97-339
No. 97-339
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
DEBORA L. YARBOROUGH,
Plaintiff and Appellant,
v.
GLACIER COUNTY, MONTANA, A POLITICAL
SUBDIVISION OF THE STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann C. German, Attorney at Law, Libby, Montana
For Respondent:
Gary M. Zadick; Ugrin, Alexander, Zadick & Higgins, P.C.;
Great Falls, Montana
Submitted on Briefs: October 9, 1997
Decided: November 25, 1997
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (1 of 6)4/17/2007 4:23:40 PM
97-339
The plaintiff, Debora L. Yarborough, filed a complaint in the District Court for
the Ninth Judicial District in Glacier County in which she alleged that the
defendant,
Glacier County, had breached the written contract by which it had agreed to employ
her.
Glacier County moved to dismiss the complaint based on its contention that
Yarborough's
summons was not served in compliance with Rule 41(e), M.R.Civ.P. That motion was
granted by the District Court and the complaint was dismissed with prejudice.
Yarborough appeals from the District Court's order dismissing her complaint. We
reverse the order and judgment of the District Court.
The issue on appeal is whether Rule 41(e), M.R.Civ.P., requires the summons
which was originally issued within one year from the date on which the action was
commenced be served, or whether an identical duplicate issued more than one year
after
the commencement of the action can serve the same purpose.
FACTUAL BACKGROUND
The plaintiff, Debora L. Yarborough, filed her complaint in the District Court
on
July 8, 1993. She alleged that on June 3, 1991, the defendant, Glacier County, had
contracted with her in writing to pay her a salary and benefits for her services,
but that
the County had breached the contract by refusing to perform according to its terms.
She
sought damages based on the salary which the County had allegedly agreed to pay, plus
other benefits which were promised by the written agreement.
On the same day that her complaint was filed, Yarborough had issued, by the
Clerk of Court, an original summons. That summons, together with a copy of the
complaint, was sent by Yarborough's attorney to the Glacier County Attorney with a
request that he acknowledge service on February 14, 1994. On the following day, the
Glacier County Attorney responded by letter that he would not accept service and
that the
summons and complaint would have to be personally served on the Chairman of the
County Commissioners.
At some time subsequent to February 15, 1994, the original summons was lost.
Yarborough's attorney then sent a duplicate of the original summons to the Clerk of
the
District Court and requested that it be reissued. The duplicate summons was
identical to
the original summons. In fact, it appears to have been photocopied, except that it
was
retitled "duplicate summons" and bears the following statement at the bottom prior
to the
Clerk's signature line: "NOTE: DUPLICATE SUMMONS ISSUED this 23rd day of
June, 1995."
The duplicate summons was served with a copy of the complaint on the Glacier
County Commissioners on October 3, 1995.
On October 18, 1995, Glacier County moved for dismissal of Yarborough's
complaint based on her failure to serve the summons and complaint as required by Rule
41(e), M.R.Civ.P., and based on her alleged failure to prosecute her cause of
action.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (2 of 6)4/17/2007 4:23:40 PM
97-339
The basis for its motion was its contention that the duplicate summons was not issued
within one year from the date on which the action was commenced and, therefore, was
untimely. The District Court denied that motion for the reason that the original
summons
was issued on time and the duplicate summons, which was identical in all significant
respects, was served on time. The District Court further found no prejudice which
would
warrant dismissing Yarborough's complaint for failure to prosecute pursuant to Rule
41(b), M.R.Civ.P.
On March 31, 1997, following this Court's decisions in Busch v. Atkinson (1996),
278 Mont. 478, 925 P.2d 874, and Haugen v. Blaine Bank of Montana (1996), 279
Mont. 1, 926 P.2d 1364, Glacier County moved the District Court to reconsider its
prior
order denying its motion to dismiss and grant that motion based on these subsequent
decisions. Glacier County contended that these cases require that Rule 41(e) be
applied
literally and that doing so requires dismissal of Yarborough's complaints.
The District Court agreed, and on April 18, 1997, it vacated its prior order
which
denied Glacier County's motion to dismiss and ordered that Yarborough's complaint be
dismissed with prejudice.
DISCUSSION
Does Rule 41(e), M.R.Civ.P., require the summons which was originally issued
within one year from the date on which the action was commenced be served, or does an
identical duplicate issued more than one year after the commencement of the action
serve
the same purpose?
The District Court's order which dismissed Yarborough's complaint was based on
a conclusion of law. We review a district court's conclusions of law to determine
whether the court's interpretation of the law is correct. Haugen v. Blaine Bank of
Montana (1996), 279 Mont. 1, 5, 926 P.2d 1364, 1366.
The relevant part of Rule 41(e), M.R.Civ.P., provides as follows:
[A]ll 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 . . . unless summons shall
have been issued within 1 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.
Yarborough contends that it is inconsistent with the purpose and substance of
Rule 41(e) to hold that merely because the original piece of paper, which was timely
issued, is lost after the first year from its issuance, timely service cannot be
satisfied by
substitution of an identical copy. In reliance on our decision in Larango v. Lovely
(1981), 196 Mont. 43, 637 P.2d 517, she contends that the Rules of Civil Procedure
should be construed to facilitate the resolution of disputes on their merits, rather
than
arguable procedural irregularities. She contends that she was perfectly authorized
to have
an additional summons issued by Rule 4C(1), M.R.Civ.P., and the mere fact that she
referred to it as a "duplicate" rather than a "separate or additional summons"
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (3 of 6)4/17/2007 4:23:40 PM
97-339
should not
be a basis for dismissal of her complaint.
Glacier County counters that the Rules of Civil Procedure do not provide for a
"duplicate" summons; that pursuant to our decisions in Association of Unit Owners v.
Big
Sky (1986), 224 Mont. 142, 729 P.2d 469, Busch, and Haugen, Rule 41(e) is to be
applied literally; and that in this case Yarborough did not literally comply with
Rule 41(e)
because she did not serve a summons which had been issued within a year on Glacier
County.
We conclude that the cases relied upon by the County and the District Court are
distinguishable on their facts and in important respects, and that by serving,
within three
years, an identical copy of an original summons which had been issued within one
year,
Yarborough complied with the substance and literal purpose of Rule 41(e), M.R.Civ.P.
We conclude that to require more would exalt form over substance and do nothing to
further the resolution of controversies on their merits which, after all, as we
explained
in Larango, is the ultimate purpose of our Rules of Civil Procedure. Larango, 196
Mont. at 47, 637 P.2d at 519.
In Association of Unit Owners, the plaintiffs had a summons issued within one
year
from the date on which their complaint was filed, but that summons did not name all
of
the defendants who were ultimately listed in the amended complaint. Fifteen months
after
the original summons was issued, additional summonses were issued which were marked
"duplicate summons"; however, the "duplicate" summonses were altered to the extent
that
they added the names of additional defendants. Association of Unit Owners, 224 Mont.
at 148, 729 P.2d at 471. We noted that our Rules do not provide for a "duplicate"
summons, but more importantly, stated that "[w]e disregard the terminology in the
title
of the summons." Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 472. In
other words, in that case the content of the summons was more important than its
title.
We held in that case that the summonses issued more than a year after the action was
commenced did not relate back to the date on which the original summons was issued
because the content of the summons had been changed. We specifically stated:
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 defendants'
names in the summons.
Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 472 (emphasis added).
In Association of Unit Owners, we affirmed the district court's dismissal
pursuant
to Rule 41(e), but specifically because the summonses issued after one year had
expired
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (4 of 6)4/17/2007 4:23:40 PM
97-339
were changed in substance from the original summons. Those are not the facts in this
case.
In Busch, we held that a plaintiff's complaint would not be dismissed for
failure
to issue the summons within one year of the date on which the action was commenced
pursuant to Rule 41(e) because, pursuant to Rule 4C(1), it was the clerk of court's
obligation to issue the summons. Busch, 278 Mont. at 485, 925 P.2d at 878.
In Haugen, we affirmed the dismissal of the plaintiffs' complaint when, contrary
to the plain language of Rule 41(e), the sheriff's affidavit that the summons had
been
served was not filed with the clerk of court within three years after the
commencement
of that action. We held that the plaintiffs had shown a lack of diligence, and that
the
delay which resulted was the kind of delay Rule 41(e) was intended to prevent.
Haugen,
279 Mont. at 6-7, 926 P.2d at 1367. Neither the facts nor the legal issues
presented in
Busch and Haugen are present in this case.
In this case, Yarborough's summons was issued within one year from the date on
which her action was commenced and would have been served within three years from
that date had it not been lost. When it was lost, a summons which was identical
except
for the title was issued and, although not issued within one year from the date on
which
the action was commenced, it was served within three years from that date. As we
stated
in Association of Unit Owners, "[w]e disregard that terminology in the title of the
summons" and look to its substance. Association of Unit Owners, 224 Mont. at 148,
729
P.2d at 472. In substance, the summons served on Glacier County was identical to the
original summons which had originally been issued. Glacier County received the same
notice in exactly the same form it would have received had the original summons not
been lost. While Glacier County complains about the delay in service, the delay is
authorized by statute. In this case, an exact copy of the original summons was
served
on the County in less than three years from the date on which the action was
commenced.
Rule 41(e) gave Yarborough three years to serve and file her summons. Therefore, no
prejudice can be demonstrated by Glacier County from the mere fact that it received a
copy of the original summons, rather than the original.
In any given suit, significant interests may be at stake. The success or
failure of
a business, title to the family homestead, or the quality of a life could hinge on
the
outcome. No system of justice worthy to be identified as such would resolve those
interests on the basis that the original piece of paper (intended solely to notify
the other
party of the suit) was lost when an exact copy can serve the same purpose.
A system, hundreds of years old, which exists solely to resolve controversies on
their merits, cannot be paralyzed by the loss of one piece of paper which does no
more
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (5 of 6)4/17/2007 4:23:40 PM
97-339
than tell the other party to file an answer in twenty days. While literal
consideration of
our Rules of Procedure is a necessary starting point, common sense is also necessary
to
people's confidence in the law.
For these reasons, we conclude that the plaintiff, Debora L. Yarborough, has
complied with Rule 41(e), M.R.Civ.P. We reverse the order and judgment of the
District Court and remand this case to the District Court for further proceedings
consistent with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-339%20Opinion.htm (6 of 6)4/17/2007 4:23:40 PM