Vanasse v. Ramsay

• Decision Date: 26 February 1993
• Docket Number: No. 92-85,92-85
• Citation: 847 P.2d 993
• Parties: Candace VANASSE, Petitioner, v. William J. RAMSAY, M.D. and Teton Eye Clinic, Respondents.
• Court: Wyoming Supreme Court

Page 993

847 P.2d 993

Candace VANASSE, Petitioner, v. William J. RAMSAY, M.D. and Teton Eye Clinic, Respondents.

No. 92-85.

Supreme Court of Wyoming.

Feb. 26, 1993.

James R. McCarty, Casper, for petitioner.

John C. Brooks and John I. Henley of Vlastos, Brooks & Henley, P.C., Casper, for respondents.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

GOLDEN, Justice.

A Writ of Certiorari was granted petitioner, Candace Vanasse, to consider two specific issues regarding the district court's order setting aside an entry of default and a default judgment in favor of petitioner. Our answers to these questions demand a reversal of the district court's order.

ISSUES

This court granted a Petition for Writ of Certiorari to answer the following questions:

1. Whether Wyo.R.Civ.P. 55(b), in an application for a judgment after an entry of default, requires a formal, written document that informs the Court of the relief being sought, or whether it merely requires an oral request to the court for a hearing and permission to put on evidence?

2. Once the district court enters a judgment by default under Wyo.R.Civ.P. 55(b), whether the court can subsequently vacate or amend the judgment earlier entered?

FACTS

Candace Vanasse was treated by W.J. Ramsay, M.D., through the Teton Eye Clinic from May 1989 through January 1990 for vision problems, diagnosed as glaucoma in her left eye. At the beginning of her treatment, the petitioner's visual acuity was 20/20. As the treatments progressed, petitioner's condition deteriorated, and Dr. Ramsay performed laser surgery on her left eye in late December 1989. Following the surgery, petitioner experienced bleeding in her eye, continued pressure and cosmetic damage giving her a droopy, glassy looking "fish eye." Vanasse was subsequently referred to a physician in Utah, and a second surgery was performed to relieve the pressure. The visual acuity in her left eye is now permanently 20/200, which is considered legal blindness.

Ms. Kathleen Sutton, a liability claims representative for Midwest Medical Insurance Company, insuring W.J. Ramsay, M.D., and Teton Eye Clinic (defendants), was first notified of the potential claim by letter from petitioner's attorney on April 29, 1991. Correspondence and settlement negotiations ensued between the parties. On November 13, 1991, Vanasse filed an action claiming medical negligence on the part of Dr. Ramsay and Teton Eye Clinic. Petitioner sought damages for expenses for medical care and treatment; past, present and future pain and suffering; loss of wages and earning capacity; permanent scarring; disability; disfigurement; loss of vision in her left eye; and loss of enjoyment of life. Defendants were served with a summons and the complaint on November 19, 1991, with notice of the twenty-day limit in which to file an answer. On December 13, 1991, petitioner's counsel informed Sutton of names of potential defense counsel to obtain in Wyoming. No answer or pleading was filed by either defendant; consequently, petitioner sought default which was entered against the defendants by the clerk of court on December 24, 1991. In late December, petitioner's counsel contacted the district court judge by telephone to arrange a default judgment

hearing. On January 2, 1992, petitioner filed an affidavit with attached exhibits to support her claim for damages against defendants. Upon consideration of the entry of default and Vanasse's affidavit and testimony in court, the district court judge entered a default judgment on January 2, 1992, against defendants for $500,000, plus costs. In entering the judgment, the court found:

1. There has been proper service upon each of the Defendants.

2. Both Defendants are now in default for having failed to answer or otherwise plead to the Complaint.

3. The Plaintiff has made proper application for Judgment under the provisions of Rule 55(b)(2), Rules of Civil Procedure. (emphasis added).

On January 2, 1992, forty-four days after the complaint had been served, Sutton contacted Wyoming counsel for representation; six days later she mailed to counsel all materials concerning the case. These materials were received by counsel on January 14. On January 17, 1992, defendants filed an answer to petitioner's complaint and a motion to set aside the entry of default and the default judgment, pursuant to Rules 55(c) and 60(b) of the Wyoming Rules of Civil Procedure. ¹ The district court issued an Order Setting Aside Default Judgment and Default on April 27, 1992, with the following specific findings:

14. Ms. Sutton acted very casually and carelessly in her handling of this matter on behalf of the insurance company and the Defendants.

15. Rule 55(a)(ii) W.R.C.P. provides the requirement for the Plaintiff to obtain a default judgment in this matter:

"... The party entitled to a judgment by default shall apply to the Court therefor (emphasis added); ..." [emphasis in original].

* * * * * *

The Rule further provides that for good cause showing the Court may set aside an entry of default and if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

16. Rule 60(b) W.R.C.P. provides for the following grounds for setting aside a default judgment applicable to this case: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) any other reason justifying relief from the operation of the judgment.

* * * * * *

22. A litigant is not necessarily entitled to relief under Rule 60(b)(vi) (exceptional circumstances) solely because his counsel was grossly negligent. Hochhalter v. Great Western Enterprises, 708 P.2d 666 (Wyo.1985). This Court takes the position that if it would not apply to gross negligence of an attorney, it certainly would not apply to gross negligence of an insurance company.

23. An appearance in an action involves some submission or presentation to the Court by which a party shows his intention to submit himself to the jurisdiction of the Court. Hochhalter v. Great Western Enterprises, 708 P.2d 666 (Wyo.1985). There was no such appearance by the Defendants in this matter prior to the entry of the Default Judgment.

24. Settlement discussions well before the Complaint was filed do not constitute an appearance under Rule 55(b)(ii).

25. A motion for relief from a judgment for mistake, inadvertence, surprise, or excusable neglect must clearly [be] substantiated by adequate proof, and the burden is on the movant to bring himself within the Rule. [citation omitted] There has been no such showing in this case by the Defendants.

26. A party in default is generally required to demonstrate a meritorious defense to an action as a prerequisite to vacating a default judgment. U.S. Aviation, Inc., v. Wyoming Avionics, 664 P.2d 121 (Wyo.1983). The Defendants have shown the existence of a meritorious defense in this action.

* * * * * * 29. To "apply" has been defined as to make a formal request or petition, usually in writing to a court for the granting of some order. Black's Law Dictionary.

30. The Plaintiff made no application in a formal sense for a judgment by default in this matter. That requirement under the Rule is mandatory and is deemed by this Court to be fatally defective and therefore does not require the Court to consider any other reasons for setting aside the default in this case. (emphasis added).

Petitioner requested a rehearing claiming that proper application had been made to the court for judgment and that even if she failed to do so, the procedural error should only affect the judgment and not the entry of default which was prior to any supposed error. The court denied the motion on May 1, 1992. Petitioner then sought a writ of certiorari to issue against the district court judge which was granted by this court.

STANDARD OF REVIEW

The district court granted defendants relief from the entry of default and the default judgment by applying Wyo.R.Civ.P. 55(c) and 60(b). We recognize the wide discretion of the trial court under these rules and note that that discretion will not be disturbed "unless appellant demonstrates that the trial court abused it and was clearly wrong." Claassen v. Nord, 756 P.2d 189, 193 (Wyo.1988). In considering our standard of review for motions made under Rule 60(b), we have said:

The granting of relief under this subdivision [Rule 60(b)(1) ] is a matter of the exercise of discretion by the trial court, and appellate review is limited to the question of whether the trial court abused its discretion. U.S. Aviation, Inc. v. Wyoming Avionics, Inc., Wyo., 664 P.2d 121 (1983).

Carlson v. Carlson, 836 P.2d 297, 301 (Wyo.1992) (quoting S.C. Ryan, Inc. v. Lowe, 753 P.2d 580, 582 (Wyo.1988)). See also, Spitzer v. Spitzer, 777 P.2d 587, 592 (Wyo.1989); State ex rel. TRL by Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989); Claassen, 756 P.2d at 193; Hochhalter v. Great Western Enter., 708 P.2d 666, 668 (Wyo.1985); Booth v. Magee Carpet Co., 548 P.2d 1252, 1254 (Wyo.1976).

We have stated:

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.

Martin v. State, 720 P.2d 894, 897 (Wyo.1986) (citation omitted). We agree that "[a]n abuse of discretion need [not] be glaring to justify reversal." Coon v. Grenier, 867 F.2d 73, 76 (1st Cir.1989). Sound discretion must be applied so as to "give effect, 'not * * * to the will of the judge, but to that of the law.' " Federal Enter. v. Frank Allbritten Motors, 16 F.R.D. 109, 112 (W.D.Mo.1954).

We note that:

Judicial discretion is necessarily broad--but it is not absolute. Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.

Coon, 867 F.2d at...