Association of Unit Owners of Deer Lodge Condominium v. Big Sky of Montana, Inc.

No. 86-121
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

ASSOCIATION OF UNIT OWNERS OF THE
DEER LODGE CONDOMINIUM; LARRY BURNSIDE;
MARY BURNSIDE; MEL'S REMODELING, INC.;
ROBERT FOUSIGNANT; GERALD TEREICH;
CAROLYN TEREICH; BRUCE J. HEDBLOOM;
EMIL ESCHENBURG; DOLLY ESCHENBURG;
RAYMOND D. RYAN; ERNEST M. SCHEWCHUK;
MAURICE LOBE; MURRAY B. STEVENS; W.
KEITH STINSON, et al.,
Plaintiffs and Appellants,

BIG SKY OF MONTANA, INC.; BIG SKY OF MONTANA
REALTY, INC.; BOYNE USA, INC.; CHRYSLER
REALTY CORP; THOMAS & CO (GENERAL ELECTRIC
PENSION TRUST); MERIDIAN INVESTING & DEVELOP-
MENT CORP; CONTINTNTAL OIL CO.; THE MONTANA
POWER CO.; ST. LOUIS and KANSAS CITY LAND CO.
(BURLINGTON NORTHERN, INC.); NORTHWEST AIRLINES,
INC., et al.,
Defendants and Respondents.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Prank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Berg, Coil, Stokes & Tollefsen; Michael C. Coil argued,
Bozeman, Montana
For Respondents:
Boone, Karlberg & Haddon; Sam E. Haddon argued for
Chrysler Realty, Missoula, Montana
Jerry Ashby, Houston, Texas
Rockwood Brown argued for GE & BN, Billings, Montana
Poore, Roth & Robinson; Urban Roth argued for Conoco,
Butte, Montana
Patrick Fleming argued for MPC, Butte, Montana
Loble & Pauly; Thomas Hopgood argued for Northwest
Airlines, Helena, Montana
John Bobinski, Dept. of Administration, Helena, Montana
Moulton Law Firm, Billings, Montana
Corette, Smith, Pohlman & Allen, Butte, Montana
Schulz, Davis & Warren; John S. Warren, Dillon,
Montana

Submitted: October 21, 1986
Decided: Vovember 2 4 , 1 9 8 6

Filed: NOV241986

- --
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Association of Unit Owners of the Deer Lodge Condomini-
ums and others (owners) brought an action to recover damages
resulting from a fire that occurred in Deer Lodge Condomini-
ums located at Big Sky, Montana. The District Court for
Madison County, Fifth Judicial District, granted the motions
to dismiss of six defendants pursuant to Rule 41(e),
M.R.Civ.P. (Rule 41 (e)), on the grounds that there was a
failure to comply with the rule as to service of process. We
affirm in part and reverse in part.
The issues are:
1. Did the District Court err by granting the defen-
dants' motions to dismiss based on Rule 41 (e), M.R.Civ.P.?
2. Did the District Court err when it denied owners'
motion to amend the original and duplicate summons?
3. Did the District Court err by not granting owners
additional time within which to file their brief opposing the
motion to dismiss of Burlington Northern?
On January 18, 1983, owners filed a complaint naming
each of the defendants in this action. No summons was issued
at that time. On February 18, 1983, owners filed a first
amended complaint and issued a summons captioned "Association
of Unit Owners of the Deer Lodge Condominium, et all Plain-
tiffs, versus Big Sky of Montana, Inc., et al., Defendants."
The summons did not otherwise name any other defendant.
Service was made on four defendants who are not involved in
this present appeal. Service of the February 18, 1983 sum-
mons was not made on Continental Oil Company (Conoco), St.
Louis and Kansas City Land Company (Burlington Northern),
Northwest Airlines, Inc. (Northwest), Chrysler Realty
Corporation (Chrysler), Montana Power Company (Montana Pow-
er), and Thomas and Company (General Electric), who are the
respondents in this action. The amended complaint in its
caption listed all of the plaintiffs and all of the
defendants.
In May 1984, about 15 months after the original summons
was issued, a number of additional summons were issued which
were marked "duplicate summons" and these summons were served
on Conoco, Burlington Northern, Northwest Airlines, Montana
Power Company, and General Electric. As an example, the
caption of the "duplicate summons" served on Burlington
Northern read: "Association of Unit Owners of the Deer Lodge
Condominium, et al., Plaintiffs, versus Burlington Northern;
et al, Defendants." Chrysler was served with a "duplicate
summons" on August 21, 1984. Because the appearance of each
of the defendants is so important, a brief summary of their
appearances and relevant court order dates after they were
served is presented.
Burlinaton Northern
June 14, 1984: Burlington Northern filed its motion to
dismiss raising Rule 41(e) and supporting
memorandum.
July 9, 1984: Burlington Northern dismissed from suit.
Chrysler
October 5, 1984: Chrysler appeared by Rule 12 (b)
M.R..Civ.P.
(Rule 12(b)), motion and moved for change
of place of trial and moved to dismiss
for failure to comply with Rule 41 (e).
August 6, 1985: Chrysler dismissed from suit.
Conoco
June 11, 1984: Conoco moved to dismiss not raising Rule
41 (e) and at the same time asked for
additional briefing time to August 17,
1984.
June 20, 1984: Conoco's motion to dismiss was denied.
July 23, 1984: Conoco filed a motion to rescind the
order denying the motion to dismiss.
August 2, 1984: Court order granting Conoco's motion to
rescind the court's previous order deny-
ing its motion to dismiss was granted and
Conoco was given until August 17, 1984 to
file and serve its brief in support of
its motion to dismiss.
August 20, 1984: Conoco filed a brief raising Rule 41 (e)
without having filed a motion to dismiss
on that ground.
July 9, 1985: Conoco dismissed from suit.
Northwest
July 31, 1984: Northwest filed motion to dismiss and
supporting brief not raising Rule 41 (e) .
August 17, 1984: Without court authorization, Northwest
filed an amended motion to dismiss rais-
ing Rule 41 (e) .
July 9, 1985: Northwest dismissed from suit.
General Electric
June 11, 1984: General Electric filed a general motion
to dismiss not raising Rule 41 (e) .
General Electric moved the court for
additional time to file a memorandum in
support of its motion to dismiss.
August 2, 1984: Additional time granted.
October 31, 1984: General Electric filed its memorandum.
Without court authorization, it also
filed an amended motion to dismiss rais-
ing Rule 41 (e).
July 9, 1985: General Electric dismissed from suit.
Montana Power Company
June 8, 1984: Montana Power Company filed a motion
to dismiss not raising Rule 41(e).
August 20, 1984: Without court authorization, Montana
Power Company filed an amended motion
raising Rule 41 (e) with supporting memo-
randum and affidavit.
July 9, 1985: Montana Power Company dismissed from
suit.
Owners resisted the above motions to dismiss with their
own motions and briefs. On October 22, 1984, owners filed a
motion for leave to amend the summons and to correct the
variations in the date of issuance shown on the original
summons and the duplicate summons. The District Court heard
oral argument on all the foregoing motions and on July 9,
1985, granted the motions to dismiss of Burlington Northern,
Conoco, Northwest, General Electric, and Montana Power 'I. ..
for the reason that there was a fatal failure of Plaintiffs
to comply with the rule as to service of process." The
District Court also denied owners' motion for leave to amend
the summons. On July 17, 1985, the court granted Chrysler's
motion to dismiss.
I

Did the District Court err by granting the defendants'
motion to dismiss based on Rule 41(e), M.R.Civ.P.?
 The District Court dismissed the six defendants involved
in this appeal based upon Rule 41 (e), M.R.Civ.P., which
provides :

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 proceed-
ings shall be had therein, and all actions hereto-
fore or hereafter commenced shall be dismissed by
the court in which the same shall have been com-
menced, 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
return made 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. When more than one defendant has been named
in an action, the action may within the discretion
of the trial court be further prosecuted against
any defendant who has appeared within 3 years, or
upon whom summons which has been issued within 1
year has been served and return made and filed with
the clerk within 3 years as herein required.
The six defendants contend that because the original
summons dated February 18, 1983, failed to name any of them,
and because the so called duplicate summons were not issued
until more than one year after the commencement of the ac-
tion, each of the six defendants should be dismissed from the
suit. The record shows that the duplicate summons served
upon each of these six defendants were issued more than one
year after the commencement of the action and the filing of
the first amended complaint. Our rules do not contain a
provision for the issuance of a "duplicate" summons. We
disregard that terminology in the title of the summons, and
conclude that the service of such a summons fails to meet the
requirements of Rule 41 (e), M.R.Civ.P., which requires that
the summons be issued within one year after the commencement
of the action. We are not able to relate the actual service
back to the summons properly issued on February 18, 1983,
because that summons failed to name any of the six defendants
in its caption or anywhere else in the summons. As a result,
that summons would have been inadequate to give notice to
these six defendants because of the absence of the defen-
dants' names in the summons. We therefore affirm the conclu-
sion of the District Court that the attempted service on
Burlington Northern, Chrysler, Conoco, Northwest, General
Electric, and Montana Power was insufficient under Rule
41 (e), M.R.Civ.P.
We now must determine if the appearances of each of
these six defendants are sufficient to constitute a waiver of
the insufficiency of service of process defense. Rule
12 (h)(1) , M. R. Civ. P. , contains the following provisions with
regard to waiver of the insufficiency of service of process
defense:

(1) A defense of lack of jurisdiction over the
person, insufficiency of process, or insufficiency
of service of process is waived (A) if omitted from
a motion in the circumstances described in subdivi-
sion (g), or (B) if it is neither made by motion
under this rule nor included in a responsive plead-
ing or an amendment thereof permitted by Rule 15(a)
to be made as a matter of course.
Rule 12 (g), M.R.Civ. P., referred to in the above quota-
tion states in pertinent part:

... If a party makes a motion under this rule but
omits therefrom any defense or objection then
available to him which this rule permits to be
raised by motion, he shall not thereafter make a
motion based on the defense or objection so omit-
ted, ...
A number of the initial motions filed by the six defendants
were motions to dismiss for failure to state a claim upon
which relief can be granted as provided for under Rule 12(b),
 In substance, the foregoing rules require that if a
defendant makes a motion to dismiss for failure to state a
claim upon which relief can be granted, or any other motion
under the provisions of Rule 12, he must raise a contention
of insufficiency of service of process in that first motion
or the objection is waived. The purpose of Rule 12 (b),
M.R.Civ.P., "is to afford an easy method for the presentation
of defenses but at the same time prevent their use for pur-
poses of delay." 2A J. Moore, Moore's Federal Practice
9 12.02 (1985). As appears from the foregoing summary,
several of these defendants made an initial motion to dismiss
for failure to state a claim upon which relief could be
granted and failed to make any reference to the insufficiency
of service in the original motion. Thereafter, some of the
defendants filed amended motions without the permission of
the District Court raising the Rule 41 (e) question on insuf-
ficiency of service. Regarding the amendments of motions, 2A
J. Moore, Moore's Federal Practice ¶ 7.05 (1985) states:

Where the rules require a motion to be made within
a specified time, may a timely motion be amended
after expiration of that period to state new
grounds? The prevailing view is that the purpose
of the time limitation would be defeated if a party
could file a skeleton motion and later fill it out,
possibly adding new grounds. (Citing Martinez v.
Trainor (7th Cir. 1977), 556 F.2d 818.)
We agree with the rationale behind the prevailing view stated
above. However, as Wright and Miller point out, the ability
to amend a motion should be left to the discretion of the
trial judge, and his ability to deny leave to amend when he
believes the amendment process is being abused provides a
sufficient safety valve. Wright and Miller Federal Practice
and Procedure S 1194 (1986 Supplement). We hold that prior
approval of the District Court is a prerequisite to the
proper filing of an amended Rule 12(b) motion.
In this case, both Burlington Northern and Chrysler
raised the insufficiency of service of process defense under
Rule 41 (e) in their initial motions to dismiss. We conclude
that they raised the Rule 41(e) defense in their first motion
as required by Rule 12, and further conclude that the Dis-
trict Court properly dismissed Burlington Northern and
Chrysler .
Conoco filed a motion to dismiss which did not raise
Rule 41 (el and also moved for additional briefing time until
August 17, 1984. While Conoco's motion to dismiss was de-
nied, the subsequent order of the District Court rescinded
that denial and granted Conoco until August 17, 1984, in
which to brief their motion to dismiss. In that brief Conoco
argued for dismissal based upon Rule 41 (e) . Conoco did not
raise the Rule 41 (e) issue in a motion or an amended motion.
A brief cannot be construed either as a pleading or a motion
under Rule 12. As stated in 5 Wright and Miller, Federal.
Practice and Procedure S 1347 (1969):

The purpose of Rule 12(b) is to promote the expedi-
tious and simultaneous presentation of defenses and
objections. In order to accomplish this objective,
the rule provides that all defenses and objections
must be raised in one of two ways. First, every
defense, in law or in fact, may be asserted in the
responsive pleading. Second, seven enumerated
defenses may be made by a single preliminary motion
or by responsive pleading, whichever appears to be
the more advantageous procedure to the party who
wishes to assert one or more of them.
Conoco failed to raise the objection in the motion which
constituted its original appearance, and therefore did not
meet the requirements of Rule 12(b). We conclude that Conoco
was improperly dismissed by the order of the District Court.
 Northwest Airlines filed a motion to dismiss and motion
for a more definite statement and a supporting memorandum
without raising Rule 41(e). About 16 days later, and without
court permission, Northwest filed an amended motion to dis-
miss and motion for a more definite statement which raised
Rule 41 (e). Northwest failed to raise the Rule 41 (e) defense
at its first appearance and therefore did not meet the re-
quirements of E-ule 12(b). Northwest did not get prior ap-
proval of the District Court to file its amended motion. The
fact that Northwest filed an amended motion to dismiss within
twenty days of its original motion does not cure these de-
fects because Rule 15 (a) and Rule 15 (c), M.R.Civ.P., regard-
ing amendments and relation back of amendments, pertain only
to pleadings. Rambur v. Diehl Lumber Company (Mont. 1964) ,
144 Mont. 84, 394 P.2d 795. We conclude that Northwest was
improperly dismissed by order of the District Court.
General Electric filed a general motion to dismiss which
did not mention Rule 41 (e) . About a month and a half later,
General Electric filed a motion for additional time to file
its brief in support of its motion to dismiss which was
granted. General Electric then filed an amended motion to
dismiss raising Rule 41(e) and a motion for a more definite
statement, with accompanying memorandum. General Electric
was not given permission by the court to file the amended
motion to dismiss. From the time General Electric filed its
motion to dismiss to the time it filed its amended motion to
dismiss, over three and one-half months had elapsed. This is
precisely the type of delay that Rule 12(b) attempts to
prevent. In addition, General Electric did not raise Rule
41(e) at its first appearance and was not given court permis-
sion to file the amended motion to dismiss. Accordingly, we
conclude that General Electric was improperly dismissed by
order of the District Court.
Montana Power Company filed a motion to dismiss which
did not raise Rule 41(e). About two and a half months later,
without court permission, it filed an amended motion to
dismiss and a supporting memorandum which raised Rule 41 (e) .
Montana Power failed to raise the Rule 41 (e) defense at its
first appearance, and therefore did not meet the requirements
of Rule 12(b). Montana Power was not given prior approval of
the District Court to file its amended motion to dismiss.
Therefore, we conclude that Montana Power was improperly
dismissed by order of the District Court.
I1

Did the District Court err when it denied owners' motion
to amend the original and duplicate summons?
The owners maintain that they should have been allowed
to amend the date on the "duplicate summons" issued to each
defendant to correspond to 'the date in the original summons.
Under Rule 4D(7), M.R.Civ.P., a court, in its discretion, may
allow any process or proof of service to be amended unless
material prejudice would result to the party against whom the
process was issued.
The owners cite Larango v. Lovely (1981), 196 Mont. 43,
637 P.2d 517, in support of their argument that a court has
discretion to allow amendments of process. However, Larango
is distinguishable from this case on two grounds. First, the
altered summons in Larango was issued within nine days after
the action was commenced as opposed to over one year in this
case. Second, the defendants may have been substantially
prejudiced in this case because of lack of notice of the
lawsuit and lack of knowledge of prior discovery proceedings
which commenced during the one year after the amended com-
plaint was filed. Whether a defendant is substantially
prejudiced is a question for the district court.
On appeal, this Court will not substitute its judgment
for that of the district court but rather will only consider
whether substantial credible evidence supports the district
court's findings. Those findings will not be overturned by
this Court unless there is a clear preponderance of the
evidence against them. Phennicie v. Phennicie ( 1 9 7 9 ) , 185
Mont. 120, 604 P.2d 787.
We hold that the District Court did not err when it
denied owners' motion to amend the original and duplicate
summons. The District Court had reason to believe substan-
tial prejudice would develop against the defendants if the
amendment was allowed and this Court will not overturn the
District Court unless there is a clear preponderance of the
evidence against the District Court's findings.

Did the District Court err by not granting owners addi-
tional time within which to file their brief opposing the
motion to dismiss of Burlington Northern?
The owners contend that the District Court abused its
discretion by allowing various defendants extensions to file
briefs and not allocving owners an extension to file their
brief opposing the motion to dismiss of Burlington Northern.
In the lower court's action, owners filed a motion asking the
court to reconsider its dismissal of Burlington Northern. On
December 16, 1984, oral arguments were presented by owners on
that issue. After the oral arguments, the District Court, on
July 9, 1985, reaffirmed its previous order dismissing
Burlington Northern.
 F e hold that the District Court did not err by not
J
granting owners additional time to file their brief opposing
Burlington Northern's motion to dismiss.
In summary, we hold that the District Court properly
dismissed Burlington Northern and Chrysler from this suit.
Conoco, Northwest, General Electric, and Montana Power were
improperly dismissed by the District Court and should be
reinstated as parties in this suit.

We Concur:
/'

Justice L.C. Gulbrandson did not participate in this
decision.