No 

No. 98-235

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 314

MARILYN SCHMITZ, on her own behalf and as spouse and 

next friend of PETER E. SCHMITZ, and PETER SCHMITZ,

Plaintiffs and Appellants,

v.

NED VASQUEZ, M.D.,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

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In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Ronald B. MacDonald and Paul N. Tranel; Datsopoulos,

MacDonald & Lind, P.C.; Missoula, Montana

For Respondent:

John N. Maynard and Alice J. Hinshaw; Crowley, Haughey, 

Hanson, Toole & Dietrich, P.L.L.P.; Helena, Montana

Submitted on Briefs: November 24, 1998

Decided: December 23, 1998

Filed:

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__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. The plaintiff, Marilyn Schmitz, commenced this action in the District Court for 

the Fourth Judicial District in Missoula County, on behalf of herself and her 

husband, to recover damages which she alleged were caused by the negligence of the 

defendant, Ned Vasquez, M.D. The District Court dismissed her complaint for 

failure to comply with the provisions of Rule 41(e), M.R.Civ.P., related to service of 

process. Schmitz appeals the order of the District Court. We reverse and remand for 

further proceedings.

¶2. The issue presented on appeal is:

¶3. Did the District Court err when it dismissed Schmitz's claims for improper 

service of summons?

FACTUAL BACKGROUND

¶4. Schmitz filed her original complaint, pro se, on April 5, 1994. She alleged that the 

defendants, Ned Vasquez, M.D., and Mark Sanz, M.D., breached the appropriate 

standard of care in their treatment of her husband, Peter, and that as a result, he 

suffered a massive stroke which left him almost completely incapacitated. 

¶5. On the same day that the complaint was filed, the clerk of the District Court 

issued Schmitz a summons for each defendant. 

¶6. Pursuant to § 27-6-701, MCA, of the Montana Medical Legal Panel Act, Schmitz 

had previously submitted her claim against Vasquez to the panel; however, she had 

not submitted a claim against Sanz.

¶7. Through counsel, Schmitz filed an amended complaint on April 1, 1997. The 

amended complaint included substantially the same allegations against Vasquez as 

the original complaint, but it omitted any allegations against Sanz and omitted his 

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name from the caption.

¶8. On the same day that the amended complaint was filed, the original summons 

were returned to the court and an "amended summons" was issued to Schmitz for 

service upon Vasquez. The amended summons was identical in substance to the 

original summons for Vasquez, except that Sanz's name was removed from the 

caption, and the summons was retitled "amended summons."

¶9. This summons was served on Vasquez on April 1, 1997. Proof of service was filed 

with the District Court on April 2, 1997, less than three years from the date that the 

original complaint was filed.

¶10. On April 21, 1997, Vasquez moved for dismissal of the action based upon 

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

claim upon which relief can be granted. This motion was granted, based upon the 

District Court's conclusion that the original summons was not timely served and that 

plaintiff's complaint must therefore be dismissed. Schmitz filed a motion for 

reconsideration and the order was subsequently vacated with instructions from the 

District Court to brief the issue of prejudice to Vasquez. On February 25, 1998, the 

District Court reinstated its order which dismissed Schmitz's complaint.

DISCUSSION

¶11. Did the District Court err when it dismissed Schmitz's claims for improper 

service of summons?

¶12. We review a district court's conclusions of law for correctness. See Carbon 

County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶13. The District Court dismissed Schmitz'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 

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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. Schmitz contends that the procedural irregularities present in this case should 

not result in a dismissal of her suit because Vasquez was not prejudiced by the 

manner in which he was served with process. In support of her contention, she cites 

our decision in Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181, 

and our policy which favors the resolution of disputes on their merits.

¶15. Vasquez contends that Schmitz failed to comply with Rule 41(e), M.R.Civ.P., 

because the original summons was not served on Vasquez within three years of the 

commencement of the action. He further contends that the amended summons was 

invalid because Schmitz did not obtain leave from the court to amend the summons, 

as required pursuant to Rule 4D(7), M.R.Civ.P., nor did she obtain leave from the 

court to remove Sanz, as required pursuant to Rule 21, M.R.Civ.P. Schmitz 

acknowledges that she did not literally comply with Rule 4D(7), but contends she had 

a right to amend her complaint pursuant to Rule 15(a), M.R.Civ.P.

¶16. In Yarborough, the plaintiff lost the original summons prior to service. The clerk 

of court issued an identical summons more than one year after the complaint was 

filed and the defendant moved for dismissal based upon Rule 41(e). We held that by 

serving, within three years, an identical copy of an original summons which had been 

issued within one year of the commencement of the action, the plaintiff complied with 

the substance and purpose of Rule 41(e). We concluded that "to require more would 

exalt form over substance and do nothing to further the resolution of controversies 

on their merits." Yarborough, 285 Mont. at 497, 948 P.2d at 1183.

¶17. Vasquez points out that the summons in Yarborough was a duplicate of the 

original, while in this case the summons was "amended." He argues that the 

improper removal of Sanz from the complaint and from the summons constituted a 

substantial alteration of the summons, which renders the facts in the present case 

more analogous to those of Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517.

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¶18. In Larango, the plaintiffs altered a summons which had previously been issued 

by the district court by changing the name of their counsel, as well as by both adding 

and removing plaintiffs. The defendant moved to quash the summons because it had 

been materially altered since the date of issuance. Plaintiffs then requested leave to 

amend the summons, but the district court did not rule upon the motion. We held 

that the power to issue a summons lies exclusively with the clerk of court, an attorney 

has no power in the matter, and cannot alter a summons without leave of court. We 

also held, however, that the district court should have permitted amendment once it 

was requested. See Larango, 196 Mont. at 47, 637 P.2d at 519.

¶19. In this case, Schmitz did not alter a previously issued summons. She requested 

and received an amended summons from the clerk of the District Court. While it is 

true that she did not comply with Rule 4D(7) because the District Court did not give 

her permission to have an amended summons issued, the issuance of the amended 

summons did not prejudice Vasquez. Our review of both the original and 

"amended" summons reveals that they are substantively identical. "[W]e disregard 

[the] terminology in the title of the summons" and look to its substance. See 

Yarborough, 285 Mont. at 499, 948 P.2d at 1184. The purpose of the summons is to 

provide a defendant with notice that he has been made a party to an action and that 

he has twenty days to appear before the court. 

¶20. Vasquez can show no prejudice resulting from the variation between the 

manner in which he was served with process and the manner in which he would have 

been served by the original summons, or the manner in which he would have been 

served if Schmitz had complied with Rule 4D(7). In all three scenarios, Vasquez 

received notice, within three years of the commencement of the action, that he was a 

party to this action. Furthermore, a summons has existed, identifying him as a party, 

since the commencement of the action.

¶21. Rather than being prejudiced by the amended summons, the amendment 

actually assisted Vasquez in ascertaining the true nature of the action against him. 

Schmitz could not proceed against Sanz because she did not make a claim against 

him before the Medical Legal Panel and, therefore, the District Court had no 

jurisdiction over him. The amended summons more accurately reflected this fact. In 

Larango, we concluded that where amendment would have aided a party, it was an 

abuse of discretion for the district court not to allow the amendment. See Larango, 

196 Mont. at 48, 637 P.2d at 520.

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¶22. Vasquez also contends that Haugen v. Blaine Bank of Montana (1996), 279 

Mont. 1, 926 P.2d 1364, and Association of Unit Owners v. Big Sky (1986), 224 Mont. 

142, 729 P.2d 469, control the outcome of this case. 

¶23. The holding in Haugen is inapplicable to the present facts. In Haugen, amended 

summons were issued by the clerk of court, at the plaintiffs' request, just prior to the 

expiration of the three-year period. The plaintiffs failed to serve one of the summons, 

and failed to file proof of service for any of the summons prior to the expiration of 

that period. We held that failure to file the proofs of service within three years of the 

commencement of the action violated Rule 41(e). See Haugen, 279 Mont. at 9, 926 

P.2d at 1369. We did not, however, hold that the amended summons were invalid. 

¶24. In this case, Schmitz was also issued an amended summons by the clerk of the 

District Court just prior to the expiration of the three-year period. However, unlike 

the plaintiffs in Haugen, Schmitz was able to serve and file proof of service of the 

amended summons within the three-year period, in accordance with Rule 41(e). 

¶25. In Association of Unit Owners, the plaintiffs obtained "duplicate summons" 

more than one year after the commencement of the action. We held that the 

purported "duplicates" failed to meet the requirements of Rule 41(e) because they 

were changed in substance from the original summons which did not give adequate 

notice to the defendants who were not originally named. See Association of Unit 

Owners, 224 Mont. at 148, 720 P.2d at 472.

¶26. The facts of the present case are distinguishable. Here, there was no change in 

the summons which was relevant to Vasquez. He received the same notice from the 

amended summons as he would have received from the original summons. Both 

provided him with notice that a complaint had been filed against him and that he had 

twenty days to respond. As we stated earlier, Vasquez can show no prejudice 

resulting from the removal of another party's name from the summons.

¶27. Rule 1, M.R.Civ.P., provides that the rules of civil procedure should be 

construed to secure the just, speedy, and inexpensive determination of every action. 

The policy of the law is to favor trial on the merits. See Hoyt v. Eklund (1991), 249 

Mont. 307, 311, 815 P.2d 1140, 1142. To bar Schmitz from the courthouse because of 

procedural irregularities from which Vasquez could show no prejudice would do 

nothing to further the goals and policies of the rules of civil procedure. We conclude 

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that Schmitz complied with the substance and purpose of Rule 41(e), and, as in 

Yarborough, we decline to elevate form over substance. The amended summons 

adequately notified Vasquez that he was a defendant in a civil action and that he had 

twenty days in which to make an appearance. Furthermore, it was served within the 

time required by law. Therefore, the order of the District Court dismissing the 

complaint is reversed, and we remand for further proceedings.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

Justice James C. Nelson dissents:

¶28 In my view our decision in Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 

926 P.2d 1364, controls. The majority decision disregards that part of Rule 41(e), M.R.Civ.

P., which requires dismissal of the action unless "summons issued within 1 year shall have 

been served and filed with the clerk of the court within three years after the 

commencement of [the] action . . . ." Here, the summons issued within one year of the 

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commencement of the action --the summons naming Dr. Sanz--was not served within 3 

years on Dr. Vasquez. Rather, a different summons, one not naming Dr. Sanz and not 

authorized by the trial court as required by Rule 4D(7), M.R.Civ.P., and our decision in 

Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517, was served on Dr. Vasquez. Under 

the plain language of Rules 41(e) and 4D(7) and under our decisions in Larango and 

Haugen, Dr. Vasquez was clearly entitled to dismissal of Schmitzes' complaint against 

him.

¶29 Schmitzes also violated Rule 21, M.R.Civ.P., which provides that parties--here Dr. 

Sanz--may be dropped or added "by order of the court on motion of any party or of its 

own initiative at any stage of the action. . . ." Schmitzes did not move the court to drop Dr. 

Sanz as a party to their lawsuit, and they had no authority to do so. By failing to obtain 

leave of court to drop Dr. Sanz, Schmitzes' amended complaint and amended summons are 

both invalid. Furthermore, their reliance on Rule 15(a), M.R.Civ.P., in dropping Dr. Sanz 

from the original summons is misplaced. Pleadings are, in some cases, permitted to be 

amended without leave of court under this rule. A summons is not a pleading; it is process.

See Rules 7(a) and 4C, M.R.Civ.P.

¶30 More importantly, there was absolutely nothing precluding Schmitzes from timely 

serving their original summons on Dr. Vasquez and filing it with the clerk of court even 

though Dr. Sanz was improperly named on the original summons. Rule 41(e) specifically 

provides that:

When more than one defendant has been named in an action, the action may within the 

discretion of the trial court be further prosecuted against any defendant who has appeared 

within 3 years, or upon whom summons which has been issued within 1 year has been 

served and filed with the clerk within 3 years as herein required.

Schmitzes could have and should have timely served Dr. Vasquez with their original 

summons. Their failure to do so violated Rule 41(e) and is, therefore, fatal under Haugen.

¶31 The majority's reliance on Yarborough v. Glacier County (1997), 285 Mont. 494, 948 

P.2d 1181, is misplaced. That case is factually and legally distinguishable and does not 

apply in the case sub judice. Schmitzes' original summons was not lost during their 

attempt to timely serve it as was the case in Yarborough nor did Schmitzes obtain a second 

identical summons under Rule 4C(1) to replace the first, as did Yarborough. Yarborough, 

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285 Mont. at 495-97, 948 P.2d at 1181-83. Moreover, Yarborough did not drop a 

defendant from her lawsuit without court permission in violation of Rule 21, M.R.Civ.P., 

on her duplicate summons as did Schmitzes on their amended summons. While 

Yarborough may have complied with the substance of Rule 41(e), Schmitzes did not even 

come close.

¶32 Additionally, the majority's conclusion that Dr. Vasquez is not prejudiced is flat 

wrong. Over six years after Schmitzes' claims of alleged malpractice against Dr. Vasquez 

accrued they filed an invalid amended complaint and served him with an invalid amended 

summons. Throughout the intervening time they repeatedly violated the procedural laws 

governing their claims. Their first pro se complaint improperly named a defendant who 

had not been subject to the Montana Medical Legal Panel. Notwithstanding, they could 

have timely served Dr. Vasquez with their original summons, but did not. They then 

violated Rule 4D(7) by obtaining an amended summons without leave of court, and they 

violated Rule 21 by amending their complaint and summons dropping Dr. Sanz without an 

order of court. Finally, they served Dr. Vasquez with an invalid amended summons after 

the time-bar of Rule 41(e) had run. Dr. Vasquez will now be forced to defend the merits of 

a medical malpractice suit from which, under the law, he is entitled to be dismissed. His 

rights to rely on the courts to evenhandedly apply the rules of civil procedure have been 

completely trashed. I am hard-pressed to come up with a more clear example of prejudice 

or result-oriented "justice."

¶33 Finally, it is worth noting that, for a procedural rule, Rule 41(e) generates what, in my 

view, is an inordinate amount of litigation, appeals and, sometimes bitterly divided 

decisions from this Court.(1) I, for one, believe that it is an appropriate time for this Court's 

Advisory Commission on the Montana Rules of Civil Procedure to take a critical look at 

this Rule and to make appropriate recommendations to this Court. I strongly urge it to do 

so at the earliest opportunity.

¶34 As to our decision in the case at bar, I would affirm the District Court. I respectfully 

dissent from our failure to do so.

/S/ JAMES C. NELSON

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Justice Karla M. Gray concurs in the foregoing dissent.

/S/ KARLA M. GRAY

1. 1See, for example, the following cases decided in the last five years: MacPheat v. Schauf, 1998 MT. 250, ___ 

P.2d ___, 55 St.Rep. 1032; Hadford v. Credit Bureau of Havre, Inc., 1998 MT 179, 962 P.2d 1198, 55 St. Rep. 

727; Eddleman v. Aetna Life Ins. Co., 1998 MT 52, 955 P.2d 646, 55 St. Rep. 216; Rocky Mountains Enterprises, 

Inc. v. Pierce Flooring (1997), 286 Mont. 282, 951 P.2d 1326; Yarborough v. Glacier County (1997), 285 Mont. 

494, 948 P.2d 1181; Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364; Busch v. Atkinson

(1996), 278 Mont. 478, 925 P.2d 874; Webb v. T.D. (1996), 275 Mont. 243, 912 P.2d 202; First Call, Inc. v. 

Capital Answering Service, Inc. (1995), 271 Mont. 425, 898 P.2d 96; Sinclair v. Big Bud Mfg. Co. (1993), 262 

Mont. 363, 865 P.2d 264. 

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