White v. Fisher, 83-106

• Decision Date: 02 October 1984
• Docket Number: No. 83-106,83-106
• Parties: Theresa WHITE and Crawford White, Appellants (Plaintiffs), v. Alan M. FISHER, M.D.; Phillip Gilbertson, M.D.; and Lutheran Hospital and Homes Society of America, Inc., d/b/a Bishop Randall Hospital of Lander, Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 102

689 P.2d 102

Theresa WHITE and Crawford White, Appellants (Plaintiffs), v. Alan M. FISHER, M.D.; Phillip Gilbertson, M.D.; and Lutheran Hospital and Homes Society of America, Inc., d/b/a Bishop Randall Hospital of Lander, Wyoming, Appellees (Defendants).

No. 83-106.

Supreme Court of Wyoming.

Oct. 2, 1984.

Charles E. Hamilton, Western Law Associates, P.C., Riverton, for appellants.

Robert Shively of Murane & Bostwick, Casper, for appellee Bishop Randall Hospital.

Mark W. Gifford of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees Fisher and Gilbertson.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

THOMAS, Justice.

The question which we shall address in this opinion is that of the constitutional propriety of the enactment of a statute by the legislature prescribing a rule of procedure in civil actions. In a civil action seeking money damages for medical malpractice the district court applied the provisions of § 1-1-114, W.S.1977, which prohibit any allegation of the dollar amount of damages in "the ad damnum clause or prayer for damages incorporated in a pleading." The plaintiffs (appellants in this court) had alleged the dollar amount of their damages, and the district court dismissed their complaint. We hold the statute to be an invasion of the constitutional powers of the judicial branch of government, and we reverse the district court.

The briefs of the parties in this case focus upon two questions to be resolved by the court. The first of these is whether § 1-1-114, W.S.1977, prohibits an allegation of the dollar amount of damages in the body of a complaint. The second question to be resolved is whether the district court should dismiss a complaint if it contains allegations that violate the statute. ¹ We shall not resolve these issues because of our treatment of the question of constitutional powers.

In the complaint which was filed in this case the appellant Theresa White twice alleged general damages in the amount of $500,000, and in one paragraph she alleged special damages in the amount of $10,000. In the count of the complaint setting forth the claim of appellant Crawford White he alleged that he had suffered a loss and injury in the amount of $200,000. The appellees Alan M. Fisher and Phillip Gilbertson did not attack the allegation of monetary damages in their answer. In the separate answer of Lutheran Hospital and Homes Society of America, Inc., a motion to dismiss the complaint "on the ground and for the reason that same fails to state a claim upon which relief can be granted" was incorporated. Another paragraph of the motion described the failure to comply with § 1-1-114, W.S.1977, because dollar amounts were alleged in the ad damnum clause of the complaint. Thereafter the appellants moved to amend the pleadings by deleting the dollar amount allegations, and after the motion to dismiss had been set for hearing the appellees Fisher and Gilbertson filed a motion to dismiss simply stating that they joined in the motion previously submitted by the hospital.

At the hearing on the motion to dismiss the attorney for the appellants stated to the court that the complaint was prepared hurriedly because the statute of limitations was about to run with respect to the claims of the appellants. The attention of the court was called to the motion to amend the complaint, and a suggestion also was made that perhaps the appropriate remedy was a motion to strike under Rule 12(f), W.R.C.P., because a motion to dismiss under Rule 12(b)(6), W.R.C.P., did not appear to be appropriate. The district judge, in comments from the bench, referred to a history of violations of the statute in that district, and, noting that the statute was silent as to a remedy, concluded that the purpose of the statute was to prohibit what was done in this instance. The court then ruled that the motion to dismiss would be granted, and a consistent order was entered on May 10, 1983. The appellants have taken their appeal from that order.

Section 1-1-114, W.S.1977, provides as follows:

"The ad damnum clause or prayer for damages incorporated in a pleading which sets forth a claim for relief based upon personal injury or wrongful death shall not state any dollar amount as alleged damages or demand a sum as judgment other than an allegation that the damages are of an amount necessary to establish jurisdiction of the court. Nothing herein shall be construed to prevent any party from arguing to the court or jury the amount of his claim in money. In all cases the court shall inform the jury of the consequences of its verdict."

We could address the issues posed by the parties by a construction of this statute leading to the conclusion that in this instance it was not violated because the allegation of any dollar amount was not in the concluding prayer for relief, which some authorities would specify as the ad damnum clause or prayer for damages. Jones v. Clark, Wyo., 418 P.2d 792 (1966); Bentley v. Jenne, 33 Wyo. 1, 236 P. 509 (1925); United States Fidelity & Guaranty Company v. Nash, 20 Wyo. 65, 124 P. 269 (1912). Alternatively the issues could be addressed by examining the issues in the light of the appropriate functions of Rules 12(b)(6) and (f) and 41(b) of the Wyoming Rules of Civil Procedure. We then could hold dismissal in an instance such as this is too drastic a remedy, and the court should have ordered the offending allegations stricken and afforded the plaintiffs an opportunity to amend. We perceive those solutions, however, as simply inviting the legislature to make some appropriate adjustment in the language of the statute. Because of the premise on which we dispose of this case that would be a futile exercise.

Even though these parties have not raised the question of constitutionality, this court has the power to dispose of that question:

"We are not a bit concerned that the matter of judicial estoppel was not raised in the lower court or argued by either of the parties. This court has superintending control over all the courts of the state [citing § 2, Art. 5, Wyoming Constitution] and the Wyoming judicial system in general. It is our duty to protect its integrity and prohibit dealing lightly with its proceedings. We are at liberty to decide a case upon any point which in our opinion the ends of justice require [State Highway Commission v. Triangle Development Company, Wyo., 369 P.2d 864 (1962), on rehearing 371 P.2d 408], particularly on a point so fundamental that we must take cognizance of it. [Oedekoven v. Oedekoven, Wyo., 538 P.2d 1292, 1295 (1975) ]." Allen v. Allen, Wyo., 550 P.2d 1137, 1142 (1976).

We recognize the principle articulated in Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310 (1980), cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980):

"Courts have a duty to uphold the constitutionality of statutes which the legislature has enacted if that is at all possible, and any doubt must be resolved in favor of constitutionality. Witzenburger v. State, Wyo.1978, 575 P.2d 1100, 1112; Lund v. Schrader, Wyo.1971, 492 P.2d 202, 206. Though the supreme court has the duty to give great deference to legislative pronouncements and to uphold constitutionality when possible, it is the court's equally imperative duty to declare a legislative enactment invalid if it transgresses the state constitution. Witzenburger, supra, 575 P.2d at 1114. In our consideration of this case, we have consistently kept these basic principles in mind to avoid a declaration of unconstitutionality--but doubt is not present."

We also are cognizant of our duty in any case in which the constitutionality of a statute is in issue:

"It is this court's obligation to make sense out of a statute and give full force and effect to the legislative product. Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979). In construing statutes the intention of the law-making body must be ascertained from the language of the statute as nearly as possible. Wyoming State Treasurer v. City of Casper, Wyo.1976, 551 P.2d 687. We must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation." McGuire v. McGuire, Wyo., 608 P.2d 1278, 1283 (1980).

Even with these concepts before us we are compelled to consider the constitutionality of the statute in this instance because of its apparent infringement upon the doctrine of separation of powers.

The procedural tenor of the statute is perhaps best recognized by treating with the manner in which it conflicts with several rules of this court. Rule 8(a), W.R.C.P., requires a pleading which sets forth a claim to contain a short and plain statement of the claim, demonstrating that the parties are entitled to relief, and a demand for judgment for the relief claimed. The general rule is that in order to allege facts sufficient to constitute a cause of action a pleading normally must set out the amount of damages sustained in either a definite amount or afford a basis on which they may be estimated. See 25 C.J.S. Damages § 130(a), p. 1175, and cases cited therein. Rule 54(c), W.R.C.P., dealing with default judgments, provides for the entry of default but it shall not be different in kind from or exceed in amount that prayed for, and in order to apply that rule the allegation of money damages is required. Rule 9(g), W.R.C.P., requires the specific statement of items of special damages claimed. See Hein v. Marcante, 57 Wyo. 81, 113 P.2d 940 (1941); Henderson v. Coleman, 19 Wyo. 183, 115 P. 439 (1911). We also note that the official forms which accompany the Wyoming Rules of Civil Procedure reflect that specific money amounts for damages are to be included.

Article V, § 2 of the Constitution of the State of Wyoming, provides:

"The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general...