Ladee Taylor, Plaintiff-Appellant, v. HCA-HealthONE LLC, d/b/a/ North Suburban Medical Center; The Women‘s Health Group, P.C.; Cindy E. Long, M.D.; Stacey L. Hennesy, M.D., Defendants-Appellees.
No. 16CA1369
COLORADO COURT OF APPEALS
March 8, 2018
2018COA29
Opinion by JUDGE HARRIS; Furman, J., concurs; Berger, J., concurs in part and dissents in part
Adams County District Court No. 16CV30543; Honorable Ted C. Tow III, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
March 8, 2018
2018COA29
No. 16CA1369 Taylor v. Long — Civil Procedure — Relief From Judgment or Order — Excusable Neglect
In this civil action, a division of the court of appeals addresses the proper test to be applied when a plaintiff moves under
Plaintiff filed a medical malpractice action but failed to serve the defendants within the deadline set forth in
The division concludes that the district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part test articulated in Craig v. Rider, 651 P.2d 397 (Colo. 1982). That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations.
Accordingly, the division vacates the order and remands to the district court for application of the proper legal standard.
In doing so, the court rejects plaintiff‘s argument that the notice of dismissal required under
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE HARRIS
Furman, J., concurs
Berger, J., concurs in part and dissents in part
Announced March 8, 2018
Greer & Van Donselaar, PLLC, Marlo J. Greer, Denver, Colorado; Foster Graham Milstein Calisher, LLP, Brian Proffitt, Chip Schoneberger, Denver, Colorado, for Plaintiff-Appellant
Dickinson Prud‘Homme Adams LLP, Gilbert A. Dickinson, Molly G. Hoffman, Denver, Colorado, for Defendant-Appellee HCA-HealthONE LLC, d/b/a North Suburban Medical Center
Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendants-Appellees Cindy E. Long, M.D.; Stacey
¶ 1 Ladee Taylor‘s medical malpractice lawsuit was dismissed after she failed to serve the defendants, Cindy E. Long, M.D.; Stacey L. Hennesy, M.D.; The Women‘s Health Group, P.C.; and HCA-HealthONE LLC, d/b/a North Suburban Medical Center, with a copy of her complaint within the time allotted by the district court‘s delay reduction order.
¶ 2 On appeal, she contends that the district court failed to provide the requisite notice before dismissing the action and applied the wrong legal standard in evaluating whether she had demonstrated excusable neglect. We disagree with the first contention, but we agree with the second. Therefore, we vacate the court‘s order dismissing Taylor‘s lawsuit and remand for further findings.
I. Background
A. The Events Giving Rise to the Lawsuit
¶ 3 In September 2013, Taylor underwent a laparoscopic hysterectomy. Following the surgery, Taylor experienced pelvic pain so substantial that she could not tolerate sitting at work. Her doctor, who had performed the surgery, prescribed medication for a urinary tract infection, but the medication did not alleviate Taylor‘s symptoms because she did not have a urinary tract infection. Two weeks later, Taylor had a second follow-up visit during which she continued to complain of bladder pain.
¶ 4 Though the pain persisted, the second follow-up visit was Taylor‘s last. Her doctor decided to end treatment because Taylor no longer had private insurance and instead was covered by Medicaid. Taylor was not referred to another doctor.
¶ 5 Finally, in April 2014, Taylor went to the emergency room, complaining of “constant, throbbing pelvic pain with discharge.” She was informed that she had a “residual surgical device in her vagina that was imbedded in scar tissue and protrud[ing] into the rectum.” A computed tomography (CT) scan showed what appeared to be a uterine manipulator cup from the hysterectomy.
¶ 6 Later that month, Taylor underwent surgery to remove the cup, which was imbedded behind her bladder. She was subsequently diagnosed with urinary incontinence, chronic pelvic pain, bladder spasm, and levator spasm — injuries that she says are permanent.
B. Procedural History of the Lawsuit
¶ 7 On March 31, 2016, Taylor filed a medical malpractice action against her doctor, a second doctor who assisted in the surgery, the doctors’ medical practice, and the medical center where the procedure was performed.
¶ 8 Under
¶ 9 By that time, though, the statute of limitations had run. Therefore, despite the district court‘s dismissal of the lawsuit “without prejudice,” Taylor could not refile the complaint.
¶ 10 So Taylor‘s lawyer took the following immediate action: on June 28, the date of the order of dismissal, counsel filed a motion requesting a vacation of the dismissal order and a seven-day extension of time to serve the defendants. In the motion, counsel explained that her docketing system had apparently malfunctioned during her transition from her prior law firm to her current firm. She sought relief from the court‘s order under
¶ 12 Nonetheless, a week later, the medical center filed its answer and jury demand. Shortly thereafter, counsel for another defendant sought an extension of time to file her answer.
¶ 13 In the meantime, Taylor filed a motion to reconsider under
¶ 14 As for the district court‘s delay prevention order, counsel said that neither she nor her law partner had received it on their office computers. Instead, the order appeared on her cell phone. Counsel explained that her practice was not to open and read court documents on her cell phone, primarily because she could not access her case management and calendaring system from her phone. An exhibit to the motion appeared to show that counsel had not received an electronic notification of the delay reduction order from the court‘s filing system on her computer, and another exhibit confirmed that the delay reduction order had not been opened by counsel.
¶ 15 In the motion, counsel also argued that the district court had applied the wrong standard in denying her earlier motion to vacate the dismissal order. Under Craig v. Rider, 651 P.2d 397 (Colo. 1982), she contended, the court should have considered not just whether the error arising from the software malfunction constituted excusable neglect on its own, but also whether she had asserted a meritorious claim in the underlying medical malpractice suit and whether granting relief would be consistent with considerations of equity.
¶ 16 Before the court could rule on the Rule 59 motion, Taylor filed a notice of appeal of the denial of the
II. Notice Under C.R.C.P. 4(m)
¶ 17 We turn first to what we consider a threshold argument by Taylor that the district court‘s dismissal order was invalid under
¶ 18 According to Taylor, the district court‘s delay reduction order was premature and therefore could not constitute the requisite notice under
¶ 19 We interpret rules of civil procedure in the same manner as statutes, applying similar principles of construction. In Interest of M.K.D.A.L., 2014 COA 148, ¶ 5. We must therefore interpret the rule according to its commonly understood and accepted meaning. Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 15.
¶ 20
Time Limit for Service. If a defendant is not served within 63 days (nine weeks) after the complaint is filed, the court — on motion or on its own after notice to the
plaintiff — shall dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under rule 4(d) .
¶ 21 Taylor contends that, consistent with the plain language of the rule, the court must provide notice after the deadline for obtaining service has expired. But here, the district court issued its delay reduction order on May 18, more than two weeks before the sixty-three-day deadline was set to expire, and therefore the delay reduction order could not have served as proper notice that the action would be dismissed based on her failure to effectuate service.
¶ 22 Under Taylor‘s reading, the expiration of the sixty-three-day deadline is a condition precedent to both notice and dismissal: if the defendant is not served within sixty-three days, then the court (1) must issue a notice and (2) may dismiss the action without prejudice or impose a new deadline for service.
¶ 23 But we read the sixty-three-day deadline as a condition precedent only to dismissal or a new deadline. Our reading finds support in the structure of the rule‘s first sentence: without the intervening clause, the sentence instructs that “[i]f a defendant is not served within [the deadline], the court . . . shall dismiss the action without prejudice . . . or order that service be made within a specified time.”
¶ 24 Moreover, under Taylor‘s interpretation, although the rule presents two options for the court — dismissal of the action or an instruction that “service be made within a specific time” — the court would always be forced to exercise the second option. In this case, for example, Taylor says that the court could not issue a notice until she failed to comply with the sixty-three-day deadline. And the notice would have to advise the plaintiff of her noncompliance before a subsequent dismissal order could be entered. But a notice of noncompliance and possible dismissal at some time in the future would then create, in every case, a new deadline for effectuating service — that is, a “specified time” within which “service [must] be made.” Thus, Taylor‘s reading effectively renders the dismissal option superfluous, a result we avoid in construing the rule. See Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005) (“We construe a statute so as to give effect to every word, and we do not adopt a construction that renders any term superfluous.“).
¶ 25 We therefore conclude that the rule requires notice before dismissal, but does not require notice after expiration of the service deadline.
¶ 26 Still, we do not mean to establish a rule that any notice prior to dismissal, no matter its timing, would necessarily suffice. The purpose of the notice is to spur counsel to action, with a warning that the window for obtaining service is closing and that a failure to meet the deadline might have dire consequences. A boilerplate delay reduction order issued within a matter of days of the filing date may not serve the rule‘s intended purpose.
¶ 27 We have no concern about the timing or content of the court‘s order here, though. Just a couple of weeks before the expiration of the Rule 4(m) deadline, the court issued an order specifically addressing counsel‘s obligation to obtain service on the defendants.
¶ 28 Thus, Taylor was not entitled to additional notice beyond the delay reduction order, and the district court‘s June 28 order of dismissal was therefore valid.
Rule 60(b) Motion
¶ 29 We now turn to Taylor‘s argument that the court erred in failing to apply the three-factor Craig test in evaluating her
A. Standard of Review
¶ 30 We review the district court‘s denial of a
B. The Three-Factor Craig Test
¶ 31
¶ 32 Craig articulated a three-factor test to guide a district court‘s discretion in determining whether to set aside a final judgment or order based on excusable neglect. 651 P.2d at 402. Though the plaintiff in Craig sought relief under the probate code, not
¶ 33 Under Craig, the district court must consider (1) whether the neglect that resulted in entry of judgment was excusable; (2) whether the moving party has alleged a meritorious claim (or defense); and (3) whether relief from the challenged order would be consistent with equitable considerations such as protection of action taken in reliance on the order and prevention of prejudice by reason of evidence lost or impaired by the passage of time. 651 P.2d at 402. Later cases from the supreme court have confirmed that “these three factors constitute a balancing test and each must be considered in resolving the [Rule 60(b)] motion.” Goodman, 222 P.3d at 321 (citing cases applying the balancing test).
¶ 34 The district court‘s consideration of these factors must be guided by the general rule that the requirements for vacating a judgment that is not based on the merits “should be liberally construed in favor of the movant, especially where the motion has been promptly made.” Craig, 651 P.2d at 402. This rule promotes the long-standing policy favoring resolution of disputes on their merits. Id.
C. Application of the Craig Test
¶ 35 In denying Taylor‘s motion to vacate the dismissal order, the district court first noted that because Taylor had sought an extension of time to serve the defendants only after the deadline for obtaining service had run, she had to show excusable neglect for missing the deadline. Then the court concluded that “common carelessness and negligence by a party‘s attorney does not amount to excusable neglect,” and therefore, “improperly docketing due dates,” which “amount[ed] to mere negligence,” could not constitute excusable neglect. The court found support for its conclusion in Malm v. Villegas, 2015 CO 4, which the court said stood for the proposition that any delay beyond Rule 4(m)‘s deadline could not be found reasonable simply because the plaintiff had made diligent efforts to serve the defendants. And because here, according to the court, Taylor had made no efforts to obtain timely service, additional time for service was unwarranted.
¶ 36 Taylor argues that the court‘s order failed to even consider the second and third
¶ 37 The defendants mount a three-part defense to Taylor‘s argument. They say that Malm imposes a heightened “excusable neglect” standard that displaces the Craig test; even if the Craig test applies here, Taylor waived her right to have the district court apply it by failing to cite the Craig factors in her motion; and, even if the Craig test applies, and the district court should have applied it, Taylor is not entitled to any relief under Craig.
1. Malm Does Not Impose a Heightened “Excusable Neglect” Standard That Displaces Craig‘s Three-Factor Test
¶ 38 Malm addressed the reasonableness, under
¶ 39 The supreme court began by reiterating its recent pronouncements in Garcia v. Schneider Energy Services, Inc., 2012 CO 62 — the filing of a complaint commences an action; therefore, the statute of limitations “in and of itself . . . imposes no direct limitation on the time for service following commencement by filing“; as a consequence, “service of process can be effected” after the applicable statute of limitations has run; and thus, “the appropriate inquiry concerning the time allowed for service of process in an action commenced by filing is whether the defendant was served within a reasonable time following the filing date, rather than a reasonable time following the running of the applicable statute of limitations.” Malm, ¶¶ 13, 15.
¶ 40 Next, the court acknowledged that although the defendant in Garcia had not received notice of the lawsuit until after the expiration of the statute of limitations (seventy-one days after, to be precise, see Garcia, ¶ 6), the court had nonetheless characterized the 116 days between the filing of the complaint and notice to the defendant as “a relatively short period of time” and therefore reasonable. Malm, ¶ 18 (quoting Garcia, ¶ 16).
¶ 41 The court cautioned, however, that where service after filing is not actually accomplished until after the expiration of the statute of limitations, “any delay in service beyond that ‘relatively short’ initial period cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Id. at ¶ 19. Rather, to “justif[y] [a] longer delay” that extends beyond the statute of limitations, the plaintiff must establish wrongful conduct by the defendant or some formal impediment to service. Id. at ¶¶ 17, 19.
¶ 42 The court specifically declined to define the outer limit of the “relatively short initial period” within which service after filing is “presumptively reasonable,” except to say that the period would be “measured in days rather than years.” Id. at ¶¶ 19, 20. A precise definition was unnecessary, according to the court, because “[b]y virtually any standard,” the seven-and-a-half-year delay between filing and service “far exceeded the relatively short initial period not
requiring specific justification” and was therefore unreasonable. Id. at ¶ 20.¶ 43 The defendants say that, after Malm, a complaint is subject to dismissal if it is served outside the statute of limitations and also outside the “relatively short” presumptively reasonable period for obtaining service after filing. Though that period was left undefined by the Malm court, the defendants define it as the sixty-three-day period set forth in
¶ 44 We are not persuaded that Malm announced any bright-line rule, much less a rule that, where the statute of limitations has run, a complaint is subject to dismissal if not served within sixty-three days, except upon a showing of specific obstacles to service. In our view, Malm stands for the more uncontroversial proposition that an extraordinary delay in effecting service — a delay measured in years rather than days — can be justified only by extraordinarycircumstances. See id. (“[C]ertain extraordinary circumstances might excuse even this [seven-and-a-half-year] delay . . . .“).
¶ 45 The defendants’ reading of Malm cannot be reconciled with the language of the opinion or the text of
¶ 46 As we have noted, the Malm court expressly declined to equate the “relatively short initial period” within which service would be deemed presumptively reasonable with the sixty-three-day period in
¶ 47 And even under
¶ 48 Thus, we reject the defendants’ argument that Malm imposes a heightened “excusable neglect” standard that would apply to the circumstances of this case.
2. Taylor Did Not Waive Application of the Craig Test
¶ 49 Next, we can quickly dispense with the defendants’ argument that, even if Craig‘s three-factor test provides the proper analytical framework for resolving Taylor‘s
¶ 50 While a specific reference to the Craig factors would have been helpful, it was not necessary. Taylor fairly presented the issue to the district court: she filed a
¶ 51 Still, the defendants say that, without a specific reference to Craig or its three-factor test, the district court might have assumed that some other “excusable neglect” test applied here. But there is no other test for determining whether, under
¶ 52 “When there does exist a controlling legal standard . . . a court may not disregard that standard in favor of some other legal rule.” Buckmiller, 727 P.2d at 1115. Here, the district court failed to resolve Taylor‘s motion in accordance with the applicable legal standard. In doing so, the court abused its discretion. See Crossgrove, ¶ 7 (“A trial court necessarily abuses its discretion if its ruling is based on an incorrect legal standard.“).
3. Taylor May Be Entitled to Relief Under the Craig Test
¶ 53 The defendants urge us to forgo a remand to the district court for application of the Craig test because, they say, Taylor is not entitled to reinstatement of her complaint as a matter of law. We disagree.
¶ 54 Excusable neglect has a “flexible meaning,” and a proper analysis requires “consideration of the reasons for the neglect and the surrounding circumstances.” Goodman, 222 P.3d at 322. The determination of whether a movant has established excusable neglect therefore involves a “fact-intensive inquiry,” id. at 319, and a careful weighing of the evidence in accordance with the controlling legal standard, Buckmiller, 727 P.2d at 1115.
¶ 55 To be sure, in some cases, after the development of a full record, the existence of excusable neglect becomes an issue of law amenable to resolution on appeal. See, e.g., Craig, 651 P.2d at 407 (resolving all three prongs of Craig test in favor of plaintiff and remanding with directions to set aside the order of probate). In his concurrence in part and dissent in part, Judge Berger says this is one of those cases — but he would reverse the judgment and order the district court to reinstate Taylor‘s complaint. We are not entirely unsympathetic to Judge Berger‘s position, but we think a more circumspect approach is warranted. Still, we all agree that, on this record, we surely cannot say that Taylor‘s arguments fail as a matter of law. Accordingly, a remand is necessary. See Buckmiller, 727 P.2d at 1117 (remanding for consideration of the Craig factors).
a. Whether the Neglect was Excusable
¶ 56 A party‘s conduct constitutes excusable neglect when the “surrounding circumstances would cause a reasonably careful person similarly to neglect a duty,” Goodman, 222 P.3d at 319, or, put another way, when “unforeseen circumstances” would cause a “reasonably prudent person to overlook a required act in the performance of some responsibility,” Colo. Dep‘t of Pub. Health & Env‘t v. Caulk, 969 P.2d 804, 809 (Colo. App. 1998).
¶ 57 The district court characterized counsel‘s excuse for the untimely service as “improperly docketing due dates,” then dismissed that excuse as “common carelessness.” But in her
¶ 58 Thus, the question is whether the software malfunction amounted to “unforeseen circumstances,” and whether a reasonably prudent person might have made the same error in relying on docketing software to calendar deadlines. We leave the answer to that question to the district court.
¶ 59 The defendants say that counsel‘s explanation for the untimely service had to be presented in her
¶ 60 We reject that argument — not because the affidavit necessarily constitutes “newly-discovered evidence,” as Taylor contends (we need not decide that question), but because, in our view, the Craig test contemplates an evidentiary hearing, at which the plaintiff may present additional evidence
b. Merits of the Claim
¶ 61 A movant must support an assertion of a meritorious claim by averments of fact, not simply legal conclusions. Craig, 651 P.2d at 403. Preferably, the factual allegations “should be in the form of atendered pleading,” like a complaint or, if a claim of meritorious defense is made, an answer. Id. The allegations must be set forth with sufficient particularity to show that a claim is “meritorious, not frivolous.” Id.
¶ 62 The defendants say that Taylor could not establish a meritorious claim without an affidavit from a certifying physician. Though Taylor submitted such an affidavit, certain defendants contend that the submission was untimely and the medical center contends that it should not have been filed under seal.
¶ 63 The factual allegations, however, appeared in the complaint itself — the “preferabl[e]” form for presenting the allegations, id. — and the gist of the complaint was set forth in the
¶ 64 In ruling on a meritorious claim, “a trial court should not attempt to evaluate the ability of the movant to establish the pleaded facts at trial.” Id. at 404. Even when supplementary testimony is received at the evidentiary hearing, the focus is on the“legal sufficiency of the allegations” rather than “their truth.” Id. (quoting In re Stone, 588 F.2d 1316, 1320 (10th Cir. 1978)).
¶ 65 Though the meritorious-claim factor can generally be resolved as a matter of law, see id., we think the better course is to remand for the district court to consider all three factors together, as “evidence relating to one factor might well shed light on another,” and the strength of one factor might “set off” any weakness of another. Buckmiller, 727 P.2d at 1116.
c. Equitable Considerations
¶ 66 Setting aside a dismissal order is, at its core, an equitable decision. The goal is to promote substantial justice. Goodman, 222 P.3d at 319. In determining whether
¶ 67 Though we leave it to the district court to weigh these considerations, we make the following observations based on the existing record.
¶ 68 First, Taylor filed her
¶ 69 Second, Taylor served the defendants twenty-six days after the period for service expired under
¶ 70 Third, by the time Taylor filed her
IV. Conclusion
¶ 71 We vacate the district court‘s order denying Taylor‘s
JUDGE FURMAN concurs.
JUDGE BERGER concurs in part and dissents in part.
¶ 72 JUDGE BERGER, concurring in part and dissenting in part.
I agree with the majority that the trial court‘s order denying Taylor‘s motion to set aside the dismissal must be reversed. In fact, I agree with almost everything the majority says. I write separately only because I think, on this record, any ruling on remand other than reinstatement of Taylor‘s complaint would be an abuse of the trial court‘s discretion. As a result, I would reverse with directions that the complaint be reinstated, and accordingly I concur in part and respectfully dissent in part.
¶ 73 The supreme court has instructed that a trial court must balance three separate factors to determine whether there is excusable neglect sufficient to set aside a judgment under
(1) whether the neglect that resulted in entry of judgment by default was excusable;2
(2) whether the moving party has alleged a meritorious claim or defense; and
(3) whether relief from the challenged order would be consistent with considerations of equity.
Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo. 2010); see also Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986) (applying Craig v. Rider, 651 P.2d 397, 401-02 (Colo. 1982)).3
¶ 74 I start with the first level excusable neglect factor. The supreme court has defined first level excusable neglect as follows: “A party‘s conduct constitutes excusable neglect when the surrounding circumstances would cause a reasonably careful person similarly
¶ 75 Applying this controlling definition, I think the trial court gave insufficient consideration to how computer systems interface withmodern law practice. Neither the supreme court nor this court has addressed computer glitches in the context of evaluating excusable neglect.
¶ 76 I perceive no reason to categorically exclude errors resulting from computer system problems or failures from a finding of first level excusable neglect. To the contrary, in today‘s world, lawyers and virtually everyone else (including courts) rely heavily on computer hardware and software to accomplish critical tasks. Our modern world could not function without reliance on computers. That reliance usually benefits everyone because it makes lawyers and others more efficient; computers usually reduce the time necessary to perform a task, and thus reduce costs. But computers fail; either the hardware or the software stops working, sometimes for inexplicable reasons.
¶ 77 The reasons offered by plaintiff‘s counsel in this case for her failure to timely serve the defendants — reasons that have not been contradicted by the defendants — seem to me to be the poster child of first level excusable neglect in our computer age. Given the ubiquitous use of computers in law practice and every other aspectof modern life, courts should adjust to the reality that computer failures happen despite a user‘s reasonable care.
¶ 78 The failure of Taylor‘s counsel to timely serve the defendants does not appear to be based on anything other than computer failures and, under any meaningful standard of excusable neglect, the showing made by Taylor‘s counsel satisfies the standard for first level excusable neglect.
¶ 79 There is an additional consideration that supports a finding of first level excusable neglect. Under the supreme court‘s cases, it is unclear how much, if at all, it matters whether the conduct that led to the error was the lawyer‘s conduct, or the client‘s. In Buckmiller, the court broadly addressed this concept when it stated, “the degree of negligence attributable to the client is only one factor for a court to consider in determining whether to set aside an order or judgment on the grounds of excusable neglect predicated on the gross negligence of the client‘s attorney.” 727 P.2d at 1117 n.2. But that discussion was in the context of addressing the court-made dichotomy between regular negligence by a lawyer and gross negligence. Id.
¶ 80 In cases in which gross negligence is not involved, the supreme court‘s cases give little, if any, guidance on how the negligence of the lawyer, as opposed to the negligence of the client, should factor into the excusable neglect calculus. It seems clear to me that the focus should be on any negligence by the client, not the lawyer, based on the policies behind
¶ 81 There is absolutely no evidence that Taylor herself was derelict or negligent in any way in failing to timely serve the defendants. Any fault lies entirely with her lawyer. When, as here, there is no conceivable prejudice to the defendants in reinstating the complaint, and where the injury to the plaintiff would be severe if the complaint is not reinstated, I would conclude that the lawyer‘s negligence should play very little role in the balancing process.
¶ 82 Addressing the second and third parts of the excusable neglect test, I think it is beyond reasonable dispute that these factors strongly favor allowing Taylor‘s claims to be heard on their merits. See Goodman, 222 P.3d at 320.
¶ 83 From the information presently available (and acknowledging that Taylor‘s claim has not been tested by the adversary process), itappears that Taylor has a meritorious cause of action resulting from a foreign object being left in her body during surgery, and significant injuries suffered from that alleged malpractice. Indeed, this type of medical malpractice claim is one of the few that does not require expert testimony to make a prima facie case. Mudd v. Dorr, 40 Colo. App. 74, 77, 574 P.2d 97, 100 (1977).
¶ 84 The third factor weighs equally in favor of Taylor. Service was obtained within
¶ 85 It also is significant that unlike the defendant in Goodman, plaintiff‘s counsel here did not sit on her hands after she discovered the problem. To the contrary, on the very day that the court dismissed the case, she moved to set aside the dismissal and ultimately presented extensive evidence explaining her failure to timely serve the defendants.
¶ 86 Considering (balancing) the three components of the excusable neglect test, there is no reasonable result other than to give Tayloran opportunity to prove her claims on the merits.4 “[B]ecause resolution of disputes on their merits is favored, the criteria for vacating a default judgment should be liberally construed in favor of the movant, especially when the motion is promptly made.” Goodman, 222 P.3d at 320 (quoting Sumler v. Dist. Court, 889 P.2d 50, 56 (Colo. 1995)). No other result satisfies the overarching purpose of
¶ 87 For these reasons, I think a remand for reconsideration by the trial court of the excusable neglect balancing test is a waste of time. Instead, I would reverse and remand with directions to reinstate the complaint.
¶ 88 As may be apparent from my reasons for concluding that this case should be remanded with directions to reinstate Taylor‘s complaint, the existing law in this area is confusing and may deserve a fresh look by the supreme court. I say this for several reasons.
¶ 89 First, it is inherently confusing when, as here, the ultimate matter to be decided — excusable neglect — is comprised of a three-factor test that includes excusable neglect as one of its elements. Unsurprisingly, trial courts misconstrue the nature of the inquiry when excusable neglect is both required to set aside the judgment and required to determine if there is excusable neglect. There are other ways to formulate the first factor without repeating in that factor the overarching determination that must be made.
¶ 90 Second, the rule that gross negligence of the lawyer is not imputed to the client, but regular negligence may be imputed for the purpose of determining whether there is excusable neglect,seems strange at best and illogical at worst. See Buckmiller, 727 P.2d at 1116 (adhering to distinction between regular negligence and gross negligence made in Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967)); cf. Moses v. Diocese of Colo., 863 P.2d 310, 329 n.27 (Colo. 1993) (noting that a principal may be responsible for a tort committed by its agent, but typically not for an intentional tort of its agent). Ordinarily, gross negligence is seen as more blameworthy than regular negligence.
¶ 91 I would instead focus on any fault of the client. Broadening the rule adopted in Coerber, I would generally not impute the lawyer‘s negligence to the client when the client herself is blameless. There are other fairer and more effective ways to police lawyers’ competence than visiting lawyers’ sins on their clients. See
¶ 93 In those cases in which the fault lies entirely with the lawyer, the plaintiff has a meritorious cause of action, and the defendants will not suffer any legal prejudice if the default judgment or dismissal is vacated, I would conclude that it would be an abuse of discretion not to reinstate the case.
¶ 94 On the other hand, when the defendants will suffer serious prejudice by reinstatement of the case and the plaintiff herself is blameworthy, it will generally be an abuse of discretion to set aside the judgment.