McDaneld v. Fischer

• Decision Date: 16 February 1999
• Docket Number: No. A-97-777,A-97-777
• Citation: 8 Neb.App. 160,589 N.W.2d 172
• Parties: Charles R. McDANELD, appellant, v. Tim FISCHER, M.D., an individual, and Holmes Lake Family Health Centre, P.C., appellees.
• Court: Nebraska Court of Appeals

Page 172

589 N.W.2d 172

8 Neb.App. 160

Charles R. McDANELD, appellant, v. Tim FISCHER, M.D., an individual, and Holmes Lake Family Health Centre, P.C., appellees.

No. A-97-777.

Court of Appeals of Nebraska.

Feb. 16, 1999.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. When reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. The question on such review is not how a factual issue is to be decided, but whether any real issue of genuine fact exists.

2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Limitations of Actions: Dismissal and Nonsuit. An action is commenced on the date the petition is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within 6 months from the date the petition was filed.

4. Limitations of Actions. When an original action is timely instituted, an amended petition, which is filed after the running of the statute of limitations and which is merely declaring on the same cause of action, is not barred by limitations.

5. Statutes: Legislature: Intent. When construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.

6. Statutes: Legislature: Intent. When statutory language is ambiguous and must be construed, recourse should be had to the legislative history for the purpose of discovering the lawmakers' intent.

7. Statutes: Legislature: Intent. To ascertain the intent of the Legislature, a court may examine the legislative history of the act in question.

8. Limitations of Actions: Dismissal and Nonsuit. The language from Neb.Rev.Stat. § 25-217 (Reissue 1995) that an action "shall stand dismissed" means that the action may be dismissed without the need for initiating action, such as a motion by the defendant, and without the need for a formal entry of an order of dismissal by the trial court.

Sandra Hernandez Frantz, Lincoln, for appellant.

William M. Lamson, Jr., and William R. Settles, of Kennedy Holland DeLacy & Svoboda, Omaha, for appellees.

IRWIN, Chief Judge, and HANNON and SIEVERS, Judges.

SIEVERS, Judge.

The statement "The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the petition was filed" is found in Neb.Rev.Stat. § 25-217 (Reissue 1995). We discuss how such a dismissal occurs and its effect in determining whether the statute of limitations bars the filing and service of an amended petition when 6 months has run without service of the original petition.

BACKGROUND

On October 26, 1992, Charles R. McDaneld was treated for an injury to his right great toe and foot by Dr. Tim Fischer at the Holmes Lake Family Health Centre, P.C. (Centre), in Lincoln, Nebraska. His treatment continued through March 1993 at the Centre, but the details of that treatment are not relevant to the issues on appeal.

On January 31, 1995, McDaneld filed a petition against Fischer and the Centre in the district court for Lancaster County, Nebraska, alleging that Fischer was negligent in his treatment of McDaneld's toe and foot. The petition was not served upon the parties within 6 months of its filing, as referenced in § 25-217.

On May 31, 1996, McDaneld filed an amended petition in the same case at the same district court docket and page number as the original petition. The amended petition was served upon both Fischer and the Centre, and it alleged malpractice arising out of the same treatment of McDaneld's toe and foot as the original petition. Our reference hereinafter to Fischer shall encompass both Fischer and the Centre. The amended petition also stated that Fischer's last "negligent" act occurred in March 1993. Service of the amended petition provided Fischer with first notice of the lawsuit.

Fischer initially filed a demurrer to McDaneld's amended petition on July 2, 1996, alleging that the action was barred by the 2-year statute of limitations for professional negligence found in Neb.Rev.Stat. § 44-2828 (Reissue 1998). In a minute entry dated September 26, 1996, the district court refused to take judicial notice of the absence of service of the original petition and overruled Fischer's demurrer, stating on the docket sheet, "The issue presented here might more appropriately be raised by motion for summary judgment."

Fischer filed a motion for summary judgment on December 9, 1996, once again alleging that McDaneld's action was barred by the statute of limitations for professional negligence found at § 44-2828. At the time of the hearing on the motion for summary judgment, the trial court took judicial notice of the pleadings in the court file, including the return of service on McDaneld's amended petition. In an order filed June 4, 1997, the district court granted Fischer's motion for summary judgment. The court reasoned:

This medical malpractice case was filed by plaintiff on January 31, 1995. The defendants were not served within the six-month period required by Neb.Rev.Stat. § 25-217. Consequently, the action stood dismissed as to these defendants who were not served within six months from the date the Petition was filed.

The court concluded that the dismissal of the original petition "by operation of law," under § 25-217, had the effect of making the amended petition a "nullity." However, the court noted that if the amended petition was treated as an attempt by McDaneld to initiate a new action, it was filed outside the 2-year statute of limitations governing professional negligence suits. The trial court dismissed the action, and McDaneld appeals to this court.

ASSIGNMENT OF ERROR

McDaneld argues that the trial court erred in granting the motion for summary judgment based on § 25-217.

STANDARD OF REVIEW

When reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. The question on such review is not how a factual issue is to be decided, but whether any real issue of genuine fact exists. Ratigan v. K.D.L., Inc., 253 Neb. 640, 573 N.W.2d 739 (1998).

ANALYSIS

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Deprez v. Continental Western Ins. Co., 255 Neb. 381, 584 N.W.2d 805 (1998).

McDaneld's original petition, although filed with the district court on January 31, 1995, was never served on either Fischer or the Centre. Fischer argues that because he and the Centre were never served, McDaneld's action was not "commenced" and was dismissed by "operation of law" on July 31, 1995. Section 25-217 provides: "An action is commenced on the date the petition is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the petition was filed."

Fischer asserts that the filing of the amended petition on May 31, 1996, which was served, was really the "commencement" of McDaneld's cause of action. Thus, because the amended petition was not filed within 2 years of the "alleged act or omission in rendering or failing to render professional services," § 44-2828, it was barred by the statute of limitations.

McDaneld, citing Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471 (1935), argues that because his original petition was timely instituted, his amended petition, based on the same cause of action, although filed after the running of the statute of limitations, is not barred. In Kennedy, the Nebraska Supreme Court ruled that when an original action is timely instituted, an amended petition, which is filed after the running of the statute of limitations and which is merely declaring on the same cause of action, is not barred by limitations. What distinguishes Kennedy from this case is that in Kennedy, the lawsuit was apparently fully instituted by service of the original petition.

The instant case turns on the language in § 25-217. The district court agreed with Fischer's interpretation of the statute and reasoned: "The original Petition ... having been dismissed by operation of law on July 31, 1995, requires no further action, orders, or docket sheet entries by this Court to effect a further dismissal of the case. It has already been dismissed." McDaneld's theory, of necessity, rests on the proposition that the original petition was not automatically dismissed on July 31, 1995, but remained viable until he filed his amended petition on May 31, 1996. Thus, we must determine the status of the petition as of July 31, 1995, as well as the meaning of the statutory language, "shall stand dismissed," when the defendant is not served within 6 months from when the petition was filed.

When construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself. See In re Interest of M.J.B., 242 Neb. 671, 496...