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December 15, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Trial Judge)

Before Rogers, Chief Judge, and Steadman and King, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Appellee Debra Dorsey failed to appear at a scheduling conference in an action brought by appellant Providence Hospital (the "hospital") to recover the balance due on a hospital bill. The trial court entered default against appellee subject to ex parte proof. At the ex parte proof hearing, attended only by the hospital, the trial court found a failure of proof of any underlying personal liability of appellee to the hospital and entered judgment in favor of appellee. We agree with the hospital that the trial court erred in the entry of judgment for appellee and accordingly vacate the judgment and remand for further proceedings.


Appellee admitted herself to Providence Hospital on May 5, 1989, and received treatment from that date until May 22, 1989. The hospital charged appellee $7,714.74 for these services. Appellee's insurance paid $2,500.00 of the bill *fn1 and the bill was reduced further by $2,014.25 due to an allowance agreement between the hospital and appellee's insurance carrier, leaving a balance of $3,200.49. The evidence indicated that the hospital sent statements on a monthly basis to appellee over a period of time advising appellee of the balance due and that phone calls were also made to appellee concerning the bill. The testimony also showed that appellee registered no objection in connection with these notifications, but the bill remained unpaid.

The hospital filed suit on April 11, 1991. *fn2 On April 30, 1991, the trial court received a letter from appellee, which the court construed as an answer, informing the court that upon appellee's admittance, she had given the hospital information about her insurance and that "it was my understanding that Blue Cross and Blue Shield would be responsible for paying the bill in full." *fn3 A settlement and scheduling conference was set and ultimately held on September 27, 1991. Appellee did not appear at the conference and the trial court entered default against appellee subject to ex parte proof. At the ex parte proof hearing, the hospital put on evidence of appellee's treatment and of its efforts to collect the balance of the bill. Although appellee did not appear at this hearing, the trial court entered judgment for appellee for want of proof, finding that the hospital had failed to show that appellee ever agreed to personally pay any of the hospital charges beyond what her insurance would pay.


We note at the outset that the trial court's granting of default subject to ex parte proof against appellee was presumably made as a sanction pursuant to Super. Ct. Civ. R. 16, see Rule 16(1) *fn4 & 16-II, *fn5 and not pursuant to Super. Ct. Civ. R. 55(a), *fn6 in light of the fact that appellee had filed what the trial court deemed to be an answer in the case. See Larry M. Rosen & Assocs., Inc. v. Hurwitz, 465 A.2d 1114, 1117-18 (D.C. 1983); Bonded Adjustment Ass'n, Inc. v. Doss, 286 A.2d 853, 854 (D.C. 1972). The hospital argues that once the default was entered, the only issue left open for determination by the trial court was the amount of recovery and that the court erred in relying upon the asserted failure of the hospital to prove any underlying liability. The hospital relies on Firestone v. Harris, 414 A.2d 526 (D.C. 1980) for the proposition that an entry of default in itself establishes the non-defaulting party's right to recover, and thus, it argues, the only issue properly before the trial court at the sanctions hearing was the amount of recovery. However, Firestone is inapplicable in the instant case in that the trial court there entered default against the defaulting party subject to ex parte proof of damages. Here, the trial court entered default against the appellee subject to ex parte proof, without qualification.

Thus, here default was entered with the contingency that the hospital prove appellee's underlying liability as well as its damages. This form of entry of conditional default was entirely permissible. A trial court has broad discretion in fashioning the appropriate sanction against a party for failure to attend a pretrial conference. Durham v. District of Columbia, 494 A.2d 1346, 1350 (D.C. 1985); see also Firestone v. Harris, supra, 414 A.2d at 527. Likewise, at the ex parte hearing, the court was well within its discretion in concluding that, given the answer of appellee asserting that she understood that the hospital would look only to the insurance company for payment and the absence of any express written agreement by her to pay any charges, appellee's underlying liability was in sufficient doubt to preclude the entry of any sort of ex parte default judgment against her as a sanction for her nonappearance at the scheduling conference. See Durham v. District of Columbia, supra, 494 A.2d at 1350 ("trial court must be especially cautious where it chooses to impose the very severe sanction of dismissal").

The Conclusion that the trial court did not abuse its discretion in declining to enter a default judgment against appellee is, however, a different issue from whether the trial court erred in granting a final judgment in favor of appellee at the sanctions hearing. At that hearing, the hospital presented a prima facie case of an implied in fact contract which would establish the underlying liability of appellee. *fn7 See Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C. 1993); Brown v. Brown, 524 A.2d 1184, 1190 (D.C. 1987). *fn8 There was no dispute that appellee voluntarily came to the hospital and personally sought and received the services that the hospital provided. *fn9 Generally, gifts are not presumed in the law, and a person who both requests and receives valuable services impliedly has the obligation to pay reasonable compensation for them. See JOHN D. CALAMARI AND JOSEPH M. PETRILLO, CONTRACTS 19 (2d ed. 1977); *fn10 42 C.J.S. Implied Contracts § 26 (1991).

A contrary understanding or expectation may of course be shown. This might be done by introducing evidence, through appellee's testimony, for example, that she had informed the hospital that she expected her insurance to cover the costs (i.e., a third party would pay). *fn11 But here no such competent evidence was in fact presented. While the trial court could permissibly refuse to enter default against the appellee in light of her unverified answer, it could not use that answer as the basis to completely defeat the hospital's claim so as to warrant the entry of judgment in appellee's favor, quite a different matter. Appellee's allegations, articulated in her unsworn letter/answer, may be viewed as a potential defense to the hospital's claim for recovery. However, the validity of the defense should be considered only pursuant to testimony made under oath or other evidence admitted at a trial on the merits. See 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1182 (1990) ("The federal rules recognize that pleadings are not an end in themselves. 'Under the Rules . . . a case consists not in the pleadings, but the evidence, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.'" (citing De Loach v. Crowley's, Inc., 128 F.2d 378, 380 (5th Cir. 1942))).

Accordingly, the judgment in favor of appellee is hereby vacated and the case is remanded for further proceedings consistent with this opinion.

So ...

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