Schmitz v. Vasquez, 98-235

• Citation: 970 P.2d 1039,1998 MT 314,292 Mont. 164
• Decision Date: 23 December 1998
• Docket Number: No. 98-235,98-235
• Parties: , 1998 MT 314 Marilyn SCHMITZ, on her own behalf and as spouse and next friend of Peter E. Schmitz, and Peter Schmitz, Plaintiffs and Appellants, v. Ned VASQUEZ, M.D., Defendant and Respondent.
• Court: Montana Supreme Court

Page 1039

970 P.2d 1039

292 Mont. 164, 1998 MT 314

Marilyn SCHMITZ, on her own behalf and as spouse and next

friend of Peter E. Schmitz, and Peter Schmitz, Plaintiffs and Appellants, v. Ned VASQUEZ, M.D., Defendant and Respondent.

No. 98-235.

Supreme Court of Montana.

Submitted on Briefs Nov. 24, 1998.

Decided Dec. 23, 1998.

Ronald B. MacDonald and Paul N. Tranel; Datsopoulos, MacDonald & Lind, P.C.; Missoula, for Appellants.

John N. Maynard and Alice J. Hinshaw; Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P.; Helena, for Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶1 The plaintiff, Marilyn Schmitz, commenced this action in the District Court for the Fourth Judicial District in Missoula County, on behalf of herself and her husband, to recover damages which she alleged were caused by the negligence of the defendant, Ned Vasquez, M.D. The District Court dismissed her complaint for failure to comply with the provisions of Rule 41(e), M.R.Civ.P ¶2 The issue presented on appeal is:

related to service of process. Schmitz appeals the order of the District Court. We reverse and remand for further proceedings.

¶3 Did the District Court err when it dismissed Schmitz's claims for improper service of summons?

FACTUAL BACKGROUND

¶4 Schmitz filed her original complaint, pro se, on April 5, 1994. She alleged that the defendants, Ned Vasquez, M.D., and Mark Sanz, M.D., breached the appropriate standard of care in their treatment of her husband, Peter, and that as a result, he suffered a massive stroke which left him almost completely incapacitated.

¶5 On the same day that the complaint was filed, the clerk of the District Court issued Schmitz a summons for each defendant.

¶6 Pursuant to § 27-6-701, MCA, of the Montana Medical Legal Panel Act, Schmitz had previously submitted her claim against Vasquez to the panel; however, she had not submitted a claim against Sanz.

¶7 Through counsel, Schmitz filed an amended complaint on April 1, 1997. The amended complaint included substantially the same allegations against Vasquez as the original complaint, but it omitted any allegations against Sanz and omitted his name from the caption.

¶8 On the same day that the amended complaint was filed, the original summons were returned to the court and an "amended summons" was issued to Schmitz for service upon Vasquez. The amended summons was identical in substance to the original summons for Vasquez, except that Sanz's name was removed from the caption, and the summons was retitled "amended summons."

¶9 This summons was served on Vasquez on April 1, 1997. Proof of service was filed with the District Court on April 2, 1997, less than three years from the date that the original complaint was filed.

¶10 On April 21, 1997, Vasquez moved for dismissal of the action based upon insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. This motion was granted, based upon the District Court's conclusion that the original summons was not timely served and that plaintiff's complaint must therefore be dismissed. Schmitz filed a motion for reconsideration and the order was subsequently vacated with instructions from the District Court to brief the issue of prejudice to Vasquez. On February 25, 1998, the District Court reinstated its order which dismissed Schmitz's complaint.

DISCUSSION

¶11 Did the District Court err when it dismissed Schmitz's claims for improper service of summons?

¶12 We review a district court's conclusions of law for correctness. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶13 The District Court dismissed Schmitz's complaint for her failure to comply with Rule 41(e), M.R.Civ.P., which provides in pertinent part:

Failure to serve summons. No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years.

¶14 Schmitz contends that the procedural irregularities present in this case should not result in a dismissal of her suit because Vasquez was not prejudiced by the manner in which he was served with process. In support of her contention, she cites our decision in Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181, and our policy which favors the resolution of disputes on their merits.

¶15 Vasquez contends that Schmitz failed to comply with Rule 41(e), M.R.Civ.P., because the original summons was not served on Vasquez within three years of the commencement of the action. He further contends that the amended summons was invalid because Schmitz did not obtain leave from the court to amend the summons, as required pursuant to Rule 4 D(7), M.R.Civ.P., nor did she obtain leave from the court to remove Sanz, as required pursuant to Rule 21, M.R.Civ.P. Schmitz acknowledges that she did not literally comply with Rule 4 D(7), but contends she had a right to amend her complaint pursuant to Rule 15(a), M.R.Civ.P.

¶16 In Yarborough, the plaintiff lost the original summons prior to service. The clerk of court issued an identical summons more than one year after the complaint was filed and the defendant moved for dismissal based upon Rule 41(e). We held that by serving, within three years, an identical copy of an original summons which had been issued within one year of the commencement of the action, the plaintiff complied with the substance and purpose of Rule 41(e). We concluded that "to require more would exalt form over substance and do nothing to further the resolution of controversies on their merits." Yarborough, 285 Mont. at 497, 948 P.2d at 1183.

¶17 Vasquez points out that the summons in Yarborough was a duplicate of the original, while in this case the summons was "amended." He argues that the improper removal of Sanz from the complaint and from the summons constituted a substantial alteration of the summons, which renders the facts in the present case more analogous to those of Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517.

¶18 In Larango, the plaintiffs altered a summons which had previously been issued by the district court by changing the name of their counsel, as well as by both adding and removing plaintiffs. The defendant moved to quash the summons because it had been materially altered since the date of issuance. Plaintiffs then requested leave to amend the summons, but the district court did not rule upon the motion. We held that the power to issue a summons lies exclusively with the clerk of court, an attorney has no power in the matter, and cannot alter a summons without leave of court. We also held, however, that the district court should have permitted amendment once it was requested. See Larango, 196 Mont. at 47, 637 P.2d at 519.

¶19 In this case, Schmitz did not alter a previously issued summons. She requested and received an amended summons from the clerk of the District Court. While it is true that she did not comply with Rule 4 D(7) because the District Court did not give her permission to have an amended summons issued, the issuance of the amended summons did not prejudice Vasquez. Our review of both the original and "amended" summons reveals that they are substantively identical. "[W]e disregard [the] terminology in the title of the summons" and look to its substance. See Yarborough, 285 Mont. at 499, 948 P.2d at 1184. The purpose of the summons is to provide a defendant with notice that he has been made a party to an action and that he has twenty days to appear before the court.

¶20 Vasquez can show no prejudice resulting from the variation between the manner in which he was served with process and the manner in which he would have been served by the original summons, or the manner in which he would have been served if Schmitz had complied with Rule 4 D(7). In all three scenarios, Vasquez received notice, within three years of the commencement of the action, that he was a party to this action. Furthermore, a summons has existed, identifying him as a party, since the commencement of the action.

¶21 Rather than being prejudiced by the amended summons, the amendment actually assisted Vasquez in ascertaining the true nature of the action against him. Schmitz could not proceed against Sanz because she did not make a claim against him before the Medical Legal Panel and, therefore, the District Court had no jurisdiction over him. The amended summons more accurately reflected this fact. In Larango, we concluded that where amendment would have aided a party, it was an abuse of discretion for the district court not to allow the amendment. See Larango, 196 Mont. at 48, 637 P.2d at 520.

¶22 Vasquez also contends that Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, and Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 729 P.2d 469, control the outcome of this case.

¶23 The holding in Haugen is inapplicable to the present facts. In Haugen, amended summons were issued by the clerk of court, at the plaintiffs' request, just prior to the expiration of the three-year period. The plaintiffs failed to serve one of the summons, and failed to file proof of service for any of the summons prior to the expiration of that period. We held that failure to file...