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Kristeen M. Elliott, A Single Woman v. Joseph M. Verska

January 5, 2012

KRISTEEN M. ELLIOTT, A SINGLE WOMAN, PLAINTIFF-APPELLANT,
v.
JOSEPH M. VERSKA, M.D., AN INDIVIDUAL; SPINE INSTITUTE OF IDAHO, P.A., A PROFESSIONAL CORPORATION, DEFENDANTS-RESPONDENTS, AND ST. LUKE'S MERIDIAN MEDICAL CENTER, AKA ST. LUKE'S, AN IDAHO CORPORATION; HOWMEDICA ORTHOPAEDICS; STRYKER; AND JANE AND JOHN DOES I THROUGH X, DEFENDANTS.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. Ronald J. Wilper, District Judge.

The opinion of the court was delivered by: Eismann, Justice.

2012 Opinion No. 2

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This is an appeal from a partial judgment dismissing this action as to two defendants on the ground that they had not been served with process within six months of the date that the complaint was filed as required by Idaho Rule of Civil Procedure 4(a)(2). We affirm the judgment of the district court.

I. Factual Background

In October 2007, Joseph M. Verska, M.D., performed two back surgeries upon Kristeen M. Elliott (Plaintiff). On November 28, 2008, Plaintiff hired attorney Thomas G. Maile, IV, to handle a malpractice claim against Dr. Verska. Mr. Maile filed a request for a prelitigation screening panel*fn1 with respect to the alleged malpractice and represented Plaintiff before the panel. He also prepared a complaint that Plaintiff filed pro se on October 5, 2009. The defendants named in the complaint were Dr. Verska, St. Luke's Meridian Medical Center, and the Spine Institute of Idaho, P.A., (Spine Institute). Mr. Maile ceased representing Plaintiff on November 2, 2009.

On November 13, 2009, Plaintiff filed an amended complaint pro se. That complaint named as additional defendants Howmedica Osteonics, Corp., and an individual identified as Stryker. In November, 2009, attorney Eric B. Swartz began investigating the case to see whether he would represent Plaintiff. During that investigation he had discussions in December of 2009 and January, February, and March of 2010 with the additional defendants named in the amended complaint.

On March 26, 2010, Mr. Swartz and Mark D. Kamitomo, an attorney practicing in the state of Washington, agreed to represent Plaintiff in this action. On that date, Mr. Kamitomo telephoned Raymond D. Powers to see whether he would accept service on behalf of Dr. Verska. Mr. Powers stated that he was not authorized to do so.

On March 30, 2010, Mssrs. Swartz and Kamitomo filed a notice of appearance on behalf of the Plaintiff. On that date, new summonses were issued, one directed to the Spine Institute and another to Dr. Verska.

On March 31, 2010, Andrew Remm, an employee of Jones & Swartz, PLLC, arrived at the office of the Spine Institute of Idaho, P.A., to serve Nickolas Russell, the registered agent for the Spine Institute, and Dr. Verska. He gave the receptionist, Tina McLeod, documents including copies of the newly issued summonses and two copies of the amended complaint, and, after a brief discussion, he left. Ms. McLeod, who was an employee of the Spine Institute, put the documents in Mr. Russell's in-box. He was also an employee of the Spine Institute and its administrator. He found the documents in his in-box later that day.

On April 5, 2010, Plaintiff filed affidavits of service by Mr. Remm. He stated that on March 31, 2010, he served Ms. McLeod, who was "a person authorized to accept service on behalf of JOSEPH M. VERSKA, M.D." and "a person authorized to accept service on behalf of Nickolas Russell, the Registered Agent for SPINE INSTITUTE OF IDAHO, P.A."

On April 20, 2010, Dr. Verska and the Spine Institute (Defendants) filed a motion to dismiss the action as to them on the ground of insufficiency of service of process. They supported the motion with affidavits of Mr. Russell, Dr. Verska, and Ms. McLeod. The affidavits stated that Ms. McLeod was not authorized to accept service of process on behalf of Mr. Russell, either personally or as the registered agent of the Spine Institute, or on behalf of Dr. Verska.

Plaintiff then served Dr. Verska on April 21, 2010, and Mr. Russell, as registered agent of the Spine Institute, on April 22, 2010. Affidavits of that service were filed on April 23, 2010. On May 10, 2010, Plaintiff filed her affidavit and the affidavit of Mr. Remm, in which he stated that Ms. McLeod had told him she was authorized to accept service on behalf of Defendants. On May 13, 2010, Defendants filed a reply memorandum in which they raised the issue that the action should be dismissed as to Defendants pursuant to Rule 4(a)(2) because they were not served within six months of the filing of the complaint.

The affidavits of Ms. McLeod and Mr. Remm were conflicting as to what occurred on March 31, 2010. On May 17, 2010, the district court held an evidentiary hearing at which Ms. McLeod, Mr. Russell, and Mr. Remm testified.

Ms. McLeod testified that on March 31, 2010, a man came into the office of the Spine Institute, walked up to the counter where she was working, and laid some papers on it. She asked what they were, and he said they were a complaint against Dr. Verska. She looked at the papers and saw Mr. Russell's name on the top one. The man asked for her name, she gave it to him, and he left. She then put the papers in Mr. Russell's in-box. She also said that the man did not ask her any other questions and did not ask to see either Dr. Verska or Mr. Russell.

Mr. Remm testified that he was employed as a runner by Plaintiff's counsel; that on March 31, 2010, he walked into the Spine Institute; and he approached the woman at the front desk and asked if Dr. Verska and Mr. Russell were there. She asked why he wanted to see them, and he answered that he had a summons and complaint to serve upon them. She asked to see the documents, and he laid them on the countertop. She looked at them and said she could deliver them. He asked if she was authorized to accept service on behalf of Mr. Russell and Dr. Verska, and she answered that she was. He asked for her name and the correct spelling, and then left.

The district court found that the scenarios as testified to by Mr. Remm and Ms. McLeod were equally plausible and that Plaintiff had therefore not met her burden of proving that Ms. McLeod was an authorized agent of either Dr. Verska or Mr. Russell for service of process. The court found "that service upon Defendant Verska was not effectuated on March 31, 2010," and "that service upon Defendant Spine Institute was not effectuated on March 31, 2010." The court also determined that service was required within six months of the filing of the complaint, not within six months of the filing of the amended complaint; that service was not accomplished within that six-month period; and that Plaintiff had failed to meet her burden of showing good cause for the failure to serve Defendants timely. The court therefore entered a judgment dismissing this action as to Defendants. It also certified the judgment as final pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure, and Plaintiff timely appealed.

II.

The District Court's Finding that Defendants Were Not Served on March 31, 2010, Is Supported by Substantial and Competent Evidence.

A. Standard of Review. Plaintiff contends that the district court applied the wrong standard of review in determining that Defendants had not been served on March 31, 2010, and that there was no good cause shown for the failure to serve them within six months after the complaint was filed. Quoting from Sammis v. Magnetek, Inc., 130 Idaho 342, 941 P.2d 314 (1997), she states, "The District Court 'must liberally construe the record in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor.'" She asserts, "Construing all of these facts in a light most favorable to Ms. Elliott, while drawing all reasonable inferences in [Plaintiff's] favor, the conclusion as to whether service on Dr. Verska and Spine Institute through their agent, Ms. McLeod, was effective must be answered in the affirmative for the purposes of ruling on Dr. Verska and Spine Institute's motion."

In Sammis, we applied the summary judgment standard of review to the determination of good cause under Rule 4(a)(2) of the Idaho Rules of Civil Procedure for failure to serve the summons and complaint within six months. We reasoned as follows:

Although we have not previously articulated the standard of review applicable to cases involving this rule, it is clear that the determination of whether good cause exists is a factual one. Because this is a factual determination, the appropriate standard of review is the same as that used to review an order granting summary judgment. Thus, when reviewing the trial court's decision that the Sammises failed to establish good cause under the rule, we must liberally construe the record in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor.

Id. at 346, 941 P.2d at 318 (citations omitted).

Unlike Sammis, here the district court held an evidentiary hearing at which the parties presented oral testimony. The court had the opportunity to observe the witnesses' demeanors while testifying, to assess their credibility, and to detect prejudice or motive. Therefore, we do not apply the summary judgment standard of review. Rather, the standard of review is that we will draw all reasonable inferences in favor of the court's judgment. Idaho Dept. of Health & Welfare v. Doe, 150 Idaho 36, ___, 244 P.3d 180, 185 (2010). A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous. Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 856, 55 P.3d 304, 310 (2002). On appeal, this Court examines the record to see if challenged findings of fact are supported by ...


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