Rupp v. Hurley, Md., 18-272

• Decision Date: 05 March 1999
• Docket Number: 18-272
• Citation: 979 P.2d 733
• Parties: KELLY RUPP, Plaintiff-Appellant, v. LLOYD HURLEY, M.D., and SIDNEY SCHULTZ, M.D., Defendants-Appellees.Opinion Number: 1999-IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Filing Date:
• Court: Court of Appeals of New Mexico

KELLY RUPP, Plaintiff-Appellant v LLOYD HURLEY, M.D., and SIDNEY SCHULTZ, M.D., Defendants-Appellees

Docket No. 18,272

Opinion Number: 1999-NMCA-057

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: March 5, 1999

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Robert H. Scott, District Judge

STEVEN L. TUCKER, Tucker Law Firm, P.C., Santa Fe, NM, for Appellant

ALICE TOMLINSON LORENZ, RANNE B. MILLER, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, MICHAEL J. DEKLEVA, Madison, Harbour, Mroz & Brennan, P.A., Albuquerque, NM , for Appellees

OPINION

BUSTAMANTE, Judge

{1} This case aptly illustrates the observation that procedural miscues can produce quite substantive consequences. The district court dismissed Plaintiff's medical malpractice action against her treating physicians because "Plaintiff failed to exercise reasonable diligence in serving process on the Defendant Doctors." Plaintiff appeals the dismissal, arguing that under Rules 1-012(G) and 1-012(H) NMRA 1999, Defendants waived the right to challenge the sufficiency of service upon them because they did not raise the issue in their first answer or in their first motion filed under Rule 1-012(B). Acknowledging that they did not mention any problems with service in their initial pleadings, Defendants offer a number of approaches to affirmance, including: (1) their motion was not premised solely on Rule 1-012(B)(5), but rather addressed broader inherent powers of the court; (2) their failure to meet the strict letter of Rule 1-012(H) should be excused because they were initially not aware that they had been named in the original complaint; (3) the trial court's order should be viewed as a sanction, reversible only for abuse of discretion; and (4) Plaintiff waived her Rule 1-012(H) objection by raising it too late. Unpersuaded, we reverse and remand.

FACTS AND PROCEEDINGS

{2} According to the complaint, on June 18, 1991, Defendants performed hip replacement surgery on Plaintiff. During the surgery, Plaintiff's right femur broke. Defendants elected to repair the break with a particular type of metal fracture plate which was used as a veterinary specialty plate. Approximately five weeks after the surgery, the metal plate broke, requiring additional surgery.

{3} On June 16, 1994, Plaintiff filed a complaint for personal injuries. The complaint asserted multiple causes of action against Defendants, including medical negligence, breach of contract and fiduciary duty, negligent infliction of emotional distress and various warranty claims. The complaint also stated a products liability claim against the "manufacturer/designer" of the metal plate. Also on June 16, 1994, Plaintiff filed an application with the Medical Review Commission pursuant to NMSA 1978, § 41-5-15 (1976). Defendants received notice of the Medical Review Commission application within a few days, and they were represented before the Medical Review Commission by the same counsel who represented them in the district court action. The Medical Review Commission met on November 3, 1994, and issued its unanimous decision in favor of Defendants the next day.

{4} The record reveals no activity in the district court from the date the complaint was filed until January 6, 1995, when Plaintiff filed an amended complaint. The amended complaint named a new entity as the manufacturer/designer of the plate and added another cause of action (fraud and lack of informed consent) against Defendants. The record reveals no effort by Plaintiff to serve Defendants with the original complaint prior to filing the amended complaint. Upon filing the amended complaint, Plaintiff sought to have new summonses issued, but apparently ran into some difficulty with the district court clerk's office doing so. New summonses were issued after the district court entered an order in April 1995. Plaintiff finally served Defendants with the amended complaint on May 15, 1995.

{5} Pursuant to an extension of time to which Plaintiff agreed, Defendants filed their first answer on July 17, 1995. The answer did not mention Rule 1-012(B)(5) or otherwise include a defense challenging the propriety or timeliness of service of process on Defendants. The answer did include a statute of limitations affirmative defense.

{6} Thereafter, on August 8, 1995, Defendants filed a motion with supporting authorities seeking dismissal of Counts VII and VIII of the amended complaint for failure to state a claim upon which relief could be granted. Counts VII and VIII asserted claims for breach of implied warranties under provisions of the New Mexico Uniform Commercial Code. The motion and accompanying brief made no mention of Rule 1-012(B)(5) and did not otherwise challenge the propriety or timeliness of service of process on Defendants.

{7} On September 14, 1995, Defendants filed a "Motion to Dismiss for Failure to Serve Process in a Timely Manner," seeking dismissal with prejudice of the action because Plaintiff "failed to exercise due diligence to timely serve these defendants within a reasonable period of time after initiating her lawsuit." Neither the motion nor the accompanying memorandum brief mentions Rule 1-012(B)(5) specifically, a circumstance upon which Plaintiff relied in her arguments to the district court. Defendants now rely on the same circumstance on appeal as a ground for affirmance.

{8} On October 12, 1995, Plaintiff filed her response to the motion to dismiss for failure to timely serve process. Plaintiff failed to assert or argue that the Defendants' motion was itself untimely pursuant to the provisions of Rules 1-012(G) or 1-012(H)(1). Instead, Plaintiff's response was factually based. Plaintiff argued Defendants had notice of the filing of the original complaint and that service was delayed with at least their tacit approval in order to accommodate the Medical Review Commission process. Plaintiff also vaguely asserted that Defendants had failed to cooperate in her attempts to arrange a convenient time and place for effecting service. Defendants took issue with Plaintiff's factual assertions by memo filed October 25, 1995.

{9} Following a hiatus in the litigation--caused in part by an appeal to this court on an issue unrelated to the matter before us now--Plaintiff filed an amended response to the motion to dismiss for untimely service. Again Plaintiff did not mention Rules 1-012(G) or 1-012(H)(1). Instead, she reasserted that she had exercised "reasonable diligence" within the meaning of Rule 1-004(F) NMRA 1999, and that in any event a large portion of the delay had occurred "at the behest of defense counsel," and because of difficulty scheduling an appointment with Defendants to effect service.

{10} In their reply to Plaintiff's amended response, Defendants again controverted Plaintiff's factual assertions concerning the reason for the delay. In particular, they denied that their counsel had any knowledge of the filing of the original complaint. Defendants also denied that they or counsel had any contact or conversations concerning service of the complaint until after the amended complaint was served in May 1995.

{11} The trial court held an evidentiary hearing on December 20, 1996. Defendants presented testimony concerning the routine practice of their insurer and attorneys in responding to filed litigation, as well as receipt and handling of the amended complaint served on Defendants in May 1995. Plaintiff presented testimony from a former employee of her attorney concerning difficulties encountered in having the clerk's office issue a summons and in effecting service on the Defendants.

{12} In argument, Defendants denied any knowledge of the filing of the suit until May 1995. In particular, defense counsel denied any personal knowledge of the suit prior to service on Defendants, in direct contradiction to Plaintiff's counsel's representations made in pleadings and affidavits. Plaintiff's counsel argued that the delay was not undue and was perhaps unavoidable. Plaintiff asserted she had to file her complaint in June 1996 because there were some defendants who were qualified health care providers under the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to 41-5-29 (1976, as amended through 1997), and some who were not. Plaintiff noted that the statute of limitations could not be tolled as to the defendants who were not covered by the Medical Malpractice Act except by the filing of a complaint. See id. § 41-5-22. However, Plaintiff was in a dilemma, according to her counsel, because she could not serve the complaint on those defendants who were qualified health care providers prior to the decision by the Medical Review Commission. After the Medical Review Commission decision, Plaintiff asserted she could not serve the amended complaint earlier because the court clerk refused to issue a new summons until April, when she was ordered to do so.

{13} In addition, Plaintiff's counsel argued that Defendants' motion to dismiss was itself untimely filed "because it wasn't raised in the original answer." At the end of the hearing, the trial court orally granted Defendants' motion, finding that the "Plaintiff has failed to show or to demonstrate the diligence that is required by the Rules of Civil Procedure" and that "Defendants are prejudiced by the Plaintiff's inactivity in failure [sic] to make the service that has been the subject of the hearing."

{14} Following the trial court's bench ruling, Plaintiff and Defendants were unable to agree on a form of order. In addition, Plaintiff wished to submit requested findings of fact and conclusions of law, to which Defendants objected. Prior to the presentment hearing, Plaintiff moved for permission to file a set of requested findings of fact and conclusions of law. Material to this appeal are her requested conclusions numbers 4 and 16 in which Plaintiff pointed out that Defendants had failed to raise the issue of delay in serving their original...