Dodds v. Tierney

415 Mont. 384

JANICE M. DODDS, Plaintiff and Appellant,

v.GREGORY S. TIERNEY, M.D., BENEFIS HEALTH SYSTEM, and JOHN and JANE DOES I-IV, Defendants and Appellees.

No DA 23-0319

Submitted on Briefs December 20, 2023

Decided March 12, 2024

2024 MT 48

415 Mont 384

__P 3d__

1. Bankruptcy Law - Claims Against Debtors - Judgments & Rulings - Enforcements - Automatic Stay - Scope of Stay - Tax Court Proceedings

The Bankruptcy Code’s automatic stay prohibits, among other things, the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy case 11 U S C S § 362(a)(1)

2. Civil Procedure - Appeals - Standards of Review - Abuse of Discretion - Relief From Judgments - Grounds for Relief from Final Judgment, Order or Proceeding - Extraordinary Circumstances

A district court’s denial of a motion for Fed R Civ P 59(e) relief is reviewed for an abuse of discretion A district court’s denial of relief pursuant to Mont R Civ P 60(b) is generally reviewed for an abuse of discretion An abuse of discretion occurs if a lower court exercises granted discretion based on a clearly erroneous finding of fact, erroneous conclusion or application of law, or otherwise arbitrarily, without conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice

3. Civil Procedure - Appeals - Standards of Review - Clearly Erroneous Review - Questions of Fact & Law

An appellate court reviews a district court’s findings of fact and conclusions of law regarding personal jurisdiction to determine whether the findings are clearly erroneous and whether the conclusions are correct

4. Civil Procedure - Relief From Judgments - Grounds for Relief from Final Judgment, Order or Proceeding- Discharge, Release & Satisfaction - Fraud, Misconduct & Misrepresentation - Excusable Mistakes & Neglect - Inadvertence - Mistake - Extraordinary Circumstances

Fed R Civ P 59(e) relief is available in the discretion of the court only in extraordinary circumstances such as to (1) correct manifest errors of law or fact upon which the judgment was based, (2) raise newly discovered or previously unavailable evidence, (3) prevent manifest injustice resulting from, among other things, serious misconduct of counsel, or (4) bring to the court’s attention an intervening change in controlling law Rule 59(e) relief is not available to relitigate previously litigated matters, reconsider arguments previously made, or raise new arguments which could, and should, have been previously made Mont R Civ P 60(b) enumerates six reasons a court may relieve a party from a final judgment or order (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party, (4) the judgment is void, (5) the judgment has been satisfied, released, or discharged, it is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable, or (6) any other reason that justifies relief A Rule 60(b) motion may not be used as a substitute for appeal

5. Civil Procedure - Appeals - Reviewability of Lower Court Decisions - Preservation for Review

It is not the job of the appellate court to conduct legal research on a party’s behalf, to guess at his precise position, or to develop legal analysis that may lend support to that position

6. Civil Procedure - Service of Process - Service of Summons - Issuance of Summons - Governments - Courts - Clerks of Court

On or after filing the complaint, the plaintiff or the plaintiff’s attorney must present a summons to the clerk for issuance The clerk must issue and deliver a properly completed summons to the plaintiff or the plaintiff’s attorney, who must thereafter deliver it for service upon the defendant as prescribed by these rules Service of the summons must be accomplished within the times prescribed by Rule 4(t) Mont R Civ P 4(c)(1) A plaintiff must accomplish service within three years after filing a complaint Absent an appearance by defendant(s), the court, upon motion or on its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so Mont R Civ P 4(t)(1)

7. Governments - Legislation - Statute of Limitations - Time Limitations

Rules for service of process are mandatory and must be strictly followed If service of process is flawed, the court acquires no jurisdiction over the party The rules for service of process contain the clear directive that a plaintiff "must" deliver the summons upon a defendant and "must" accomplish service within three years after filing a complaint A plaintiff’s failure to accomplish service within this timeframe means a court must dismiss the action Both shall and must are mandatory, rather than permissive

8. Business & Corporate Compliance - Discharge & Dischargeability - Effect of Discharge - Effect on Third Parties - Bankruptcy Law - Protection of Debtors

11 U S C S § 524(a) enjoins the commencement or continuation of proceedings to recover discharged debts as a personal liability of the debtor 11 U S C S § 524(a)(2) Section 524’s injunction applies only to the debtor’s personal liability and does not inhibit collection efforts against other entities 9. Business & Corporate Compliance - Discharge & Dischargeability - Effect of Discharge - Effect on Third Parties - Bankruptcy Law

An action naming the debtor solely to establish the debtor’s liability in order to collect on an insurance policy is not barred by 11 U S C S § 524

10. Business & Corporate Compliance - Contract Conditions & Provisions - Waivers - Continued Performance - Contracts Law - Civil Procedure - Defenses, Demurrers & Objections - Affirmative Defenses - Laches

Waiver is a voluntary and intentional relinquishment of a known right or claim It may be proved by express declarations or by a course of acts and conduct which induces the belief that the intent and purpose was waiver To establish a waiver, the party asserting waiver must demonstrate the other party’s knowledge of the existing right, acts inconsistent with that right, and resulting prejudice to the party asserting waiver Laches, meanwhile, is a concept of equity which can apply when a person is negligent in asserting a right, and where there has been an unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable

11. Civil Procedure - Justiciability - Standing - Personal Stake

Standing is determined as of the time the action is brought Standing is not to be confused with mootness as standing requires the plaintiff to have a personal stake in the outcome of the controversy at the commencement of the litigation, whereas mootness doctrine requires this personal stake to continue throughout the litigation A justiciable controversy in which the parties have a personal stake must exist at the beginning of the litigation, and at every point thereafter, unless an exception to the doctrine of mootness applies

12. Insurance Law - Liability & Performance Standards - Good Faith & Fair Dealing - Duty to Defend - Indemnification - Business Insurance - Commercial General Liability Insurance - Property Insurance - Obligations

An insurer’s duty to indemnify arises only if coverage under the policy is actually established Put another way, while an insurer’s duty to defend is triggered by allegations, an insurer’s duty to indemnify hinges not on the facts the claimant alleges and hopes to prove but instead on the facts, proven, stipulated or otherwise established that actually create the insured’s liability

Appeal from the District Court of Cascade County.

Eighth Judicial District Court, Cause No. CDV-13-364.

Honorable John A. Kutzman, Judge.

The District Court did not abuse its discretion by denying appellant’s Mont. R. Civ. P. 59 motion to alter or amend judgment and/or Rule 60 motion for relief because appellant failed to provide briefing to support her position; the District Court’s underlying order dismissing appellee for insufficient service of process and denying appellant’s motion to add appellee’s malpractice insurance company as the real party in interest was correct as the court determined dismissal of the claims against appellee for insufficient service of process was not only appropriate but mandatory under Mont. R. Civ. P. 4(t)(1).

Affirmed.

For Appellant: John E. Seidlitz, Jr., Seidlitz Law Office, Great Falls.

For Appellee: Gary Kalkstein, Joe Newman, Hall Booth Smith, P.C., Missoula (for Gregory S. Tierney, M.D.); Julie A. Lichte, Crowley Fleck, PLLP, Bozeman (for Benefis Health System).

JUSTICE GUSTAFSON delivered the Opinion of the Court.

¶1 Plaintiff and Appellant Janice M. Dodds (Dodds) appeals from the deemed denial of her Rule 59 Motion to Alter or Amend Judgment or, in the Alternative, Rule 60 Motion for Relief of Order by the Eighth Judicial District Court, Cascade County. Dodds’ motion for relief followed the District Court’s February 14, 2023 Order Granting Defendants’ Motions, which, as relevant to this appeal, (1) denied Dodds’ motion to join the malpractice insurance company of Defendant Gregory S. Tierney, M.D. (Dr. Tierney), as real party in interest and (2) granted Dr. Tierney’s motion to dismiss for insufficient service of process.

¶2 We address the following restated issues on appeal:

1. Whether the District Court abused its discretion by not granting Dodds’ motion to alter or amend judgment.

2. Whether the District Court erred by granting Dr. Tierney’s motion to dismiss for insufficient service of process.

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 2009, Dr. Tierney, while employed by Great Falls Orthopedic Associates,...