NO. 88-284
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
VIOLET M. HANKINSON, and JOSEPH
E. HAMKINSON, Mother and son,
Plaintiffs and Appellants,
-vs-
CARTER PICOTTE, JR., and GENE A. PICOTTE,
P.C., a Montana Professional Corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
William A. Bartlett; Wellcome, Frost & Bartlett,
Bozeman, Montana
For Respondent:
William D. Jacobsen; Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
Submitted on Briefs: Sept. 9, 1988
Decided: December 13, 1988
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Filed :L-J
a
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Violet M. Hankinson and Joseph E. Hankinson, mother and
son, appeal from a judgment of dismissal with prejudice of
their complaint against Carter Picotte, Jr. and Gene A.
Picotte, P.C., a Montana professional corporation. The
judgment of dismissal was entered on March 30, 1988 in the
District Court, Fifth Judicial District, Jefferson County.
The decisive issue in the cause is whether, when a
district court orders a dismissal of a complaint for failure
to state a claim, a notice of entry of judgment must be
served to start the time running for appeal. We hold that
such notice must be served under the facts of this case.
Joseph Hankinson, a self-employed independent trucker,
was in a motor vehicle accident in November, 1984. Since he
was required to be on the road and was seldom at home, he
gave the telephone number of his mother, Violet Hankinson,
and her address to the police in case there was need for
further contact with him.
On the evening of December 12, 1984, Violet Hankinson
received a telephone call from a person who did not identify
himself, who asked to speak to Joe Hankinson. When she
informed him that Joe was not there, the caller responded by
saying, "Tell him to contact me within 24 hours or I'll have
the Chicago mob beat him up and kill him."
Violet reported the telephone call to the police who
came to her residence to investigate. While they were there,
at about 9:30 p.m. on the same day, a second call came from
the individual. He identified himself as Carter Picotte,
repeated his threats, and left a phone number where he could
be reached. The Belgrade police officers are reported to
have taped the second telephone call.
On July 26, 1985, Violet Hankinson and Joseph brought an
action against Carter Picotte, singly, wherein Joseph claimed
compensatory damages for lost earnings because he avoided
several jobs out of fear of bodily injury; and Violet
Hankinson claimed damages for invasion of privacy, and
extreme emotional trauma.
Hankinsons' action was ordered dismissed on a Rule 12(b)
motion on December 30, 1986. Neither Carter Picotte nor his
attorney filed a notice of entry of judgment. The Hankinsons
did not appeal the order of dismissal, but several months
later hired new counsel who successfully moved the District
Court for an order allowing an amendment of the complaint.
The order of the District Court granting leave to file
an amended complaint was dated December 31, 1987. The
amended complaint was based on four theories of liability:
negligence, negligent supervision, outrageous conduct, and
deception by an attorney under S 37-61-406, MCA. The amended
complaint also brought into the action Gene A. Picotte, P.C.,
as an additional defendant on the grounds that when Carter
Picotte made the telephone call he was an employee of Gene A.
Picotte, P.C. The order of December 31, 1987 required that
the professional corporation be served with a copy of the
amended complaint and with summons.
The first amended complaint is not a part of the court
record. Instead, a second amended complaint was filed by the
plaintiffs, and service of the second amended complaint and
summons was effectuated on the professional corporation, as
far as the court records reveal, on February 17, 1988.
Both Carter Picotte and the professional corporation
made motions to dismiss the second amended complaint.
Carter's motion was based on the grounds of res judicata,
that the order of dismissal of the original complaint had
become final by failure of the Hankinsons to appeal. The
motion of the professional corporation to dismiss was
grounded on collateral estoppel based on failure to appeal.
Both parties contended that because of the failure to appeal,
the order of dismissal of the original complaint had become
final and the District Court lacked subject matter
jurisdiction once the order became final.
The District Court entered a judgment of dismissal with
prejudice of all claims against the defendants Carter Picotte
and the professional corporation on March 30, 1988. In
entering judgment, the District Court held that the order of
dismissal of December 30, 1986 was an appealable order, and
the failure to make a timely appeal from the order of
dismissal made the order final and operated as an
adjudication upon the merits as far as Carter Picotte was
concerned. The District Court further reasoned that the
dismissal of claims against Carter Picotte collaterally
estopped the Hankinsons from raising the same issues against
the professional corporation. The Hankinsons have appealed
from the judgment of dismissal of March 30, 1988.
Under Rule 77 (d), Montana Rules of Civil Procedure,
notice of entry of judgment must be served by the prevailing
party upon all parties who have made the appearance in the
cause.
It is the filing of the notice of entry of judgment that
begins the running of the time limitations for filing a
notice of appeal. Morrison v. Higbee (1983), 204 Mont. 501,
668 P.2d 1029. If no notice of entry of judgment had been
served upon the losing party, the right to appeal has not
expired. Haywood v. Sedillo (1975), 167 Mont. 101, 535 P.2d
1014.
Unless post-trial motions are made by the losing party
under Rule 52 or 59, Montana Rules of Civil Procedure, the
losing party is not required to adhere to the 30 day period
for filing a notice of appeal until proper service of notice
of entry of judgment is made. Pierce Packing Co. v. District
Court (1978), 177 Mont. 50, 579 P.2d 760. And this rule
applies to orders which may become final as we11 as to
judgments. In the Matter of Holmes' Estate (1979), 183 Mont.
290, 599 P.2d 344.
In this case, with no notice of entry of judgment served
under Rule 77, and no post-trial motions under Rules 52 or
59, the time for appeal did not begin to run, the order of
dismissal of the original complaint did not become final, and
the District Court had jurisdiction on December 31, 1987, to
grant leave to file an amended complaint. The District Court
had not lost subject matter jurisdiction.
The judgment of dismissal of the second amended
complaint must therefore be reversed. There is however an
additional fact to be considered by the District Court on
remand regarding the claim against the professional
corporation.
The actions of Carter Picotte giving rise to the claimed
liability occurred on December 12, 1984. The professional
corporation was not served with summons and complaint, as far
as the court records show, until February 17, 1988. In the
answer of the professional corporation to the second amended
complaint, affirmative defenses based upon various statutes
of limitations have been raised. The claim against the
professional corporation may be barred by the limitations
statutes, unless the amended complaint relates back to the
date of the original pleading under Rule 15(c). When a
pleading is amended, and an additional party brought in by
the amendment, the amended pleading does not relate back to
the original pleading as against the additional party unless
he (1) has received such notice of the institution of the
action that he will not be prejudiced in maintaining a
defense of the merits, and (2) knew or should have known
that, but for a mistake concerning the identity of the proper
party, the action would have been brought against him.
We therefore reverse the judgment of dismissal with
prejudice against Carter Picotte and the professional
corporation. The District Court is directed on remand to
determine whether the amended pleading relates back to the
original pleading as against the defendant professional
corporation. We make no comment as to other issues raised in
the briefs or under the pleadings, leaving those to be
handled if need be by the District Court.