Puppolo v. Donovan & O'Connor, LLC

• Decision Date: 07 November 2011
• Docket Number: No. 10–230.,10–230.
• Citation: 2011 VT 119,35 A.3d 166
• Court: Vermont Supreme Court
• Parties: Celeste PUPPOLO, Executor of the Estate of Eva C. Puppolo v. DONOVAN & O'CONNOR, LLC and Chris S. Dodig.

2011 VT 119

35 A.3d 166

Celeste PUPPOLO, Executor of the Estate of Eva C. Puppolo

v.DONOVAN & O'CONNOR, LLC and Chris S. Dodig.

No. 10–230.

Supreme Court of Vermont.

Nov. 7, 2011.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and BENT, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiff, Estate of Eva C. Puppolo, appeals a jury verdict in favor of defendant in this legal malpractice action. Plaintiff claims that the trial court erred in denying a motion to withdraw her counsel, that she was denied a fair trial when the court allowed defendant attorney to testify to the merits of the underlying medical malpractice action, and that the trial court improperly admitted expert testimony that exceeded the scope of the defendant's expert disclosure. We affirm.

¶ 2. On February 25, 2003, plaintiff's aunt Eva died from heart failure at the age of eighty-three while a resident at the Crescent Manor Care Center. Plaintiff arrived minutes after her death, saw Fentanyl patches on Eva, and concluded that her aunt died of an overdose of Fentanyl. According to Eva's primary care doctor, Fentanyl was prescribed to manage increasing pain from a severe pressure ulcer on Eva's back.

¶ 3. Plaintiff reported the circumstances of her aunt's death to the Bennington Police and requested that an autopsy be conducted. The Chief Medical Examiner of the State of Vermont conducted the autopsy and concluded Eva had died of natural causes. At his deposition, the medical examiner stated, “Basically she died of complications from heart disease from hardening of the arteries and high blood pressure.” After completing its investigation, the police department closed the case.

¶ 4. Plaintiff also filed a complaint related to her aunt's death with the Department of Aging and Disabilities (DAD). The DAD conducted an unannounced investigation at Crescent Manor “to determine if the facility was in violation of any [s]tate or [f]ederal regulations governing the operation of nursing homes.” The investigator found no regulatory violations and concluded that, despite the fact that the facility had used methods of intervention to prevent “skin breakdown,” Eva's overall medical condition made the development of pressure ulcers “unavoidable.”

¶ 5. Plaintiff, unpersuaded by the results of these investigations, consulted with defendant about bringing wrongful death and survivorship claims against Crescent Manor and the attending physicians. However, in light of the autopsy report, and the conclusions of the police and DAD investigations, defendant declined to take the case. In so declining, defendant told plaintiff that the limitations period for the survival action began to accrue when she was appointed executor of the estate. Defendant concedes that this statement was incorrect and that the limitations period had actually begun to accrue two months earlier, when the original executor was appointed. Defendant also concedes that he failed to specifically notify plaintiff of the two year limitations period for the wrongful death action, which expired on February 25, 2005.

¶ 6. Plaintiff filed a complaint against Crescent Manor and the physicians through another attorney on February 6, 2006. Both claims were dismissed on summary judgment as time-barred. On February 20, 2008, plaintiff brought the present legal malpractice action against defendant, claiming that her reliance on his legal advice deprived her of the opportunity to pursue wrongful death and survivorship claims for her aunt's death.

¶ 7. Shortly before jury draw in the underlying action, on December 31, 2009, plaintiff contacted her legal malpractice attorney by email and requested that he withdraw his appearance. Counsel filed his motion to withdraw on January 4, 2010, one day before the scheduled jury draw. The trial court held the jury draw and reviewed the motion the next day, although plaintiff was not in attendance. The court declined to issue a decision on the motion, however, noting that plaintiff was not present and had not received adequate notice of a potential hearing. The court then issued an entry order scheduling a hearing on the matter for January 14, 2010, the first day of trial, and mailed a copy of the order directly to plaintiff. The order read in pertinent part: “[T]he [c]ourt will set [p]laintiff's counsel's motion to withdraw at the outset of the scheduled trial on January 14, 2010. Plaintiff and counsel should be prepared to proceed with the trial in the likely event that the [c]ourt finds no good cause for either last-minute substitution of counsel, or any associated request for a continuance.” ¹

¶ 8. On January 12, 2010, two days before the hearing and trial, plaintiff filed a pro se motion to recuse the trial judge.² Her counsel had refused to seek this disqualification. The following day, the chief administrative judge issued an order to replace the trial judge “as a matter of judicial expediency but without a determination that [p]laintiff ha[d] established grounds for recusal.” The judge noted that because it was the “eve” of trial there was not sufficient time to consider the motion, and “to add further complexity, the motion [wa]s purportedly based on an ‘exhibit,’ which the [court] ha[d] yet to receive.”

¶ 9. Plaintiff's counsel's motion to withdraw was thus heard by the replacement judge on the first morning of trial. Plaintiff appeared and asserted dissatisfaction with then counsel on several grounds. She first complained that there had been “some major tactical disagreements” regarding an attempted mediation on November 16, 2009. The trial court did not allow plaintiff to elaborate on these “tactical disagreements,” explaining that the mediation proceedings were confidential. She also complained of her attorney's choice of expert witness. While plaintiff conceded that both her preferred expert and the expert her attorney eventually hired came to the same conclusion—that her aunt had died of a Fentanyl overdose—she felt her expert was “more definitive,” “not wimpy,” and “very staunch in his opinion.” Her attorney explained that he had made a “plurality of attempts” to contact plaintiff's preferred expert, but having received no response, retained another whom he considered “just as competent” and capable of providing “everything” he needed for expert testimony. Plaintiff took further issue with her counsel's decision not to pursue a claim that certain of her aunt's medical records had been falsified and with his failure to seek disqualification of the trial judge. Finally, plaintiff claimed that she had come to question her attorney's competence because he allegedly forgot “a very important detail” regarding the severity of her aunt's coronary artery disease.

¶ 10. The trial court denied plaintiff's counsel's motion to withdraw, explaining that “[a]fter a case is set for trial, leave to withdraw [under V.R.C.P. 79.1(f) ] ‘will be granted only for good cause shown.’ ” The court noted that “[w]hether ‘good cause’ exists is determined on a case-by-case basis under the particular circumstances of that case.” The court reasoned that because the judge that plaintiff sought to recuse was no longer sitting on the case, the point was moot and “d[id] not go to the issue of [c]ounsel's ability to present the case.” The court observed that the rest of plaintiff's arguments primarily concerned strategic disagreements, and noted that trial strategy is traditionally within the attorney's discretion. The court concluded that in making these strategy decisions the attorney acted within his discretion.

¶ 11. The court was likewise unconvinced by plaintiff's allegation that her attorney was incompetent and noted that the attorney “demonstrated a grasp of the facts and an impressive ability to recall dates and details of the case.” The court concluded that “[p]laintiff failed to demonstrate good cause for allowing her attorney to withdraw at the start of a complex legal malpractice trial,” and that “[t]o grant this motion and allow [p]laintiff time to obtain new counsel would unfairly burden and inconvenience [d]efendant, the jurors and the [c]ourt.” After a trial, the jury found in favor of defendant. Plaintiff now appeals.

¶ 12. On appeal, plaintiff first contends that the trial court erred in denying the motion to withdraw counsel under Rule 79.1(f) because she did not have appropriate notice of the January 14, 2010 hearing. Plaintiff concedes that she received the entry order from the January 5, 2010 hearing, but complains that the entry order was “confusing” and that she did not understand that a hearing would be held on January 14. Rule 79.1(f) provides that “[n]o motion to withdraw shall be considered by the court until the party has been given notice of the motion and the date and time of hearing thereon by the clerk.” The court's January 5 order read in pertinent part: “the [c]ourt will set [p]laintiff's counsel's motion to withdraw at the outset of the scheduled trial on January 14, 2010.” This order unambiguously sets the date and time for the hearing on plaintiff's motion, and plaintiff concedes she received the order. Thus, the order complies with the notice requirements of Rule 79.1(f).

¶ 13. Plaintiff also claims that the January 14, 2010 hearing on the motion to withdraw failed to meet the promptness requirements implicit in Rule 79.1(f). Rule 79.1 is silent on how soon a hearing must be provided, but plaintiff argues that, because her right to have the counsel of her choice is implicated, constitutional due process must be satisfied and a hearing on a motion to withdraw must be held promptly and in a meaningful manner. Plaintiff failed to raise this issue below, and in order “to properly preserve an issue for appeal a party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it.” In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (quotation omitted...