Summary 2006 WY 38

Summary of Decision issued March 27, 2006

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Case Name: Hoke v. Motel 6 Jackson and Accor North America, Inc.

Citation: 2006 WY 38

Docket Number: 05-132

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): William R. Fix and Jenna V. Mandraccia of William R. Fix, PC, Jackson, Wyoming. Argument by Mr. Fix.

Representing Appellees (Defendants): James K. Lubing and Carter H. Wilkinson of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Lubing.

Date of Decision: March 27, 2006

Issues: Whether dismissal of Appellant’s cause of action and the setting aside of the default judgment against Appellees were proper where appellee Motel 6 was not properly served within the required statutory time period. Whether the dismissal of Appellant’s cause of action against Appellee Accor was proper where Accor was not served within the required statutory time period. Whether the dismissals with prejudice of Appellant’s causes of actions against Appellees’ Motel 6 and Accor were proper.

Holdings: A determination of the applicability of procedural rules and statutes including the statute of limitations, are questions of law and are reviewed de novo.
Appellant’s service to Motel 6: The summons filed by Appellant on Motel 6 was not signed by the Clerk of the Court or sealed by the Court as required by W.R.C.P. 4(b) and no complaint was attached to the summons. Motel 6 did not timely file its answer and default was entered. The district court entered a default judgment against Motel 6. The district court set aside the entry of default and default judgment against Motel 6 and dismissed Appellant’s claims against it because the summons did not comply with the requirements of W.R.C.P. 4(b). Any omissions of statements that are required under W.R.C.P. 4 are fatal and such omission prevents the trial court from obtaining jurisdiction of the defendant. At the hearing on the motions to set aside the default judgment and dismiss filed by Motel 6, Appellant acknowledged that the summons was defective and not in compliance and that the default judgment should be vacated. Appellant argued that despite the defective summons, Motel 6 chose to wait until after the time period set forth in W.R.C.P. 3(b) lapsed before challenging the summons. However, Appellant did not make this argument before the district court and on appeal it was not supported with citation or analysis of pertinent legal authority. With the exception of certain jurisdictional and fundamental issues, the Court does not consider arguments made for the first time on appeal, nor do they consider arguments not supported by citation to relevant legal authority.
Appellant’s service to Accor: The summons complied with the requirements of Rule 4(b), but Appellant was unable to effectuate service, so she filed a motion to enlarge the time for service of process pursuant to Rule 6(b). The district court granted that motion. The district court then granted Accor’s motion to dismiss based on the reasoning that Rule 6(b)(2) does not allow the Court to enlarge the sixty-day period set forth in W.R.C.P. Rule 3(b). The Court stated that the district court was correct to give effect to Rule 3(b) and to dismiss the suit against Accor because it was commenced outside the statute of limitations period. Appellant made an alternative argument that even if dismissal of her claims was proper the district court erred in doing so with prejudice predicated on the applicability of Wyo. Stat. Ann. § 1-3-118. The summons on Motel 6 was void and not just voidable. The action against Motel 6 was not commenced within the statute of limitations period and the saving statute is not applicable. Accordingly, the district court’s dismissal with prejudice was proper. Service upon Accor complied in all respects with the requirements of Rule 4. However it was accomplished 114 days after the filing of the complaint. Pursuant to Rule 3(b), when service is effectuated more than 60 days after the filing of the complaint, the action is deemed to have commenced on the date of service. Since the action against Accor was commenced after the expiration of the statute of limitations, it had not “commenced in due time” as required by the saving statute at Wyo. Stat. Ann. § 1-3-118.

The order of the district court dismissing Appellant’s claims against Appellees Motel 6 and Accor with prejudice was affirmed.

C.J. Hill delivered the opinion for the court.

Link to case: http://tinyurl.com/kejd2 .