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.

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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

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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. 

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¶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. 

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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, __ 

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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 

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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 

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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 threeyear 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.

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¶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

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/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

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