Summary
holding that judge's failure to note time and date of filing upon document and timely transmit it to clerk as required by Colorado Rule of Civil Procedure 5(e) not to be held against party filing document
Summary of this case from O'Neal v. HudsonOpinion
No. 20,366.
Decided March 2, 1964. Rehearing denied April 6, 1964.
An action against physician for malpractice. From a judgment of dismissal the plaintiff brings error.
Reversed.
1. NEW TRIAL — Filing — Judge — Duty to Note Date — Transmit to Clerk — Rules. Where counsel for plaintiff mailed motion for rehearing or new trial direct to trial judge in apt time but the latter failed to note thereon date of filing and did not transmit motion to clerk until after he had ruled thereon, more than ten days after judgment, plaintiff may not be penalized for failure of judge to strictly adhere to Rule 5 (e), R.C.P. Colo.
2. PLEADING — Allegations — Time and Place — Right to Amend. Where complaint on its face failed to allege place where alleged tort was committed, motion to dismiss was in order; nevertheless judgment of dismissal instanter with costs was erroneous, since under Rule 15, R.C.P. Colo. plaintiff was entitled to amend his complaint.
Error to the District Court of Boulder County, Hon. Donald A. Carpenter, Judge.
Mr. KENNETH N. KRIPKE, for plaintiff in error.
Messrs. COIT and WALBERG, for defendant in error.
MICHAEL SPROTT, age 5, by his mother and next friend, Lois Sprott, filed a malpractice action against Claude O. Roberts, an anesthesiologist, and Philip P. Pyles, a dentist. Service of process was had only on Dr. Roberts.
The complaint in its first claim in substance alleged that Michael had been taken by his mother to Dr. Pyles for dental work, that Dr. Pyles engaged Dr. Roberts to administer an anesthetic. Also, that as a direct result of the negligence and carelessness of both doctors in administering the anesthetic Michael suffered serious brain damage and related disabilities. The second claim for relief alleged res ipsa loquitur and the third claim that the doctors had a duty to warn Mrs. Sprott of the possible danger to her son from the particular anesthetic used. $100,000.00 damages plus costs were sought as satisfaction for the alleged tort.
Dr. Roberts filed a motion to dismiss alleging that the complaint failed to state a claim. The court granted this motion and forthwith entered formal judgment on May 14, 1962. Within ten days after the entry of judgment of dismissal Michael filed his "Petition for Rehearing Or Motion For New Trial In The Alternative" with the trial judge. More than ten days after the judgment entered, to-wit on June 5, 1962, this combined petition and motion was denied and Michael seeks relief by writ of error.
The opening brief asserts that the first claim gives "fair notice" of the cause of action to the defendants and that is all that is required under Colo. R.C.P.; that the elements of res ipsa loquitur are sufficiently pleaded in the second claim; and, that the third claim describes a separate and distinct element of negligence, viz. breach of a duty to warn.
On the other hand, Dr. Roberts contends on this writ of error that all three counts fail to state claims upon which relief can be granted; and, that in addition action of the trial court is not reviewable under R.C.P. Colo. 59 (f) because Michael's combined petition for rehearing and motion for new trial not filed with the clerk of the trial court within the ten day time required by R.C.P. Rule 59 (b).
We will discuss there matters in reverse order.
First, as to the place where the combined petition and motion was filed the record discloses that Michael's counsel filed this by mailing it to the trial judge well within the ten days but that the judge did not then note the time and date of filing and held up his ruling thereon until after ten days had run; that only after he ruled did he file it with the clerk.
R.C.P Rule 5 (e) requires filings to be with the clerk of the court but permits filing with the judge provided "he shall (then) note thereon the filing date and forthwith transmit them (i.e. the papers) to the office of the clerk."
Here Dr. Roberts would punish Michael for the failure of the judge to strictly adhere to the above rule. We find no merit in such a position in view of the fact that Michael's counsel acted in accordance with Rule 5 (e) when the judge permitted the motion to be filed with him. And, such a construction as urged is certainly contrary to the express intent of R.C.P. Rule 1 (a) that the rules "* * * shall be liberally construed to secure the just, speedy, and inexpensive determination of every action."
As to the propriety of the dismissal itself we have a different problem. No reasons were given by the trial court. Dr. Roberts' brief, however, points out that nowhere in the complaint is there a statement as to where the alleged tort was committed. He further asserts, among other grounds, that no duty is alleged to have been breached and no standards of care set forth; also, that res ipsa loquitur does not apply to medical suits; and, that no duty exists to warn about the possible effects of an anesthetic. We find no merit to any of these contentions except the one relating to the failure to allege the place of the occurrence of the alleged tort.
In connection with the place where the event took place, Dr. Roberts cites R.C.P. Rule 9 (f) which reads:
"Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter."
Since this complaint on its face fails to make the material allegation of the place where the alleged tort was committed, the motion to dismiss was good. This does not mean, however, that the trial court's original judgment of dismissal instanter and for costs was properly entered as soon as the court made its Order of June 5, 1962, wherein it denied Michael's petition and motion. On the contrary, this is where error occurred.
The reason for this is that R.C.P. Rule 15 permits Amended and Supplemental Pleadings. Under this, Rule 15 (a) states in pertinent part:
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is filed. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. * * *."
As we view it the trial court could not enter its judgment of dismissal until Michael had had at least an opportunity to amend his complaint.
The judgment is reversed with directions to the trial court to vacate the judgment of dismissal and too grant to the parties leave and reasonable time to file new pleadings or amend as they may be advised.
MR. JUSTICE MOORE and MR. JUSTICE FRANTZ concur in the result.