St. Jeor v. Kerr Corp.

• Decision Date: 22 May 2015
• Docket Number: No. 20130913.,20130913.
• Parties: Barbara ST. JEOR, Appellee, v. KERR CORPORATION, Appellant.
• Court: Utah Supreme Court

353 P.3d 137
2015 UT 49

Barbara ST. JEOR, Appellee
v.
KERR CORPORATION, Appellant.

No. 20130913.

Supreme Court of Utah.

May 22, 2015.

353 P.3d 137

Gilbert L. Purcell, Alan R. Brayton, Brian D. Holmberg, Jacob L. Rice, A. Jase Allen, Salt Lake City, for appellee.

Robert R. Wallace, Michael D. Johnston, Salt Lake City, for appellant.

Justice HIMONAS authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, Justice DURHAM, and Justice PARRISH joined.

Justice HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 This case concerns a straightforward application of the service of process provisions of Utah Rule of Civil Procedure 4(b). Barbara St. Jeor filed a wrongful death suit related to her husband's exposure to asbestos. She served a number of the named defendants within rule 4(b)'s 120–day timeframe, but did not serve defendant Kerr Corporation until five years later, in February

353 P.3d 138

2013. Kerr moved for dismissal, asserting that Ms. St. Jeor had not timely served it. The district court denied the motion and held that Ms. St. Jeor had complied with rule 4(b)'s service requirements. Kerr now brings an interlocutory appeal of that order.

¶ 2 We hold that Ms. St. Jeor complied with the service of process requirements under rule 4(b) because she served Kerr prior to trial and while previously served defendants remained parties to the action. Accordingly, we affirm the district court's order denying Kerr's motion. But because we acknowledge possible policy concerns, we also refer rule 4(b) to our civil procedure rules committee for review.

BACKGROUND

¶ 3 The parties do not dispute the facts. In June 2007, Ms. St. Jeor, along with her husband, Eldon, filed a negligence and strict products liability suit against numerous defendants, including Kerr, arising out of Mr. St. Jeor's asbestos exposure. Ms. St. Jeor served Kerr, and Kerr filed its answer in August 2007. Mr. St. Jeor passed away in November 2007, and Ms. St. Jeor filed a Suggestion of Death the next month advising the parties of his passing. On May 16, 2008, Ms. St. Jeor and Kerr stipulated to Kerr's dismissal without prejudice, and the district court signed the order of dismissal.

¶ 4 Five days later, on May 21, 2008, Ms. St. Jeor filed a Second Complaint for Survival, Wrongful Death—Asbestos. The complaint caption named as defendants “Asbestos Defendants As Reflected on Exhibits B, C, and H.” Exhibit B of the Second Complaint listed Kerr Corporation. On July 7, 2008—within 120 days of filing the complaint—Ms. St. Jeor served several of the defendants, but not Kerr. Subsequently, Ms. St. Jeor filed a number of amended complaints, each listing Kerr as a defendant. She served Kerr with the Fifth Amended Complaint on February 20, 2013, nearly five years after the district court's order dismissing Kerr without prejudice.

¶ 5 Kerr moved to be again dismissed, asserting that Ms. St. Jeor's claims were barred by various statutes of limitations, laches, and untimely service of process. The district court held that Ms. St. Jeor's suit was not barred by any statute of limitations and that she had complied with rule 4(b)'s service requirements and therefore denied the motion. Kerr timely appealed. We have jurisdiction under Utah Code section 78A–3–102(3)(j).

STANDARD OF REVIEW

¶ 6 We review a district court's “legal conclusions and ultimate grant or denial of summary judgment for correctness.”Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (internal quotation marks omitted). Similarly, “[w]e review the district court's denial of [a] motion to dismiss for correctness, granting no deference to the district court's ruling.” First Equity Fed., Inc. v. Phillips Dev., LzC, 2002 UT 56, ¶ 11, 52 P.3d 1137 (internal quotation marks omitted).¹

ANALYSIS

¶ 7 Citing Utah Rule of Civil Procedure 4(b), Kerr correctly asserts in the first line of its argument that “where one defendant in a case is served, other defendants may be served at any time prior to trial.” This statement of the rule begins and ends our analysis of the present matter. We hold that the district court correctly applied rule 4(b) below, and we therefore affirm the order denying Kerr's motion to dismiss.

¶ 8 Rule 4(b) requires that a summons and copy of the complaint be served “no later than 120 days after the filing of the complaint” unless the court extends the time “for good cause.” However, in a suit “brought against two or more defendants on which

353 P.3d 139

service has been timely obtained upon one of them,” the other defendants need not be served within the 120–day window but “may be served or appear at any time prior to trial.” Utah R. Civ. P. 4(b)(ii). That is precisely what occurred here.

¶ 9 As discussed above, the relevant facts are not in dispute. On May 21, 2008, Ms. St. Jeor filed the Second Complaint alleging survival and wrongful death claims for the death of Mr. St. Jeor. And although Ms. St. Jeor named Kerr as a defendant,...