Zimzores v. Veterans Admin.

• Decision Date: 13 December 1985
• Docket Number: No. 85-2245,85-2245
• Parties: Basil ZIMZORES a/k/a Bill Zim, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 264

778 F.2d 264

4 Fed.R.Serv.3d 8

Basil ZIMZORES a/k/a Bill Zim, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, et al., Defendants-Appellees.

No. 85-2245

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1985.

Kosub & Langlois, James A. Kosub, San Antonio, Tex., for plaintiff-appellant.

Helen M. Eversberg, U.S. Atty., Jack B. Moynihan, Asst. U.S. Atty., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, GARWOOD, and E. GRADY JOLLY, Circuit Judges.

OPINION

GARWOOD, Circuit Judge:

Basil Zimzores, plaintiff-appellant in this Federal Tort Claims Act suit for damages for alleged negligent medical misdiagnoses of his condition by the Veterans Administration, appeals the district court's take-nothing judgment rendered against him following a bench trial. Appellant's sole claim on appeal is that the district court erroneously set aside a prior interlocutory summary judgment in his favor on the issue of liability only. Finding this contention to be wholly without merit, we affirm.

Proceedings Below

Plaintiff filed this suit in 1980, alleging a misdiagnosis of hepatitis in 1947, and a further misdiagnosis in 1964 of Gilbert's syndrome, with a final diagnosis in 1978 of thalassemia. Plaintiff claimed that the 1947 and 1964 misdiagnoses caused him severe depression and related mental illness. The defendants, after filing an answer which, among other things, denied any negligence, moved to dismiss the complaint under Fed.R.Civ.P. 12(b) on the ground that the action was barred by the two-year statute of limitations, 28 U.S.C. Sec. 2401(b). In August 1982, the district court granted this motion and dismissed the suit, the court's action not reflecting that it considered any matters outside of the face of the pleadings. Plaintiff appealed the dismissal, and this Court, in an unpublished opinion issued in July 1983, affirmed in part and reversed in part. We held that the alleged 1947 misdiagnosis was barred by limitations, since the complaint reflected that the plaintiff was informed of this misdiagnosis in 1964, when the diagnosis was changed. However, we held that the Rule 12(b) dismissal as to the alleged 1964 misdiagnosis was improper because the complaint alleged that plaintiff did not learn of the claimed error in his 1964 diagnosis until less than two years before his claim was submitted to the Veterans Administration. We also held in this regard that the complaint did not affirmatively show that plaintiff suffered no damage on account of the alleged 1964 misdiagnosis. Accordingly, we remanded the case as to the claim concerning the 1964 diagnosis, stating however, "[W]e do not suggest that the remaining claim may not be proved to be time-barred either upon a proper Rule 56 record or at a trial of the full case or of the limitation issue alone."

Following our remand, the district court entered an order requiring each party to submit a motion for summary judgment. Each party did so, the defendants' motion being based in part on the contention that the plaintiff's deposition showed that he suffered no damages as a result of the 1964 and 1978 diagnoses. Thereafter, by order dated October 18, 1983, the district court granted plaintiff's motion for summary judgment as to the issue of liability, overruled it as to the issue of damages, and ordered that the case be set for trial on the issue of damages. On October 28, 1983, the defendants filed a motion for reconsideration of this order pointing out, among other things, that there was a genuine issue of material fact as to whether there was any negligence. By order dated December 15, 1983, the district court denied the defendants' motion for reconsideration. On February 8, 1984, the defendants filed a notice of appeal from the latter order. On February 27, 1984, realizing that the order in question was interlocutory and not appealable, the defendants moved to dismiss the appeal, and it was accordingly dismissed on March 8, 1984. In the interim, the district judge previously handling the case resigned his office, and the case was accordingly assigned to another district judge. On April 24, 1984, the defendants moved the district court, purportedly pursuant to Fed.R.Civ.P. 60(b), to vacate its orders of October 18, 1983, and December 15, 1983, asserting that those orders had been based on the district court's misconception that the defendants had admitted liability. On July 27, 1984, the district judge to whom the case had been reassigned granted the defendants' motion to vacate the October 18, and December 15, 1983, orders, stating that "[t]his Court believes that a summary judgment on liability in a tort case should be granted in only rare situations. This is not one of those situations."

Several months later, the district court set the case for trial, and after hearing the evidence made findings of fact and conclusions of law adverse to the plaintiff, and rendered judgment dismissing the suit. The court found, among other things, that "[p]laintiff was not misdiagnosed or mismanaged in 1964 or 1978," that "[t]he failure to diagnose thalassemia minor in 1964 was not negligent," and that "[n]either the diagnosis of Gilbert's syndrome in 1964 nor the diagnosis of thalassemia minor in 1978 proximately caused plaintiff's mental condition." No question is raised concerning the sufficiency of the evidence to support these findings, nor is it claimed that the findings do not properly support the judgment dismissing the complaint.

Discussion

As indicated, appellant's sole complaint is of the July 1984 order setting aside the previous summary judgment in his favor on the issue of liability only. The sole ground for complaint respecting this order is that the defendants did not meet their burden under Fed.R.Civ.P. 60(b) to entitle them to such relief. Appellant asserts that Rule 60(b) relief is "extraordinary" and available "only by showing exceptional circumstances." Defendants-appellees respond by urging that they made an adequate showing to justify relief under Rule 60(b). Unfortunately, these contentions largely miss the point.

The complained of July 1984 order is not (and indeed does not expressly purport to be) one based on Rule 60(b). By its own terms, Rule 60(b) is limited to relief from a "final" judgment or order. "Interlocutory orders and judgments are not within the provisions of 60(b), but are left within the plenary power of the court that rendered them to afford such relief from them as justice requires." 7 Moore's Federal Practice p 60.20 at 60-170 (2d ed. 1985). As we stated in Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir.1970), "an interlocutory order" is "not subject to being vacated under Rule 60(b)," but "because the order was interlocutory, 'the court at any time before final decree [could] modify or rescind it.' John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475 (1922)."

Here the summary judgment on the issue of liability alone was plainly interlocutory. Rule 56(c), Fed.R.Civ.P., expressly refers to such a summary judgment as being "interlocutory in character." Such a "judgment" is...