Neumann v. Arrowsmith

• Decision Date: 27 February 2007
• Docket Number: No. 101,684.,No. 101,650.,101,650.,101,684.
• Parties: Joy NEUMANN, surviving spouse of Robert Neumann, deceased, Plaintiff/Appellee, v. D.L. ARROWSMITH, D.O., and Radiological Services, Inc., Defendant/Appellants, and Jane Phillips Medical Center, Defendant.
• Court: Oklahoma Supreme Court

164 P.3d 116

2007 OK 10

Joy NEUMANN, surviving spouse of Robert Neumann, deceased, Plaintiff/Appellee, v. D.L. ARROWSMITH, D.O., and Radiological Services, Inc., Defendant/Appellants, and Jane Phillips Medical Center, Defendant.

No. 101,650.

No. 101,684.

Supreme Court of Oklahoma.

February 27, 2007.

Rehearing Denied June 26, 2007.

Certiorari to the Court of Civil Appeals, Division IV; Honorable Janice P. Dreiling, Trial Judge.

¶ 0 After Robert Neumann (Neumann) died, his wife, the appellee, Joy Neumann (wife), on behalf of her deceased husband, brought a medical malpractice action against the appellants, D.L. Arrowsmith (doctor) and his employer, Radiological Services, Inc. (employer). The jury returned a unanimous verdict for the doctor and his employer. The wife filed a motion for a new trial, alleging juror misconduct. The trial court granted the motion and the Court of Civil Appeals affirmed. We hold that under the facts presented, the motion for a new trial was the functional equivalent of a timely motion to vacate and that the trial court did not abuse its discretion in vacating its judgment and granting a new trial.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Anthony M. Laizure, Scott Allen, Tulsa, OK, for Appellee.

Brian J. Goree, Douglas E. Stall, Tulsa, OK, for Appellants Arrowsmith, and Radiological Services.

KAUGER, J.

¶ 1 The issues presented are: 1) whether, under the facts presented, the motion for new trial filed eleven days after the judgment was filed was timely; and 2) if so, whether the trial court abused its discretion in granting a new trial. We hold that under the facts presented, the motion for new trial was the functional equivalent of a timely motion to vacate and the trial court did not abuse its discretion vacating its judgment and granting a new trial.¹

FACTS

¶ 2 On April 9, 1999, Robert Neumann (Neumann) went to Dr. Gerald Reed, D.O., for a routine physical examination to establish a relationship with Dr. Reed (physician) as a primary care physician. During the examination, the physician ordered x-rays. The appellant, Dr. Arrowsmith, D.O. (doctor), examined the chest x-rays, but made no recommendations for treatment or for further testing. Six months later, on November 11, 1999, Neumann was in an automobile accident, and an x-ray taken incident to the accident indicated that Neumann had a 2.5 cm tumor on his left lung. In December of 1999, Neumann was advised that the cancer had spread to his brain. Neumann died on March 11, 2001.

¶ 3 On November 14, 2001, the appellee, Neumann's wife, Joy Neumann (wife), commenced an action for medical negligence on behalf of her deceased husband against the doctor and his employer, Radiological Services, Inc. (employer).² The wife alleged that the doctor failed to diagnose and treat her husband's cancer.

¶ 4 After the trial, the jury returned a unanimous verdict for the doctor and his employer. The journal entry of judgment was entered in favor of the doctor and his employer and filed on June 16, 2004. The certificate of service indicates that a copy of the judgment was sent to the wife by both facsimile and by regular mail on June 21, 2004 — which was within three days of the filing of the judgment.³ The certificate of service was filed four days later on June 25, 2004.

¶ 5 On July 1, 2004, the wife filed a motion for a new trial, alleging that the jury foreperson, Keith McNickle (McNickle), provided untruthful and incomplete answers during voir dire. During voir dire, the trial court asked the jury panel whether any juror had been a party to a lawsuit other than a divorce proceeding. McNickle replied that he had been a plaintiff in a minor personal injury claim which had been settled out of court to his satisfaction. After the verdict, the wife produced documents which revealed that McNickle was the non-prevailing party in another lawsuit, McNickle v. Phillips Petroleum Co. 2001 OK CIV APP 54, 23 P.3d 949.⁴

¶ 6 The doctor and his employer argued that the new trial motion was untimely under 12 O.S.2001 § 653⁵ because it was filed eleven days after the judgment was filed. The wife insisted that her new trial motion was timely because: 1) it was filed fewer than ten days after the certificate of service was filed; 2) she was entitled to three additional days to file under 12 O.S.2001 § 2006 (D);⁶ or in the alternative, 3) the motion should be construed as a timely filed motion to vacate under 12 O.S.2001 § 1031.1 (A).⁷ She argued that McNickle's untrue and incomplete statement regarding his lawsuit against his employer was grounds for a new trial. The trial court granted the wife's motion on December 28, 2004. The doctor and his employer appealed, and the Court of Civil Appeals affirmed. We granted certiorari on September 18, 2006.

¶ 7 UNDER THE FACTS PRESENTED, THE MOTION FOR A NEW TRIAL IS THE FUNCTIONAL EQUIVALENT OF A MOTION TO VACATE AND THE TRIAL COURT DID NOT ERR IN VACATING ITS JUDGMENT AND GRANTING A NEW TRIAL.

¶ 8 The wife's argument that the Court should treat her motion as a timely motion to vacate under 12 O.S.2001 § 1031.1 (A) is dispositive.⁸ The doctor offers no counter explanation as to why the motion could not qualify as a motion to vacate. The meaning and effect of an instrument filed in court depends on its contents and substance rather than on the form or title given it by the author.⁹ In this instance, the wife's "motion for new trial" is the functional equivalent of a timely motion to vacate under § 1031.1(A).

¶ 9 Trial courts retain plenary control, or "term-time authority," over terminal decisions for a limited time period.¹⁰ Section 1031.1(A) sets the time period for invoking term-time authority at thirty days and does not restrict the exercise of term-time authority to any specific grounds.¹¹ A trial court may exercise its term-time authority with a very wide and extended discretion that is almost unlimited.¹² The standard of review for a timely granted § 1031.1(A) motion is whether sound discretion was exercised on sufficient cause shown to vacate, modify, open, or correct the earlier decision or to refuse the relief sought.¹³

¶ 10 The doctor and his employer argue that the trial court erred in granting the wife's motion because McNickle was not untruthful in his answers during voir dire, and was not guilty of misconduct.¹⁴ Alternatively they insist that if McNickle's answers did constitute misconduct, the misconduct was not a sufficient basis upon which to grant a new trial.

¶ 11 A material omission can be just as powerful an untruth as an affirmative material misstatement. In Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, 928 P.2d 291, we reversed a trial court's refusal to grant a new trial when a juror failed to provide complete and accurate information about his involvement in prior litigation.

¶ 12 We noted that the false answers deprived the parties of an opportunity to delve deeper into the juror's qualifications, including possible prejudice during voir dire, thereby depriving counsel of an opportunity to question the juror about the effect of previous lawsuits and whether the juror could impartially consider the case to determine whether the juror should be challenged either peremptorily or for cause. Consequently, we held that an omission, even if accidental concerning a juror's possible bias, entitled the moving party to a new trial.¹⁵

¶ 13 Here, the jury was asked by the trial court if any member had been involved in a lawsuit other than a divorce.¹⁶ McNickle answered that he had been a plaintiff in a case involving an automobile accident, but he failed to mention his involvement in the McNickle case.¹⁷ While McNickle's omission may have been inadvertent, he did not give a complete and accurate answer to the question posed by the trial court. The wife's evidence reasonably supports the trial court's finding that McNickle was guilty of misconduct.¹⁸

¶ 14 In Stillwell v. Johnson, 1954 OK 189, 272 P.2d 365, we affirmed a trial court's order granting a new trial on the grounds of juror misconduct. Both parties' counsel asked the jury during voir dire whether any juror had been a party to an action for damages arising out of an automobile collision, and one juror failed to mention that he had.¹⁹ We decided there that the inaccurate answer "deprived the plaintiff of further inquiry as to the attitude of the prospective juror toward those who prosecute damage suits."²⁰

¶ 15 Likewise, McNickle's inaccurate answer prevented the wife from making further inquiry into McNickle's attitude. We find that McNickle's failure to mention that he was the unsuccessful plaintiff in an action for damages constituted sufficient grounds for the trial court to grant the new trial.

CONCLUSION

¶ 16 The trial court granted the wife's timely motion to vacate. A trial court has wide discretion as to whether to grant a motion to vacate, and we will not disturb such a ruling absent a clear showing of an abuse of discretion. There is no error in the instant cause. The trial court properly granted the widow's motion to vacate based on juror misconduct.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

EDMONDSON, V.C.J., OPALA, KAUGER, WATT, COLBERT, JJ., concur.

HARGRAVE, J., concurs in result.

WINCHESTER, C.J., LAVENDER, TAYLOR, JJ., dissent.

1. Because the motion for new trial is treated as the functional equivalent as a motion to vacate, we need not address whether the motion was timely filed as a motion for new trial under 12 O.S.2001 § 653.

2. The wife also named Jane Phillips Medical Center, Dr. Gerald Reed, D.O., and Dr. S.A. Kirkpatrick, M.D., as defendants, but later dismissed them without prejudice before trial.

3. The journal entry of judgment was filed on Wednesday, June 16, 2004. A copy of the judgment was mailed on Monday, June 21, 2004. Not including weekends, the mailing was made within three...