Herrera v. Estay

• Decision Date: 22 January 2009
• Docket Number: No. 34085.,34085.
• Parties: Jesus HERRERA, Plaintiff-Appellant, v. Pedro ESTAY, Rock Creek Development, LLC, Defendants-Respondents.
• Court: Idaho Supreme Court

201 P.3d 647

146 Idaho 674

Jesus HERRERA, Plaintiff-Appellant, v. Pedro ESTAY, Rock Creek Development, LLC, Defendants-Respondents.

No. 34085.

Supreme Court of Idaho.

January 22, 2009.

Jenna V. Mandraccia, Oro Valley, Arizona, for appellant.

Wright, Wright & Johnson, Idaho Falls, for respondent Rock Creek Development. David Johnson argued.

Hess, Carlman & D'Amours, Jackson, Wyoming, for respondent Pedro Estay. Paul E. D'Amours argued.

SUBSTITUTE OPINION

THE COURT'S PRIOR OPINION DATED DECEMBER 4, 2008 IS HEREBY WITHDRAWN.

HORTON, Justice.

This appeal arises from a negligence action brought by Appellant Jesus Herrera. Herrera appeals the district court's grant of summary judgment and subsequent dismissal of his suit against Respondent Rock Creek Development, LLC (Rock Creek) and the district court's dismissal of his complaint against Respondent Pedro Estay (Estay) due to Herrera's failure to timely serve Estay. We vacate the judgment in favor of Rock Creek and remand the action for further proceedings. We affirm the district court's dismissal of Herrera's complaint against Estay. We decline to award attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Herrera's negligence action relates to injuries he sustained after a scaffold collapsed while he was working on the construction of a home for Estay in Driggs, Idaho. Estay hired Rock Creek to construct the residence. Rock Creek hired Peter Estay (Peter), Estay's son, as a superintendent to oversee the construction.

Herrera was an employee of FrameIt, an independent contractor hired by Rock Creek to frame the structure. FrameIt was owned and managed by Jose Montiel. In order to frame the upper portion of the house, Herrera and his brother, Francisco Herrera, erected a scaffold consisting of a plank supported by two-by-sixes and two-by-fours. A two-by-four attached to the roof provided additional support for the scaffold. This supporting member was removed, apparently to facilitate laying felt upon the roof. The identity of the person or persons who removed the support is unknown. On December 16, 2002, Herrera stepped on the scaffold, which collapsed, and Herrera was injured when he fell twelve to fifteen feet to the ground.

There is a factual dispute between Herrera and Rock Creek as to the level of Peter's involvement at the construction site. At the very least, Peter supervised all work done by FrameIt and communicated with Montiel as to the progress of the work, including all changes that were required. Herrera only spoke to Peter on one occasion; in this conversation, he requested that metal scaffolding be provided for the construction. Neither Rock Creek nor FrameIt supplied Herrera with the requested metal scaffolding.

After discovering that Montiel had not secured worker's compensation coverage for his employees,¹ on December 13, 2004, Herrera brought the instant negligence action against Rock Creek and Estay.² Rock Creek moved for summary judgment, arguing that it did not owe Herrera a duty of care because he was the employee of an independent contractor. The district court agreed and granted Rock Creek's motion for summary judgment, dismissing Herrera's action against Rock Creek.

Herrera was unable to serve Estay personally with the summons and complaint and the district court granted Herrera's motion to serve Estay by publication. Herrera published a summons in the Teton Valley News, a weekly newspaper printed and published in Driggs, for four consecutive weeks. The last date of publication was July 9, 2005. Herrera did not use the form of summons for publication provided by I.R.C.P. 4(b)(3); rather, the published summons was in the form provided by I.R.C.P. 4(b)(2).

On November 17, 2006, despite the lack of an earlier appearance by Estay, Herrera filed a notice of intent to take default against Estay. This notice was mailed to Estay on November 13, 2006, and received by him on November 16, 2006. On November 22, 2006, Estay made a special appearance, challenging the sufficiency of process and the personal jurisdiction of the district court. Shortly thereafter, Estay filed a motion to dismiss pursuant to I.R.C.P. 12(b)(2), (4), and (5). In addition to challenging the jurisdiction of the court and the sufficiency of process, Estay argued that because he was not properly served, the action should be dismissed pursuant to I.R.C.P. 4(a)(2). The district court agreed, finding that Estay was not properly served by publication, and dismissed the action due to Herrera's failure to serve the complaint within the six month time limit provided by I.R.C.P. 4(a)(2). Herrera timely appealed the district court's grant of summary judgment in favor of Rock Creek and dismissal of his complaint against Estay.

II. STANDARD OF REVIEW

A. Summary Judgment

When reviewing a ruling on a summary judgment motion, this Court employs the same standard used by the district court. Sprinkler Irrigation Co. Inc. v. John Deere Ins. Co., Inc., 139 Idaho 691, 695, 85 P.3d 667, 671 (2004) (citing Baker v. Sullivan, 132 Idaho 746, 748, 979 P.2d 619, 621 (1999)). Summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). This Court liberally construes all disputed facts in favor of the non-moving party and draws all reasonable inferences and conclusions supported by the record in favor of the party opposing the motion. Lockheed Martin Corp. v. Idaho State Tax Comm'n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006) (citing Infanger v. City of Salmon, 137 Idaho 45, 47, 44 P.3d 1100, 1102 (2002)).

B. Motion to Dismiss

Challenges to the sufficiency of process or the service of process under I.R.C.P. 12(b)(4) and 12(b)(5) are made pursuant to I.R.C.P. 12(d). This rule provides: "The defenses specifically enumerated (1)-(8) in subdivision (b) of this rule, whether made in a pleading or by motion ... shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial."

This Court has not previously had occasion to address the standard of review applicable to decisions made under I.R.C.P. 12(b)(4) and 12(b)(5). Given the virtual identity between these rules and their counterparts in the Federal Rules of Civil Procedure,³ and the lack of case law in Idaho, it is appropriate for this Court to turn to federal authority to address the standard of review. See Martin v. Hoblit, 133 Idaho 372, 376 n. 3, 987 P.2d 284, 288 n. 3 (1999) (considering I.R.C.P. 4(a)(2)); Compton v. Compton, 101 Idaho 328, 334 n. 1, 612 P.2d 1175, 1181 n. 1 (1980) (considering I.R.C.P. 60(b)); Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 395-96, 405 P.2d 634, 637-38 (1965) (considering I.R.C.P. 65(a) and I.R.C.P. 52(a)).

The interplay between motions made under Rules 12(b)(4) and 12(b)(5), Federal Rules of Civil Procedure has been described as follows:

The difference between Rules 12(b)(4) and 12(b)(5), which "is not always clear, nor always observed," is:

An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, therefore, a[R]ule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons. A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.

U.S. v. Hafner, 421 F.Supp.2d 1220, 1223 n. 3 (Dist.N.D.2006) (quoting 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1353, pp. 334-35 (3d ed.2004)); Richardson v. Alliance Tire & Rubber Co., Ltd., 158 F.R.D. 475, 477 (Dist.Kan.1994).

Wasson v. Riverside County, 237 F.R.D. 423, 424 (Cent.Dist.Cal.2006).

In the federal courts, the standard of review for a dismissal for insufficient service of process involves application of a de novo standard to legal questions and a clear error standard to findings of fact. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.2007) (citing Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir.2003)). This standard parallels that standard that we apply when reviewing mixed questions of law and fact. In such cases, the district court's findings of fact will be upheld where they are supported by substantial and competent evidence in the record and this Court will freely review the district court's application of law to its findings of facts. Sells v. Robinson, 141 Idaho 767, 771, 118 P.3d 99, 103 (2005) (citing Haight v. Dales Used Cars, Inc., 139 Idaho 853, 855, 87 P.3d 962, 964 (Ct.App.2003)). Thus, we deem it appropriate to apply our traditional standard of review for mixed questions of law and fact in cases involving claims of insufficiency of service of process.

Our standard of review of a dismissal pursuant to I.R.C.P. 4(a)(2) is well-established:

Rule 4(a)(2) requires a party to serve the summons and complaint within six months of filing the complaint. Unless a party can show good cause for failure to serve within those six months, a court must dismiss the action without prejudice. I.R.C.P. 4(a)(2). A determination of whether good cause exists is a factual one. Nerco Minerals Co. v. Morrison Knudsen Corp., 132 Idaho 531, 533, 976 P.2d 457, 459 (1999). Consequently, when reviewing a decision dismissing a case under the rule, "the appropriate standard of review is the same as that used to review an order granting summary judgment." Nerco Minerals Co. v. Morrison Knudsen Corp., 132 Idaho 531, 533, 976 P.2d 457, 459 (1999). However, "where there is no dispute as to the factual circumstances, our review consists of ascertaining the effect of applicable law on the undisputed facts."...