Hane By and Through Jabalera v. Tubman

• Decision Date: 04 May 1995
• Docket Number: No. 94CA0664,94CA0664
• Citation: 899 P.2d 332
• Parties: Kristina HANE, a minor, By and Through her mother and next friend, Martha JABALERA, Plaintiff-Appellant and Cross-Appellee, v. Gary TUBMAN, D.D.S., Defendant-Appellee and Cross-Appellant. . IV
• Court: Colorado Court of Appeals

Page 332

899 P.2d 332

Kristina HANE, a minor, By and Through her mother and next friend, Martha JABALERA, Plaintiff-Appellant and Cross-Appellee, v. Gary TUBMAN, D.D.S., Defendant-Appellee and Cross-Appellant.

No. 94CA0664.

Colorado Court of Appeals,

Div. IV.

May 4, 1995.

Rehearing Denied June 15, 1995.

Oliphant & Associates, Kristopher L. Hammond, Steamboat Springs, for plaintiff-appellant and cross-appellee.

Dackonish, Blake & Houska, P.C., Scot J. Houska, Grand Junction, for defendant-appellee and cross-appellant.

Opinion by Judge RULAND.

In this dental malpractice action, plaintiff, Kristina Hane, a minor, by and through her mother and next friend, Martha Jabalera, appeals the summary judgment dismissing her claim against defendant, Gary Tubman, as barred by the applicable statute of limitations. Defendant cross-appeals from an order denying his motion to dismiss based upon the minor's failure to file a timely certificate of review. We reverse and remand for further proceedings.

Plaintiff filed her complaint against the defendant on the day of her eighth birthday, based on defendant's alleged acts of negligence which occurred when plaintiff was three years old. The record does not reflect that a legal guardian was appointed for plaintiff at any time prior to the filing of the complaint.

Defendant was served with process on September 10, 1993. On November 12, defendant filed a motion to dismiss the complaint for failure to file a certificate of review as required by § 13-20-602, C.R.S. (1994 Cum.Supp.). Plaintiff filed the required certificate on November 19. Following a hearing, the court denied defendant's motion based upon its determination that good cause had been shown for the late filing.

Defendant also filed a motion for summary judgment asserting that plaintiff's claim was time barred pursuant to § 13-80-102.5, C.R.S. (1994 Cum.Supp.). The court granted this motion.

I

Defendant may assert other grounds on appeal than those relied upon by the trial court in support of the judgment entered. Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991). Accordingly, we initially address defendant's contention that the trial court erred in denying his motion to dismiss.

In support of this contention, defendant relies upon the concession of counsel for plaintiff that the failure to file a certificate was solely the result of counsel's inadvertence and that the information necessary to file the certificate had been secured sometime before defendant's motion was filed. Under these circumstances, defendant contends that there is no good cause for the late filing as a matter of law. However, we perceive no error in the trial court's ruling.

As pertinent here, § 13-20-602 requires plaintiff to file a certificate of review within 60 days after the service of the complaint "unless the court determines that a longer period is necessary for good cause shown." Lacking any specific statutory definition of "good cause," the trial court relied upon decisional law interpreting that phrase in the context of default judgment cases. Applying that analysis, the court determined that good cause had been shown. We agree with the court's ruling.

In Craig v. Rider, 651 P.2d 397 (Colo.1982), our supreme court addressed the standard to be applied in determining whether, under the Colorado Probate Code, an interested party demonstrated "good cause" for the delay in filing a motion to vacate an order admitting a will to probate. The court concluded that the analysis of good cause should be predicated upon the criteria adopted in decisional law for setting aside a default judgment pursuant to C.R.C.P. 55(c) and for setting aside a judgment under C.R.C.P. 60(b). The court reached this conclusion because the Colorado Probate Code incorporated the Rules of Civil Procedure. We conclude that the same analysis should apply to The Craig court determined that the goal in resolving the good cause issue was to promote substantial justice. The court concluded that resolution of the issue was therefore addressed to the sound discretion of the trial court and that the burden was upon the movant to establish grounds for setting aside the order by clear, strong, and satisfactory proof. See also Sumler v. District Court, 889 P.2d 50 (Colo.1995).

                §   13-20-602 because the statute addresses civil actions governed by those rules and because the General Assembly has not adopted other criteria
                

In exercising its discretion, the Craig court concluded that the trial court should address three criteria, namely, whether the neglect that resulted in entry of the adverse order was excusable; whether the moving party had alleged a meritorious defense or claim; and whether relief from the challenged order would be consistent with equitable considerations such as any prejudice that would accrue to a party if the order were set aside. The court also stated:

The trial court's consideration of these three factors is guided by the general rule that the requirements for vacation of a default judgment should be liberally construed in favor of the movant, especially where the motion has been promptly made.... Resolution of disputes on their merits is favored, and we have been receptive to promptly filed motions to set aside default judgments....

Craig v. Rider, supra, at 402.

Later, in Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986), our supreme court held that, in resolving the good cause issue, the trial court must address each of the criteria adopted in Craig. In that context, the Buckmiller court noted that, in addressing the excusable neglect criteria, the trial court must consider the nature and extent of any negligence attributable to counsel.

Here, the court found that counsel for plaintiff had secured the information necessary to prepare and file a certificate well before the filing deadline. The court further noted that it should not impose upon a minor any neglect of counsel in filing the certificate and that the certificate had been filed promptly after defendant's motion. Finally, the court noted that the obvious purpose of the statute was to prevent the filing of frivolous cases, that the record demonstrated that the minor's claim was not frivolous, and that no prejudice to defendant had been demonstrated by the late filing of that instrument.

Defendant contends and we recognize that common carelessness and negligence are generally not considered excusable neglect as contrasted with the gross negligence of counsel. See Tyler v. Adams County Department of Social Services, 697 P.2d 29 (Colo.1985); McElvaney v. Batley, 824 P.2d 73 (Colo.App.1991). However, even if we assume that the negligence of counsel in this case was not gross negligence, we are unable to conclude that such is dispositive of the issue. This is because the Buckmiller court established that all three criteria must be addressed in the court's analysis of the good cause issue. And, the record fully supports the court's analysis of the other criteria. Hence, there was no error in the court's denial of the motion to dismiss premised on the late filing of the certificate.

II

With reference to the court's ruling on the statute of limitations, we agree with plaintiff that the court erred in concluding that, as a matter of law, her claim was time barred.

As pertinent here, § 13-80-102.5 provides:

(1) Except as otherwise provided in this section, no action alleging negligence ... to recover damages from any ... health care professional ... shall be maintained unless such action is instituted within two years after the date that such action accrues pursuant to section 13-80-108(1), but in no event shall an action be brought more than three years after the act or omission which gave rise to the action.

....

(3) The limitation of actions provided in subsection (1) of this section shall not apply under the following circumstances:

....

(d) If the action is brought by or on behalf of:

(I) A minor under eight years of age who was under six years of age on the date of the occurrence of the act or omission for which the action is brought, in which case the action may be maintained at any time prior to his attaining eight years of age; or

(II) A person otherwise under disability as defined in section 13-81-101, in which case the action may be maintained within the time period as provided in section 13-81-103.

In § 13-81-101(3), C.R.S. (1987 Repl.Vol. 6A), a "[p]erson under disability" includes a minor under 18 years of age who does not have a legal guardian. For that individual, § 13-81-103, C.R.S. (1987 Repl.Vol. 6A) provides that the action must be maintained within two years after a legal guardian is appointed if the guardian is appointed prior to the minor's eighteenth birthday.

In Cintron v. City of Colorado Springs, 886 P.2d 291 (Colo.App.1994), announced after the trial court's ruling in this case, a division of this court held that Colorado decisional law does not impose upon the natural parents of the child the obligation to litigate a minor's personal injury claim. In addition, § 13-22-101(1)(c), C.R.S. (1987 Repl.Vol. 6A) currently provides that a minor is not competent until the age of 18 to file suit. Accordingly, in light of Cintron, the parties here were ordered to submit supplemental briefs on the issue whether the two-year limitation in § 13-80-102.5 applies to minors under the age of eight who do not have legal guardians.

In regard to that order, we note that contrary to defendant's contention, plaintiff did argue in the trial court, albeit in summary form, the applicability of § 13-80-102.5(3)(d)(II), C.R.S. (1994 Cum.Supp.). Thus, it was appropriate for this court to order the filing of supplemental briefs relative to the proper interpretation of the statute. See Irwin v. Elam Construction, Inc., 793 P.2d 609 (Colo.App.1990).

We have now considered the additional briefs and the pertinent legislative history to resolve this issue. See Martin...