Hoke, v. Motel 6 Jackson, 05-132.

• Citation: 2006 WY 38,131 P.3d 369
• Decision Date: 27 March 2006
• Docket Number: No. 05-132.,05-132.
• Parties: Paula HOKE, Appellant (Plaintiff), v. MOTEL 6 JACKSON and Accor North America, Inc., a Delaware corporation, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

131 P.3d 369

2006 WY 38

Paula HOKE, Appellant (Plaintiff), v. MOTEL 6 JACKSON and Accor North America, Inc., a Delaware corporation, Appellees (Defendants).

No. 05-132.

Supreme Court of Wyoming.

March 27, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: William R. Fix and Jenna V. Mandraccia of William R. Fix, P.C., Jackson, Wyoming. Argument by Mr. Fix.

Representing Appellees: James K. Lubing and Carter H. Wilkinson of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Lubing.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

HILL, Chief Justice.

[¶ 1] Paula Hoke (Hoke) allegedly suffered injuries on March 6, 2000, while a guest at Motel 6 of Jackson, Wyoming (Motel 6). On March 4, 2004, two days before the statute of limitations expired, Hoke filed a negligence action against Motel 6 and Accor North America, Inc. (Accor). After vacating a default judgment, the district court dismissed with prejudice the claims against Motel 6 on the grounds that the service of summons and complaint was improper pursuant to W.R.C.P. 4(b) and the statute of limitations had passed. The court also dismissed the claims against Accor with prejudice because service was not made within 60 days of the filing of the complaint and, pursuant to W.R.C.P. 3(b), when service occurs outside of that time period, the action is deemed commenced on the date of service, which occurred after the statute of limitations had expired. Hoke appeals the dismissal of her claims against Motel 6 and Accor. We affirm.

ISSUES

[¶ 2] Hoke states the following issues:

I. Whether the lower court was acting within its authority in granting the Plaintiff's Motion for Enlargement of Time for Service of Process on defendant Accor North America, Inc., and if so, its effect upon the timely service upon the defendant Accor North America, Inc., warranting reversal of the lower court's order of dismissal as to said defendant.

II. Whether the lower court erred in dismissing plaintiff's cause of action against Accor North America, Inc., and Motel 6 of Jackson with prejudice, in light of the Wyoming savings statute, W.S. § 1-3-118.

Motel 6 and Accor respond with a statement of three issues:

1. Was the dismissal of Plaintiff's cause of action and the setting aside of the default judgment against Defendant Motel 6 proper where Defendant Motel 6 was not properly served within the required statutory time period?

2. Was the dismissal of Plaintiff's cause of action against Defendant Accor proper where Defendant Accor North America was not properly served within the required statutory time period?

3. Were the dismissals of Plaintiff's causes of action against Defendants Motel 6 and Accor North America with prejudice proper?

PROCEDURAL BACKGROUND

[¶ 3] Hoke filed a complaint on March 4, 2004, alleging that she suffered injuries on March 6, 2000, while a guest at Motel 6 in Jackson, Wyoming. The statute of limitations governing Hoke's claims was four years pursuant to Wyo. Stat. Ann. § 1-3-105¹ (LexisNexis 2005). On March 29, 2004, a summons was served upon an employee of Motel 6. The summons was not signed by the Clerk of Court or sealed by the Court as required by W.R.C.P. 4(b).² Furthermore, no complaint was attached to the summons. Motel 6 did not timely file its answer, and default was entered on May 4, 2004. Three days later, the district court judge entered a default judgment against Motel 6.

[¶ 4] Meanwhile, on May 3, 2004, Hoke filed a motion to enlarge the time for service on Accor by an additional 60 days pursuant to W.R.C.P. 6(b).³ The motion was granted, and service was completed upon Accor's registered agent on July 1, 2004.

[¶ 5] On July 20, 2004, Motel 6 filed a motion to set aside the default judgment and to dismiss the action contending that the summons's failure to comply with W.R.C.P. 4(b) rendered service of process void, which meant that the court had not obtained jurisdiction over it prior to the expiration of the statute of limitations. On the same day, Accor filed a motion to dismiss the action contending that since it was served outside of the initial 60-day period, the action was not deemed to have been commenced on the date of the filing of the complaint; rather, pursuant to W.R.C.P. 3(b), the action was deemed to have commenced on the date of service, July 1, 2004, which was after the expiration of the statute of limitations. After a hearing, the district court entered an order setting aside the default and dismissing the action against Motel 6 and Accor with prejudice for the reasons articulated by the defendants. Hoke appeals from that order.

STANDARD OF REVIEW

[¶ 6] Our review requires us to determine the applicability of certain procedural rules and statutes, including the statute of limitations. Those are questions of law, which we review de novo.⁴ See Hollingshead v. Hollingshead, 942 P.2d 1104, 1106 (Wyo. 1997) ("The applicability of a statute of limitations is a question of law to be decided by the court."); and EOG Resources, Inc. v. State, 2003 WY 34, ¶ 7, 64 P.3d 757, 759 (Wyo.2003) ("On review, questions of the application of the law, including identification of the correct rule, are considered de novo."). Resolution of the issue on appeal will require us to construe and apply several rules of civil procedure and statutory provisions. Our rules of civil procedure are construed in the same manner as a statute. Vanasse v. Ramsay, 847 P.2d 993, 999 (Wyo.1993).

Our standard of review with respect to the construction of statutes is well known. In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Wyoming Board of Outfitters and Professional Guides v. Clark, 2001 WY 78, ¶ 12, 30 P.3d 36, ¶ 12 (Wyo.2001); Murphy v. State Canvassing Board, 12 P.3d 677, 679 (Wyo. 2000). Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation. Billis v. State, 800 P.2d 401, 413 (Wyo.1990) (citing McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo.1980)).

Moreover, we will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions. Gray v. Stratton Real Estate, 2001 WY 125, ¶ 5, 36 P.3d 1127, ¶ 5 (Wyo.2001); Bowen v. State, Wyoming Real Estate Commission, 900 P.2d 1140, 1143 (Wyo. 1995).

Bridle Bit Ranch Company v. Basin Electric Power Cooperative, 2005 WY 108, ¶ 21, 118 P.3d 996, 1008 (Wyo.2005) (quoting In Re Loberg, 2004 WY 48, ¶ 5, 88 P.3d 1045, 1048 (Wyo.2004) and Board of County Commissioners of Teton County v. Crow, 2003 WY

40, ¶¶ 40-41, 65 P.3d 720, 733-34 (Wyo. 2003)).

DISCUSSION

[¶ 7] The district court set aside the entry of default and default judgment against Motel 6 and dismissed Hoke's claims against it because the summons did not comply with the requirements of W.R.C.P. 4(b). A summons is "the means of compelling a defendant to subject his person to the jurisdiction of the court from which the summons issues." Pease Brothers, Inc. v. American Pipe & Supply Company, 522 P.2d 996, 1001 (Wyo.1974) (quoting State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407 (1942)). Strict compliance with the requirements of service of process is mandatory. In Interest of DG, 825 P.2d 369, 377 (Wyo.1992). Any omissions of statements that are required under W.R.C.P. 4 are fatal and such omission prevents the trial court from obtaining jurisdiction of the defendant. Emery v. Emery, 404 P.2d 745, 748 (Wyo.1965) (citing National Supply Company v. Chittim, 387 P.2d 1010, 1011 (Wyo.1964)); see also Oedekoven v. Oedekoven, 475 P.2d 307, 308 (Wyo. 1970); and Duncan v. Duncan, 776 P.2d 758, 760 (Wyo.1989). A judgment entered without proper service of the summons is void and subject to attack directly or collaterally. Crotteau v. Irvine, 656 P.2d 1166, 1169 (Wyo. 1983); Bryant v. Wybro Federal Credit Union, 544 P.2d 1010, 1011-12 (Wyo.1976); Pease Brothers, Inc., 522 P.2d at 1000-1001. Without proper service of summons, a default judgment is void and must be vacated. Midway Oil Corporation v. Guess, 714 P.2d 339, 345 (Wyo.1986); Pease Brothers, Inc. at Id.

[¶ 8] At the hearing on the motions to set aside the default judgment and dismiss filed by Motel 6, Hoke acknowledged that the summons was defective and not in compliance with the requirements of Rule 4(b). She also conceded that the default judgment should be vacated. On appeal, Hoke does not directly challenge the vacation of the default judgment. Instead, Hoke confines her argument to a collateral attack on the dismissal of her action against Motel 6 arguing that Motel 6 has "unclean hands" because it had notice of the action despite the defective summons and chose to wait until after the time period set forth in W.R.C.P. 3(b) lapsed before challenging the summons, effectively creating a bar to litigation against it. Hoke did not make this argument before the district court, and on appeal she has not supported her argument with citation to or analysis of pertinent legal authority. With the exception of certain jurisdictional and fundamental issues, we do not consider arguments...