NO. 88-284 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

VIOLET M. HANKINSON, and JOSEPH 

E. HAMKINSON, Mother and son, 

Plaintiffs and Appellants, 

-vsCARTER PICOTTE, JR., and GENE A. PICOTTE, 

P.C., a Montana Professional Corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Bozeman, Montana 

William A. Bartlett; Wellcome, Frost & Bartlett, 

Bozeman, Montana 

For Respondent: 

William D. Jacobsen; Jardine, Stephenson, Blewett & 

Weaver, Great Falls, Montana 

c-2 Filed :L-J 

a 

Submitted on Briefs: Sept. 9, 1988 

Decided: December 13, 1988 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Violet M. Hankinson and Joseph E. Hankinson, mother and 

son, appeal from a judgment of dismissal with prejudice of 

their complaint against Carter Picotte, Jr. and Gene A. 

Picotte, P.C., a Montana professional corporation. The 

judgment of dismissal was entered on March 30, 1988 in the 

District Court, Fifth Judicial District, Jefferson County. 

The decisive issue in the cause is whether, when a 

district court orders a dismissal of a complaint for failure 

to state a claim, a notice of entry of judgment must be 

served to start the time running for appeal. We hold that 

such notice must be served under the facts of this case. 

Joseph Hankinson, a self-employed independent trucker, 

was in a motor vehicle accident in November, 1984. Since he 

was required to be on the road and was seldom at home, he 

gave the telephone number of his mother, Violet Hankinson, 

and her address to the police in case there was need for 

further contact with him. 

On the evening of December 12, 1984, Violet Hankinson 

received a telephone call from a person who did not identify 

himself, who asked to speak to Joe Hankinson. When she 

informed him that Joe was not there, the caller responded by 

saying, "Tell him to contact me within 24 hours or I'll have 

the Chicago mob beat him up and kill him." 

Violet reported the telephone call to the police who 

came to her residence to investigate. While they were there, 

at about 9:30 p.m. on the same day, a second call came from 

the individual. He identified himself as Carter Picotte, 

repeated his threats, and left a phone number where he could 
be reached. The Belgrade police officers are reported to 

have taped the second telephone call. 

On July 26, 1985, Violet Hankinson and Joseph brought an 

action against Carter Picotte, singly, wherein Joseph claimed 

compensatory damages for lost earnings because he avoided 

several jobs out of fear of bodily injury; and Violet 

Hankinson claimed damages for invasion of privacy, and 

extreme emotional trauma. 

Hankinsons' action was ordered dismissed on a Rule 12(b) 

motion on December 30, 1986. Neither Carter Picotte nor his 

attorney filed a notice of entry of judgment. The Hankinsons 

did not appeal the order of dismissal, but several months 

later hired new counsel who successfully moved the District 

Court for an order allowing an amendment of the complaint. 

The order of the District Court granting leave to file 

an amended complaint was dated December 31, 1987. The 

amended complaint was based on four theories of liability: 

negligence, negligent supervision, outrageous conduct, and 

deception by an attorney under S 37-61-406, MCA. The amended 

complaint also brought into the action Gene A. Picotte, P.C., 

as an additional defendant on the grounds that when Carter 

Picotte made the telephone call he was an employee of Gene A. 

Picotte, P.C. The order of December 31, 1987 required that 

the professional corporation be served with a copy of the 

amended complaint and with summons. 

The first amended complaint is not a part of the court 

record. Instead, a second amended complaint was filed by the 

plaintiffs, and service of the second amended complaint and 

summons was effectuated on the professional corporation, as 

far as the court records reveal, on February 17, 1988. 

Both Carter Picotte and the professional corporation 

made motions to dismiss the second amended complaint. 

Carter's motion was based on the grounds of res judicata, 
that the order of dismissal of the original complaint had 

become final by failure of the Hankinsons to appeal. The 

motion of the professional corporation to dismiss was 

grounded on collateral estoppel based on failure to appeal. 

Both parties contended that because of the failure to appeal, 

the order of dismissal of the original complaint had become 

final and the District Court lacked subject matter 

jurisdiction once the order became final. 

The District Court entered a judgment of dismissal with 

prejudice of all claims against the defendants Carter Picotte 

and the professional corporation on March 30, 1988. In 

entering judgment, the District Court held that the order of 

dismissal of December 30, 1986 was an appealable order, and 

the failure to make a timely appeal from the order of 

dismissal made the order final and operated as an 

adjudication upon the merits as far as Carter Picotte was 

concerned. The District Court further reasoned that the 

dismissal of claims against Carter Picotte collaterally 

estopped the Hankinsons from raising the same issues against 

the professional corporation. The Hankinsons have appealed 

from the judgment of dismissal of March 30, 1988. 

Under Rule 77 (d) , Montana Rules of Civil Procedure, 

notice of entry of judgment must be served by the prevailing 

party upon all parties who have made the appearance in the 

cause. 

It is the filing of the notice of entry of judgment that 

begins the running of the time limitations for filing a 

notice of appeal. Morrison v. Higbee (1983) , 204 Mont. 501, 

668 P.2d 1029. If no notice of entry of judgment had been 

served upon the losing party, the right to appeal has not 

expired. Haywood v. Sedillo (1975), 167 Mont. 101, 535 P.2d 

1014. 
Unless post-trial motions are made by the losing party 

under Rule 52 or 59, Montana Rules of Civil Procedure, the 

losing party is not required to adhere to the 30 day period 

for filing a notice of appeal until proper service of notice 

of entry of judgment is made. Pierce Packing Co. v. District 

Court (1978), 177 Mont. 50, 579 P.2d 760. And this rule 

applies to orders which may become final as we11 as to 

judgments. In the Matter of Holmes' Estate (1979), 183 Mont. 

290, 599 P.2d 344. 

In this case, with no notice of entry of judgment served 

under Rule 77, and no post-trial motions under Rules 52 or 

59, the time for appeal did not begin to run, the order of 

dismissal of the original complaint did not become final, and 

the District Court had jurisdiction on December 31, 1987, to 

grant leave to file an amended complaint. The District Court 

had not lost subject matter jurisdiction. 

The judgment of dismissal of the second amended 

complaint must therefore be reversed. There is however an 

additional fact to be considered by the District Court on 

remand regarding the claim against the professional 

corporation. 

The actions of Carter Picotte giving rise to the claimed 

liability occurred on December 12, 1984. The professional 

corporation was not served with summons and complaint, as far 

as the court records show, until February 17, 1988. In the 

answer of the professional corporation to the second amended 

complaint, affirmative defenses based upon various statutes 

of limitations have been raised. The claim against the 

professional corporation may be barred by the limitations 

statutes, unless the amended complaint relates back to the 

date of the original pleading under Rule 15(c). When a 

pleading is amended, and an additional party brought in by 

the amendment, the amended pleading does not relate back to 
the original pleading as against the additional party unless 

he (1) has received such notice of the institution of the 

action that he will not be prejudiced in maintaining a 

defense of the merits, and (2) knew or should have known 

that, but for a mistake concerning the identity of the proper 

party, the action would have been brought against him. 

We therefore reverse the judgment of dismissal with 

prejudice against Carter Picotte and the professional 

corporation. The District Court is directed on remand to 

determine whether the amended pleading relates back to the 

original pleading as against the defendant professional 

corporation. We make no comment as to other issues raised in 

the briefs or under the pleadings, leaving those to be 

handled if need be by the District Court.