DEBORAH LAWSON, AS NEXT FRIEND OF BRITTANY LAWSON, (A MINOR) v. DR. JAMES D. DAWSON, M.D.; SOUTHEASTERN KENTUCKY BAPTIST HOSPITAL, BAPTIST HEALTHCARE SYSTEM, INC., D/B/A BAPTIST REGIONAL MEDICAL CENTER
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RENDERED: AUGUST 27, 2004; 2:00 p.m.
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Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000448-MR
DEBORAH LAWSON, AS NEXT FRIEND
OF BRITTANY LAWSON, (A MINOR)
APPELLANTS
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 98-CI-00317
v.
DR. JAMES D. DAWSON, M.D.;
SOUTHEASTERN KENTUCKY BAPTIST
HOSPITAL, BAPTIST HEALTHCARE SYSTEM,
INC., D/B/A BAPTIST REGIONAL MEDICAL
CENTER
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND SCHRODER, JUDGES.
BARBER, JUDGE:
The Appellant, Deborah Lawson, as next friend of
Brittany Lawson, a minor (Lawson), appeals from the decision of
the circuit court denying her motion to continue the trial
against James D. Dawson, M.D.,1 from the trial court’s dismissal
of the case on the day of trial for failure to comply with CR
1
In the notice of appeal Dr. Dawson is listed as “James D. Lawson, M.D.”
However, it appears that the correct spelling is “Dawson” and so we shall
refer to him accordingly.
8.01, and from its subsequent denial of her motion to alter,
amend, or vacate the judgment.
Lawson also brings an appeal
against Southeastern Kentucky Baptist Hospital, Baptist
Healthcare System, Inc. d/b/a Baptist Regional Medical Center
(Baptist) contending that an agreed order dismissing Brittany’s
claims against Baptist is invalid and should be set-aside.
We
vacate and remand.
The issues in this appeal do not involve the
substantive claims of medical negligence in Lawson’s complaint.
Rather they involve whether the trial court should have granted
a continuance, whether the court erred when it dismissed
Lawson’s action with prejudice for failure to comply with CR
8.01, and whether an agreed order dismissing Baptist from the
case should be allowed to stand.
This action was filed by Lawson on behalf of her child
Brittany on June 4, 1998.
In her complaint Lawson alleged that
due to the negligence of James D. Dawson, M.D. (Dr. Dawson) and
the negligence of Baptist, Brittany Lawson suffers with severe
quadriplegic cerebral palsy and seizure disorder.
The
conditions were alleged to be caused at the time of her birth
and to be permanent in nature.
Quite a bit of discovery occurred in the case with
close to twenty depositions being taken and interrogatories and
documents produced by all.
The case was originally set for
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trial August 22, 2001, but was continued because the attorney
for Baptist was pregnant.
The case was again set for trial on
February 19, 2002, but continued with the agreement of all
parties due to major surgery that was scheduled for Brittany.
The court then reset the case to be tried on December 3, 2002.2
Prior to each trial date the court issued a standard
order requiring the parties to furnish the court with a brief at
least five days prior to the trial that set forth the issues
involved in the case along with a variety of other information
including an itemized list of special damages.
The order also
required the parties to exchange certain information including a
list of special damages at least 20 days prior to trial in the
first two pretrial orders and 30 days prior to trial in the
order that applied to the December 3, 2002 trial date.
Dr. Dawson also served interrogatories to Lawson on
July 6, 1998.
Interrogatory number 5 requested her to identify
the amount of special damages claimed to have resulted from Dr.
Dawson’s negligence alleged in the complaint.
Lawson never filed her brief in compliance with the
court’s orders, and, although she answered the interrogatories
propounded by Dr. Dawson, she never indicated the amount of
damages sought.
2
The first two trial dates were set by Division II of the Whitley Circuit
Court and then the case was transferred pursuant to KRS 26A.015(2) to
Division I of Whitley Circuit Court.
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On October 17, 2002, Lawson’s counsel filed a motion
to withdraw as counsel of record.
The motion was heard on
November 4, 2002, and the court allowed counsel to withdraw.
From the record there is no explanation for why counsel wished
to withdraw.
The court allowed Lawson 20 days in which to find
new counsel to represent her daughter’s interests in the suit
but refused to change the trial date.
During the hearing on the
motion to withdraw Lawson was present and in response to whether
she had obtained another lawyer stated, “I haven’t signed a
contract, but, yeah.”
Lawson further inquired as to whether
this would change the December 3, 2002, trial date and the court
responded that the trial would go on as scheduled.
On November 13, 2002 counsel on appeal filed on behalf
of Lawson a motion to continue the trial set for December 3,
2002.
The motion indicated that counsel was considering taking
the case but needed the opportunity to review the record and
properly prepare for trial in order to adequately represent
Lawson.
Dr. Dawson objected to the continuance.
Although the
motion was filed November 13, 2002, it was not heard until
December 2, 2002, the day before trial.
The court denied the
motion.
On December 3, 2002, the case was called for trial and
Lawson appeared on her own behalf along with counsel for Dr.
Dawson.
At that time Lawson again requested that the court
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continue the case.
After a long discussion the court indicated
that it was inclined to grant her request but then changed its
ruling and denied the motion.
The court also considered the
fact that Lawson had failed to comply with its pretrial orders
or answer the interrogatories on special damages and dismissed
the case pursuant to Fratzke v. Murphy, Ky., 12 S.W.3d 269
(1999).
Lawson asked the court to reconsider these decisions
but the court denied the motion and this appeal followed.
In Lawson’s appeal she also maintains that an agreed
order entered March 28, 2002 dismissing her claims against
Baptist with prejudice is invalid because it is founded upon a
settlement in an amount over $10,000.00 for which no guardian
was appointed to distribute monies, release claims, or report to
the court as provided for in KRS 387.125(6) and KRS 387.280.
The first issue concerns whether the court should have
granted Lawson’s motions for a continuance of the trial.
The
standard on appeal for judging the circuit court’s decision to
deny Lawson’s motions is whether or not the court abused its
discretion.
Wells v. Salyer, Ky., 452 S.W.2d 392, 395-396
(1970); Stallard v. Witherspoon, Ky., 306 S.W.2d 299, 300
(1957).
Factors that the court should consider before making
its determination are the “length of delay, number of prior
continuances granted, inconvenience to the litigants, which
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party caused the delay, availability of counsel, complexity of
the case, and prejudice to the parties.”
Pendleton v.
Commonwealth, Ky., 83 S.W.3d 522, 526 (2002).
An examination of these factors demonstrates that the
equities lie with Lawson and the court should have granted the
requested continuance.
For example, the length of the delay
requested was relatively short, Lawson herself requested only 30
more days.
Whether or not counsel could be prepared in 30 days
is still an open question but it is clear from the posture of
the case that discovery had all but been completed and the only
further actions to take were to file the trial brief as ordered
by the court and prepare the case to be tried, i.e., arrange
witness attendance, create exhibits, etc.
Two prior continuances had been granted but the first
was not due to Lawson.
Rather, it was due to the pregnancy of
the attorney for the hospital.
agreement of all parties.
The second continuance was by
Although due to Brittany’s surgery,
it appears from the record that Lawson offered to reschedule
that surgery in order for the trial to go on, but this offer was
refused in favor of continuance.
In the face of the fact that the requested time for a
continuance was relatively brief, the inconvenience to the
litigants is slight by comparison.
The primary reasons Dr.
Dawson cited to as being inconvenient were the time the case had
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been pending and the fact that he had arranged for his experts
to be at trial on December 3, 2002.
Again, the requested time
for delay was not overly long and the second reason pointed to
by Dr. Dawson could have been avoided if the court had granted
the motion.
Undoubtedly the delay was caused by Lawson.
However,
the delay was due to her attorney withdrawing from the case – a
factor which we hesitate to construe against her when there does
not appear of record any explanation for why the motion to
withdraw was made nor did the court inquire into the matter on
the day the motion was heard.
Clearly counsel was not available and the court was
made aware that counsel would not be available on the day of
trial.
This case is one of medical negligence alleging trauma
at birth that resulted in severe and permanent handicaps.
At
least 17 depositions have been taken, most of them medical
professionals in the capacity of an expert witness.
Quite
obviously this is an extremely complex case that the court
should not expect Lawson to try without the aid of an attorney.
Dr. Dawson is not appreciably prejudiced by the
requested continuance as explained above.
prejudice to Lawson is plain.
However, the
Her case was ultimately dismissed
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with prejudice as a direct result of the denial of the motion to
continue.
Case law also supports our conclusion.
For example,
in Cox v. Spears, 181 Ky. 363, 206 S.W. 20 (1918), the
plaintiff’s attorney had withdrawn from the practice of law.
Because of this, the plaintiff was unaware that the case had
been submitted for judgment in her absence.
When she discovered
this she immediately asked the court to reconsider the order to
submit and to continue the case so that she might offer some
evidence.
The court denied the motion but on appeal was
reversed.
The appellate court stated that the plaintiff should
have an opportunity to present her case even if she had been
dilatory in its preparation.
Id. 206 S.W. at 21.
That is, a
“reasonable opportunity should have been granted for the
preparation of the case.”
Likewise, in Griffin v. Russell, 161 Ky. 471, 170 S.W.
1192 (1914), the Court reversed a denial of a motion to continue
when the defendant’s attorney withdrew on the day of trial.
Although the defendant was able to obtain another attorney, the
Court still held that he was prejudiced stating:
It is well known that very few lawyers, however able
they may be, can properly defend an important case
involving complicated issues of fact and nice
questions of law, upon the spur of the moment.
Preparation is not only proper, but necessary, for the
orderly and prompt administration of justice, as well
as for the protection of the client’s interests.
-8-
Id. 170 S.W. at 1193.
Due to the complexity of the case at bar there is no
credible argument that can be made that an attorney or Lawson
herself could be prepared to try the case between the time
Lawson’s original attorney withdrew on November 4, 2002 and the
scheduled trial date of December 3, 2002.
Thus, the court’s
insistence that it be tried on that date once it allowed
Lawson’s original attorney to withdraw (bear in mind that the
court did not have to grant that motion) was tantamount to
denying the “administration of justice.”
Id. See also, Reecy v.
Reecy, 132 Ill., App. 2d 1024, 1027, 271 N.E.2d 91, 93 (1971)
(continuance should have been granted in case where attorney was
allowed to withdraw 16 days prior to scheduled trial date and
new attorney needed time to prepare for trial).
The second argument by Lawson on appeal is that the
court erred when it dismissed her case for failing to inform Dr.
Dawson of any claimed special damages 30 days prior to trial and
failure to seasonably supplement her interrogatory answer with
that information according to Fratzke v. Murphy, Ky., 12 S.W.3d
269 (1999).
The failure of the trial court to grant Lawson’s
motion for a continuance obviously affected her compliance with
the court’s order and her ability to seasonably supplement her
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interrogatory.
Had the continuance been granted it is doubtful
that any violation would have occurred.
Therefore, we believe
that the question of these violations is now moot.
Finally, Lawson argues that the agreed order
dismissing Baptist should be set aside.
Baptist replies that
Lawson is precluded from raising this issue on appeal because
the trial court never had the opportunity to consider the matter
first, that Lawson is estopped by her voluntary agreement to the
dismissal, and, in any event, the burden is on Lawson to ensure
that any settlement was entered into correctly.
KRS 387.280 allows the court, after receiving evidence
by way of affidavit or oral testimony, to approve a settlement
made by one who is not a guardian or conservator for the minor
if the amount of the settlement is under $10,000.00.
If the
court approves the settlement, then a release signed by the
person to whom the court has ordered the money paid has the same
effect as if it were signed by a duly appointed guardian.
KRS 387.125(6) allows a duly appointed guardian to
compromise and release a claim on behalf of a minor with court
approval.
There is no evidence in the record of the amount of
settlement between Baptist and Lawson as next friend although
Lawson asserts that it was for more than $10,000.00.
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Jones by and through Jones v. Cowan, Ky., App., 729
S.W.2d 188 (1987), explains that a next friend, as Lawson is
here, cannot compromise and settle a claim on behalf of a minor.
Id. at 189.
It further holds that a next friend may, in concert
with the trial court, settle a lawsuit on behalf of a minor but,
“unless a statutory guardian is appointed to receive and account
for the proceeds and release the minor’s claim, the judgment may
be subject to attack.” Id. at 190.
Scott v. Montgomery Traders Bank and Trust Co., Ky.,
956 S.W.2d 902 (1997), makes clear that any settlement over
$10,000.00 on behalf of a minor requires the appointment of a
guardian and strict compliance is “necessary and expected.”
Id.
at 904.
Neither in the statutes or the case law is it stated
on whom the burden rests to ensure that a settlement on behalf
of a minor is correctly executed.
However, the Supreme Court
noted in Scott that it was perplexed as to why the bank, not the
next friend, had not complied with the requirements of the
statute.
Scott, 956 S.W.2d at 904.
Therefore, we do not
believe that the onus is necessarily on Lawson to secure the
appointment of a guardian.
Accordingly, Lawson is not estopped from raising the
issue that the settlement is invalid.
The case law makes clear
that any settlement on behalf of a minor without the approval of
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the court and appointment of a guardian is subject to collateral
attack.
Baptist is presumed to know this and took its chances
when it entered into a settlement without ensuring the proper
procedures were followed to make it binding.
Since we do not have any evidence of record as to the
amount of the settlement, this portion of the case is remanded
to the trial court for further findings.
The judgment of the Whitley Circuit Court dismissing
Lawson’s suit is vacated and the case is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
Charles C. Adams, Jr.
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, JAMES D. DAWSON,
M.D.:
Joe L. Travis
Daniel G. Yeast
Somerset, Kentucky
BRIEF FOR APPELLEE, BAPTIST
HOSPITAL HEALTHCARE SYSTEM,
INC., D/B/A BAPTIST REGIONAL
MEDICAL CENTER:
Margaret M. Pisacano
Lynn Rikhoff Kolokowsky
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEE,
BAPTIST HOSPITAL HEALTHCARE
SYSTEM, INC., D/B/A BAPTIST
REGIONAL MEDICAL CENTER:
Lynn Rikhoff Kolokowsky
Lexington, Kentucky
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