No
No. 98-127
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 341
DEANNA S. QUAMME,
Plaintiff and Appellant,
v.
DIANE JODSAAS,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (1 of 11)4/20/2007 2:55:51 PM
No
COUNSEL OF RECORD:
For Appellant:
Richard R. Buley, Tipp & Buley, Missoula, Montana
For Respondent:
Robert J. Phillips, Phillips & Bohyer, Missoula, Montana
Submitted on Briefs: June 11, 1998
Decided: December 30, 1998
Filed:
__________________________________________
Clerk
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (2 of 11)4/20/2007 2:55:51 PM
No
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶1. Plaintiff Deanna S. Quamme appeals an order of the District Court for the
Fourth Judicial District, Missoula County, dismissing her claim for failing to meet
the requirements of Rule 41(e), M.R.Civ.P. We reverse.
¶2. The following issues are raised on appeal:
¶3. 1. Does this Court have jurisdiction over the appeal in this case when Quamme
filed the notice of appeal prior to the disposition of her motion to amend the court's
judgment?
¶4. 2. Did the District Court err when it dismissed Quamme's claims for improper
service of summons?
FACTUAL AND PROCEDURAL BACKGROUND
¶5. On January 8, 1996, Quamme filed a complaint alleging that she sustained
injuries when her automobile was rear-ended by a vehicle owned and driven by
Defendant Diane Jodsaas. On the same date that the complaint was filed, the clerk of
court issued a summons. This original summons was never served on Jodsaas.
¶6. Subsequently, on July 16, 1996, new counsel was substituted for Quamme's
original counsel, who was leaving private practice. Her second attorney similarly did
not serve the summons on Jodsaas. On July 10, 1997, Quamme hired a third
attorney, who was substituted as Quamme's counsel of record. On July 15, 1997, this
attorney returned the original summons to the court without service and requested
the clerk to issue a new summons reflecting Quamme's change of counsel. On July
15, 1997, the clerk issued a second summons reflecting this change. In all other
respects, the second summons was identical to the original summons. On July 22,
1997, Quamme mailed the second summons, along with the complaint, to Jodsaas
and requested that she acknowledge service.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (3 of 11)4/20/2007 2:55:51 PM
No
¶7. Jodsaas moved to dismiss the complaint based on her contention that Quamme's
summons was not served in compliance with Rule 41(e), M.R.Civ.P. Relying on this
Court's decision in Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d
1364, the District Court granted the motion and the complaint was dismissed. Eight
days later, this Court decided Yarborough v. Glacier County (1997), 285 Mont. 494,
948 P.2d 1181. Thereafter, on December 1, 1997, Quamme filed a motion pursuant to
Rules 59 and 60, M.R.Civ.P., to amend or set aside the order granting Jodsaas's
motion to dismiss based upon Yarborough. Her motion was deemed denied, however,
when the District Court did not rule on it within the 60-day time period prescribed
by the rules. The 60-day period expired on January 30, 1998. Quamme filed her
notice of appeal on January 20, 1998.
ISSUE ONE
¶8. Does this Court have jurisdiction over the appeal in this case when Quamme filed the notice of appeal
prior to the disposition of her motion to amend the court's judgment?
¶9. According to Rule 59, M.R.Civ.P., a motion to alter or amend a judgment is
deemed denied if the court has failed to rule on the motion within 60 days. In this
case, Quamme filed her notice of appeal on January 20, 1998, but the 60-day period
from the time she filed her motion to amend did not expire until January 30, 1998.
Jodsaas points to Rule 5(a)(4), M.R.App.P., which stated that a notice of appeal filed
before the disposition of a Rule 59 motion "shall have no effect." Because Quamme
filed her notice of appeal ten days prior to the expiration of the 60-day period, she
contends that Quamme's notice of appeal was premature and has no effect.
¶10. In support of her motion, Jodsaas incorrectly relies upon the old version of Rule
5(a)(4). That rule was amended effective October 1, 1997, and the language providing
that such a motion "shall have no effect" was deleted. The rule now provides that
"[a] notice of appeal filed before the disposition of [a motion under Rule 59], whether
by entry of an order or deemed denial, shall be treated as filed after such order or
denial and on the day thereof." Rule 5(a)(4), M.R.App.P. (emphasis added). This
Court thus treats Quamme's motion as filed after the date on which her motion to
alter the judgment was deemed denied. We hold that we have jurisdiction over this
appeal.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (4 of 11)4/20/2007 2:55:51 PM
No
ISSUE TWO
¶11. Did the District Court err when it dismissed Quamme's claims for improper service of summons?
¶12. We review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. Schmitz v. Vasquez 1998 MT 314, ¶ 12 , __ Mont.
__, ¶ 12 , __ P.2d __, ¶ 12 (citation omitted).
¶13. The District Court dismissed Quamme's complaint for her failure to comply
with Rule 41(e), M.R.Civ.P., which 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 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.
¶14. Quamme contends that Rule 41(e), M.R.Civ.P., does not require the dismissal of
her suit for failing to serve the original summons issued within one year, because
after the first year she hired new counsel and Rule 4C(2), M.R.Civ.P., requires that
the summons contain the name and address of her attorney. She argues that service
of the original summons would have improperly identified an attorney who no longer
represents her and would have thus violated Rule 4C(2). Quamme also cites our
decision in Yarborough, and argues that serving the second summons complies with
the substance and purpose of Rule 41(e), because except for the change of the
attorney's name and address, it was identical to the summons issued within the first
year.
¶15. Jodsaas counters that Quamme failed to comply with Rule 41(e), because a
summons issued within the first year was not served on her. She points to this
Court's decisions in Haugen, Rocky Mountain Ent. v. Pierce Flooring (1997), 286
Mont. 282, 951 P.2d 1326, and Eddleman v. Aetna Life Ins. Co., 1998 MT. 52, __
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (5 of 11)4/20/2007 2:55:51 PM
No
Mont. __, 955 P.2d 646, and argues that under the explicit terms of Rule 41(e), a case
must be dismissed when the plaintiff fails to serve a summons that was issued within
the first year after the commencement of the action.
¶16. We conclude that Yarborough and our a recent decision in Schmitz controls the
disposition of this case, and that the cases relied upon by Jodsaas are distinguishable.
In Yarborough, the plaintiff lost the original summons that had been issued the first
year. After the first year, the clerk of court issued a duplicate summons, which was
served on the defendant within three years from the commencement of the action.
The defendant moved for dismissal based upon Rule 41(e). This Court held that by
serving a summons within three years that was in substance identical to the original
summons issued within the first year, the plaintiff complied with Rule 41(e). We
declared that "to require more would exalt form over substance." Yarborough, 285
Mont. at 497, 948 P.2d at 1183.
¶17. Jodsaas argues that Yarborough is inapplicable to this case for two reasons.
First, she contends that unlike Yarborough, the second summons in this case is not
identical to the first, because it contains the name of a different attorney. We
disagree that this difference is substantive. The only difference is that the upper left
hand corner of the piece of paper identifies a different attorney and attorney address.
The contents of the summons, however, are identical. The purpose of the summons is
to notify the defendant that a civil action has been filed against her and that she has
twenty days in which to make an appearance. In this case, both summons named
Jodsaas as a defendant and both notified her to make an appearance within twenty
days. We conclude that the two summons are substantively identical.
¶18. Jodsaas next contends that Yarborough is distinguishable because the summons
in Yarborough was lost and it was thus impossible for the plaintiff to serve it, while
in this case, the summons was not lost and Quamme's first attorney could have
served the summons prior to withdrawing, or the second attorney, who was
substituted as counsel within the first year, could have corrected the summons and
then served the summons, all within the first year.
¶19. We reject Jodsaas' contention that such a distinction warrants a different result
in this case. The salient feature of Yarborough was not simply that the first summons
was lost, but also that the second summons was in substance identical to the first. We
have already concluded that the second summons in this case was in substance
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (6 of 11)4/20/2007 2:55:51 PM
No
identical to the first one. Additionally, while Jodsaas complains about the delay in
service beyond the first year, this delay is authorized by the statute. In this case,
Quamme did not hire her third attorney until after the first year had passed. Service
of the original summons that time would not have complied with Rule 4C, M.R.Civ.
P., which requires the summons to contain the name and address of the plaintiff's
attorney. Quamme therefore requested the clerk to reissue a second summons
identifying her current counsel for service on Jodsaas.
¶20. Jodsaas cannot demonstrate prejudice from the fact that she received the second
summons, rather than the original. In both cases, Jodsaas received notice that she
was a party to the action. In fact, rather than being prejudiced by the second
summons, the second summons assisted her by accurately identifying Quamme's
current counsel. In Yarborough, we stated that "[w]hile literal consideration of our
Rules of Procedure is a necessary starting point, common sense is also necessary to
people's confidence in the law." Yarborough, 285 Mont. at 499, 948 P.2d at 1184. In
this case, common sense dictated that Quamme serve a second summons correctly
identifying her current counsel.
¶21. More recently, in Schmitz, this Court affirmed Yarborough on facts similar to
the facts in this case. In Schmitz, more than a year after the commencement of the
action, the plaintiffs filed an amended complaint and the clerk of court issued an
"amended summons" for service on the defendant. The amended summons was
identical in substance to the original summons, except that in conformance with the
amended complaint, the name of one of the defendants was removed from the
caption, and the summons was retitled "amended" summons. Schmitz, ¶ 8. The
amended summons was served on the defendant and proof of service was filed with
the district court less than three years from the date on which the original complaint
was filed. The defendant moved for dismissal, contending that the plaintiff did not
comply with Rule 41(e), because the original summons was not served on him within
the three-year period.
¶22. Just as in Yarborough, this Court declined to elevate form over substance and
we concluded that the plaintiff had complied with the substance and purpose of Rule
41(e). We held that the defendant Vasquez was not prejudiced, because the amended
summons adequately notified him that he was a defendant in a civil action and that
he had twenty days to make an appearance. Indeed, the amendment actually assisted
him ascertaining the true nature of the action against him by notifying him that the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (7 of 11)4/20/2007 2:55:51 PM
No
plaintiff could not proceed against the entity who had previously been named as a
defendant. There was no change in the summons which was relevant to Vasquez.
Schmitz, ¶¶ 20, 21, 27.
¶23. The holdings in the cases relied upon by Jodsaas are inapplicable to the issues
raised in this case. In Haugen, the clerk of court issued an amended summons at the
plaintiff's request, just prior to the expiration of the three-year period. The plaintiffs
failed to serve one of the defendants and failed to file proof of service of any of the
three summons prior to the expiration of the three-year period. Haugen, 279 Mont.
at 4, 926 P.2d at 1366. We did not hold that the amended summons were invalid.
Rather, we held that the failure to file proof of service of summons with the clerk of
court within three years of the commencement of the action violated Rule 41(e).
Haugen, 279 Mont. at 9, 926 P.2d at 1369.
¶24. In this case, the clerk of court issued a second summons to Quamme after the
first year, but prior to the expiration of the three-year period. However, whether
Quamme was able to serve and file proof of the second summons within the three-
year period is not at issue in this case as it was in Haugen.
¶25. In Rocky Mountain Ent., plaintiffs served defendants with a summons that had
been issued more than one year after the filing of their complaint. When the
defendants filed a motion to dismiss based upon Rule 41(e), the plaintiffs served the
defendants with the original summons that had been issued within the first year. On
appeal, this Court held that the issuance of the subsequent summons did not nullify
the original summons. Hence, the plaintiffs served upon the defendants the summons
issued during the first year within the three-year period in accordance with Rule 41
(e). Rocky Mountain Ent., 286 Mont. at 305, 951 P.2d at 1341.
¶26. In Rocky Mountain Ent., we did not address whether service of the subsequent
summons alone would have complied with Rule 41(e). Thus, our statement that the
defendants' motion to dismiss "had merit" at the time it was filed constitutes dicta
only. Rocky Mountain Ent., 286 Mont. at 305, 951 P.2d at 1340. Perhaps more
importantly, unlike this case, it is not clear whether the subsequent summons was
identical in substance to the first summons or why it was even issued at all. Finally, it
appears that unlike this case, the original summons in Rocky Mountain Ent. properly
identified the plaintiffs' attorneys as required by Rule 4C(2), M.R.Civ.P., while in
this case it did not.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (8 of 11)4/20/2007 2:55:51 PM
No
¶27. The holding of the last case cited by Jodsaas, Eddleman, similarly is not
applicable to the issues raised in this case. In that case, the Court held that the
plaintiffs' case must be dismissed because they failed to file the return of service of
process with the clerk of court within three years after the commencement of the
action Eddleman, ¶ 10. Again, whether Quamme filed the return of service of process
within the three-year period is not at issue here.
¶28. Barring Quamme from the courthouse solely because she failed to serve the
original summons, which identified an attorney who no longer represents her, does
nothing to advance the goals and policies of the Rules of Civil Procedure, when
common sense dictated that she simply serve another substantively identical
summons that correctly informed Jodsaas of her current attorney as required by
Rule 4C(2), M.R.Civ.P. Jodsaas is unable to show any prejudice, because the second
summons adequately notified her that she was a defendant in a civil action and that
she had twenty days in which to make an appearance. As in Yarborough and in
Schmitz, we decline to elevate form over substance. Therefore, we hold that the
District Court erred when it dismissed Quamme's claims for improper service of
summons. We reverse the order of the District Court dismissing the complaint, and
we remand for further proceedings.
¶29. Reversed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (9 of 11)4/20/2007 2:55:51 PM
No
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson specially concurs.
¶30. I concur in our decision as to Issue 1. I concur in the result of our decision as to
Issue 2, however, I do not agree with all that is said in our discussion of this Issue.
¶31. Specifically, I agree that because the facts of the case at bar are sufficiently
similar to those in Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d
1181, Yarborough should control. I do not agree, though, with our citation to Schmitz
v. Vasquez, 1998 MT 314, ___ Mont. ___, ___ P.2d ___. The facts in Schmitz are not
even remotely similar to those either in Yarborough or in the instant case. More
importantly, as my dissent sets out, Schmitz was wrongly decided in my view. See
Schmitz, ¶¶ 27 - 31 (Nelson, J., dissenting).
¶32. As I did in Schmitz, once again I strongly urge this Court's Advisory
Commission on the Montana Rules of Civil Procedure to take a critical look at Rule
41(e), M.R.Civ.P. and to make appropriate recommendations to this Court. This
procedural Rule is implicated in far too many appeals. See Schmitz ¶ 32 n.1. It is
obvious that the practicing bar and the trial courts have difficulty following and
applying this Rule. Worse, our decisions are rapidly becoming simply a compilation
of exceptions demonstrating that the Rule is, alternately, a trap for the unwary or a
haven for the incompetent. Either way, Rule 41(e), M.R.Civ.P., needs to be changed.
/S/ JAMES C. NELSON
Justice Karla M. Gray concurs in the foregoing special concurrence.
/S/ KARLA M. GRAY
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (10 of 11)4/20/2007 2:55:51 PM
No
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-127%20Opinion.htm (11 of 11)4/20/2007 2:55:51 PM