Higgins v. Medical University of South Carolina

• Decision Date: 12 May 1997
• Docket Number: No. 2662,2662
• Citation: 486 S.E.2d 269,326 S.C. 592
• Parties: Kathryn K. HIGGINS and Douglas M. Higgins, Appellants, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, Fred A. Crawford, Jr., M.D., Bruce W. Usher, M.D., Daniel Alfono, M.D., Brian M. Gordon, M.D., and Peter Rosenthal, M.D., Respondents.
• Court: South Carolina Court of Appeals

Page 269

486 S.E.2d 269

326 S.C. 592

Kathryn K. HIGGINS and Douglas M. Higgins, Appellants, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, Fred A. Crawford, Jr.,

M.D., Bruce W. Usher, M.D., Daniel Alfono, M.D.,

Brian M. Gordon, M.D., and Peter

Rosenthal, M.D., Respondents.

No. 2662.

Court of Appeals of South Carolina.

Submitted April 8, 1997.

Decided May 12, 1997.

Teresa Zachry Hill, Charleston, for appellants.

Barbara Showers, Charleston, for respondents.

CURETON, Judge:

The Higginses filed this action for medical malpractice. They appeal the trial court's grant of summary judgment to all of the defendant doctors. We affirm as modified. ¹

I. FACTS

On May 26, 1994, Mrs. Higgins filed a medical malpractice action against the Medical University of South Carolina ("MUSC"), and Drs. Crawford, Usher, Alfono, Gordon, and Rosenthal (the "doctors"). Mr. Higgins pled a loss of consortium cause of action in the same complaint. On June 24, 1994, the defendants answered, generally denying the allegations and raising a number of affirmative defenses. The doctors filed with their answer a motion to dismiss and a motion to strike the plea for punitive damages. On June 26, 1995, the doctors served the Higginses' attorney with affidavits from Drs. Gordon and Alfono, who asserted their sole source of compensation was from MUSC.

On September 14, 1995, the trial court heard the motions. At the hearing, the doctors argued that their motions to dismiss should be converted into motions for summary judgment. The doctors contended that physicians in the employment of state government were immune from suit under the South Carolina Tort Claims Act. They further argued that even though they provided services to Mrs. Higgins through a corporate entity known as University Medical Services ("UMA"), during their tenure with MUSC they were required to be members of a Clinical Practice Plan. The Clinical Practice Plan is the system by which faculty members provide patient care to the community while simultaneously providing clinical instruction to medical students and residents. UMA is an operation of MUSC's Clinical Practice Plan. The doctors also noted that their only source of compensation was MUSC. In support of these arguments, the doctors furnished the trial judge with copies of three circuit court orders which had ruled on similar motions.

The Higginses, on the other hand, argued strenuously against conversion of the motions to motions for summary judgment. They further argued that their allegations were sufficient to withstand a motion to dismiss, and contended further discovery was necessary to fully develop the factual issues.

After the trial judge heard the parties' arguments, he recessed for twenty-five minutes. When the judge returned to the bench, he informed the parties that he was converting the motions, and granted summary judgment to the doctors, leaving MUSC as the only defendant. The Higginses appeal, asserting (1) the trial judge should not have converted the motions, (2) the trial judge improperly relied on facts and legal conclusions in the unpublished circuit court orders, and (3) in any event, the trial judge erred in granting summary judgment.

II. CONVERSION OF THE RULE 12(b)(6) MOTION TO A RULE 56 MOTION

The Higginses first contend the trial court erred in converting the doctors' motion from a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, to a motion for summary judgment pursuant to Rule 56, SCRCP. The Higginses argue that they had not expected the trial judge to consider materials outside the complaint when deciding the motion. Consequently, the Higginses claim they were surprised and not afforded a reasonable opportunity to present pertinent materials. We agree that notice was insufficient for conversion.

The issue here involves satisfaction of Rule 56's notice provision when a 12(b)(6) motion is converted into a motion for summary judgment. South Carolina appellate courts have addressed conversion on a few occasions. In Brown v. Leverette, 291 S.C. 364, 353 S.E.2d 697 (1987), the Supreme Court reversed a trial court's grant of a 12(b)(6) motion because the trial court considered supporting affidavits and ruled on "defenses ... not apparent from the face of the complaint." The first indication the non-movants had that the trial court was going to consider the submitted affidavits was the order of dismissal. Id. The Leverette court stated that "the notice provisions in Rule 56 are incorporated into Rule 12(b)(6)." Id. at 367, 353 S.E.2d at 699. Leverette does not expressly state whether the non-movant had copies of the supporting affidavits at least 10 days before the hearing as required by Rule 56.

However, in Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990), our Supreme Court implied that less than express notice of the court's intent to convert would be sufficient. The Plumlee court held that the trial judge properly denied conversion of a 12(b)(6) motion to a Rule 56 motion because the supporting "affidavit was never sent to the [non-movants] nor were they advised of the [movant's] request for summary judgment." Id. at 266, 391 S.E.2d at 560.

In Crosswell Enters. v. Arnold, 309 S.C. 276, 422 S.E.2d 157 (Ct.App.1992), the court sanctioned conversion "because the motion was supported by matters outside the pleadings." The court noted that "the parties were afforded a reasonable opportunity to introduce evidentiary matters in accordance with Rule 56(c) and (e)." Id. at 279, 422 S.E.2d at 159.

Next, in McDonnell v. Consolidated Sch. Dist., 315 S.C. 487, 445 S.E.2d 638 (1994), the court held that a party could use a summary judgment motion to raise a statute of limitations defense. In a footnote, theMcDonnell court stated that "if on a motion under 12(b)(6) matters outside the pleadings are presented and not excluded, the motion shall be treated as one for summary judgment." Id. at 489 n. 2, 445 S.E.2d at 639 n. 2. The court then stated it was treating the motion as one for summary judgment because the trial judge considered matters outside the pleadings, but theMcDonnell court did not expressly address whether proper notice had been given. Id.

Finally, in Johnson v. Dailey, 318 S.C. 318, 457 S.E.2d 613 (1995), the court explicitly sanctioned conversion even though the non-movant did not get express notice. In Johnson, the defendants attached outside materials to their 12(b)(6) motion. The trial court treated the 12(b)(6) motion as one for summary judgment, and our Supreme Court affirmed. Id. The Dailey court stated: "Here, unlike in Bowen & Smoot v. Plumlee, the outside materials, including Superintendent's letter attached to the 12(b)(6) motion, gave notice to Johnson more than thirty days prior to the hearing. Indeed, the outside materials were specifically referred to by [the movants], both in the motion and at the hearing." Id. at 321, 457 S.E.2d at 615.

In the present case, we believe that the trial judge improperly converted the doctors' motions. First, however, we must distinguish between Drs. Gordon and Alfono, who submitted affidavits, and the remaining doctors, who did not submit affidavits. The affidavits of Drs. Gordon and Alfono cannot be read as providing facts relevant to the other doctors. The submitted affidavits only aver that the two doctors were a resident and a fellow respectively, and that they received no money and provided no medical services outside of their employment with MUSC. At the hearing, even the doctors' attorney distinguished between the affiant doctors and the other doctors, by arguing that the affidavits showed the affiant doctors were students "for all intense and purposes [sic]." As to the other doctors, the attorney stated that there were "no allegations in the [Higginses'] Complaint that [the other doctors] receive income from any other source." Thus, as to the doctors who did not submit affidavits or other outside materials , the motion should have been heard pursuant to Rule 12(b)(6), SCRCP.

Even though Drs. Gordon and Alfono submitted affidavits, the trial court erred by converting their motions. Unlike Dailey, the record reflects (1) the affidavits were not attached to the motion, but were served about a year later, and (2) the doctors' motion and memorandum in support of the motion did not refer expressly to the outside materials. Further, unlike Prospero Assocs. v. Burroughs Corp., 714 F.2d 1022 (10th Cir.1983), which was cited to support the holding in Leverette, the Higginses did not expressly refer to or discuss the affidavits in their memorandum, which would have waived their objection to lack of notice. In fact, the Higginses' attorney argued strenuously that she had only been noticed with a motion to dismiss and motion to strike, and she responded at the hearing accordingly. The trial judge did not tell the parties he was converting the motion until he gave his oral decision after the court had recessed following argument. Under these facts and circumstances, we do not believe that the Higginses were "fairly apprised that the court would look beyond the pleadings." Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984). Thus, the trial court erred by granting summary judgment.

We briefly note that the practical effect of the Dailey conversion rule is to require non-movants to be vigilant and adequately prepare whenever a movant submits a 12(b)(6) motion coupled with affidavits. We hope that movants will not, as a strategic device, submit 12(b)(6) motions with affidavits, anticipating that the non-movant will appear at the hearing without having served supporting affidavits. Cf. In re Bristol Indus. Corp., 690 F.2d 26 (2d Cir.1982) (expressing the concern that the potential for conversion might put an undue burden on those moving for a preliminary injunction). It is a fundamental rule that "if the plaintiff relies solely upon the pleadings, files no counter-affidavits, and makes no factual showing in opposition to a motion...