Keller v. Anderson, 4573

CourtUnited States State Supreme Court of Wyoming
Citation554 P.2d 1253
Docket NumberNo. 4573,4573
PartiesJohn C. KELLER, Appellant (Plaintiff below), v. Harlan B. ANDERSON et al., Appellees (Defendants below).
Decision Date12 October 1976

Charles F. Hawkins, of Marks, Hawkins, Jacobs & Ladd, Barry F. McCarthy, San Jose, Cal., and Vincent J. Horn, Jr., Casper, for appellant.

Frank D. Neville, of Wehrli & Williams, Casper, for appellee Krause.

Michael J. Sullivan, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellee Cole.

William S. Bon, Casper, for appellee Corbett.

J. E. Vlastos, of Cardine, Vlastos & Reeves, Casper, for appellees Carnahan and Anderson.

R. R. Bostwick, of Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, for appellee Memorial Hospital of Natrona County.


ROSE, Justice.

On June 7, 1974, John C. Keller, plaintiff below and appellant here, filed a complaint por se, which charged, upon the public records of the District Court in and for Natrona County, Wyoming, the appellees-defendants with negligence in medical care and treatment of injuries received by Keller in an automobile accident on July 16, 1972.

Not until January 27, 1975, were summonses caused to be issued, whereupon they were returned and filed on January 29, 1975, showing service to have been made on the defendants on the previous day. Upon each summons the following appeared:

'John C. Keller

Attorney for Plaintiff



101 Park Center Plaza, Suite 1301

San Jose, CA 95113'

We observe that, while it does not appear on its face that the law firm of Marks, Hawkins & Jacobs prepared the complaint, it was done in a remarkably artful way for a layman and, in point of fact, it developed in argument before this court that Mr. Jawkins' firm probably did prepare the complaint, although the attorneys of that firm did not lend their name to it and caused it to appear as though it was drafted and filed by plaintiff Keller. When the complaint was filed, none of the above named firm members were authorized to practice law in Wyoming and there was then no Wyoming counsel shown as attorney of record. 1 The complaint and summonses were not drafted and executed in compliance with the Wyoming Rules of Civil Procedure with respect to showing the plaintiff's address. 2

Motions to dismiss were filed attacking the above-mentioned defects, whereupon, on March 21, 1975, Hawkins was forced to enter an appearance and a 'Substituted Attorneys,' which document substituted Hawkins for Keller as the attorney representing the plaintiff's side of the case. On the same date a Wyoming counsel was associated.

We observe, with disdain, that while these nefarious tactics were being employed, the good and heretofore unassailed reputations of the appellees had been, for nine months, under surreptitious attack in a reprehensible way through what now appears to have been the efforts of out-of-state attorneys practicing law in Wyoming through the employment of unauthorized and criticized procedures. We want attorney Hawkins to know, and all other out-of-state lawyers to be on notice, that this court does not sanction or condone devious and reprehensible game-playing with our citizens and our courts and we will deal harshly with such practices in these halls.

The named defendants having filed motions to dismiss the complaint on various grounds, also filed supporting affidavits under Rule 12(c) of the Wyoming Rules of Civil Procedure and requested that the motions to dismiss be considered as motions for summary judgment under Rule 56 of the aforementioned rules.

In support of their motions for summary judgment, the doctors filed factual and detailed affidavits describing the participation of each affiant in the plaintiff's case, delineating the details of the medical procedure, care, treatment and ministration. Each doctor expressed his opinion that the practices undertaken met and complied with the medical-care and treatment standards for like care and service at the time and place administered. The affidavit of the hospital was likewise factual and in all ways adequate for summary judgment purposes.

The defendants, in March of 197k, notified the plaintiff's attorneys that argument would be had on April 8, 1975, on all motions to dismiss and for summary judgment.

On April 7, 1975, the day before the arguments were to be heard, the attorneys for appellant-plaintiff responded to the notice by requesting a continuance of the hearing date so that they would have time to undertake discovery. Up to this juncture, the plaintiff had initiated no discovery procedures whatever even though the case had been filed for nine months.

An order was entered on April 11, 1975, indicating a court-scheduling problem, and the arguments on motions to dismiss the complaint and for summary judgment were set over to May 2, 1975. No discovery was undertaken by the plaintiff during this extended timeperiod.

Prior to the entry of the above-mentioned order, Mr. Keller filed an affidavit and, his attorney, Mr. Charles F. Hawkins filed his affidavit in support of the plaintiff's motion for a continuance in order to complete discovery and as counter-affidavits in defense of the motions for summary judgment. This latter affidavit recites that Hawkins had sent Keller's medical records to some California doctors who, based upon hospital records only and without examination of or consultation with Keller, purported to make some unsworn hearsay expressions about the treatment Keller received in Casper. Hawkins appended to his affidavit two letters from these doctors which were addressed to him and dated in May and June of 1973, and which did not comply with the requirements of Rule 56(e) of the Wyoming Rules of Civil Procedure, infra. The Hawkins and Keller affidavits brought on motions to strike on various grounds, among which is that they do not meet the requirements of the aforesaid Rule 56(e). 3

On May 2, 1975, the day the arguments on the various motions were to be heard, an order was entered assigning the cause to another judge. The court heard arguments on May 9, 1975, by which time there had still been no attempt to make discovery or to comply with Rule 56(e) concerning the filing of proper affidavits. Orders were entered denying the plaintiff's motion for continuance and granting all motions for summary judgment. Judgment was entered for all defendants on the order granting their motions for summary judgment. It is from this judgment and the order denying a continuance that the plaintiff appeals.

Appellant-plaintiff assigns the following issues for argument:

'I. Summary judgment is a drastic remedy and may be granted only when no material issue of fact is present.

'II. Plaintiff's affidavit was sufficient to show a genuine material issue of fact with respect to defendants' negligence.

'III. The circumstances surrounding plaintiff's injuries following hospitalization create an inference of defendants' negligence sufficient to warrant the invocation of the doctrine of res ipsa loquitur.

'IV. Plaintiff was denied a reasonable opportunity to present all materials pertinent to a motion for summary judgment as provided for in Rule 12(c).

'V. The court abused its discretion in denying plaintiff additional time to supplement its responding papers pursuant to Rule 56(e).

'VI. Plaintiff made an adequate showing of unavailability of affidavits to be entitled to relief under Rule 56(f).

'VII. By withdrawing motions to strike affidavits in opposition to the motions for summary judgment, defendants waived their objections thereto.'

We affirm the holding of the lower court and in so doing, examine each of the points raised by the appellant.

Appellant's Point I:

'I. Summary judgment is a drastic remedy and may be granted only when no material issue of fact is present.'

There is no good purpose to be served in our discussing the cases cited by appellant in support of his first proposition. We agree with the doctrine absolutely. Especially is it true that summary judgment will not often be granted in a negligence case. Forbes Company, Inc. v. MacNeel, Wyo., 382 P.2d 56, 57 (1963).

Nevertheless, the counter-affidavits of the appellant were insufficient to make up an issue of material fact and therefore the entry of the summary judgment was proper. We said in Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo., 481 F.2d 48, 52 (1971), that where there are no material facts in dispute a summary judgment should be entered. This is the law-even in a negligence case.

Appellant's Point II:

'II. Plaintiff's affidavit was sufficient to show a geniune material issue of fact with respect to defendants' negligence.'

In essence, the mentioned affidavit of appellant says that he was hurt-was cared for and treated by various appellee-doctors and the hospital, and, as a consequence of their negligence, the right leg became gangrenous and had to be removed. The affidavit also relates that hospital records have been made available to California doctors who have advised appellant's attorney that the leg would not have been lost expect for negligence and treatment of the appellees.

The affidavit of the appellant recites only conclusions of the affiant in the field of medical science and is composed of the rankest kind of hearsay. It does not comply with Rule 56(e), W.R.C.P., even remotely. The following from plaintiff's affidavit is exemplary of such conclusion and assertion of ultimate fact unsupported by competent material factual statements:

'. . . Following treatment, release and followup by Natrona County Memorial Hospital and the said doctors and attendants and as a consequence of their negligence and carelessness, and as a proximate result thereof, my right leg became putrid and gangrenous and eventually had to be surgically removed.'

In McClure v. Watson, Wyo., 490 P.2d 1059, 1061-1062 (1971), we said that, not...

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