Trachte v. Barrer
| Decision Date | 29 June 1995 |
| Docket Number | No. 94-3107,94-3107 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. John P. TRACHTE, Plaintiff-Appellant, v. Andrew E. BARRER, Defendant, MERITER HOSPITAL, INC., Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
John Trachte appeals from a judgment dismissing his second amended complaint in this medical malpractice action for failure to state a claim on which relief may be granted.
The issues are: (1) whether the trial court's unappealed decision dismissing a substantially identical complaint against a separate defendant earlier in the case stands as the "law of the case" requiring dismissal of the amended complaint; (2) if not, whether the amended complaint states a claim upon which relief may be granted; and (3) whether the trial court erroneously exercised its discretion when it denied Trachte's motion to amend the complaint yet again.
We conclude that the court's earlier decision is the law of the case and requires dismissal of Trachte's second amended complaint. 1 Finally, we are satisfied that the trial court appropriately exercised its discretion in denying Trachte's motion to amend. We therefore affirm the judgment.
After being involved in an automobile accident in March 1989, Trachte began to see Dr. James Schuh, a clinical psychologist, "for psychological counseling." Schuh administered some tests and told Trachte he had suffered "a closed head injury." At some time (undisclosed in any of Trachte's complaints) Schuh referred him to Dr. Andrew Barrer, a member of the neuropsychology staff at Meriter Hospital, for further testing and treatment.
At some (undisclosed) time, Trachte sued his automobile insurer, seeking recovery under the "uninsured motorist" provisions of his liability policy. At some other (undisclosed) time, Barrer told Trachte he was suffering from a brain injury. At various points (none disclosed) during his lawsuit against his insurer, Trachte and his attorney "consulted" with Barrer "with respect to diagnosis and causation." At some unspecified time, described by Trachte as "[s]ubsequent to June 7, 1990," Barrer lost his license to practice medicine in Wisconsin when it was discovered that he had misrepresented his qualifications.
During the litigation, Trachte's insurer retained a neuropsychologist who, after review of Trachte's previous testing, concluded that those tests "did not suggest that Trachte had sustained brain damage." Trachte was subsequently examined by several experts, each of whom concluded that "Trachte's complaints were consistent with a conversion-type disorder" and not a brain injury.
Trachte initially brought this action against Barrer and Meriter in June 1993. His complaint alleged the facts stated above relating to his treatment with Barrer, the events occurring in the course of his automobile-accident lawsuit and the loss of Barrer's license to practice. He stated four claims: one against Barrer for "intentional deceit"; one against Barrer and Meriter for "negligent misrepresentation"; one against Meriter alone for negligence in failing to investigate Barrer's credentials before permitting him to practice on the hospital staff; and one against Barrer for negligently telling him "that [his] cognitive defects were the result of a permanent brain injury." Each claim contained an identical statement of Trachte's claimed injury. In each, he stated that, as a result of either Barrer's fraud or negligence, Barrer's and Meriter's misrepresentations, or Meriter's negligence, he became a patient of Barrer's and "believed what Barrer told him about his condition, pursuing treatment and suffering emotionally as a result thereof, relied on Barrer to be an expert witness on his behalf in the uninsured motorist litigation, and was otherwise damaged all in an amount to be determined at trial."
Approximately two weeks later, Trachte served and filed an amended complaint, adding Dr. Schuh as a defendant for his claimed negligence in advising Trachte that his problem was related to a brain injury. The complaint restated verbatim both the factual and "damage" allegations of his prior complaint, as quoted above.
Schuh moved to dismiss the action against him for failure to state a claim on which relief may be granted. The trial court granted the motion, concluding that the allegations in the complaint stating that Schuh (and Barrer) negligently told him his problem was related to a brain injury and that, as a result, he believed what Schuh (and Barrer) told him, "suffering emotionally as a result thereof," and relying on their statements in his automobile-accident lawsuit, failed to state a claim. The court reasoned that the complaint, even liberally construed: (1) failed to give reasonable notice to Schuh as to the nature of the claim against him; and (2) failed to allege "a physical injury which manifested the alleged mental anguish."
With the trial court's leave, Trachte again amended his complaint, retaining all of the original allegations and adding only a fifth claim against Barrer seeking double damages, punitive damages and attorney fees under the Wisconsin Organized Crime Control Act.
Meriter moved to dismiss Trachte's second amended complaint for failure to state a claim. While the motion was pending, Trachte moved to again amend his complaint to revise both the factual allegations and the damage allegations we have quoted above. The court denied the motion, noting that it came more than one year after the action was filed and that its stated purpose was to "cure any defects" the court might find in response to Meriter's dismissal motion. The court concluded, in essence, that "enough is enough." 2
At the hearing on Meriter's dismissal motion, Trachte orally renewed his motion for leave to amend the second amended complaint. The court, repeating the reasoning of its earlier memorandum decision denying the motion, denied it again. Then, turning to Meriter's motion to dismiss, the court reiterated the points made in its earlier decision on Schuh's motion: (1) that the allegations--which, as indicated, have remained unchanged in all of Trachte's complaints--are insufficient as a matter of law to state a claim for negligence; and (2) in any event, there is nothing in the complaint to indicate a causal connection between Meriter's acts and any damage suffered by Trachte. The court granted Meriter's motion and entered judgment dismissing Trachte's complaint against the hospital.
Meriter argues first that Trachte is precluded from asserting his claims against Meriter because the trial court's ruling on the insufficiency of the allegations attempting to state a claim against Dr. Schuh--which are identical to those Trachte makes against Meriter--is the "law of the case."
The "law of the case" rule states that a " 'decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation.' " State v. Brady, 130 Wis.2d 443, 447, 388 N.W.2d 151, 153 (1986) (quoted source omitted). Meriter also points out that Trachte never appealed Schuh's dismissal and refers us to Haase v. R & P Indus. Chimney Repair Co., 140 Wis.2d 187, 191, 409 N.W.2d 423, 426 (Ct.App.1987), where we held that "[w]hen no appeal is taken ... all provisions of a judgment, and the findings and conclusions upon which it is based, are conclusive and binding upon all parties to the litigation."
Haase was a personal injury action in which a paper company employee, while working with employees of a firm retained to clean a smokestack at the plant, was buried in hot fly ash that had been knocked loose inside the chimney through the activities of employees of another contractor engaged to repair the stack. He sued both the cleaning company and the repair company. The cleaning company sought dismissal from the action on grounds that its employees were not negligent as a matter of law, and the trial court granted the motion. Haase, 140 Wis.2d at 190, 409 N.W.2d at 426. The case continued against the repair company, who requested that the cleaning company be included in the comparative negligence question. Id. at 191, 409 N.W.2d at 426. The trial court denied the motion and we affirmed, concluding that the summary judgment dismissing the plaintiff's claim against the cleaning company "was conclusive and binding upon [the repair company] at later stages of the action." Id. at 193, 409 N.W.2d at 427.
Trachte does not respond to Meriter's argument that Haase is equally applicable here. Pointing to the supreme court's acknowledgement that we have the power to disregard the law-of-the-case rule " 'in the interests of justice,' " Brady, 130 Wis.2d at 447, 388 N.W.2d at 153 (quoted source omitted), he argues that we should do so here because Meriter was not a party to Schuh's earlier motion, and because in addition to questions concerning the sufficiency of the complaint, this appeal "asks the question whether Trachte's first and only substantive attempt to state a claim should be dismissed ... without leave to amend." 3
The fact that Meriter was "not a party" to Schuh's motion is immaterial in light of Haase. And we note that Trachte was a party to the motion, and it is Trachte that Meriter seeks to bind by the earlier ruling. Further, we see no validity in Trachte's contention that justice requires us to re-examine the trial court's prior ruling on the sufficiency of his complaint because he is also claiming a misuse of discretion on the court's part for denying his motion to amend, for the latter question is one to be decided on this appeal.
We may, in our discretion, decline to apply the law-of-the-case rule " 'whenever cogent, substantial, and proper reasons exist' " to...
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