 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sulzen v. Williams3/11/1999
n section 78-12-28(2) was tolled during his minority. Thus, the trial court erred insofar as it premised its decision not to permit amendment of the complaint on the belief that the statute of limitations would bar the complaint.
SERVICE OF PROCESS
The trial court agreed with Williams's contention that, because Seth Jepson had not been served with process, a Rule 15(c) amendment substituting him as a party was improper. However, " he validity of amendment under Rule 15(c) turns on actual notice, not on whether process has been served." Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 560 (7th Cir. 1996). Both Seth Jepson and Shaun Carstensen certainly had notice of the Sulzens' claim by virtue of service on their legal guardians. Indeed, even if the caption had correctly listed them as defendants, service could still have been accomplished by serving Jepson's and Carstensen's guardians at home, and the boys would have been required to appear through their guardians. See Utah R. Civ. P. 4(e), 17(b).
Moreover, had the trial court permitted them to amend their complaint when first asked to do so, the Sulzens would have had ample time to serve Jepson and Carstensen. In actions such as the Sulzens', commenced by filing a complaint with the court, "the summons together with a copy of the complaint shall be served no later than 120 days after the filing of the complaint." Utah R. Civ. P. 4(b). Had the trial court permitted their requested amendment, the Sulzens could have served Jepson and Carstensen well within this time frame. Indeed, timely service having been made on at least one defendant, the court could have --and under the circumstances, should have--allowed additional time to serve the newly-named defendants. See Utah Rule Civ. P. 4(b); Valley Asphalt, Inc. v. Eldon J. Stubbs Constr., Inc., 714 P.2d 1142, 1143 (Utah 1986).
Finally, a court pursuing the "policy which favors resolution of disputes on the merits rather than technicalities," Meyers v. Interwest Corp., 632 P.2d 879, 882 (Utah 1981), could simply have directed a corresponding amendment to the process already served on the minor defendants' guardians, albeit in the incorrect capacity. See Utah R. Civ. P. 4(i); Meyers, 632 P.2d at 882 (noting that "amendments are allowed to complaints and process, even though the amendment relates back to the time of original filing and even though, but for the right to amend, the limitation period would have run") (emphasis added). Cf. Ballard v. Buist, 8 Utah 2d 308, 333 P.2d 1071, 1073-74 (1959) (reversing to allow amendment of process and pleading to show plaintiff, an infant, bringing action through his guardian ad litem).
Insofar as the trial court premised its reluctance to permit the amendment on concerns about the lack of service of process on the minor defendants, we conclude those concerns were not well founded and presented no bar to Sulzens' request to amend their complaint.
CONCLUSION
In the Sulzens' first action, the trial court abused its discretion in refusing to allow the Sulzens to amend their complaint so that the caption matched the text. Because the statute of limitations governing Brandon Holton's claim was tolled during his minority, the statute of limitations posed no bar to amendment of the complaint and no basis for dismissal of the action. The trial court's concerns about service of process were likewise not well-founded and provided no basis on which to refuse leave to amend the complaint or to dismiss the action. The trial court's refusal to grant leave to amend and its dismissal of the first action are reversed and the case remanded for further proceedings consistent with this opinion.
Page 1 2 3 4 5 6 7 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|