St. Jeor v. Kerr Corporation , 2015 Utah LEXIS 171 ( 2015 )

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 49IN THE
SUPREME COURT OF THE STATE OF UTAH
BARBARA ST. JEOR,
Appellee,
v.
KERR CORPORATION,
Appellant.
No. 20130913
Filed May 22, 2015
Third District, Salt Lake
The Honorable John Paul Kennedy
No. 070908983
Attorneys:
Gilbert L. Purcell, Alan R. Brayton, Brian D. Holmberg,
Jacob L. Rice, A. Jase Allen, Salt Lake City,
for appellee
Robert R. Wallace, Michael D. Johnston, Salt Lake City,
for appellant
JUSTICE HIMONAS authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 This case concerns a straightforward application of the
service of process provisions of Utah Rule of Civil Procedure 4(b).
Barbara St. Jeor filed a wrongful death suit related to her
husband’s exposure to asbestos. She served a number of the
named defendants within rule 4(b)’s 120-day timeframe, but did
not serve defendant Kerr Corporation until five years later, in
February 2013. Kerr moved for dismissal, asserting that
Ms. St. Jeor had not timely served it. The district court denied the
ST. JEOR v. KERR
Opinion of the Court
motion and held that Ms. St. Jeor had complied with rule 4(b)’s
service requirements. Kerr now brings an interlocutory appeal of
that order.
¶ 2 We hold that Ms. St. Jeor complied with the service of
process requirements under rule 4(b) because she served Kerr
prior to trial and while previously served defendants remained
parties to the action. Accordingly, we affirm the district court’s
order denying Kerr’s motion. But because we acknowledge
possible policy concerns, we also refer rule 4(b) to our civil
procedure rules committee for review.
BACKGROUND
¶ 3 The parties do not dispute the facts. In June 2007,
Ms. St. Jeor, along with her husband, Eldon, filed a negligence and
strict products liability suit against numerous defendants,
including Kerr, arising out of Mr. St. Jeor’s asbestos exposure.
Ms. St. Jeor served Kerr, and Kerr filed its answer in August 2007.
Mr. St. Jeor passed away in November 2007, and Ms. St. Jeor filed
a Suggestion of Death the next month advising the parties of his
passing. On May 16, 2008, Ms. St. Jeor and Kerr stipulated to
Kerr’s dismissal without prejudice, and the district court signed
the order of dismissal.
¶ 4 Five days later, on May 21, 2008, Ms. St. Jeor filed a
Second Complaint for Survival, Wrongful Death—Asbestos. The
complaint caption named as defendants “Asbestos Defendants As
Reflected on Exhibits B, C, and H.” Exhibit B of the Second
Complaint listed Kerr Corporation. On July 7, 2008—within 120
days of filing the complaint—Ms. St. Jeor served several of the
defendants, but not Kerr. Subsequently, Ms. St. Jeor filed a
number of amended complaints, each listing Kerr as a defendant.
She served Kerr with the Fifth Amended Complaint on
February 20, 2013, nearly five years after the district court’s order
dismissing Kerr without prejudice.
¶ 5 Kerr moved to be again dismissed, asserting that
Ms. St. Jeor’s claims were barred by various statutes of limitations,
laches, and untimely service of process. The district court held
that Ms. St. Jeor’s suit was not barred by any statute of limitations
and that she had complied with rule 4(b)’s service requirements
and therefore denied the motion. Kerr timely appealed. We have
jurisdiction under Utah Code section 78A-3-102(3)(j).
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Cite as: 2015 UT 49Opinion of the Court
STANDARD OF REVIEW
¶ 6 We review a district court’s “legal conclusions and
ultimate grant or denial of summary judgment for correctness.”
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (internal quotation
marks omitted). Similarly, “[w]e review the district court’s denial
of [a] motion to dismiss for correctness, granting no deference to
the district court’s ruling.” First Equity Fed., Inc. v. Phillips Dev.,
LLC, 2002 UT 56, ¶ 11, 52 P.3d 1137 (internal quotation marks
omitted). 1
ANALYSIS
¶ 7 Citing Utah Rule of Civil Procedure 4(b), Kerr correctly
asserts in the first line of its argument that “where one defendant
in a case is served, other defendants may be served at any time
prior to trial.” This statement of the rule begins and ends our
analysis of the present matter. We hold that the district court
correctly applied rule 4(b) below, and we therefore affirm the
order denying Kerr’s motion to dismiss.
¶ 8 Rule 4(b) requires that a summons and copy of the
complaint be served “no later than 120 days after the filing of the
complaint” unless the court extends the time “for good cause.”
However, in a suit “brought against two or more defendants on
which service has been timely obtained upon one of them,” the
other defendants need not be served within the 120-day window
but “may be served or appear at any time prior to trial.” UTAH R.
CIV. P. 4(b)(ii). That is precisely what occurred here.
¶ 9 As discussed above, the relevant facts are not in dispute.
On May 21, 2008, Ms. St. Jeor filed the Second Complaint alleging
survival and wrongful death claims for the death of Mr. St. Jeor.
And although Ms. St. Jeor named Kerr as a defendant, she did not
1 Kerr styled its motion in the alternative as a “motion to
dismiss and/or for summary judgment.” The district court did
not indicate whether it was ruling on the motion as one for
dismissal or for summary judgment, but instead simply ruled that
the motion was denied. Where, as here, the operative facts are not
in dispute, the standards of appellate review for dismissal and
summary judgment are the same. Therefore, it is ultimately
irrelevant to our analysis in this case whether the motion was
denied under rule 12(b) or rule 56(c) of the Utah Rules of Civil
Procedure.
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Opinion of the Court
serve Kerr with the Second Complaint. She did, however, serve
several other defendants within the 120-day timeframe of rule
4(b). Ultimately, on February 20, 2013, Ms. St. Jeor served Kerr
with the Fifth Amended Complaint. At the time of service on
Kerr, several of the previously served defendants remained
parties to the action.
¶ 10 Despite the rule’s plain language, Kerr argues that the
district court erred in holding that Ms. St. Jeor complied with
rule 4(b). Citing Hunter v. Sunrise Title Co., 2004 UT 1,
84 P.3d 1163, Kerr contends that the provision allowing a plaintiff
to serve additional defendants “at any time prior to trial” is not
unlimited and that “public policy should temper its application.”
But Hunter provides no support for Kerr in these circumstances.
In Hunter, the plaintiff made timely service on two defendants but
not a third. Id. ¶ 3. The plaintiff then voluntarily dismissed with
prejudice all claims against the served defendants. Id. ¶ 4.
Thereafter, outside the 120-day window but prior to trial, the
plaintiff served the third defendant. Id. ¶ 5. We concluded that
service was untimely because the “provision of rule 4(b) allowing
service ‘at any time prior to trial’ ceased to apply once [the served
defendants] were formally dismissed from the case.” Id. ¶ 10.
¶ 11 The present circumstances vary significantly from the
situation in Hunter. In Hunter, the dismissal of the two served
defendants foreclosed the availability of rule 4(b)(ii)’s “at any time
prior to trial” provision because there was no longer a defendant
“on which service has been timely obtained.” UTAH R. CIV. P.
4(b)(ii). And our holding was expressly limited to such situations:
Where all served co-defendants are formally
dismissed, we hold that rule 4(b) requires service
upon at least one of the remaining unserved
defendants within 120 days of filing of the
complaint, absent the district court’s grant of an
extension for good cause.
Hunter, 2004 UT 1, ¶ 11. In contrast, here, several of the served
defendants remained parties to the action when Ms. St. Jeor
served Kerr. Accordingly, under the plain language of the rule,
Ms. St. Jeor could properly avail herself of the option to serve Kerr
“at any time” before trial began. 2
2 And because rule 4(b)(ii)’s provision governing multiple
(cont’d)
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¶ 12 Kerr cites several general policy concerns to argue that
we should read the language of rule 4(b) in a more circumscribed
fashion, or even disregard the text altogether and rewrite the rule.
However, it is the duty and practice of this court to adhere to the
plain language of a rule. Dipoma v. McPhie, 2001 UT 61, ¶ 11,
29 P.3d 1225. And where the text of the rule is clear and
unambiguous, our inquiry ends, and we need not resort to
additional methods of interpretation. Clark v. Archer, 2010 UT 57,
¶ 9, 242 P.3d 758.
¶ 13 Kerr does not argue that the rule is unclear or
ambiguous, but rather that principles of fairness dictate that we
introduce limitations into the language.3 And while Kerr may
disagree with the rule’s underlying policies, asking this court to
rewrite the rule on the fly is not the appropriate means to
advocate for a policy shift. “Litigants ought to be able to rely on
our constructions of our rules and statutes, particularly on matters
as critical as the timing standards for filing deadlines.” Carter v.
Lehi City, 2012 UT 2, ¶ 15, 269 P.3d 141. It would be fundamentally
unfair for this court to alter course post hoc and foreclose
Ms. St. Jeor’s suit simply because Kerr disagrees with the outcome
of the rule. We therefore decline Kerr’s request to “look to the
spirit of the rules” rather than the text itself, 4 and we will not read
defendants applied, Ms. St. Jeor had no need to seek an extension
of time under rule 4(b)(i). Thus, the district court did not err, as
Kerr contends, in failing to require a showing of good cause to
permit service beyond the 120-day window.
3 In an attempt to bolster its argument, Kerr grafts policy
considerations related to statutes of limitations onto its argument
for a limited reading of the service of process provisions, thereby
conflating the two. And while service of process and statutes of
limitations may implicate overlapping policy objectives of
expediency and finality, they are distinct inquiries. In any event,
on appeal Kerr does not actually challenge the district court’s
holding that Ms. St. Jeor’s suit was filed before the applicable
statutes of limitations ran, and thus we have no occasion to
disturb the ruling.
4 For this reason, Kerr’s recitation of service of process rules
from other jurisdictions has no bearing on our decision. We do not
look to external sources for persuasive authority if the language of
our rule is clear and unambiguous. Clark, 2010 UT 57, ¶ 9.
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ST. JEOR v. KERR
Opinion of the Court
additional limitations into rule 4(b) that the language cannot
bear. 5
¶ 14 Finally, Kerr argues that the suit should be barred under
the doctrine of laches. But because the only issue for which Kerr
sought interlocutory review—and for which review was
granted—was whether the district court erred in ruling that
Ms. St. Jeor timely served Kerr under rule 4(b), the issue of laches
is not properly before this court. See Houghton v. Dep’t of Health,
2005 UT 63, ¶ 16, 125 P.3d 860 (“On interlocutory appeal, we
review only those specific issues presented in the petition.”). And
in any event, because Kerr assumes, without argument or citation
to authority, that the equitable defense of laches applies to service
of process issues arising under rule 4(b), Kerr’s laches argument is
inadequately briefed and “we would be ill-advised” to reach a
decision regarding unsettled law “without the benefit of
adversarial briefing.”6 State v. Baker, 2010 UT 18, ¶ 57,
229 P.3d 650.
CONCLUSION
¶ 15 Kerr contends that, notwithstanding the plain language
of rule 4(b) and its long-standing interpretation, “public policy
should temper its application.” We do not agree. Under the plain
language of rule 4(b), after serving at least one defendant within
120 days of filing, Ms. St. Jeor was permitted to then serve Kerr at
“any time prior to trial.” We therefore affirm the district court’s
denial of Kerr’s motion to dismiss.
5While an appeal to this court is not the appropriate means to
amend a court rule, some of Kerr’s policy arguments for
amending rule 4(b) warrant further consideration through the
appropriate process. We therefore refer rule 4(b) to our civil
procedure rules committee for review.
6
For these same reasons, we do not decide whether Kerr can
raise a similar unreasonable delay argument under Utah Rule of
Civil Procedure 41(b) for failure to prosecute an action.
6