Duncklee v. Wills

• Citation: 542 N.W.2d 739
• Decision Date: 30 January 1996
• Docket Number: No. 950254,950254
• Parties: Terri Leigh DUNCKLEE, f/k/a Terri Mack, Plaintiff and Appellant v. Karen K. WILLS individually and as a member of the firm of Kuchera, Stenehjem, and Wills, and the law firm of Kuchera, Stenehjem, Kuchera, and Wills, Defendants and Appellees. Civil
• Court: United States State Supreme Court of North Dakota

Page 739

542 N.W.2d 739

Terri Leigh DUNCKLEE, f/k/a Terri Mack, Plaintiff and Appellant v. Karen K. WILLS individually and as a member of the firm of

Kuchera, Stenehjem, and Wills, and the law firm of

Kuchera, Stenehjem, Kuchera, and Wills,

Defendants and Appellees.

Civil No. 950254.

Supreme Court of North Dakota.

Jan. 30, 1996.

Henry H. Howe (argued), of Howe & Seaworth, Grand Forks, for plaintiff and appellant. Appearance by Mary Seaworth.

Lyle W. Kirmis (argued), of Zuger Kirmis & Smith, Bismarck, for defendants and appellees.

LEVINE, Justice.

Terri Duncklee appeals from a summary judgment dismissing her legal malpractice action against attorney Karen Wills. We hold that Duncklee's response to the motion for summary judgment was timely under Rule 3.2, of the North Dakota Rules of Court and that she raised a material fact issue making summary judgment under Rule 56, N.D.R.Civ.P., inappropriate. The trial court erred in dismissing Duncklee's action on the ground she did not timely respond to Wills' motion. Consequently, we reverse the summary judgment dismissal and remand for further proceedings.

In 1987, Wills represented Duncklee in a divorce. On November 9, 1993, Duncklee brought a legal malpractice action against Wills, alleging that during the divorce proceedings, Wills negligently handled the property settlement by failing to attain for Duncklee an equitable portion of her former husband's military pension.

On April 24, 1995 Wills filed a motion for summary judgment under Rule 56, N.D.R.Civ.P., and Rule 3.2, N.D.R.O.C., alleging the two-year statute of limitations had expired on Duncklee's malpractice action, and requesting summary dismissal of her claim. Wills' brief in support of the motion was received by Duncklee's counsel on that same day. The brief expressly stated that a copy of the original divorce decree was being included as part of the brief, labeled Attachment 1, and that a copy of excerpts from Duncklee's deposition testimony was also being included as part of the brief, labeled as Attachment 2. However, those attachments were inadvertently omitted from the brief Wills filed with the court and from the brief served upon Duncklee. On May 11, 1995, Wills' counsel filed copies of the attachments with the clerk of court and sent copies of the attachments to Duncklee's attorneys, with a cover letter stating:

"Please find enclosed Attachments 1 and 2 to the Brief in Support of Motion for Summary Judgment. It has come to our attention that these attachments were apparently not provided when the brief was originally served. We apologize for any inconvenience this oversight may have caused."

On May 22, 1995, Duncklee filed a response to the motion, briefing the statute of limitations issue on its merits.

Rule 1.1, N.D.R.O.C., makes Rule 3.2 apply to all motion practice unless there is a conflicting rule governing the matter. Here, there is no conflict between Rule 56, N.D.R.Civ.P., and Rule 3.2, N.D.R.O.C. Therefore, Rule 3.2, N.D.R.O.C., governs, and gives the party opposing a motion ten days to file a responsive brief:

"Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers."

When the moving party's brief is served by mail, the adverse party is given an additional three days to respond. Rule 6(e), N.D.R.Civ.P. "Failure to file a brief by the adverse party is an admission that, in the opinion of party or counsel, the motion is meritorious." Rule 3.2(b), N.D.R.O.C.

The trial court, counting from the date Wills' brief, without attachments, was filed and served upon Duncklee, concluded the time for response under the rule expired on May 9, 1995, and the court refused to acknowledge Duncklee's May 22, 1995 response to the motion. On June 7, 1995, the court ordered summary dismissal of Duncklee's malpractice action, on the ground that Duncklee had failed to file a timely brief in response to the motion and, thereby, had admitted the motion was meritorious. A summary judgment dismissing the action was entered on June 12, 1995, and Duncklee appealed.

Duncklee asserts that her May 22, 1995 response was timely, because it was served and filed within 13 days after the omitted attachments were sent to her. We agree. Rule 3.2(a), N.D.R.O.C., gives the opposing party ten days to respond "after service of a brief" by the movant. Wills' brief, by its express terms, made the attachments a part of the brief in support of the motion. But, the attachments were mistakenly omitted from the brief and were not sent to Duncklee until the error was discovered more than two weeks later. Until then, service of the brief upon Duncklee was not perfected for purposes of starting the ten-day period for Duncklee to respond under Rule 3.2, N.D.R.O.C. Conseq...