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Schmitz v. Vasquez12/23/1998
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin, Judge presiding.
Submitted on Briefs: November 24, 1998
. The plaintiff, Marilyn Schmitz, commenced this action in the District Court for the Fourth Judicial District in Missoula County, on behalf of herself and her husband, to recover damages which she alleged were caused by the negligence of the defendant, Ned Vasquez, M.D. The District Court dismissed her complaint for failure to comply with the provisions of Rule 41(e), M.R.Civ.P., related to service of process. Schmitz appeals the order of the District Court. We reverse and remand for further proceedings.
. The issue presented on appeal is:
. "Did the District Court err when it dismissed Schmitz's claims for improper service of summons?"
FACTUAL BACKGROUND
. Schmitz filed her original complaint, pro se, on April 5, 1994. She alleged that the defendants, Ned Vasquez, M.D., and Mark Sanz, M.D., breached the appropriate standard of care in their treatment of her husband, Peter, and that as a result, he suffered a massive stroke which left him almost completely incapacitated.
. On the same day that the complaint was filed, the clerk of the District Court issued Schmitz a summons for each defendant.
. Pursuant to ยง 27-6-701, MCA, of the Montana Medical Legal Panel Act, Schmitz had previously submitted her claim against Vasquez to the panel; however, she had not submitted a claim against Sanz.
. Through counsel, Schmitz filed an amended complaint on April 1, 1997. The amended complaint included substantially the same allegations against Vasquez as the original complaint, but it omitted any allegations against Sanz and omitted his name from the caption.
. On the same day that the amended complaint was filed, the original summons were returned to the court and an "amended summons" was issued to Schmitz for service upon Vasquez. The amended summons was identical in substance to the original summons for Vasquez, except that Sanz's name was removed from the caption, and the summons was retitled "amended summons."
. This summons was served on Vasquez on April 1, 1997. Proof of service was filed with the District Court on April 2, 1997, less than three years from the date that the original complaint was filed.
. On April 21, 1997, Vasquez moved for dismissal of the action based upon insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. This motion was granted, based upon the District Court's Conclusion that the original summons was not timely served and that plaintiff's complaint must therefore be dismissed. Schmitz filed a motion for reconsideration and the order was subsequently vacated with instructions from the District Court to brief the issue of prejudice to Vasquez. On February 25, 1998, the District Court reinstated its order which dismissed Schmitz's complaint.
DISCUSSION
. Did the District Court err when it dismissed Schmitz's claims for improper service of summons?
. We review a district court's Conclusions of law for correctness. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
. The District Court dismissed Schmitz'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 be
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