Busch v. Atkinson

No. 95-456
IN THE SUPREME CbURT OF THE STATE OF MONTANA
1996

MONICA A. BUSCH,
Plaintiff and Appellant,
v.
BRIAN ATKINSON (Michael
Atkinson, Jr.), MICHAEL
ATKINSON, and RITA ATKINSON,

APPEAL FROM: District Co&t of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For, Appellant:

Randy S. Laedeke, Laedeke law Office, Billings,
Montana

For Respondent:
Michael P. Heringer, Matthew H. Thomas, Brown,
Gerbase, Cebull, Fulton, Harman & Ross, Billings,
Montana

Submitted on Briefs: April 11, 1996

Decided: October 24, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Plaintiff Monica Busch brought this action in the District

Court for the Thirteenth Judicial District, Yellowstone County, to

recover damages allegedly sustained in an automobile accident
involving Defendant Michael Atkinson, Jr. Defendants filed a

motion to dismiss based on Plaintiff's failure to have a summons

issued within one year of filing the complaint, pursuant to Rule

41 (e) , M.R.Civ.P. The District Court granted Defendants' motion
and ordered the dismissal of this action. We reverse.

We address the following issue on appeal:

Did the District Court err in dismissing Plaintiff's personal

injury action because a summons was not issued within one year of

the commencement of the action?

Factual and Procedural Background
Plaintiff Monica Busch was injured on February 2, 1989, when

Defendant Michael Atkinson, Jr., the minor son of Defendants

Michael and Rita Atkinson, rear-ended Plaintiff's vehicle while

Plaintiff was stopped at a stop sign. Defendants' insurance

company accepted liability and paid for conservative treatment of

Plaintiff's cervical strain until it decided Plaintiff's healing

period should have ended. Plaintiff stopped treatment for a time

but when she decided to resume treatment, Defendants' insurance

company refused to reimburse Plaintiff for further treatment.
Plaintiff's counsel sent a letter to Defendants' insurance

adjuster requesting that the insurance company resume advancing

payment for Plaintiff's medical bills. In a letter dated April 5,

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1990, the insurance adjuster stated that his company had already
paid $2,900 for various examinations and treatments for Plaintiff
and was not interested in advancing any more money for Plaintiff's

medical bills. The letter concluded with the statement "[w]hen

your client is ready to talk final settlement of this case, we will

be open for discussion." Thereafter, Plaintiff continued with

conservative treatment and submitted her medical bills to her

husband's health insurance carrier.

Plaintiff's counsel filed the complaint commencing this action
on January 31, 1992, to prevent the statute of limitations from

running. On August 12, 1992, the District Court issued an order

requiring Plaintiff to file a status report with the court or to

face dismissal of the case. That same month, Plaintiff's counsel

experienced problems with the computer in his office resulting in

the loss of all data on the-hard drive for the months of June, July

and August 1992. Despite these computer problems, counsel filed a

Status Report and Objection to Dismissal on September 16, 1992,

claiming that he was in continuing negotiations with Defendants'

insurance company and stating that the summons and complaint had
not been served so that he could continue to deal directly with the

insurance company.

In March 1993, Plaintiff's counsel discovered that no

summonses had ever been issued in this action. Counsel prepared a

summons and took it to the Clerk of Court's Office and attempted to

have it issued. The court personnel advised counsel that they

could not issue the summons because the one-year period provided by

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Rule 41(e), M.R.Civ.P., had expired. Counsel filed a motion with

the court on March 9, 1993, for leave to issue a summons beyond the
one-year time period provided by Rule 41(e), M.R.Civ.P., on the

basis of excusable neglect. He claimed that he mistakenly believed

that he had prepared a summons and had it issued soon after he

filed the status report with the District Court in September 1992,

and that he had not discovered the error sooner because his office

calendaring system had been completely wiped out by a computer

virus in January 1993.

On May 25, 1993, the District Court denied the motion for

leave to issue a summons and ordered the action dismissed based

upon the court's finding that the Rules of Civil Procedure require

dismissal if no summons has been issued within one year of filing
the complaint regardless of the reason for it not being issued.

Plaintiff filed a motion for reconsideration on May 28, 1993, under

the theory that a summons could be issued on an amended complaint.

On July 12, 1993, the District Court granted Plaintiff's motion for

reconsideration, vacating the May 25, 1993 order dismissing this

action and granting Plaintiff's motion for leave to file an amended
complaint and have summons issued on the amended complaint.

However, Plaintiff failed to file the amended complaint or have

summons issued.

On January 19, 1995, more than 18 months after the District

Court granted Plaintiff leave to file, the court sent Plaintiff's

counsel a notice advising that Plaintiff's case would be dismissed

for failure to prosecute unless good cause was shown why no action

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 had been taken by Plaintiff following the court's issuance of its
July 12, 1993 order. In response, Plaintiff filed an amended
complaint and three summonses were issued and served on January 26,

1995. However, the day. after these summonses were issued,
Plaintiff filed a second amended complaint, without leave of the

court, to correct the name of one of the Defendants. The second

amended complaint and three new summonses were served on the
Defendants and an Affidavit of Service of Process was returned and

filed with the Clerk of Court on January 31, 1995, the day the

three-year time limit for serving and filing return of service as
set forth in Rule 41(e), M.R.Civ.P., was to expire.

On February 15, 1995, Defendants' counsel filed a motion to
dismiss under Rule 12(b), M.R.Civ.P., on the basis of insufficiency

of process, insufficiency of service of process, and failure to

state a claim upon which relief may be granted. The District Court

granted Defendants' motion on June 28, 1995, and ordered the

dismissal of this action. On July 13, 1995, Plaintiff filed a

Motion for Reconsideration but failed to file a supporting brief.

The District Court denied Plaintiff's Motion for Reconsideration on

August 1, 1995, and entered judgment in favor of Defendants,

ordering the dismissal of Plaintiff's complaint. Plaintiff

appeals.
Discussion

Did the District Court err in dismissing Plaintiff's personal

injury action because a summons was not issued within one year of

the commencement of the action?

L
 The District Court dismissed Plaintiff's personal injury
action because it determined that Plaintiff's failure to issue a
SummOnS within one-year of the commencement of the action as

mandated by Rule 41(e), M.R.Civ.P., entitled Defendants to
dismissal. The court also determined that, even though Plaintiff

was allowed to file an amended complaint, the one-year period to

issue a summons prescribed in Rule 41(e), M.R.Civ.P., runs from the

commencement of the action and does not begin running anew with the
filing of the amended complaint.

Our review of a district court's conclusions of law is

plenary. We simply determine whether the court's interpretation of
the law is correct. First Call v. Capital Answering Serv., Inc.

(1995), 271 Mont. 425, 426, 898 P.2d 96, 96 (citing Steer, Inc. v.

Department of Revenue 119901, 245 Mont. 470, 474-75, 803 P.2d 601,

603).

This Court has previously stated that Rule 41(e), M.R.Civ.P.,
requires dismissal of an action where summons is not issued within

one year of the commencement of the action, unless an appearance is

made by the defendant within three years of the commencement of the

action. Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 367,

865 P.2d 264, 266-67; Association of Unit Owners v. Big Sky (1986),

224 Mont. 142, 148, 729 P.2d 469, 472. Rule 41(e), M.R.Civ.P.,

provides, in pertinent part:

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

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,
 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.
[Emphasis added.]

Plaintiff argues that a district court has the authority to

extend the time for a plaintiff to have a summons issued where the

failure to act was the result of excusable neglect pursuant to Rule

6 (b) , M.R.Civ.P., or for good cause pursuant to the rule
established in Livingston v. Treasure County (19891, 239 Mont. 511,

781 P.2d 1129 (overruled by Haugen v. Blaine Bank (Mont. No.95-554,

decided October 24, 1996): Plaintiff further argues that under

Rule 4C(l), M.R.Civ.P., it was the duty of the Clerk of Court to
issue the summons when the complaint was filed and that the burden

of issuing the summons was wrongfully placed upon the Plaintiff.

We find it unnecessary to address all three of Plaintiff's

arguments as her argument regarding Rule 4C(l), M.R.Civ.P., is

dispositive of this case. Rule 4C(l), M.R.Civ.P., provides in

pertinent part:

Upon the filing of the complaint, the clerk shall
forthwith issue a summons, and shall deliver the summons
either to the sheriff of the county in which the action
is filed, or to the person who is to serve it, or upon
request, to the attorney for said party who shall
thereafter be responsible to see that the summons is
served in the manner,prescribed by these rules. Upon
request, separate or additional summons shall issue
against any parties designated in the original action, or
against any additional parties who may be brought into
the action. [Emphasis added.1

Although this Court has previously stated that the power to

issue a summons lies exclusively with the clerk of court and that

an attorney can only request that the summons be issued, Larango v.

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Lovely (1981), 196 Mont. 43, 46-7, 637 P.2d 517, 519, we have not
heretofore squarely addressed the precise question raised here--
i.e., should the burden of a Rule 41(e) dismissal fall on the party

filing a complaint where the summons is not issued within one year

because the clerk of court fails to exercise that power in

compliance with Rule 4C(l)? In addressing this issue we appreciate

that, historically and as a matter of usual practice, attorneys

prepare the summons and usually direct the clerk of court to issue
it at the time of filing the complaint or at some later time.

Normally the clerk simply complies with the attorney's directive.
However,,our task, when called upon to decide a case involving

the Rules of Civil Procedure is to simply apply them as written,

not to conform the Rules to what may be a prevailing practice

actually at odds with what the Rules clearly and unambiguously

require. Moreover, in our interpretation of the various Rules of

Civil Procedure, we utilize applicable rules of statutory

construction. Thus in our interpretation of the Rules, we are

required
simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been
omitted or to omit what has been inserted Eandl [wlhere
there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give
effect to all.

Section l-2-101, MCA. See also First Call, 898 P.2d at 97; Pierce

Packing Co. v. District Court, etc. (1978), 177 Mont. 50, 53-54,

579 P.2d 760, 762. Thus, we must attempt to read Rules 41(e) and

4C(l) together and, if possible, give effect to the clear and

unambiguous language of both.
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 The plain language in Rule 4C(l), is mandatory and leaves no
room for interpretation--"[uIpon the filing of the complaint, the
clerk shall forthwith issue a summons, and shall deliver the
summons either to the sheriff . or to the person who is to

serve it." Under Rule 4C(i), neither the complainant nor his or

her attorney is obliged to request that the summons be issued nor

is the complainant or attorney empowered to direct the clerk not to
issue the summons. The attorney for the complainant can request

delivery of the issued summons and thereafter become responsible

for having it served, but that is the extent of his or her
authority with respect to the summons required to be issued by the

clerk of court upon the complaint being filed.

Under Rule 4C(l), upon filing the complaint, the clerk of

court's duty, without a request from anyone, is to issue the

summons and to deliver it for service; no discretion is allowed.

This is clear not only from the plain language of the first

sentence of Rule 4C(l), which requires no request for issuance of

the initial summons, but also from the language of the second

sentence of this Rule which provides that U [ulpon request, separate
or additional summons shall issue." (Emphasis added.) While the

complainant or attorney is obligated to request additional or

separate summons, there is no such obligation as to the initial

summons to be issued upon filing the complaint; the clerk of court

is simply, and without more, required to issue the summons and to
deliver it for service.
Since Rule 4C(l) clearly places the initial burden and

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mandatory duty of issuing and delivering a summons on the clerk of
court upon the filing of the complaint, we are unwilling to affirm

the trial court sanctioning the Plaintiff with dismissal under Rule

41(e) and with the irrevocable deprivation of her day in court,

where that sanction results directly from failure of the clerk--an

officer of the court--to perform this duty, which is clearly

required under the Rule and is solely within that official's

responsibility.

Over a decade ago, we were faced with a somewhat similar issue
involving another of the Rules of Civil Procedure, Rule 77(d), and

the effect on the running of litigants' appeal times occasioned by

the clerk's failure to issue the notice of entry of judgment as

required by the Rule. In those situations we uniformly applied the
clear language of the Rule and held that the time for filing an

appeal did not begin to run until the clerk of court issued the

notice of entry of judgment as required by then existing Rule

77(d), M.R.Civ.P. See Pierce Packing Co. v. District Court, etc.

(1978), 177 Mont. 50, 579 P.2d 760 (losing party's appeal time did

not begin to run where the clerk of court failed to serve notice of
entry of judgment as required by then existing provisions of Rule

77(d), M.R.Civ.P., notwithstanding that prevailing counsel gave

notice of entry of judgment himself); Matter of Estate of Holmes

(19791, 183 Mont. 290, 599 P.2d 344 (even though devisee had actual

notice of the entry of the district court's order declaring two-

thirds of devise void, the time for devisee to appeal did not begin

to run where clerk of court failed to send notice of entry of

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judgment) ; Morrison v. Higbee (1983), 204 Mont. 501, 668 P.2d 1029
(appeal filed within 30 days of filing of notice of entry of
judgment deemed timely where clerk of court failed to file notice

of entry of judgment until three and a half years after the
district court filed its findings of fact, conclusions of law and

decree); AAR Const. Inc. v. Fergus Elec. Co-op. (1985), 215 Mont.

102, 695 P.2d 819 (losing party's time for filing a post-judgment

motion did not begin to run where the clerk of court failed to
serve losing party with notice of entry of judgment).

Accordingly, because we hold that the duty of issuing the
summons was solely that of the clerk of court's under Rule 4C(l)

and that it was not the burden of Plaintiff's counsel to insure

that the clerk performed that duty under the Rule, we reverse the

District Court's dismissal of Plaintiff's personal injury action

and remand for further proceedings allowing Plaintiff's action to

proceed. In so doing it is necessary that we make the following

observation, however.

We have acknowledged that the clear and unambiguous
requirements of Rule 4C(l) do not comport with what has been and is

accepted practice. Rule 4C(l) should be amended to remove from the

clerk of court the responsibility for insuring issuance of the

summons and delivering the same to the process server by placing

that responsibility squarely on the back of the party who will

suffer the sanction if the summons is not timely issued and served

--i.e., on the party filing the complaint. We intend to issue an
order amending the rule, forthwith. See for example, our Order

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dated October 9, 1984, wherein we amended Rule 77(d), M.R.Civ.P.,

because of practical complications, to, among other things, place

the requirement for serving notice of entry of judgment on the

prevailing party rather than on the clerk of court.

Reversed and remanded for further proceedings consistent with

this opinion.

We Concur:

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Justice Karla M. Gray specially concurs.

While we are ruling in Plaintiff's favor on a technical issue
of first impression, our decision should not be construed by
Plaintiff's counsel as the'reward for any great lawyering on his

part. To the contrary, Plaintiff's counsel can hardly be praised

for the diligent pursuit of his client's case in this matter.

Computer problems notwithstanding, Plaintiff's counsel would be
well advised to implement some sort of office practice that will

insure better tracking of his case and of his compliance with court
orders. If this case were to be decided purely on excusable
neglect grounds and without the overlay of the issue involving

Rules 4C(l) and 41(e), the result might well be different.

Justice James C. Nelson. concurs in
concurrence.

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