Schlumpf v. Yellick
| Decision Date | 04 March 1980 |
| Docket Number | No. 77-335,77-335 |
| Citation | 94 Wis.2d 504,288 N.W.2d 834 |
| Parties | Carol SCHLUMPF, Plaintiff-Appellant, v. Clyde YELLICK, M.D., John Linn, M.D., and George E. Collentine, Jr., M.D., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Lester A. Pines and Frankel, Langhammer & Pines, Madison, on briefs, for plaintiff-appellant.
Michael P. Malone and Binder, Zirbel & Howard, Milwaukee, on brief, for defendants-respondents.
This is an appeal from a judgment and order 1 of the circuit court, dismissing the complaint of Carol Schlumpf for medical malpractice against the defendant physicians on the ground that the action was not brought within the period of limitations set forth in sec. 893.205(1), Stats. (1975). 2
The principal question presented on appeal is: Under sec. 801.02(1), Stats. (1975), 3 when the summons and complaint were filed with the circuit court but never served on the named defendants, and an amended summons and complaint merely adding another defendant were both filed and served within sixty days of the first filing, did the action commence as to the originally named defendants upon the filing of the original summons and complaint or upon the filing of the amended summons and complaint?
We conclude that this action commenced upon the filing of the first summons and complaint. Accordingly, we reverse the trial court's judgment and order.
Carol Schlumpf, acting Pro se, filed a summons and complaint with the circuit court for Milwaukee County on February 15, 1977. She named as defendants Dr. Clyde Yellick and Dr. John Linn, and alleged that they negligently diagnosed and treated her for thrombophlebitis. There is nothing in the record to indicate whether these papers were ever served on the named defendants.
The amended summons and complaint were filed with the court on March 30, 1977. The amended complaint named an additional defendant, Dr. George E. Collentine, claiming that he was also negligent. Otherwise, the amended complaint was identical to the first complaint in its allegations of negligence against Drs. Linn and Yellick.
All three doctors were served with the amended summons and complaint on or before April 6, 1977.
There is no dispute that the alleged negligence of the doctors, and consequently any resulting injury, took place on or after March 4, 1974, the date that Mrs. Schlumpf gave birth by caesarean section. If the action was commenced within three years of such date as to each defendant, the statute of limitations would be tolled and the suit would be timely. See, Peterson v. Roloff, 57 Wis.2d 1, 4, 203 N.W.2d 699 (1973).
The statutory procedure for commencing an action, found in sec. 801.02(1), Stats. (1975), provides that a civil action seeking a personal judgment is commenced upon the filing of a summons and a complaint with the court. However, an authenticated copy of the summons and complaint must be served upon the defendant within sixty days after filing.
Once the action is commenced, the statute of limitations is tolled from the date of the filing of the summons and complaint provided that service is made within sixty days after filing. Sec. 893.39, Stats. (1975). 4
The statutes also provide that a party may amend his pleadings once as a matter of course at anytime prior to the time set in the scheduling order under sec. 802.10, Stats., Sec. 802.09(1), Stats. (1975). 5 If an amendment is made to the pleadings, and the claim asserted in the amended pleading arose out of "the conduct, transaction, or occurrence" set forth or attempted to be set forth in the original pleading, then it relates back to the filing of the original pleading. Sec. 802.09(3), Stats. (1975). 6
The Pro se summons and complaint were filed on February 15, 1977. The action commenced on that date. Prior to service, the amended summons and complaint were filed, and within sixty days of the original filing, the amended pleadings were served. The amended pleading relates back to the original filing as to Drs. Linn and Yellick. The defendants, Drs. Linn and Yellick, were served within sixty days of the original filing. The allegations of negligence as to them were identical in the two pleadings. The claims asserted in the amended complaint arose out of the same transaction or occurrence as the claims asserted in the original complaint. The amended complaint related back to the original filing and would control in later proceedings. There was only one action filed as to these two defendants and the failure to serve both the original and the amended summons and complaint upon these defendants is not fatal to the commencement of the action and the tolling of the statute of limitations.
The primary function of service is to give notice to a party that an action has been commenced against him. Cruz v. I.L.H.R. Dept., 81 Wis.2d 442, 453, 260 N.W.2d 692 (1978); Milwaukee County v. Schmidt, Garden & Erikson, 35 Wis.2d 33, 36, 150 N.W.2d 354 (1967). When the defendants, Dr. Yellick and Dr. Linn, were served with the amended summons and complaint, they were fully apprised of the nature of the action against them and the general circumstances surrounding the allegations of negligence against them. No prejudice occurred to them when they failed to receive the original complaint because they were properly served with an amended complaint within sixty days of the filing of the original complaint.
The amended complaint added Dr. Collentine as a defendant to the action. The plaintiff concedes that the complaint would not relate back to this defendant. The action as to Dr. Collentine commenced only upon the filing of the amended summons and complaint, March 30, 1977. Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis.2d 658, 662, 663, 277 N.W.2d 778 (1979).
The statutes require that an authenticated copy of the summons and complaint is to be served on the defendant. Authentication is accomplished when the clerk of the court places a filing stamp indicating the case number on each copy of the summons and complaint. Sec. 801.09(4), Stats. (1975). 7 The original summons and complaint were stamped with the number 450-794. The amended summons and complaint had typed in the number 450-795. This resulted in a mis-filing of a number of documents but the error was corrected when Circuit Judge, George A. Burns, ordered the transfer of documents to case number 450-794.
The defendants contend that the documents were not properly authenticated and that service was defective.
In J.M.S. v. Benson, 91 Wis.2d 526, 283 N.W.2d 465 (Ct.App.1979), the clerk stamped copies of the summons and complaint with the name of the court and the time and the date of the filing. However, the case number was not stamped on the papers. The Court of Appeals explained that the authentication requirement set forth in sec. 801.02(1), Stats. is designed to provide assurance by the clerk that the copy served is a true copy of the complaint and summons and in order to provide a case number for subsequent reference. The action was held to have been properly commenced despite the defect. J.M.S. v. Benson, 91 Wis.2d at 531-532, 283 N.W.2d 465.
The reasoning of that case on this issue is persuasive. The mis-filing did not prejudice the defendants. They had acquired all the information necessary to respond to the complaint by motion or pleading. There has been no allegation that the copies served upon them varied in any way from the copies filed with the clerk. 8 See also, Hoesley v. LaCrosse V.F.W. Chapter, 46 Wis.2d 501, 175 N.W.2d 214 (1970). The incorrect filing number was an error which was easily corrected. This kind of error is " . . . of a hypertechnical nature, and the entire tenor of modern law is to prevent the avoidance of adjudication on the merits by resort(ing) to dependency on non-prejudicial and non-jurisdictional technicalities." Cruz v. I.L.H.R. Dept., 81 Wis.2d 442, 449, 260 N.W.2d 692, 694 (1978). We conclude that the appearance of the wrong filing number on the amended summons and complaint did not operate to preclude the commencement of this action.
Thus, the action alleging malpractice against Drs. Linn and Yellick commenced on February 15, 1977, and was therefore timely as to these defendants.
The sole remaining question is whether the trial court properly dismissed the action as to Dr. Collentine.
The parties submitted affidavits to show the dates of treatment by the physician defendants. The trial court considered these affidavits in making its ruling. The defendants' motion to dismiss must be treated as a motion for summary judgment. 9
This court no longer accords the trial court wide latitude in its decision to grant or deny summary judgment. Wright v. Hasley, 86 Wis.2d 572, 578, 273 N.W.2d 319 (1979). Summary judgment should not be granted unless the moving party demonstrates a right to judgment with such clarity as to leave no room for controversy. If the material presented on the motion is subject to conflicting interpretations or reasonable persons may differ as to its significance, it would be improper to grant summary judgment. Coleman v. Outboard Marine Corp., 92 Wis.2d 565, 571, 285 N.W.2d 631 (1979).
The amended complaint alleged that Dr. Collentine treated Mrs. Schlumpf while Dr. Linn was out of town. Dr. Collentine stated in an affidavit that he treated Mrs. Schlumpf on March 20, 1974, and had not seen her professionally since that date. The hospital records and affidavits submitted by Mrs. Schlumpf opposing the motion show that she was admitted to St. Mary's Hospital in Milwaukee on March 21, 1974 by Dr. Collentine. She was discharged on March 30, 1974, and all hospital records until that date are stamped with the name, Dr. G. Collentine. Whether Dr. Collentine was treating Mrs. Schlumpf during this time is unclear. She...
To continue reading
Request your trial
-
Warehouse II, LLC v. State Dept. of Transp.
...N.W.2d 715 (citing Am. Family Mut. Ins. Co. v. Royal Ins. Co. of Am., 167 Wis.2d 524, 533, 481 N.W.2d 629 (1992); Schlumpf v. Yellick, 94 Wis.2d 504, 288 N.W.2d 834 (1980)). In contrast to a fundamental defect, a technical defect does not go to the primary purpose underlying the statutory p......
-
Tatera v. Fmc Corp.
...“not ... be a trial on affidavits and depositions.” Id. The moving party must “leave no room for controversy.” Schlumpf v. Yellick, 94 Wis.2d 504, 512, 288 N.W.2d 834 (1980). ¶ 43 We explained the methodology for a circuit court to use when reviewing a motion for summary judgment in Grams v......
-
Tietsworth v. Harley-Davidson, Inc.
...be dismissed. 22. See, e.g., Gaddis v. La Crosse Products, Inc., 198 Wis.2d 396, 407, 542 N.W.2d 454 (1996); Schlumpf v. Yellick, 94 Wis.2d 504, 511, 288 N.W.2d 834 (1980). 23. Wisconsin Stat. § 802.09 provides in relevant (1) Amendments. A party may amend the party's pleading once as a mat......
-
Vidmar v. American Family Mut. Ins. Co.
...us on a trial court's order for summary judgment, and the trial court's discretion is significantly curtailed. Schlumpf v. Yellick, 94 Wis.2d 504, 512, 288 N.W.2d 834 (1980). Unlike Austin, supra, there is nothing in the record to suggest that the trial court had the benefit of the omitted ......