Lаura Clark as Personal Representative of the Estate of Christopher Tylie Jackson-Clark, et al. v. Richard Baker, M.D., Mary Beerworth, M.D., et al.
No. 15-157
Supreme Court of Vermont
April 15, 2016
2016 VT 42 | 146 A.3d 326
Dooley,
Present: Dooley, Skoglund and Robinson, JJ., and Toor and Bryan (Ret.), Supr. JJ., Specially Assigned
it is not unreasonable to consider proposed amendments to the permit.10
Affirmed.
John F. Campbell of Law Offices of John F. Campbell, PC, Quechee, for Plaintiffs-Appellees.
Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for Defendants-Appellants Mary Beerworth, M.D., et al.
Keith Aten and Peter B. Joslin of Theriault & Jоslin, P.C., Montpelier, for Defendants-Appellants Richard Baker, M.D. and Rutland Primary Care.
¶ 1. Dooley, J. This medical malpractice and wrongful death case comes to us on appeal from the denial of motions to dismiss filed by two sets of medical defendants, here termed the Hospital defendants1 and the Baker defendants.2 Both sets’ motions were predicated on plaintiffs’ failure to timely serve process. On appeal, the Baker defendants argue that the trial court‘s grаnt of an enlargement of time to serve process expired prior to plaintiffs’ serving of the summons and complaint, while the Hospital defendants contend that although they signed a waiver of service, plaintiffs failed to file that waiver with the court before the expiration of the service period. Both sets of defendants also appeal from the trial court‘s conclusion that even if plaintiffs’ service was found to be untimely, it retained thе authority to retroactively grant a motion for enlargement of time and extend the period for service after the running of the statute of limitations on the basis of excusable neglect. We affirm.
¶ 2. Plaintiffs, the parents of a newborn baby, alleged that on June 23, 2012, their son died as a result of the medical malpractice of the Hospital defendants and the Baker defendants. Plaintiffs filed their complaint against both sets of defendants on June 20, 2014. It is undisputed that this filing was within the period established by the applicable statute of limitations. See
¶ 3. On November 19, 2014 the Baker defendants filed a motion to dismiss the claims against them under
¶ 4. On February 8, 2015, the trial court denied all defendants’ motions to dismiss. In its decisions, the court stated that, based on both the judge‘s “subjective intent” and fairness to the plaintiffs, it was “clear” the original extension of sixty days was intended to begin the day it was granted. With regard to the Hospital defendants, the court ruled that the waiver of service of summons was signed within the sixty days allowed to plaintiffs and that the case against the Hospital defendants would not be dismissed “based only” on plaintiffs’ delay in filing the return given Vermont‘s “long-standing preference for having cases resolved on the merits.” Finally, the court ruled plaintiffs’ retroactive motion for additional enlargement moot, without considering thе arguments of excusable neglect.
¶ 5. On February 20, 2015, all defendants filed motions for reconsideration, or alternatively, for permission for interlocutory appeal. On April 3, 2015, the court denied all motions, acknowledging that the initial order of “Granted” was ambiguous and affirming its earlier interpretation that the grant extended the service period from the date of the order itself, rather than from the original service deadline. The court also noted thаt because the reasons for plaintiffs’ delay were “compelling” and
¶ 6. On appeal, the Baker defendants’ primary argument is that the trial court‘s order of August 29, 2014 unambiguously established a service deadline of October 20, 2014, while the Hospital defendants contend that the deadline for service passed before the effective date of service under
¶ 7. The trial court‘s reason for denying the motions to dismiss, applicable to both defendants, is its finding of excusable neglect and the determination that it can extend the period for service retroactively despite the expiration of the limitation period set by
¶ 8. This Court reviews a motion to dismiss under the same standard as a trial court. “A motion for failure to state a claim may not be granted unless it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Dernier v. Mortg. Network, Inc., 2013 VT 96, ¶ 23, 195 Vt. 113, 87 A.3d 465 (quotation and citation omitted). We will assume that “all factual allegations pleaded in the complaint are true, accept as true all reasonable inferences that may be derived from plaintiff‘s pleadings, and assume that all contravening assertions in defendant‘s pleadings are false.” Id. (quotation and citation omitted).
¶ 9. Because plaintiffs did not file the waiver of service until December 3, 2014, after both the extension of time initially granted by the court and the limitation period had expired, plaintiffs and the trial court rely on the court‘s power under
¶ 10. Both sets of defendants argue that any retroactive extension of time would have been invalid. Their argument is that: (1) an after-the-fact extension of time for service under
¶ 11. We start with the first argument, recognizing that we have never explicitly addressed it in the context of a retroactive time extension. We have two precedents that particularly bear on the issue. The first is Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 596, 396 A.2d 1388, 1390 (1979), which resolves the issue in the absence of a motion to extend the service period. In short, Weisburgh holds that where, as here, a plaintiff files the сase within the limitation period, the plaintiff must complete service within the time limit specified in Rule 3 or plaintiff will lose the filing date for purposes of statute of limitations
¶ 12. The second case is Bessette, which did involve an extension of time for service, albeit one that occurred as a result of a motion made within the time for service. The defendant‘s main argument in that case was that the time extension authority of Rule 6(b) could not be used to extend the time for service under Rule 3, an argument wе explicitly rejected as noted above. Bessette, 2007 VT 42, ¶ 10. Secondarily, the defendant argued that the trial court could not extend the service period if the resulting service would occur after the expiration of the limitation period. We also rejected that argument, stating ”Weisburgh permits the statute of limitations to be tolled such that service may be completed after the limitation period has run so long as it is completed in a timely manner under the rules.” Id. ¶ 12. In support of this holding we explained that “the date the complaint is filed controls the tolling of a statute of limitations” and that “[t]he date by which one must initiate an action is controlled by statute. The time permitted for service once a complaint has been filed, on the other hand, is a procedural matter controlled by the rules.” Id. ¶ 13.
¶ 13. Defendants argue that Weisburgh and Bessette allow service of a timely filed complaint to occur after the limitation period has expired оnly if an extension of time to serve was sought before the expiration of the limitation period. Otherwise, defendants argue, the tolling of the limitation period caused by the filing will end when the time for service expires — tolling cannot be retroactively reinstated.
¶ 14. As we stated above, we recognize that we have never decided this issue in a precedential opinion, although the United States District Court has predicted that the Bessette tolling rule will apply whether the motion is made before or after the expiration of the time for service. Zhang v. Smugglers’ Notch Mgmt. Co., 2012 WL 2872841, at *3-4 (D. Vt. Jul. 12, 2012).3 Based on our research, we conclude that courts from other jurisdictions are split on the resolution of this question. Compare Whitaker v. Stamping, 302 F.R.D. 138, 143 (E.D. Mich. 2014) (extension of time to complete service retroactively tolls statute of limitations; court concludes that “any prejudice to the defendant must yield to competing prejudice to the plaintiff“); Henneberry v. Borstein, 937 N.Y.S.2d 177, 180-81 (App. Div. 2012) (pro se plaintiff еntitled to extension of time to effect proper service even though limitation period expired before motion was granted where defendants were aware of plaintiff‘s action and were not prejudiced by service errors; court relies upon New
¶ 15. We conclude that the action of the trial court was consistent with the holding in Bessette, even though it is an extension of that holding. As Bessette and Weisburgh hold, the aсtion was commenced when it was filed because filing controls the tolling of the statute of limitations. See
¶ 16. This brings us to defendants’ sеcond reason why they argue that the retroactive extension of the service period did not keep the limitation period from expiring — that the trial judge could not find excusable neglect.4 Plaintiffs based their claim of excusable neglect on the following statement:
6. A series of events, expected and unexpected, occurred within the months of June through December of 2014 that resulted in the untimely filing of the Return of Service of Process for Bаker and RPC, and the possible untimely filing of the Waiver of Service executed by counsel for Hospital Defendants. A partial list of these events is as follows:
(a) The undersigned counsel‘s brother died in Florida unexpectedly at the end of May. Counsel‘s father also died in Florida unexpectedly five weeks later. Both events resulted in individual trips to Florida to be with family and to assist with the related legal affairs. The legal affairs of counsel‘s deceased brother continue.
(b) Counsel‘s youngest son married on October 26, 2014 in Connecticut.
(c) Counsel and his wife of 34 years separated in October of 2014.
(d) Counsel underwent two eye surgeries, both of which severely limited the undersigned‘s vision and sig-nificantly impaired his ability to read until the first week of January, 2015.
(e) Counsel was up for re-election to the General Assembly.
(f) Unanticipated meetings of the legislative Joint Fiscal Committee as a result of a significant downturn in the state‘s revenues required post-session legislative action. (g) Untimely participatiоn in multiple day meetings of the Judicial Nominating Board in order to fill necessary and time sensitive judicial appointments.
Defendants argue that on these facts the trial court could not find excusable neglect under the standard established in In re Town of Killington, 2003 VT 87A, 176 Vt. 60, 838 A.2d 98.
¶ 17. The trial court enumerated five reasons for finding excusable neglect: (1) Defendants have not suffered any prejudice because they were in possession of the complaint and could begin their defense; (2) the greatest delay was only three days with little impact on judicial proceedings; (3) the reasons for the delay were compelling, many were “unanticipated and unavoidable setbacks of unusual proportions,” and all were attributable to plaintiffs’ counsel and not plaintiffs themselves; (4) plaintiffs and counsel were acting in good faith; and (5) failure to find excusable neglect would result in dismissal of the case rather than adjudication on the merits. Town of Killington involved the issue of whether the Town could receive an extension of the deadline within which to appeal its valuation for Act 60 purposes to the state Valuation Appeal Board from the Director of Property Valuation within the Vermont Tax Department. We found that the Town‘s ability to receive an extension was based on whether it could meet the “excusable neglect” standard in
¶ 18. Because
¶ 19. In relying on Pioneer in Killington, we explained that the threshold created by the excusable neglect standard “remains high” and will be found “only in rare cases.” Killington, 2003 VT 87A, ¶¶ 16, 17. We also noted that the most important factor is the reason for the delay, including whether it was within the party‘s control. Id. ¶ 16.
¶ 20. Our standard of review is important to the resolution of this case,
¶ 21. We have previously considered some, but not all, of the circumstances present in the motion for a retroactive time extension. The fact that counsel was juggling the responsibilities of being a lеgislator and those of conducting a private practice of law as a sole practitioner cannot establish excusable neglect. In Killington we cited and relied in part on a decision from the United States Court of Appeals for the Second Circuit, Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248 (2d Cir. 1997), which found no excusable neglect where plaintiff‘s counsel was “preoccupied with his bid for public office.” Id. at 251. Under Canfield we cannot conclude that plaintiffs’ counsel‘s activities to run for еlection, or his activities once elected, support a finding of excusable neglect.
¶ 22. We have not addressed a finding of excusable neglect based on the pressures of the kind of personal circumstances alleged here. Our cases involving untimeliness caused by a party‘s lawyer have dealt with ordinary negligence or failures, such as internal law office breakdowns, or mistakes of law. See LaFrance Architect v. Point Five Dev. S. Burlington, LLC, 2013 VT 115, ¶ 14, 195 Vt. 543, 91 A.3d 364; Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (“Plaintiffs’ excuse that an attorney‘s vacation and a related breakdown in internal office procedures resulted in the late filing is insufficient to warrant a finding of excusable neglect.“); Rule v. Tobin, 168 Vt. 166, 174, 719 A.2d 869, 874 (1998) (noting parties are not protected from later-regretted “tactical decisions” or counsel‘s ignorance of the law). The circumstances here were outside the control of counsel, although his management of his law office and his client‘s cases in the face of these circumstances were within his control. We agree with the trial court that the other Pioneer factors may support a finding of excusable neglect in this instance.
¶ 23. We conclude that any one of the personal events cited by plaintiffs’ counsel, standing alone, would likely not have met the standard of excusable neglect. A lawyer is expected to manage his or her law practice and protect the interest of clients despite the adverse pеrsonal events that are a normal part of all our lives. Here, however, the trial court appears to have relied upon the combined effect of the numerous personal circumstances that confronted plaintiffs’ counsel, labeling them “compelling” and “unanticipated and unavoidable setbacks of unusual proportion.” We conclude that evaluating such a combination of unusual circumstances falls within the discretiоn of the trial court, and the court‘s conclusion was not an abuse of discretion. The trial court having exercised its discretion here to find excusable neglect, we must affirm the decision to extend the time for service under
Affirmed.