Evans v. Gogo

407 S.E.2d 361, 185 W. Va. 357
West Virginia Supreme Court·Decided July 11, 1991·No. 19190·Published·Cited by 6 cases

Opinions

PER CURIAM:

Edward and Mary Sue Evans appeal from an order of the Circuit Court of Raleigh County denying their motion to rein[358] state a cause of action previously dismissed under Rule 41(b), W.Va.R.Civ.P., for failure to prosecute. The circuit court denied reinstatement on the ground that there was no showing of good cause for the delay in prosecution. Because we conclude that change of out-of-state associate counsel constituted good cause in this case, we reverse the circuit court and remand the case for further proceedings.

The Evanses instituted a medical malpractice action on August 12, 1985 after the death of their thirteen year old son, Barry, from alleged side effects of his condition, ulcerative colitis and azulfidine, the drug treatment prescribed by Maynard H. Bellamy, M.D.1 Dr. Bellamy and Prospero B. Gogo, M.D., Barry’s treating pediatrician during the drug treatment, allegedly failed to warn and to monitor Barry during his treatment with azulfidine. The Evanses maintain that the alleged negligence of Dr. Bellamy and Dr. Gogo resulted in the death of their only son.

After answering the complaint, Dr. Bellamy filed interrogatories and a request for production of documents on August 23, 1985. Dr. Gogo also answered the complaint. After a motion to compel was filed on February 18, 1986, on March 6, 1986 the Evanses filed their interrogatory answers and produced the requested documents. In answering Dr. Bellamy’s interrogatories, the Evanses indicated that their expert witness, W.G. Teague, M.D., had reviewed Barry’s medical records and identified several areas of concern.

The court record indicates no other action occurred until an March 18, 1988 dismissal notice was sent to Larry E. Losch, the Evanses’ attorney.2 The dismissal notice indicated that “good cause” must be shown for the case to remain on the docket. On March 28, 1988, the case was dismissed without prejudice. On March 30, 1988, Mr. Losch sought to reinstate the case claiming the withdrawal of the out-of-state counsel he had associated with for this case constituted good cause. Mr. Losch had informally associated with the firm of Ashcraft & Gerel to act as outside counsel because of the complex nature of this case. However, John E. Sutter, the attorney assigned to the case by Ashcraft & Gerel, left the firm in February 1987. Although the case was reassigned within Ashcraft & Gerel, there was a delay in transferring the file and in the Fall of 1987, Ashcraft & Gerel withdrew from all their West Virginia cases.

On August 15, 1988, the circuit court determined that the withdrawal of associate counsel did not constitute good cause and denied reinstatement.3 On November 9, 1988, the circuit court denied the Evans-es’ motion to reconsider and the case was appealed to this Court.

On appeal Dr. Bellamy and Dr. Gogo argue that good cause had not been shown and reinstatement would be prejudicial to them. Dr. Bellamy currently practices in Mississippi and his family is experiencing severe health problems that require his constant assistance. Dr. Bellamy also argues that the plaintiffs have shown a lack of diligence and a “lackadaisical approach to the case.” Dr. Gogo notes that his malpractice premium was elevated because of a lack of determination in this suit.

Because we find the circumstances of this case constitute good cause, we hold that the circuit court abused its discretion in failing to reinstate this ease.

I.

The question presented by this appeal is whether the circuit court abused its discretion in declining to reinstate the action to its docket. Rule 41(b), W.Va.R.Civ.P. [1988], places within the discretion of the circuit court the power to strike from its docket an action “wherein for more than [359] two years there has been no order or proceeding but to continue it....”4 See Arlan’s Dept. Store of Huntington, Inc. v. Conaty, 162 W.Va. 893, 253 S.E.2d 522 (1979) (discussing W.Va.Code, 56-8-9 and 12 [1931], statutory predecessors of Rule 41(b)). We have consistently viewed the time periods established by the rules of civil procedure as helping “to secure just, speedy and inexpensive determination in every action.” Rule 1, W.Va.R.Civ.P. [1988]. However, Rule 41(b), W.Va. R.Civ.P. [1988], recognizes that valid reasons exist that can account for the lack of diligence in the prosecution of an action and permits reinstatement within three terms of the dismissal order. Arlan’s, 162 W.Va. at 898, 253 S.E.2d at 525-526.

This Court has consistently required a showing of good cause in order for the plaintiff to be entitled to reinstatement. In Syllabus Point 1, Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983), we stated:

Under W.Va.R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case.

Arlan’s, supra; Nibert v. Carroll Trucking Co., 139 W.Va. 583, 82 S.E.2d 445 (1954); White Sulphur Springs v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 (1913). We also have recognized the defendant’s interest in an involuntary dismissal by holding:

Involuntary dismissal for failure to prosecute should only occur when there is lack of diligence by a plaintiff and demonstrable prejudice to defendant, (citations omitted).

Gray v. Johnson, 165 W.Va. 156, 163, 267 S.E.2d 615, 619 (1980). The determinations good cause and prejudice must be made in each case after a careful examination of the record. Id.

II.

In order to determine if the court abused its discretion in failing to reinstate the present case, we must examine the reasons given for the delay, and the possible prejudicial effect of the delay on the defendants.

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Evans v. Gogo, 407 S.E.2d 361, 185 W. Va. 357 (W. Va. 1991).

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