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West v. Buchanan6/11/1999
the court desires here. The opinion finds the 1991 amendment to be "further evidence of the purpose of the rule and that our interpretation is faithful to the achievement of this purpose." This is problematic. As a matter of construction, I would not read an amendment that permits a particular result to support a pre-amendment interpretation contrary to the unamended language and its prevailing interpretation. That the federal rule was amended suggests that we should rewrite our rule, not that we should simply reread it. Finally, for reasons discussed above, I think the court errs in assuming that Rule 15(c) has an underlying purpose that justifies the interpretation reached today.
F. Reliance on the Service Grace Period
Apart from my substantive disagreement with relying on the service grace period, it seems inappropriate to rely on it here. This issue was not preserved in the superior court. West's opening and closing appellate briefs say nothing about Rule 4(j) or the 120-day service grace period. West instead asserts other theories --correctly rejected by the court here -- on which her amended complaint should be considered timely. Because West did not even raise the issue, it is not surprising that Buchanan's appellee's brief does not discuss the issue, either. Buchanan could have persuasively argued that the service grace period and Rule 4(j) have no application here. The court's opinion consequently relies on a rule not cited by appellant in support of a rationale not advanced by appellant to reach a result that is not justified by our rules as written or by our past decisions.
G. Conclusion
I agree with the court's resolution of the issues raised by West. But I disagree with the court's resolution of the issue not raised by West, and would therefore affirm the judgment of dismissal.
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