NO. 95-121
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James T. Harrison, Jr., Harrison, Leondorf & Poston,
Helena, Montana
For Respondent:
R.J. Sewell, Jr., Bruce M. Spencer, Smith Law Firm,
Helena, Montana
Submitted on Briefs: May 19, 1995
Decided: June 15, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Capital Answering Service, Inc., (Capital Answering), appeals
from an order of the First Judicial District Court, Lewis & Clark
County, dismissing the complaint of First Call, Inc., (First Call)
without prejudice. We reverse and remand for further proceedings
consistent with this opinion.
The issue on appeal is whether a dismissal pursuant to Rule
41(e), M.R.Civ.P., should be with prejudice and, thus, accorded res
judicata effect.
First Call filed an action for breach of contract against
Capital Answering in the District Court, Lewis & Clark County on
September 9, 1991, as Cause No. ADV 91-1480, and a summons was
issued the same date. That summons, however, was not served within
the three year period specified in Rule 41(e), M.R.Civ.P. An
amended summons was issued August 30, 1994, and was served on
September 13, 1994, prior to the running of the statute of
limitations on First Call's cause of action. Capital Answering
moved to dismiss on the basis of Rule 41(e), M.R.Civ.P., and in an
order dated November 9, 1994, the District Court granted Capital
Answering's motion, dismissing First Call's complaint. The court's
dismissal was, however, without prejudice. Capital Answering
timely appealed, contending that the dismissal should have been
with prejudice.
The District Court based its determination to dismiss First
Call's complaint without prejudice on our decision in Whitcraft v.
Semenza (1965), 145 Mont. 94, 399 P.2d 757, and cited the following
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language from our opinion:
It must be borne in mind that the Rule is nothing
more than a rule of procedure, designed to encourage
promptness in the prosecution of actions. Dismissal
thereunder is not based upon the absence of a claim, nor
upon any defect in the substantive right, nor is the Rule
a statute of limitation barring the claim after lapse of
the specified time. While an action may be dismissed the
claim remains. in order of dismissal is not res
judicata, it does not constitute a bar to another suit on
the same claim.
Whitcraft, 399 P.2d at 759.
Our review of the District Court's conclusions of law is plenary.
We simply determine whether the court's interpretation of the law
is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont.
470, 474-75, 803 P.2d 601, 603.
Rule 41(e), M.R.Civ.P. 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 I 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. . . .
Here, it is undisputed that the District Court properly
dismissed First Call's complaint because the summons was not served
within the three years specified in the Rule. Rather, the issue is
whether the trial court correctly dismissed First Call's complaint
without prejudice, thus allowing First Call to file another
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complaint on its claim, so long as the statute of limitations on
that claim had not run.
Based upon our decision in Whitcraft, the District Court was
compelled to rule as it did. Moreover, subsequent to Whitcraft, we
again interpreted Rule 41(e), in a manner consistent with our
decision in that case. In State ex rel. Equity Supply Co. v.
District Court (1972), 159 Mont. 34, 494 P.2d 911, we stated:
As Rule 41(e) is now written, an order of dismissal
is a bar to another suit on the same claim, if, as here,
the statute of limitations as well as the period provided
for by the rule, have run.
Equity Suuolv, 494 P.2d at 914.
Both Whitcraft and Equity Supply contain discussions of the
history of Rule 41(e) which we find unnecessary to reiterate here.
Suffice it to say, that having carefully reconsidered our decisions
in both of those cases, we now conclude that our interpretation of
the clear and unambiguous language of the Rule was incorrect.
In his specially concurring opinion in Equity Supply, Chief
Justice Haswell, concisely pointed up the fallacy inherent in this
Court's opinions in that case and in Whitcraft:
The operative words of Rule 41(e) that are pertinent
here provide:
iI* * * all actions heretofore or
hereafter commenced shall be dismissed by the
court in which the same shall have been
commenced * * * unless summons shall have been
issued within one year * * *.'
The purpose of this Rule is not only to promote
diligent prosecution of claims once suit has been filed
thereon, but also to bar further prosecution of lathed
lawsuits. The Commission Note to amended Rule 41(e)
makes this clear . . .
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authorities cited in their briefs on appeal in support of and in
opposition to our previous interpretations of Rule 41(e). Having
done that, we, nevertheless, conclude that on the plain language of
Rule 41(e), our prior interpretations of that Rule in Whitcraft and
in Equity Supply were simply wrong. Necessarily, Whitcraft and
Equity Supplv are overruled.
We hold that dismissals under Rule 41(e), M.R.Civ.P. are
dismissals with prejudice and must be given res judicata effect.
Accordingly, we reverse the District Court's order dismissing First
Call's complaint without prejudice and remand for entry of an order
dismissing its complaint with prejudice.
We Concur: