SCOVT reverses "judgment on the pleadings" for failure to serve because the court lacked sufficient evidence to determine whether service was completed.

Messier v. Bushman, 2018 VT 93 [filed 8/24/2018]

EATON, J. On January 16, 2014, Michael Messier and Kay Bushman were involved in an auto accident in Berlin. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. On January 13, 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman for negligence. The trial court granted a motion for judgment on the pleadings filed by Bushman on the basis that neither personal nor substituted service had been accomplished on Bushman.. We reverse and remand .

The pleadings were not closed when the motion was filed, and the service issues were not apparent from the face of the pleadings. Although styled as a motion for judgment on the pleadings, the gravamen of the motion was that service of process had not been accomplished on Bushman. Thus, the motion was akin to one seeking dismissal under V.R.C.P. 12(b)(5). This is a distinction with a difference. Judgment on the pleadings, as the name suggests, results in a judgment and is an adjudication on the merits. A dismissal for failure to properly serve the summons and complaint results in a dismissal and is not a merits adjudication.

.We do not agree with Messier that Bushman waived the  defense of improper service  by failing to raise it by motion or answer within the time allowed for answer under V.R.C.P. 12(a) following actual notice. An answer filed a few days late, if this one was, which raised the defense of insufficient service of process  did not  waive the defense. 

On a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, or insufficiency of service of process, consideration of matters outside the pleadings is permissible. Here, the court lacked sufficient evidence to determine whether Messier completed § 892(a)’s requirements by providing Bushman with a copy of the return showing service on the Commissioner. The failure to at least acknowledge Messier’s assertion that the affidavit was referring to the Commissioner’s return suggests that the court did not consider all the evidence it had before it.

Statute of limitations not tolled by estoppel or acquiescence.

Beebe v. Eisemann, 2012 VT 40 (mem.)

Plaintff appeals from the trial court's dismissal of his medical malpractice action for failing to satisfy the applicable statute of limitations.  Plaintff argues that the Eisemann defendants are equitably estopped from invoking the statute. We affirm.

In  Fercenia v. Guiduli, 2003 VT 50, ¶ 8, 175 Vt. 541, 830 A.2d 55 (mem.) we held that claims of a plaintiff who filed complaint within one day of the expiration of the limitations period, secured a waiver of service within sixty days, but failed to file that waiver in court within sixty days of filing the complaint were barred by statute of limitations. 

All parties agree that the limitations period for plaintiff’s malpractice claims pursuant to 12 V.S.A. § 521 was due to expire on October 9, 2009.  By letter dated September 16, 2009, plaintiff’s counsel proposed to Dr. Eisemann’s counsel and other potential defendants a “time out” agreement, tolling the statute of limitations for ninety days so the parties could pursue settlement.  Although Dr. Eisemann signed off on the agreement, not all of the defendants did.     As a result, plaintiff filed a summons and complaint on October 7, 2009 against all of the defendants in the trial court.  On October 15, 2009, plaintiff’s counsel sent a letter to the defendants’ lawyers informing them that a summons and complaint had been filed in the matter, and requesting that their clients sign and return acceptances of service.  In this letter, plaintiff’s counsel requested that the acceptances be returned at defendants’ “earliest opportunity,” but stated that he would not file the acceptances with the court without notice “so that this lawsuit will not be open to public inspection.” Plaintiff was required to file any waivers of service within sixty days of filing his complaint, December 6, 2009. 

Counsel for Dr. Eisemann signed the acceptance of service on October 20, 2009, but did not return the acceptance to plaintiff’s counsel on January 13, 2010. 

The trial court dismissed the complaint , viewing plaintiff’s request that defendant voluntarily "accept service" as a request for "waiver of service" of summons pursuant to V.R.C.P. 4(l) that was untimely filed.

On appeal, plaintiff does not argue that he legally satisfied the statute of limitations, but argues that equitable estoppel precludes defendant from invoking the statute of limitations.  Specifically, plaintiff argues that “estoppel by acquiescence” should have prevented Dr. Eisemann from asserting the statute of limitations because he claims Dr. Eisemann was aware that the parties were operating under a de facto agreement to ignore the time period within which plaintiff was to file the waiver of service, and, in effect, to toll the statute of limitations indefinitely while the parties negotiated.

Estoppel-by-acquiescence arises where the party being estopped is silent in the face of a duty to speak.  Assuming that estoppel-by-acquiescence is a valid theory, we affirm the trial court’s ruling because Dr. Eisemann was under no “duty to speak” at any time prior to the expiration of plaintiff’s deadline for filing the waivers.  He had no duty to affirmatively remind plaintiff to secure and file the acceptance within the period prescribed by the Rules of Civil Procedure. Plaintiff’s failure to enter into a tolling agreement, timely file Dr. Eisemann’s waiver of service, seek judicial relief from the applicable deadlines, or effectively serve Dr. Eisemann within the limitations period via other means cannot be cured by Dr. Eisemann’s silence.

[Filed 18-Jun-2012]