Levasseur v. Aaron , 1986 Me. LEXIS 667 ( 1986 )

NICHOLS, Justice.

The Plaintiff, Madeleine Levasseur, appeals from an order of the Superior Court (York County) granting the motion of the Defendant, Alvin Aaron, to dismiss her action against her dentist for negligence. She contends that the statute of limitations was tolled because the Defendant established a residence outside Maine and that, therefore, her action should not have been dismissed. We agree and vacate the judgment.

The Plaintiff alleges that the Defendant’s malpractice occurred from 1978 to 1979. She filed her complaint with the court on November 8, 1982, exactly two years after achieving her majority. The Defendant, however, was then at his winter residence in Florida and therefore did not receive personal service of the summons, complaint, and statutory notice-of-claim¹ until July 7, 1983. After dismissal of the action on the Defendant’s motion, the Plaintiff requested findings of fact and conclusions of law pursuant to M.R.Civ.P. 52(a), and the court complied.

The Defendant argues that the Plaintiff failed to serve the statutory notice of claim upon the Defendant within the two-year limitations period which governs medical malpractice actions. See 14 M.R.S.A. § 753 (1980); Givertz v. Maine Medical Center, 459 A.2d 548, 554 (Me.1983). The Plaintiff, however, asserts that the statute of limitations was tolled because the Defendant was “absent from and residing out of - the State” when the Plaintiff attempted to serve him with process. 14 M.R.S.A. § 866 (1980). She argues that dismissal is not warranted under the circumstances of this case.

At the threshold, we observe that when on a motion for dismissal matters outside the pleadings, such as affidavits, are presented to, and not excluded by, the court, the motion is treated as one for summary judgment and is disposed of according to Rule 56. M.R.Civ.P. 12; see Maine Bonding & Cas. Co. v. Mahoney, 392 A.2d 16 (Me.1978). Here, however, in addition to the Plaintiff’s affidavit opposing the motion to dismiss, there was an evidentiary hearing. Thus it appears that the parties and the court tried the statute of limitations issue on the merits. See 6 Moore’s Federal Practice 1156.11[8] (2d ed. 1976). This was further evidenced by the fact that, at the Plaintiff’s request, the court made findings of fact and conclusions of law.²

Because we are reviewing what we conclude to be a factual question, we look to see whether the court’s findings of fact are clearly erroneous. We find the justice erred in concluding that the statute of limitations was not tolled because the Defendant had not established a residence outside Maine. See Patten v. Milam, 480 A.2d 774, 776 (Me.1984). In Patten, the defendant admitted that he bought a house and registered to vote in Texas and that he no longer considered himself a Maine resident after purchasing the house in Texas. We concluded the defendant had established a residence outside Maine, thus tolling the statute of limitations. Id.

The present case is factually similar to Patten. The Defendant purchased a condominium unit in Florida in 1976. On March 15, 1982, he registered to vote in Florida. At the hearing he acknowledged that he considered himself a Maine resident until he registered to vote in Florida.

We have previously observed that a person can have more than one residence but only one domicile. Margani v. Sanders, 453 A.2d 501, 503 (Me.1982). The presumption that favors a person’s original domicile as his legal domicile arises only when there is conflicting evidence as to intent. Id. In the instant case, however, we find no conflict in the evidence as to the Defendant’s intent. He testified that he retired from practice in 1982; he registered to vote in Florida in March 1982, and had, in fact, voted in Florida; he had no plans for rereg-istering in Maine; he declared that the Florida home was now his major residence and he regarded himself as a resident of Florida and domiciled in that State. The evidence that he had continued to maintain a house in Maine to which he returned for several of the summer months of 1983 (after retiring from his practice and registering to vote in Florida) is not competent evidence to support the finding by the Superior Court that his domicile continued to be in the State of Maine. We consider these facts sufficient to toll the statute of limitations as of March 15, 1982. Therefore, the Superior Court’s conclusion to the contrary was an error of law.

We turn now to examine the Defendant’s contention that the Plaintiff failed to comply with the notice-of-claim requirements in light of our conclusion that the limitations period was tolled here. The Defendant contends that the Superior Court’s dismissal of this case was proper. The statute requires a plaintiff, at least 90 days before commencing a malpractice action, to serve the defendant with a written notice-of-claim. 24 M.R.S.A. § 2903 (Supp. 1985-1986). The record shows that, although the Plaintiff’s complaint was filed with the court on November 8, 1982, she did not serve the Defendant with notice-of-claim until July 7, 1983. The Plaintiff’s action commenced on the day she filed her complaint. M.R.Civ.P. 3. She therefore violated section 2903 in that the notice-of-claim was served eight months after, instead of 90 days before, commencement of the action.

We must now determine whether dismissal of the Plaintiff’s action was warranted under the circumstances. Section 2903, however, does not set forth sanctions for violations of its requirements. Dismissal is proper where, even though the underlying action was timely brought, the plaintiff fails to serve the notice-of-claim within the limitations period. Givertz v. Maine Medical Center, 459 A.2d at 554. We have already observed, however, that in this case the Defendant’s establishment of a residence in Florida indefinitely tolled the statute of limitations. Accordingly, dismissal of this action was improper, since the notice-of-claim was served within the limitations period.

A 90-day stay of the proceedings, rather than dismissal, is appropriate in this case. Dougherty v. Oliviero, 427 A.2d 487, 489-90 (Me.1981). In Dougherty, we concluded that a stay was appropriate where the plaintiff’s notice-of-claim was served within the period allowed by the statute of limitations but on the day after the defendant received the summons and complaint. Id. We reasoned that because section 2903 does not require the dismissal of premature complaints, a stay of the proceedings for 90 days best achieves the statutory purpose by providing time for settlement negotiations. Id. at 490.

Our reasoning in Dougherty is applicable to the present case as well. We note that although the complaint was filed eight months earlier, the Defendant received service of the summons, complaint, and notice-of-claim on the same day. We conclude that the action should not have been dismissed but should have been stayed for the statutory 90-day period.

The entry is:

Judgment vacated.

Remanded for further proceedings consistent with the opinion herein.

VIOLETTE, WATHEN and GLASS-MAN, JJ., concur.

1 . The notice-of-claim statute provides that:

No action for death or injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced until at least 90 days after written notice of claim setting forth under oath the nature and circumstances of the injuries and damages alleged is served personally or by registered or certified mail upon the person or persons accused of wrongdoing. Any applicable statute of limitations shall be tolled for a period of 90 days from service of notice.

24 M.R.S.A. § 2903 (Supp.1985-1986).

2 . Specific findings of fact and conclusions of law are not necessary in the disposition of a motion for summary judgment. See Stewart v. United States, 716 F.2d 755, 766 (10th Cir.1982).