McNeil v. Caro Community Hosp.

• Decision Date: 31 May 1988
• Docket Number: Docket No. 89982
• Citation: 167 Mich.App. 492,423 N.W.2d 241
• Parties: Betty Taylor McNEIL, personal representative of the Estate of Robert A. McNeil, Plaintiff-Appellee/Cross-Appellee, v. CARO COMMUNITY HOSPITAL, Defendant-Appellant, and St. Mary's Hospital, Defendant/Cross-Appellant, and Fay Quines, Defendant. 167 Mich.App. 492, 423 N.W.2d 241
• Court: Court of Appeal of Michigan — District of US

Page 241

423 N.W.2d 241

Betty Taylor McNEIL, personal representative of the Estate of Robert A. McNeil Plaintiff-Appellee/Cross-Appellee, v. CARO COMMUNITY HOSPITAL, Defendant-Appellant and St. Mary's Hospital, Defendant/Cross-Appellant and Fay Quines, Defendant.

Docket No. 89982.

167 Mich.App. 492, 423 N.W.2d 241

Court of Appeals of Michigan.

Submitted Oct. 6, 1987.

Decided April 4, 1988.

Released for Publication May 31, 1988.

[167 MICHAPP 494] Diane M. Freilich, Farmington Hills, for plaintiff-appellee/cross-appellee.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by John P. Jacobs and Christine D. Oldani, Detroit, for Caro Community Hosp.

William E. Jungerheld and Thomas C. Wimsatt, Saginaw, for St. Mary's Hosp.

Before SULLIVAN, P.J., and HOOD and CLEMENTS, ^* JJ.

HOOD, Judge.

Defendant Caro Community Hospital appeals by leave granted from three orders of the Saginaw Circuit Court in this medical malpractice action. These orders are the March 5, 1985, order setting aside a dismissal of the case, the December 20, 1985, order denying Caro's motion for summary disposition, and the December 20, 1985, order compelling Caro to produce certain documents. Defendant St. Mary's Hospital cross-appeals from the order setting aside the dismissal.

On June 20, 1981, at 4:00 a.m. an automobile driven by Robert A. McNeil struck a tree, seriously injuring McNeil. McNeil was taken to Caro Community Hospital's emergency room. Later that morning, he was transferred to St. Mary's Hospital for further treatment, but he was pronounced dead on arrival. On June 17, 1983, plaintiff, Betty Taylor McNeil, the personal representative of the estate of Robert A. McNeil, filed suit against Caro and St. Mary, alleging various acts of negligence in failing to take full life-support measures for McNeil.

[167 MICHAPP 495] Defendants moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), arguing that the complaint failed to state a claim upon which relief could be granted because it did not allege malpractice with sufficient specificity. At the August 8, 1983, hearing on the motion, the parties stipulated that an amended complaint setting forth a more definite statement of the claims against defendants would be filed within thirty days. On December 5, 1983, an amended complaint was filed which contained more detail as to the alleged malpractice of defendants. Defendants again filed motions for summary judgment on the same grounds, and on March 16, 1984, the circuit court granted the summary judgment motions. However, the order provided that plaintiff could file a second amended complaint within thirty days.

On May 10, 1984, the court entered an order dismissing plaintiff's case with prejudice based on plaintiff's failure to file a second amended complaint and on plaintiff's communication, through her counsel, of her consent to the entry of a dismissal with prejudice.

On January 31, 1985, plaintiff moved, through new counsel, to set aside the order of dismissal and permit the filing of her second amended complaint. The motion was made pursuant to GCR 1963, 528.3(6), now MCR 2.612(C)(1)(f). In an affidavit accompanying the motion, plaintiff stated that her former attorney, Barry L. Moon, had not discussed the merits of the case with her, and that Moon did not inform her that the case had been dismissed until some time after May 10, 1984. Plaintiff stated that she did not authorize Moon to dismiss the lawsuit. The court granted plaintiff's motion. The court stated that the affidavit was at that point undisputed, and that plaintiff had met [167 MICHAPP 496] her burden of proving extraordinary circumstances warranting relief from the May 10, 1984, order dismissing her case.

After the court's oral ruling, defendants asserted that they had not disputed the contents of plaintiff's affidavit because they had not received it before the hearing. The court then ruled that defendants would be permitted to depose Moon and move for a rehearing based upon testimony elicited at the deposition. On March 5, 1985, the court entered its order granting plaintiff's motion to set aside the dismissal and ordering that plaintiff would be permitted to file a second amended complaint.

Following Moon's deposition, defendants moved for rehearing on plaintiff's motion to set aside the dismissal. On September 10, 1985, the court issued its opinion on the motion for rehearing. The court concluded that plaintiff's assertion that she did not give Moon authority to dismiss the action was not specifically contradicted by Moon's deposition. The court affirmed its earlier order setting aside the dismissal.

Plaintiff thereafter filed her second amended complaint, and on May 20, 1985, filed a third amended complaint naming Dr. Fay Quines as a defendant.

On November 6, 1985, defendant Caro filed a motion for summary disposition pursuant to MCR 2.116(C)(8), formerly GCR 1963, 117.2(1), alleging that plaintiff had failed to state a claim upon which relief could be granted because her complaint failed to make allegations in avoidance of governmental immunity. The court denied this motion.

On appeal, defendants first claim that the court erred in finding that plaintiff satisfied her burden that reinstatement of the case was proper under [167 MICHAPP 497] GCR 1963, 528.3(6), now MCR 2.612(C)(1)(f). This court rule states:

".3 On motion and upon terms as are just, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding for the following reasons:

* * *

"(6) Any other reason justifying relief from the operation of the judgment."

The decision of the trial court on a motion brought under GCR 1963, 528.3 will not be disturbed on appeal absent a clear showing of an abuse of discretion. Bye v. Ferguson, 138 Mich.App. 196, 360 N.W.2d 175 (1984). Three requirements must be fulfilled before relief may be granted under subsection (6): (1) The reason for setting aside the judgment must not fall under subrules (1) through (5); (2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside; and (3) extraordinary circumstances must exist which mandate setting aside the judgment in order to achieve justice. Lark v. The Detroit Edison Co., 99 Mich.App. 280, 284, 297 N.W.2d 653 (1980), lv. den. 410 Mich. 906 (1981). In general, relief is to be granted only where the judgment was obtained by the improper conduct of the party in whose favor it was rendered. Marshall v. Marshall, 135 Mich.App. 702, 712, 355 N.W.2d 661 (1984).

In the instant case, the order of dismissal was not obtained by improper conduct of the opposing parties; rather, plaintiff's own attorney was at fault. The trial court relied upon Coates v. Drake, 131 Mich.App. 687, 346 N.W.2d 858 (1984), in granting plaintiff relief from the order dismissing her case. In Coates, this Court reversed the trial [167 MICHAPP 498] court's refusal to reinstate the plaintiffs' case where the plaintiffs' attorney settled the plaintiffs' case without the plaintiffs' express or implied consent and forged the plaintiffs' signatures upon releases and the settlement checks. Coates, supra, pp. 689-690, 697, 346 N.W.2d 858. The plaintiffs' attorney then appropriated the money to his own use and signed an order dismissing the case with prejudice. Id., p. 690, 346 N.W.2d 858. The plaintiffs did not find out about the dismissal until approximately nine months later when they called their attorney. Id.

Although we agree that extraordinary circumstances existed in Coates, we do not feel that extraordinary circumstances are present in the instant case to warrant relief. In his deposition, Moon testified that he discussed plaintiff's case with her over the phone at various times, and was under the impression that she agreed that the case should be dismissed. In Coates, this Court noted that the defendants never disputed below that the plaintiffs did not authorize settlement. Coates, supra, p. 690, 346 N.W.2d 858. In the instant case, defendants did...