Inman v. Boykin

• Decision Date: 29 July 2014
• Docket Number: No. S–13–0189.,S–13–0189.
• Citation: 330 P.3d 275
• Parties: Verna INMAN, Appellant (Plaintiff), v. Denise BOYKIN, Appellee (Defendant).
• Court: Wyoming Supreme Court

330 P.3d 275

Verna INMAN, Appellant (Plaintiff),

v.Denise BOYKIN, Appellee (Defendant).

No. S–13–0189.

Supreme Court of Wyoming.

July 29, 2014.

Representing Appellant: G. Scott Jensen of Jensen and Sullivan, LLC, Ogden UT; and Stephen Farr of Farr, Rasmussen, Farr, LLC, Ogden, UT. Argument by Mr. Farr.

Representing Appellee: Carissa D. Mobley of Schwartz, Bon, Walker & Studer, LLC, Casper, WY.

Before BURKE, C.J., and HILL, KITE ^*, DAVIS, and FOX, JJ.

HILL, Justice.

[¶ 1] Verna Inman filed an action against Denise Boykin alleging that her negligent motor vehicle operation caused a collision resulting in serious injury to Inman. On Boykin's motion, the district court dismissed the action as barred by the statute of limitations. Inman appeals, claiming that the court's consideration of evidence outside the pleadings converted Boykin's motion to a summary judgment motion and that genuine issues of material fact precluded dismissal. We agree that Boykin's motion was converted to a summary judgment motion, but we find that no issues of material fact precluded entry of the court's order and the court correctly concluded that, as a matter of law, Inman's action was barred by the statute of limitations. We thus affirm.

ISSUES

[¶ 2] Inman states the issues on appeal as follows:

1. Whether a Motion to Dismiss is converted to a motion for Summary Judgment when an affidavit is presented in a responsive pleading and not excluded by the trial court.

2. Whether the doctrine of equitable estoppel prevents a defendant from asserting the statute of limitations when the plaintiff is induced to delay service on a case due to the defendant's insurer's promise of settlement and request for time to settle so that insurer may avoid litigation.

3. Whether the doctrine of equitable estoppel survives this Court's ruling in Hoke v. Motel 6 Jackson.

FACTS

[¶ 3] Verna Inman and Denise Boykin were involved in an automobile accident in Evanston, Wyoming, on July 9, 2008. On June 28, 2012, Inman filed a Complaint in the Third Judicial District Court, Uinta County, against Boykin and Midwest Car Corp., d/b/a/ National Car Rental. The Complaint alleged that Boykin negligently operated a car owned by National Car Rental, causing the collision between Boykin and Inman and injury to Inman.¹

[¶ 4] Inman did not immediately serve the Complaint on either defendant. On October 26, 2012, Inman filed an Ex Parte Motion for Enlargement of Time for Service. In that motion, Inman alleged that her attorney was in negotiations with Boykin's insurance company. The motion also alleged that Inman had attempted service on Boykin, but had been unsuccessful. The motion for enlargement further stated that Rule 6(b) of the Wyoming Rules of Civil Procedure allowed 120 days for service following the filing of a complaint and that the 120–day deadline would be October 28, 2012. On October 25, 2012, the district court signed and entered the Order for Enlargement of Time that had been prepared and submitted by Inman, which order granted a 120–day extension of time within which to complete service.

[¶ 5] On November 5, 2012, 131 days after Inman filed her Complaint, Boykin was served with a summons and complaint at her home in Georgia. The summons indicated it was from the State of Utah and was signed only by G. Scott Jensen, Inman's counsel located in Utah. The summons was not issued or signed by the Clerk of Court for the Third Judicial District and was not under seal of the court as required by Rule 4(b) of the Wyoming Rules of Civil Procedure.

[¶ 6] On November 28, 2012, Boykin filed an answer and a motion to dismiss. Boykin's motion to dismiss alleged that Inman's action was barred by the statute of limitations, that process was insufficient, and that service of process was insufficient. Inman filed a response within twenty days, with no attachments, and Boykin then filed a timely reply on December 24, 2012. The district court thereafter scheduled the matter to be heard on March 22, 2013.

[¶ 7] On March 14, 2013, Inman filed a supplemental response in opposition to Boykin's motion to dismiss. The supplemental response advised the district court:

In an attempt to move past the technical arguments and issues asserted with respect to service and the Summons, Plaintiff caused a second Summons to be issued by the Clerk of this Court to Defendant Boykin. The second Summons cured the deficiencies alleged of the first Summons, and was served on Defendant Boykin at her residence in Georgia by Deputy Clint Waldrip on December 12, 2012. The service of this second Summons also occurred within the timeframe granted the Plaintiff by this Court's October 26, 2012 Order for Enlargement of Time for Service.

[¶ 8] Inman's supplemental response also included an attached affidavit from the paralegal assisting Inman's counsel. The affidavit detailed actions taken on the case since Inman retained her present counsel and the negotiations with Boykin's insurer. Attached to the affidavit were copies of letter and e-mail correspondence between Inman's legal representatives and Boykin's insurer.

[¶ 9] Boykin filed a motion to strike the supplemental response. The district court did not rule on the motion to strike, and the matter proceeded to hearing on March 22, 2013. On June 11, 2013, the district court issued its decision letter granting Boykin's motion to dismiss with prejudice. In so ruling, the court reasoned:

The Defendant has filed her Motion to Dismiss Plaintiff's Complaint Against Denise Boykin because the action was not deemed to have commenced until she was properly served and that this service was obtained beyond the four-year statute of limitations, and more than 60 days from [the] date of filing of the Complaint.

The Plaintiff acknowledges that it was beyond the 60–day relation-back period, but that it was within the 120–day time period contained in this Court's Order enlarging time for Plaintiff to serve Defendant Boykin. Plaintiff contends that the Court granted the request for extension of time under Rule 6(b)(2) because excusable neglect was present. The court perceives that a more fundamental concern is present. That is whether the Court has jurisdiction to extend the statute of limitations beyond the 60–day “relation-back” period provided for in Rule 3(b) W.R.C.P.

. . . . .

At the outset, this Court must discuss what was clearly an erroneous Order that it signed on October 25, 2012 extending the time for service for an additional 120 days. The Court should have known that it had no authority under the Rules to extend the time of service beyond 60 days and denied the request for extension. SeeW.R.C.P. 6(b)(2).

A busy court has to assume that attorneys will not present an improper order for signature. An attorney who has prepared an improper non-compliant order should not be allowed to claim that he was mislead or duped by the court.

More fundamentally, Rule 6(b)(2) does not allow a court to enlarge the sixty-day period set forth in Rule 3(b) and extend the expiration of the statute of limitations. If service of the Complaint and Summons was made on Ms. Boykin within 60 days, then the service is deemed to be made on the date of filing of the Complaint. Rule 3(b), W.R.C.P. If the service is made after the 60–day period, even if an enlargement is granted, then service is the date that service is made. Id. In this case, service would have been made on December 12, 2012, which is over four months past the date of the expiration of the statute of limitations, which was July 8, 2012. See Hoke v. Motel 6 Jackson, 2006 WY 38, 131 P.3d 269 [369], ¶¶ 10–12 (Wyo.2006).

The Plaintiff also contends in an Affidavit that she was mislead by the Defendant's insurer into delaying filing an action because it wanted to settle and avoid the cost and trouble of litigation. The Plaintiff, apparently to protect herself, timely filed her cause of action on June 28, 2012 within the statute of limitations. She asserts that “starting in July the adjuster ceased returning calls and emails from Plaintiff's counsel.” ( Plaintiff's Ex. 1, ¶¶ 12–13 ).

Assuming the Plaintiff's statements to be true and viewing them in a light most favorable to the Plaintiff, she still had 60 days to complete service that would relate back to the date of filing. The problem here is not one of the Defendant's activities, but of the Plaintiff failing to attempt to properly achieve service until after the 60–day period had expired.

For these and the other reasons stated in the Defendant's Motion and Memorandum, the Plaintiff's Complaint against Denise Boykin is dismissed with prejudice. [Emphasis in original.]

[¶ 10] On July 18, 2013, the district court entered its order granting Boykin's motion to dismiss with prejudice. Inman thereafter timely filed her notice of appeal to this Court.

STANDARD OF REVIEW

[¶ 11] Our first task in addressing the issues presented by this appeal is to determine the standard of review. To answer that question, we must determine whether the district court's order was an order pursuant to Rule 12 of the Wyoming Rules of Civil Procedure or a summary judgment order pursuant to Rule 56.

[¶ 12] In answering this initial question, we start with Boykin's dispositive motion. Determining the nature of Boykin's motion is complicated by the ambiguous terms in which she cast her motion. Boykin filed her dispositive motion as a motion entitled “Motion to Dismiss Complaint by Defendant Denise Boykin,” and the introductory paragraph of Boykin's motion cited Rule 12(b)(6), failure to state a claim upon which relief can be granted, as the basis for Boykin's statute of limitations argument. In the discussion portion of her motion, however, Boykin relied on Rule 12(c), and argued for judgment on the pleadings on the statute of limitations question. We have held that “it is the content of the pleading and not the label which determines its nature and effect * * *.” Western Nat'l Bank of Lovell v....