Labiszak v. St. Joseph's Community Hosp.

• Decision Date: 20 December 1989
• Docket Number: No. 88-1999,88-1999
• Citation: Labiszak v. St. Joseph's Community Hosp., 452 N.W.2d 585, 153 Wis.2d 772 (Wis. App. 1989)
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Todd J. LABISZAK, a minor, James M. Labiszak and Charlene Labiszak, Plaintiffs-Respondents-Cross Appellants, v. ST. JOSEPH'S COMMUNITY HOSPITAL, Defendant-Appellant, Wisconsin Patients Compensation Fund, Defendant-Appellant-Cross Respondent, Todd J. Hammer, M.D., Defendant-Co-Appellant.
• Court: Wisconsin Court of Appeals

Page 585

452 N.W.2d 585

153 Wis.2d 772

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Todd J. LABISZAK, a minor, James M. Labiszak and Charlene Labiszak, Plaintiffs-Respondents-Cross Appellants, v. ST. JOSEPH'S COMMUNITY HOSPITAL, Defendant-Appellant Wisconsin Patients Compensation Fund Defendant-Appellant-Cross Respondent Todd J. Hammer, M.D., Defendant-Co-Appellant.

No. 88-1999.

Court of Appeals of Wisconsin.

Dec. 20, 1989. ^d Circuit Court, Milwaukee County.

REVERSED AND CAUSE REMANDED.

Appeal and Cross-Appeal from a judgment of the circuit court for Milwaukee county: Patricia D. McMahon, Judge.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

In this medical malpractice case, St. Joseph's Community Hospital, Todd J. Hammer, M.D., and the Wisconsin Patients Compensation Fund appeal from a judgment awarding damages to Todd J. Labiszak and his parents, James M. and Charlene Labiszak. The Labiszaks cross-appeal the circuit court's denial of their claim for interest from the date of the Patients Compensation Panel's decision in their favor.

The dispositive issue on appeal concerns the validity, under Rule 805.16, Stats. (1985-86), of a written order granting a mistrial entered more than ninety days after a jury verdict, and therefore untimely, when the written order provided that it was nunc pro tunc to the date of the trial court's timely oral decision. ¹ We conclude that such an order is not valid. However, in the interests of justice, we are compelled to exercise our authority to order a new trial under the Omnibus Statute, sec. 752.35, Stats. Therefore, we need not address the issue of interest presented by the cross-appeal. Cf. Mallow v. Angove, 148 Wis.2d 324, 326, 434 N.W.2d 839, 840 (Ct.App.1988).

FACTS

The facts material to this appeal are not disputed. The Labiszaks allege that St. Joseph's Community Hospital of West Bend and Todd J. Hammer, M.D., were negligent in connection with the resuscitation of Todd J. Labiszak immediately after his birth at the hospital in March of 1979. Todd suffers from severe mental retardation. The hospital's alleged negligence was premised on the actions of one of its employees, a nurse-anesthetist.

The matter was submitted to a formal Patients Compensation Panel under the procedure established by former subchapter II of ch. 655, Stats. ² The panel determined that the health care providers were negligent, and awarded $1,041,000 to Todd J. Labiszak as compensation for his injuries, and $100,000 to his mother for loss of society and companionship. As authorized by sec. 655.19, Stats. (1983-84), the health care providers and the Wisconsin Patients Compensation Fund petitioned for a trial de novo in circuit court.

The trial in circuit court began on April 29, 1986, before the Honorable Patricia S. Curley, and lasted nine trial days. In the course of his closing argument to the jury, counsel for the Labiszaks made the following comment:

I have a chance to rebut what the defendants might say during their arguments. This will not be a long period of time, but I think you should know and I probably will remind you again that on the verdict you are going to be asked, was the hospital negligent, were they causally negligent for Todd's condition, and we ask that you answer both those questions, "Yes," their negligence in failing to resuscitate Todd caused his brain damage and there will be a question with respect to Dr. Hammer in the same regard and we ask that--whether he was negligent, whether his negligence caused the brain damage; and we would ask that you answer those questions, "Yes," also; and I think it should be understood that those questions should be answered, "Yes," in order for Todd to recover in this matter.

[Emphasis added.] All of the defendants immediately moved for a mistrial, which the circuit court took under advisement. The court rejected the suggestion by plaintiffs' counsel that the jury be given a curative instruction, noting that any instruction would either mislead the jury, or unduly emphasize counsel's statement.

On May 14, 1986, after deliberating for three days, the jury returned a verdict finding the hospital causally negligent by a ten to two vote, Dr. Hammer causally negligent by an eleven to one vote, and, with two jurors dissenting, awarded a total of $1,731,458 to Todd and his parents. Post-verdict motions were filed and, on June 9, 1986, the trial court orally granted the mistrial motions it had taken under advisement. A scheduling conference was held on July 8, 1986, and the retrial was set for March 30, 1987. On August 13, 1986, the hospital filed a motion for change of venue to Washington County.

Although both plaintiffs' counsel, and counsel representing Dr. Hammer and the Patients Compensation Fund, sent proposed orders to the trial court within days after it orally granted the mistrial motion on June 9, 1986, a written order was not signed until September 2, 1986, more than ninety days after the May 14 verdict. The order contains the following handwritten notation: "nunc pro tunc to 5/9/86, date of ct's oral decision." ³

On August 28, 1986, several days before the trial court signed the formal order granting the mistrial, the Labiszaks filed a petition for supervisory writ with this court for an order directing the trial court to enter judgment on the verdict and prohibiting the trial court from entering an order granting a new trial. This court denied the petition by an order dated September 22, 1986, pointing out that appeal provided an adequate remedy. See State ex rel. Beaudry v. Panosian, 35 Wis.2d 418, 422, 151 N.W.2d 48, 50 (1967). On September 11, 1986, the Labiszaks filed a petition for leave to appeal the nonfinal order granting the mistrial. The petition did not meet the criteria of sec. 808.03(2), Stats., and was denied. ⁴ The trial court changed venue to Washington County by order entered November 13, 1986. ⁵

On February 5, 1987, the Labiszaks filed a motion with the trial court in Washington County seeking vacatur of the mistrial order, or, alternatively, re-transfer of the case to Milwaukee County. The Washington County circuit court declined to overrule Judge Curley's grant of the mistrial motion, but, by order entered April 23, 1987, returned the case to Milwaukee County. After the Labiszaks' unsuccessful attempts to remove Judge Curley from the case, either by substitution under sec. 801.58, Stats., or by disqualification under sec. 757.19(2)(g), Stats., the matter was set for a September 12, 1988, trial before Judge Curley. On August 5, 1988, following Judge Curley's rotation out of the Milwaukee County circuit court civil division, the Labiszaks filed a motion with the successor judge, the Honorable Patricia D. McMahon, again seeking vacatur of Judge Curley's September 2, 1986, order granting a mistrial. Judge McMahon granted the motion, and entered judgment on the jury verdict. The defendants appeal, and we reverse.

A judge who inherits a case previously handled by another judge "may in the exercise of due care modify or reverse decisions, judgments or rulings of [her] predecessor if this does not require a weighing of testimony given before the predecessor and so long as the predecessor would have been empowered to make such modifications." Starke v. Village of Pewaukee, 85 Wis.2d 272, 283, 270 N.W.2d 219, 224 (1978). If Judge Curley's order granting the mistrial motion and setting the case down for retrial was void under Rule 805.16, Stats. (1985-86), Judge Curley--or any successor judge--could set it aside at any time. See Neylan v. Vorwald, 124 Wis.2d 85, 97-100, 368 N.W.2d 648, 654-655 (1985) (void judgment may be vacated at any time). Thus, the issue here is whether Judge Curley's grant of the defendants' motion for a mistrial was void because the written order was entered more than ninety days after the jury returned its verdict. We conclude that it was.

Rule 805.16, Stats. (1985-86), provided, as material here, that "[i]f an order granting or denying a motion challenging the sufficiency of evidence or for a new trial is not entered within 90 days after verdict, the motion shall be deemed denied." "An order is entered when it is filed in the office of the clerk of court." Rule 807.11(2), Stats. Under these rules, a trial court loses competency to grant a motion for a new trial unless it enters the new-trial order within ninety days of the verdict, even though the new-trial order is based on a pretrial motion that is taken under advisement. Jos. P. Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d 1, 7-10, 312 N.W.2d 813, 815-817 (1981); ⁶ see also Manly v. State Farm Fire & Casualty Co., 139 Wis.2d 249, 252-255, 407 N.W.2d 306, 307-308 (Ct.App.1987) (despite timely decision, trial court loses competency to grant relief after expiration of the ninety-day period when no order is entered--issue of whether nunc pro tunc order could be entered not discussed). An order granting a new trial that is made after the trial court loses competency is void. Jos. P. Jansen Co., 105 Wis.2d at 10, 312 N.W.2d at 817.

In construing statutes we are bound to give effect to the intent of the legislature. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis.2d 112, 133, 406 N.W.2d 764, 772 (1987). It is a well-settled principle of statutory construction that in doing so we resort to extrinsic aids, such as legislative history, only if we initially conclude that the statute under scrutiny is ambiguous. Id. In addition, statutes must be construed in a manner consistent with other relevant statutes. Ford Motor Co. v. Lyons, 137 Wis.2d 397, 449, 405 N.W.2d 354, 375 (Ct.App.1987).

The meaning of the statutory scheme presented in this case is clear and unambiguous. Rule 805.16 (1985-86) provided that an order granting a new trial not entered within 90 days of...