed to prosecute the action, grounds for dismissal under Rule 41(b)(2). See Hayes v. Harwood, 141 Vt. 308, 448 A.2d 799 (1982); Thorburn v. Town of Norwich, 141 Vt. 242, 448 A.2d 141 (1982); In re Estate of Peloquin, 137 Vt. 559, 409 A.2d 586 (1979). Through new techniques of docket management, we have made great strides in Vermont in eliminating judicial delay and placing our judicial resources where they are most needed. These improvements are possible only when the court controls scheduling and creates and enforces clear expectations of timing. As this Court stated in Thorburn v. Town of Norwich, 141 Vt. at 244, 448 A.2d at 142:

A reading of the full text of [the scheduling rule] reflects the concern that courts must have for the orderly use of court facilities, provided at great expense to the taxpayer for the use of litigants. The design of that rule is directed at avoidance of unnecessary delay, and seeks out alternatives preferable to postponement of the trial if the rights of the parties can be accommodated.

In this case, plaintiff made a request for continuance that did not comply with Rule 40(c) and was properly denied.

Finally, plaintiff's attorney set the ground rules for the dismissal by proposing a 30-day continuance to obtain an expert witness followed by action on defendants' motion to dismiss if he failed. He is bound by the tactical choice he made, and Rule 60(b) motions are ordinarily not available to those whose tactical choices turn out to be ill advised. See Darken v. Mooney, 144 Vt. 561, 566, 481 A.2d 407, 411 (1984); Estate of Emilo v. St. Pierre, 146 Vt. at 424, 505 A.2d at 666; Okemo Mountain v. Okemo Trailside Condominiums, 139 Vt. at 436, 431 A.2d at 459. In essence, plaintiff's counsel proposed a stipulation to negative action on the motion to dismiss the complaint in order to obtain additional time to pursue expert testimony. Rule 60(b) relief is ordinarily unavailable to relieve one from the effects of a stipulation freely made. See Cooper v. Savage, 145 Vt. 223, 225-26, 485 A.2d 1258, 1260 (1984).

The above decisions would strongly suggest an affirmance in this case. There are, however, contrary threads throughout some of our cases.

If the order to file the report of the expert witness within 30 days or suffer dismissal is viewed as a discovery sanction order, the original dismissal order may run afoul of the requirements of John v. Medical Center Hospital...