Rancourt v. Waterville Osteopathic Hospital ( 1987 )

WATHEN, Justice,

dissenting.

I must respectfully dissent. This case was scheduled for jury trial on five different occasions after progressing through the “fast track” established by the administrative order. Ultimately the case was scheduled as the only case for trial on June 23, 1986. On June 11, a new attorney entered his appearance for defendant and moved to continue the case to permit preparation for trial and moved to amend the answer to include the statute of frauds as a defense. In a cover letter accompanying the motion, defense counsel informed the court that plaintiff’s counsel objected to the continuance and he suggested a hearing by conference call. On the following day the court granted the continuance without affording plaintiff any opportunity to be heard in opposition. On July 21, 1986, defense counsel moved for leave to file a motion for summary judgment and leave was granted and the answer was amended on August 6, 1986. On August 12, defendant’s motion for summary judgment was heard and the court took the motion under advisement. Nearly four months later, on December 15, 1986, the court granted summary judgment. The court ruled that there was no genuine issue of material fact as to whether Dr. Litman had actual or apparent authority to enter into a contract. Moreover, the court ruled erroneously that such a contract would be barred by the statute of frauds.

In its opinion this Court acknowledges that the defendant may well have acted in violation of the administrative order by filing a motion to continue and a motion for leave to file a motion for summary judgment eleven months after the date established for completion of discovery. Further this Court acknowledges that it was an abuse of discretion for the Superior Court to grant the motion to continue over plaintiff’s objection and without furnishing plaintiff an opportunity to be heard. Brushing such procedural irregularities aside, the Court nevertheless concludes that the Superior Court appropriately entertained a motion for summary judgment even though that action caused the removal of the case from the trial list and resulted in a four month delay for decision on the motion.

Assuming that Rule 56 is unaffected by the administrative order, a dubious proposition at best, I am unable to reconcile the Court’s result with the requirement of the rule that such motions are to be filed “within such time as not to delay trial.” On this record I readily conclude that defendant is not entitled to avail itself of the extraordinary relief provided by Rule 56. In the interest of fairness and the maintenance of some semblance of procedural regularity, I would vacate the grant of summary judgment and remand for trial.