Estate of Athy v. Edgewood

2026 MT 3

• Court: Montana Supreme Court
• Decided: January 13, 2026
• Docket: DA 25-0265
• Status: Published
• Author: Bidegaray

Opinion

01/13/2026

DA 25-0265 Case Number: DA 25-0265

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 3

ESTATE OF TERRY ATHY; ALEX ATHY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TERRY ATHY,

Plaintiffs and Appellants,

v.

EVI KALISPELL, LLC; EDGEWOOD KALISPELL SENIOR LIVING, LLC; EDGEWOOD KALISPELL MEMORY CARE; EDGEWOOD VISTA KALISPELL; EDGEWOOD REIT, INC.; EDGEWOOD OPERATIONS, INC.; EDGEWOOD OPCO, LLC.; EDGEWOOD HEALTHCARE; EDGEWOOD PROPERTIES MANAGEMENT, LLC; EDGEWOOD PROPERTIES, L.L.C.; EDGEWOOD PROPERTIES, LLLP; EDGEWOOD REAL ESTATE INVESTMENT TRUST; JOHN DOES 1-10; and DOE BUSINESS ENTITIES X, Y, AND Z,

Defendants and Appellees.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-2023-1359(C) Honorable Heidi J. Ulbricht, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Darin K. Westover, Glacier Law Firm, PLLC, Kalispell, Montana For Appellees:

Sean Goicoechea, Katrina L. Feller, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana

Submitted on Briefs: October 29, 2025

Decided: January 13, 2026

Filed:

__________________________________________ Clerk

2 Justice Katherine Bidegaray delivered the Opinion of the Court.

¶1 Alex Athy (Athy), on behalf of himself and as personal representative for the estate

of his mother, Terry Athy (Terry), appeals the March 2025 order of the Montana Eleventh

Judicial District Court, Flathead County, dismissing his civil claims against Edgewood

Kalispell Memory Care, et al., (Defendants) with prejudice. We restate the issues on appeal

as follows:

1. Did the District Court correctly construe Athy’s claims as medical malpractice claims subject to §§ 27-2-205(1) and 25-3-106, MCA, time limits and service of process requirements?

2. Did the District Court correctly dismiss Athy’s medical malpractice claims as time-barred by § 27-2-205(1), MCA?

¶2 We hold that Counts I-VI of Athy’s “First Amended Complaint” (FAC) were

medical malpractice claims subject to §§ 27-2-205(1) and 25-3-106, MCA, time limits and

service of process requirements and that the court correctly dismissed those counts as

time-barred. However, we hold that Athy’s unjust enrichment and contract rescission

claims were not medical malpractice claims and not subject to §§ 27-2-205(1) or 25-3-106,

MCA. Therefore, the District Court incorrectly dismissed Counts VII and VIII as untimely

under § 27-2-205(1), MCA. Accordingly, we affirm in part, reverse in part, and remand

for further proceedings only on Athy’s unjust enrichment and contract rescission claims.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Terry, who had dementia, became a resident of the Edgewood Kalispell Memory

Care facility (Edgewood) in June 2021. After suffering complications from infection,

Terry passed away on November 23, 2021. Just shy of two years later, on November 20,

3 2023, Athy, individually and as personal representative for his mother’s estate, filed a

complaint against Edgewood and others1 alleging claims of wrongful death (Count I),

survival action (Count II), negligence (Count III), and negligent and/or intentional

infliction of emotional distress (Count IV) and seeking compensatory and special damages.

Athy alleged, among other things, that Edgewood and its staff of “certified, licensed, and

registered” nurses and nurse’s assistants “deviated from the acceptable standard of care for

a long-term memory care facility” and that their negligence caused serious illness and

injuries and, ultimately, Terry’s death. Athy did not serve the complaint or summons on

any defendant.

¶4 Almost a year later, on November 13, 2024, Athy filed a “First Amended

Complaint” against Defendants2 alleging claims of wrongful death (Count I), survival

action (Count II), negligence (Count III), negligent infliction of emotional distress (Count

IV), intentional infliction of emotional distress (Count V), elder abuse (Count VI), unjust

enrichment (Count VII), and rescission of contract (Count VIII). Athy alleged that Terry

was taken to the hospital in late October 2021 for treatment of abdominal pain, blood in

her stool, incontinence, and a large, soiled rash. Athy alleged that Terry was in a soiled

diaper for days or weeks prior to hospitalization and that she died shortly after from

infections and complications.

1 In his November 20, 2023 complaint, Athy named Edgewood Kalispell Memory Care, Edgewood Healthcare, John Does 1-10, and Corporations X, Y, and Z as defendants. 2 This time, Athy named ten more entity defendants in addition to the original defendants, Edgewood Kalispell Memory Care and Edgewood Healthcare. He again named John Does 1-10, but substituted Corporations X, Y, and Z for Doe Business Entities X, Y, and Z. 4 ¶5 As the basis for Counts I-VI, Athy alleged that, at the time of her injuries, Terry was

in the “custody, control, and care” of Defendants, who had a “duty to exercise reasonable

care commensurate with the level of skill, knowledge, and experience of a memory care

facility.”3 Defendants breached the applicable duty of care by failing to (1) check for,

identify, document, and treat Terry’s wounds; (2) obtain more medications for her wounds

when out of stock; (3) timely transport her to the hospital or seek further medical treatment

for her wounds; (4) supervise and train facility staff; (5) create and maintain documentation

of “patient care”; and (6) provide services necessary to maintain Terry’s physical and

mental health. As a result, Terry suffered emotional harm and serious physical illness and

injury, leading to her death. Athy also suffered emotional injury. As the basis for Counts

VII and VIII, Athy alleged that Defendants were unjustly enriched by payments received

for care they failed to render and misrepresented the level of care they would provide Terry

at the Edgewood facility. Athy sought compensatory and special damages and contract

rescission. Athy did not serve the FAC or amended summons on any defendant.

¶6 On December 9, 2024, Defendants filed a motion to dismiss4 with prejudice because

(1) Athy’s claims were medical malpractice claims subject to §§ 27-2-205(1) and 25-3-106,

MCA, time limits and service requirements; (2) he failed to serve the original complaint

3 Unlike the November 20, 2023 complaint, the FAC did not refer to Edgewood as a “long-term memory care facility” or to its staff as “certified, licensed, and registered” nurses and nurse’s assistants, rather, just as “staff.” 4 Defendants’ motion was based on M. R. Civ. P. 8(c)(1) (statute of limitations) and 12(b)(5)-(6) (insufficient service of process and failure to state a claim upon which relief can be granted). 5 within six months of filing as required by § 25-3-106, MCA; and (3) the FAC was filed

beyond the two-year statute of limitations and thus time-barred by § 27-2-205(1), MCA.5

¶7 Athy opposed dismissal on the grounds that (1) none of the FAC claims were

medical malpractice claims and therefore §§ 27-2-205(1) and 25-3-106, MCA, did not

apply but, even if they did, (2) filing the original complaint tolled the statute of

limitations and (3) the FAC “related back” to the timely-filed original complaint under

M. R. Civ. P. 15(c) and was therefore not time-barred.

¶8 The District Court concluded all Athy’s claims were medical malpractice claims

subject to §§ 27-2-205(1) and 25-3-106, MCA. The court further concluded that, under

Estate of Phillips v. Robbins, 2024 MT 174, 417 Mont. 431, 554 P.3d 145, (1) failure to

serve the original complaint required dismissal, leaving the matter “as if the suit had never

been brought”; and (2) the FAC was time-barred and tolling and relation-back principles

did not apply. Athy timely appeals.

STANDARD OF REVIEW

¶9 We review a lower court’s decision on a motion to dismiss de novo. Estate of

Phillips, ¶ 6. A motion to dismiss under M. R. Civ. P. 12(b) effectively admits all

well-pleaded allegations in the complaint; therefore, we construe the complaint in the light

most favorable to the plaintiff taking all factual allegations as true. Puryer v. HSBC Bank

USA, N.A., 2018 MT 124, ¶ 10, 391 Mont. 361, 419 P.3d 105. The interpretation and

5 Defendants also asserted that the FAC should be dismissed for failure to state a claim against many of the newly-named defendants. The District Court did not grant dismissal on these grounds, and neither party raises this issue on appeal. 6 application of statutes, including statutes of limitation, present questions of law reviewed

de novo for correctness. Estate of Phillips, ¶ 6. When the complaint on its face establishes

that the claim is barred by the statute of limitations, we will uphold a district court’s

dismissal on those grounds. Selensky-Foust v. Mercer, 2022 MT 97, ¶ 7, 408 Mont. 488,

510 P.3d 78.

¶10 Whether tolling or relation-back principles apply are questions of law reviewed de

novo with underlying factual determinations reviewed for clear error. Estate of Phillips,

¶ 6; Cremer Rodeo Land & Livestock Co. v. McMullen, 2023 MT 117, ¶¶ 13, 29, 412 Mont.

471, 531 P.3d 566.

¶11 Finally, canons of statutory construction require us to interpret statutes according to

their plain language and holistically to avoid absurd results. City of Missoula v. Fox,

2019 MT 250, ¶ 18, 397 Mont. 388, 450 P.3d 898.

DISCUSSION

¶12 Athy contends the District Court erroneously dismissed the FAC for numerous

reasons. First, he says the court misconstrued his claims as medical malpractice claims

subject to §§ 27-2-205(1) and 25-3-106, MCA, time limits and service requirements.

He says, at the very least, his unjust enrichment and contract rescission claims (Counts VII

and VIII) are not medical malpractice claims. As for his care-based claims (Counts I-VI),

Athy contends they cannot be subject to §§ 27-2-205(1) and 25-3-106, MCA, because

(1) they were not “malpractice claims” under the Montana Medical Legal Panel Act

7 (MMLPA); and (2) there was no basis in the FAC to characterize Edgewood as a

“long-term care facility” under § 27-2-205(1), MCA.

¶13 Second, Athy argues in the alternative that, even if his care-based claims are medical

malpractice claims, they were nevertheless not time-barred because (1) the § 27-2-205(1)

statute of limitations was tolled upon filing of the original complaint under Webb v. T.D.,

275 Mont. 243, 912 P.2d 202 (1996); and (2) the FAC “relates back” to the timely-filed

original complaint under M. R. Civ. P. 15(c) and was therefore also timely.6 We address

Athy’s arguments in turn.

¶14 1. Did the District Court correctly construe Athy’s claims as medical malpractice claims subject to §§ 27-2-205(1) and 25-3-106, MCA, time limits and service of process requirements?

¶15 “In the taxonomy of civil actions, a medical malpractice action is a species of

negligence action.” Camen v. Glacier Eye Clinic, P.C., 2023 MT 174, ¶ 27, 413 Mont.

277, 539 P.3d 1062 (citation omitted). Specifically, “[m]edical malpractice is a particular

species of professional negligence applicable to health care providers.” Kipfinger v. Great

Falls Obstetrical & Gynecological Assocs., 2023 MT 44, ¶ 17, 411 Mont. 269, 525 P.3d

1183. Like any negligence claim, the elements of medical malpractice are the existence of

a duty, breach of that duty, causation of harm, and resulting damages. Kipfinger, ¶ 16;

Labair v. Carey, 2012 MT 312, ¶ 29, 367 Mont. 453, 291 P.3d 1160. However, unlike

ordinary negligence, where the standard of care is that of a reasonable person, medical

6 Athy forwards other arguments, but they are not persuasive. For example, he says the court impermissibly relied on information outside the FAC but then concedes “it would be permissible to look outside” the FAC to analyze his claims. 8 negligence involves the standard of care and conduct applicable to a medical professional,

which is generally beyond the common understanding of lay people and thus requires

expert testimony. Selensky-Foust, ¶ 10; Kipfinger, ¶¶ 17-18, 20 (duty, breach, and

causation elements of medical malpractice usually require expert testimony).

A. Sections 27-2-205(1) and 25-3-106, MCA, and the MMLPA

¶16 The MMLPA (Title 27, chapter 6, MCA) was enacted “to prevent where possible

the filing in court of actions against health care providers and their employees for

professional liability in situations where the facts do not permit at least a reasonable

inference of malpractice[.]” Section 27-6-102, MCA.7 The Act is meant to screen certain

professional negligence—i.e., malpractice—claims by subjecting them to panel review

prior to initiation of a district court action. Sections 27-6-105, -301, -701, MCA. A panel

formed pursuant to §§ 27-6-401 through -404, MCA, “shall review all malpractice claims

or potential claims against health care providers covered by [the Act].” Section § 27-6-105,

MCA.

¶17 The MMLPA instructs that “[n]o malpractice claim may be filed in any court against

a health care provider before an application is made to the panel and its decision is

rendered.” Section 27-6-701, MCA. At first blush, this section appears to foreclose

initiating any malpractice claim against any healthcare provider in district court that has

7 Accord Linder v. Smith, 193 Mont. 20, 26, 629 P.2d 1187, 1190 (1981) (“the articulated basis for the panel acts has been the malpractice crisis existing in many states, with this legislation intended as a means to limit malpractice filings to those which are clearly meritorious”).

9 not been previously reviewed under the MMLPA.8 However, both “malpractice claim”

and “health care provider” are defined terms in the Act and therefore we must construe the

Act according to their technical meaning. Section 1-2-106, MCA (words and phrases used

in statutes are to be given their ordinary meaning “but technical words and phrases and

such others as have acquired a peculiar and appropriate meaning in law . . . are to be

construed according to such peculiar and appropriate meaning or definition”);

Northwestern Corp. v. Mont. Dep’t of Pub. Serv. Regulation, 2016 MT 239, ¶ 33, 385

Mont. 33, 380 P.3d 787 (we resort to ordinary meaning in the “absen[ce of] statutory

definitions”).

¶18 A “malpractice claim,” as defined by § 27-6-103(5), MCA, means “a claim or

potential claim of a claimant against a health care provider for medical or dental treatment,

lack of medical or dental treatment, or other alleged departure from accepted standards of

health care that proximately results in damage to the claimant.”9 A “health care provider,”

as defined by § 27-6-103(3), MCA, means “a physician, a dentist, a podiatrist, or a health

care facility.” The Act separately defines “physician,” “dentist,” “podiatrist,” and, as

pertinent here, “health care facility”—which means “a facility licensed as a health care

facility under Title 50, chapter 5.” Section 27-6-103(1), (2)(a), (3), (7), (8), MCA. But

8 Accordingly, we have said that MMLPA review is a jurisdictional “condition precedent to commencing a medical malpractice action.” Pickett v. Cortese, 2014 MT 166, ¶ 17, 375 Mont. 320, 328 P.3d 660 (court had jurisdiction because plaintiff’s claims against doctor submitted to panel for pre-filing review sufficiently encompassed her claims presented later in district court); accord Selensky-Foust, ¶ 4 n.3 (“the claimant must complete the [MMLPA] administrative process before pursuing a medical malpractice claim in district court”). 9 The defined term is a “malpractice claim,” not a medical malpractice claim. 10 “for the purposes of” the Act, the term does not include, as pertinent, a “residential care

facility.” Section 27-6-103(2)(b)(iii), MCA. The MMLPA does not define “residential

care facility.”

¶19 According to its express terms, the MMLPA subjects certain professional

negligence claims against a defined class of professionals to pre-filing claim review.

Notwithstanding, panel decisions on review are “without administrative or judicial

authority and [are] not binding upon any party.” Sections 27-6-602, -606(1), -704, MCA.

Instead, “the only effect of the panel’s decision on a plaintiff’s case would be to discourage

him from taking his claim to court”; “the claimant is not bound by the decision of the

panel . . . nor is the decision admissible in a subsequent judicial action.” Linder v. Smith,

193 Mont. 20, 22, 29, 629 P.2d 1187, 1187-88, 1192 (1990).10

¶20 Separate from the MMLPA, Title 27, chapter 2, MCA, governs statutes of

limitations in civil actions. Section 27-2-205(1), MCA (“actions for medical malpractice”),

provides that

an “[a]ction in tort or contract for injury or death against” various professionals and professional entities—including a licensed “long-term care facility”—“based upon alleged professional negligence or for rendering professional services without consent or for an act, error, or omission, must . . . be commenced within 2 years after the date of injury or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last.”

10 See also Title 27, chapter 12, MCA, the Montana Chiropractic Legal Panel Act, which is almost identical to the MMLPA, except it governs pre-filing review of any “malpractice claim” against a “chiropractic physician” and, notably, does not have any section comparable to § 27-6-701, MCA (requiring MMLPA pre-filing review of any “malpractice claim” against a “health care provider” prior to district court action). See also § 27-2-205(1), MCA, listing a “chiropractor” among the professional defendants protected by the shortened two-year statute of limitations. 11 Compare §§ 27-2-102, -105, -204, MCA (statute of limitations for tort claims is generally

three years). Section 27-2-205(1), MCA, does not define a “long-term care facility.”

¶21 Finally, Title 25, chapter 3, MCA, governs service of process in civil actions. “The

nature of service is twofold: it serves notice to a party that litigation is pending, and it vests

a court with jurisdiction.” Fonk v. Ulsher, 360 Mont. 379, 383-84, 860 P.2d 145, 147

(1993). The plaintiff has the burden to timely effect proper service of the complaint and

summons upon an adverse party—“mere knowledge of the action is not a substitute for

valid service.” Nolan v. Riverstone Health Care, 2017 MT 63, ¶¶ 10-12, 387 Mont. 97,

391 P.3d 95 (citing Fonk); accord La Forest v. Texaco, 179 Mont. 42, 47, 585 P.2d 1318,

1321 (1978) (notice of the existence of a claim is not notice of the commencement of a

lawsuit). Rather, “strict compliance with the rules for service of process is mandatory.”

Nolan, ¶ 12; accord Fonk, 260 Mont. at 383-84, 860 P.2d at 147 (“service of process rule[s]

are mandatory . . . even where a defendant has actual notice of the summons and

complaint”).

¶22 Under the Rules of Civil Procedure, if a plaintiff fails to accomplish service of

process within three years of filing the complaint, the complaint is subject to summary

dismissal with prejudice for failure to prosecute the action. Nolan, ¶¶ 10-12 (citing M. R.

Civ. P. 4 and 41).11 By contrast, § 25-3-106, MCA, specifically provides that:

A plaintiff in a medical malpractice action shall accomplish service within 6 months after filing the complaint. If the plaintiff fails to do so, the court,

11 But see § 25-3-107, MCA (2023 Mont. Laws ch. 263, § 1) (“a plaintiff shall make service of process no later than 2 years after filing the complaint”). 12 on motion or on its own initiative, shall dismiss the action without prejudice unless the defendant has made an appearance.[12],[13]

In short, § 25-3-106, MCA, subjects a malpractice claim to summary dismissal without

prejudice if not served within six months of filing.

¶23 Here, taking the FAC allegations as true, Edgewood is “both an assisted

living facility and an adult day care center.” The MMLPA defines a “health care

provider” as a “health care facility” licensed as such under Title 50, chapter 5, MCA.

Section 27-6-103(3), (2)(a), MCA. While “adult day care center” and “assisted living

facility” are separately defined in § 50-5-101, MCA, they are also both included in the

definition for a “residential care facility,” which is expressly excluded from the

MMLPA definition of a “health care provider.” Compare §§ 50-5-101(46), (3), (6), and

27-6-103(2)(b)(iii), MCA. Accordingly, neither facility type is a “health care provider”

subject to pre-filing claim review and the MMLPA is wholly inapplicable to this case.

Sections 27-6-103(2), (3), (5), -105, -701, MCA. Athy conceded as much, stating his

claims were “not applicable to be heard” before a MMLPA review panel. The MMLPA

governs pre-filing review of certain claims for professional negligence against certain

defendants; the Act does not define or limit the common-law tort of medical malpractice

or its contours.

12 The Legislature enacted § 25-3-106, MCA, at the same time it changed the statute of limitations for “actions in medical malpractice” from three to two years under § 27-2-205(1), MCA. See 2015 Mont. Laws ch. 368, §§ 19, 21. 13 In Estate of Phillips, ¶ 18, we said that the statute clearly contemplates that “unless the defendant has made an appearance” “applies when a defendant’s appearance precedes the defendant’s motion to dismiss.” 13 ¶24 Contrary to Athy’s assertions, it does not follow that §§ 27-2-205(1) and 25-3-106,

MCA, time limits and service requirements apply only to “malpractice claims” subject to

MMLPA pre-filing review, given the express language of those statutes. That would

essentially mean a medical malpractice claim cannot exist outside MMLPA pre-filing

review. First, as discussed, the MMLPA applies only to a defined class of “health care

providers.” Second, § 27-2-205(1), MCA, lists numerous professionals subject to “actions

for medical malpractice”—e.g., clinical lab techs, pharmacists, veterinarians, dental

hygienists, and nurses—who do not fall within the MMLPA definition of “health care

providers.” Section 27-6-103(3), MCA (“health care provider” specifically defined as “a

physician, a dentist, a podiatrist, or a health care facility”). It cannot be said that these

professionals are immune from medical malpractice liability simply because the MMLPA

does not require pre-filing review of claims against them. Reading the statutes this way

would produce an absurd result.14 Instead, by its express terms, the MMLPA provides for

pre-filing review of malpractice claims against a certain class of defendants; the Act does

not limit medical malpractice actions to only those claims subject to pre-filing review.15

14 See also Clark Fork Coalition v. Mont. Dep’t of Natural Res. & Conservation, 2021 MT 44, ¶ 60, 403 Mont. 225, 481 P.3d 198 (“the Legislature is presumed to be aware of all of its enactments”). Section 27-2-205(1), MCA, was enacted in 1971, pre-dating the 1977 MMLPA. 15 Athy cites Selensky-Foust, ¶ 10, for the proposition that “a claim that is not subject to MMLP process is not subject to [the two-year] limitations period.” Selensky-Foust says no such thing. Further, that case dealt with a medical malpractice claim against a hospital—i.e., a claim against a “health care provider” subject to MMLPA pre-filing review—unlike the malpractice claims at issue here. Athy also cites a federal district court opinion for the same proposition, Arneson v. Mich. Tissue Bank, No. CV 05-189-M-JCL, 2007 U.S. Dist. LEXIS 95917 (D. Mont. Mar. 26, 2007). Arneson is not precedential and does not control our interpretation of the pertinent statutes here. And, unlike the Defendants here, the defendants in Arneson (a bone tissue bank) did not 14 ¶25 Conversely and as pertinent here, §§ 27-2-205(1) and 25-3-106, MCA, apply to any

“actions for medical malpractice” against “a licensed hospital or long-term care facility.”

Section 27-2-205(1), MCA does not define a “long-term care facility.” But, where a word

or phrase in a statute is undefined, we may look to other statutes where the same word or

phrase is defined and use that definition unless a contrary intention plainly appears.

Section 1-2-107, MCA; State v. Pinder, 2015 MT 157, ¶¶ 14-18, 379 Mont. 357, 350 P.3d

377 (discussing our various approaches to prefatory statutory language indicating how

statutory definitions are to be used).

¶26 Title 50, chapter 5, parts 1 through 3, MCA, govern licensing of “hospitals and

related facilities” and provide many definitions, as used in those parts, including a

definition for “long-term care facility.” The prefatory language to § 50-5-101, MCA,16

is nearly identical to prefatory language we said gave “no clear indication” the definitions

in that section could not be “referenced for issues arising” in other contexts in Judicial

Stds. Comm’n v. Not Afraid, 2010 MT 285, ¶ 20, 358 Mont. 532, 245 P.3d 1116. Moreover,

Dep’t of Revenue v. Gallatin Outpatient Clinic, 234 Mont. 425, 763 P.2d 1128 (1998),

expressly authorizes using definitions found in § 50-5-101, MCA, in contexts outside of

provide medical treatment to the plaintiff—instead, they supplied bone allograft tissue to the plaintiff’s dentist, who used the tissue in implant surgery. Contrary to Athy’s assertion, the Arneson court did not “refuse[] to apply the malpractice statute of limitations precisely because the claims fell outside the MMLP statutes.” 16 “As used in parts 1 through 3 of this chapter, unless the context clearly indicates otherwise, the following definitions apply.” 15 Title 50, chapter 5.17 Therefore, pursuant to § 1-2-107, MCA, and absent any clear contrary

intent, the definition of a “long-term care facility” as it appears in § 50-5-101(31), MCA,

is the same definition for the term as used in § 27-2-205(1), MCA.

¶27 Section 50-5-101(31), MCA, defines a “long-term care facility” as “a facility or part

of a facility that provides skilled nursing care, residential care, intermediate nursing care,

or intermediate developmental disability care to a total of two or more individuals or that

provides personal care.” “Personal care” includes “the provision of services and care for

residents who need some assistance in performing the activities of daily living.”

Section 50-5-101(41), MCA. “Activities of daily living” include “tasks usually performed

in the course of a normal day in a resident’s life that include eating, walking, mobility,

dressing, grooming, bathing, toileting, and transferring.” Section 50-5-101(2), MCA.

While the statute does not separately define “residential care” as it appears in

§ 50-5-101(31), it defines a “residential care facility” as “an assisted living facility,” which

means “a congregate18 residential setting that provides or coordinates personal care,

24-hour supervision and assistance, both scheduled and unscheduled, and activities and

health-related services.” Section 50-5-101(46), (6), MCA. Read together, these statutes

17 There, we applied the § 50-5-101, MCA, definition of “hospital” to property tax exemption statutes under Title 15, chapter 6, part 2, MCA, because the prefatory language to the definitions section “only indicate[d] that the legislature intended the particular application of the definitions in those parts of the code, without limitation to the general use of the definitions in other parts of the code, pursuant to Section 1-2-107, MCA.” Gallatin Outpatient Clinic, 234 Mont. at 429-30, 763 P.2d at 1130-31. 18 “Congregate” means “the provision of group services designed especially for elderly or disabled persons who require supportive services and housing.” Section 50-5-101(12), MCA. 16 establish that a “long-term care facility” is one that provides residents long-term personal

care, health care, or both.

¶28 Here, Athy claimed that Edgewood was responsible for Terry’s “long-term”

residential “care and treatment,” including “bathing, observations, toileting, feeding,

medicating, bed sore prevention and treatment.” It is apparent on the face of the

well-pleaded allegations of the FAC that Edgewood provided Terry long-term personal

care and, to some extent, health care, including medicating and wound care. This

conclusion is a legal characterization drawn solely from the allegations, not a factual

finding. At the Rule 12(b)(6) stage, we accept as true Athy’s allegations describing the

nature of the services provided and determine, as a matter of law, whether those alleged

services fall within the statutory term “long-term care facility” as used in § 27-2-205(1),

MCA. In construing that undefined statutory term, we reference definitions in Title 50,

chapter 5, MCA, solely as an aid to statutory interpretation. We do not rely on extrinsic

evidence, resolve disputed facts, or make findings beyond the face of the FAC.

¶29 Accordingly, we hold that, as alleged in the FAC, Edgewood qualifies as a

“long-term care facility” for purposes of § 27-2-205(1), MCA. Therefore, any of Athy’s

claims based on medical malpractice were subject to a two-year statute of limitations under

§ 27-2-205(1), MCA, and a six-month service of process deadline under § 25-3-106, MCA.

B. Some But Not All of Athy’s Claims Were Medical Malpractice Claims

¶30 The question remains, then, whether Athy’s claims were medical malpractice claims

and thus subject to §§ 27-2-205(1) and 25-3-106, MCA. To answer that question, we look

17 “to the gravamen of the action rather than relying on the label given to the claim by the

plaintiff.” Tin Cup Cnty. Water v. Garden City Plumbing & Heating, Inc., 2008 MT 434,

¶ 25, 347 Mont. 468, 200 P.3d 60; Saucier v. McDonald’s Rests. of Mont., Inc., 2008 MT

63, ¶ 56, 342 Mont. 29, 179 P.3d 481 (we look to the nature of the acts alleged, not the

manner in which the complaint is framed, to determine the gravamen of the complaint).

The gravamen of a claim controls the limitations period applied to that claim. Erickson v.

Croft, 233 Mont. 146, 153, 760 P.2d 706, 710 (1988). “A plaintiff cannot change the

gravamen of the action to secure a longer period of limitations simply by virtue of

mislabeling a claim for relief.” Tin Cup, ¶ 26; Saucier, ¶ 56 (the gravamen test accounts

for a litigant’s misuse of terminology to “improperly re-characteriz[e]” a claim).

¶31 Medical negligence claims arise out of a health care provider’s duty to provide

health care services. Selensky-Foust, ¶¶ 8-13 (plaintiff’s claim that he “did not receive the

medical treatment necessary under prevailing professional standards” was “medical in

nature” because “premised upon the care he received or failed to receive”); accord

Bryant v. Oakpointe Villa Nursing Ctr., Inc., 684 N.W.2d 864, 870-77 (Mich. 2004)

(medical malpractice claims arise out of a “professional relationship” and the exercise of

“medical judgment”). Compared to ordinary negligence claims, “[a]llegations of breach

of duty involving medical judgment, diagnosis, or treatment indicate that a claim is for

medical malpractice.” Szymborski v. Spring Mt. Treatment Ctr., 403 P.3d 1280, 1284-88

(Nev. 2017); Ditch v. Waynesboro Hosp., 917 A.2d 317, 321-22 (Pa. Sup. Ct. 2007)

(“where a complaint . . . involves diagnosis, care and treatment by licensed professionals,

18 the action must be characterized as a professional negligence action” (citation omitted));

accord Selensky-Foust, ¶¶ 8-13. Questions of medical judgment, diagnosis, or treatment

require expert testimony regarding the applicable professional medical standard of care and

departure therefrom. Selensky-Foust, ¶ 10.19

¶32 Here, the FAC alleged that Terry contracted with Defendants for professional

long-term memory care services and that, at the time of Terry’s injuries and death, she was

in Defendants’ “custody, control, and care.” See Bryant, 684 N.W.2d at 871 (a professional

relationship sufficient to support medical malpractice claims existed where defendants

were “subject to a contractual duty that required [them] to render professional health care

services to the plaintiff”). Taking these allegations as true, Defendants had a professional

relationship with Terry. The FAC also identified the nature of Defendants’ professional

duty—it was a “duty to exercise reasonable care commensurate with the level of skill,

knowledge, and experience of a memory care facility.” Finally, the FAC alleged that

Defendants breached their duty of care by failing to (1) check for, identify, document, and

treat Terry’s wounds; (2) obtain more medications for her wounds when out of stock;

(3) timely transport her to the hospital or seek further medical treatment for her wounds;

(4) supervise and train facility staff; (5) create and maintain documentation of patient care;

and (6) provide services necessary to maintain Terry’s physical and mental health. These

19 Expert witness testimony on the standard of care, breach, or causation is required except in rare cases where “the conduct complained of is readily ascertainable by a layman.” Montana Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545 P.2d 670, 672 (1976) (expert testimony required where “[t]he cause of an infection [was] not readily ascertainable by a layman”). 19 failures, according to the FAC, “resulted in infections and complications that caused

[Terry’s] death” and other personal injuries.

¶33 Athy’s care-based claims were unquestionably grounded in personal and health-care

services Defendants rendered while Terry was a long-term resident of their memory care

facility and injuries arising from that care or lack thereof.20 The standard of skill,

knowledge, and experience required to care for someone like Terry, a long-term resident

with dementia; whether Defendants departed from that standard of care; and whether that

departure caused Terry’s infections, complications, and death certainly would be beyond a

layperson’s understanding and therefore require expert testimony. See Bryant, 684 N.W.2d

at 873-74 (risk assessment and monitoring of bed-ridden psychiatric patient required

specialized knowledge beyond a layperson’s understanding); Montana Deaconess Hosp.

v. Gratton, 169 Mont. 185, 189, 545 P.2d 670, 672 (1976) (“[t]he cause of an infection is

not readily ascertainable by a layman”); Kipfinger, ¶¶ 17-18, 20.

¶34 Although Athy emphasizes that certain alleged failures—such as prolonged soiling

or delayed transport—might be understandable to a layperson if viewed in isolation,

Montana law does not parse claims into discrete acts divorced from the overall duty

alleged. The FAC includes claims of a comprehensive failure of professional care in a

memory-care setting, including medication management, monitoring of physical condition,

and prevention and treatment of wounds. The gravamen of these claims concerns whether

20 Athy concedes “it is fair to say that Counts I through VI concern the nature and quality of the care Terry received.” Thus, although conceivably there could be care-related claims that fall outside the domain of medical malpractice, as pleaded here, they do not. 20 Defendants met the professional standard of care applicable to a long-term care facility

providing health-related services, a determination that necessarily depends on medical

judgment and expert testimony. Recasting selected allegations as custodial “neglect” does

not alter the fundamentally medical nature of the claims as pleaded.

¶35 As in Selensky-Foust, ¶¶ 8-13, Athy’s care-based claims (Counts I-VI) were

premised upon personal and health care Terry received or failed to receive and were thus

“medical in nature.” Based on the alleged negligent conduct underlying Counts I-VI, the

gravamen of these claims was medical malpractice, regardless of how Athy styled them.

We hold that the District Court correctly construed Counts I-VI as medical malpractice

claims subject to §§ 27-2-205(1) and 25-3-106, MCA.

¶36 Conversely, we cannot say that Athy’s claims for unjust enrichment and contract

rescission similarly arose out of personal or health-care services. Instead, the gravamen of

Counts VII and VIII were claims based on Defendants’ business practices. See

Selensky-Foust, ¶¶ 9-13 (“general business decisions” not implicating medical judgment

subject to ordinary, not professional, standard of care). Count VII alleged that Defendants

unlawfully accepted and retained payment “for weeks of non-existent care . . . that was

never rendered.” Unjust enrichment is not rooted in negligence, professional or otherwise.

Missoula Cnty. v. State, 2024 MT 98, ¶ 31, 416 Mont. 340, 547 P.3d 1268 (“unjust

enrichment is an equitable claim for restitution to prevent or remedy inequitable gain by

another”). Count VIII alleged that Defendants intentionally misrepresented the level of

care they would provide Terry at the Edgewood facility at the time of contracting for care;

21 Athy sought only a rescission remedy. Unlike Counts I-VI, Counts VII and VIII did not

include a claim for damages for personal injury or death, nor did they turn on the adequacy

of medical judgment or professional care. Instead, they sought restitution and rescission

based on alleged misrepresentations and retention of payments—remedies directed at

financial transactions rather than physical harm.

¶37 Accordingly, we hold that FAC Counts I-VI were medical malpractice claims

subject to the § 27-2-205(1) two-year statute of limitations and § 25-3-106 six-month

service of process requirement. Conversely, we hold that FAC Counts VII and VIII were

not medical malpractice claims and were therefore not subject to §§ 27-2-205(1) or

25-3-106, MCA. The District Court therefore erroneously dismissed Counts VII and VIII

on the grounds they were time-barred by § 27-2-205(1), MCA. We limit our holding to

this narrow issue and do not decide or opine on whether Counts VII or VIII can withstand

Defendants’ motion to dismiss. The District Court must make that determination on

remand in light of this Opinion.

¶38 2. Did the District Court correctly dismiss Athy’s medical malpractice claims as time-barred by § 27-2-205(1), MCA?

¶39 We now turn to whether the District Court correctly applied §§ 27-2-205(1) and

25-3-106, MCA, to dismiss Athy’s medical malpractice claims, Counts I-VI. We hold that

the court correctly dismissed these claims as time-barred.

¶40 In Estate of Phillips, we considered arguments nearly identical to those Athy raises

here. There, like here, Phillips timely filed a complaint alleging medical malpractice. And,

like here, Phillips never served the complaint. Then, over a year later, Phillips filed an

22 amended complaint that he timely served. Like here, the defendants filed a motion to

dismiss the amended complaint on the grounds that Phillips never served the original

complaint under § 25-3-106, MCA, and the amended complaint was therefore time-barred

under § 27-2-205(1), MCA. Like Athy, Phillips argued on appeal that (1) filing the original

complaint tolled the statute of limitations and (2) the amended complaint related back to

the original complaint under M. R. Civ. P. 15(c) and was therefore timely. Estate of

Phillips, ¶¶ 3-4, 8.

¶41 Regarding tolling, we held that the district court incorrectly construed § 25-3-106,

MCA, to toll the § 27-2-205(1) two-year limitations period for six months. Nothing in the

language of those statutes allowed for tolling of the limitations period under the

circumstances at issue.21 Estate of Phillips, ¶¶ 4, 8, 12. The service of process deadline

does not operate to extend the statute of limitations and “a complaint must be filed within

two years of when the injury accrued . . . regardless of whether service of process is made

within six months.” Estate of Phillips, ¶ 12. We also rejected Phillips’ claim that filing

the original complaint tolled the statute of limitations, holding that “a statute of limitations

is not tolled during pendency of an action which is dismissed without prejudice.” Estate

of Phillips, ¶¶ 16-17 (citing Harris v. Canton, 725 F.2d 371, 376-77 (6th Cir. 1984)

(the “notion of tolling is a very limited one”)).

21 We said the only provision with any tolling effect on § 27-2-205(1), MCA, was § 27-6-702, MCA, which “pertain[s] to the MMLP process.” Estate of Phillips, ¶¶ 4, 9, 11, 15. Section 27-6-702, MCA, tolls the med-mal statute of limitations during the pendency of MMLPA review and for 30 days after panel decision. For reasons explained at length above, the MMLPA is inapplicable to the claims in this case. 23 ¶42 Then, reading §§ 27-2-205(1) and 25-3-106, MCA, together, we held that:

Montana’s service of process statute for a medical malpractice action requires that the complaint be dismissed. The addition in the statute of “without prejudice” does nothing to help the plaintiff who is facing an expired limitation period. . . . [I]f [a] [p]laintiff fails to serve the complaint within six months, [the complaint] is subject to dismissal under the service of process statute. If it is dismissed, and the limitations period has expired during that six-month period, the complaint is subject to dismissal with prejudice under the limitations statute.

. . .

To conclude, as Phillips urges, that a complaint must be dismissed without prejudice by operation of § 25-3-106, MCA, even though well outside the period of limitations, would render meaningless the statute of limitations—a plaintiff could wait years to serve a defendant and then refile a new action after the limitations period has expired.

Estate of Phillips, ¶¶ 13-15. We also explained the policy behind §§ 27-2-205(1) and

25-3-106, MCA:

[T]aken together[, these statutes] establish a policy that the prosecution of a medical malpractice claim must be done diligently and in a timely manner. The purpose of statutes of limitations is to prevent stale claims from being brought against defendants whose ability to effectively defend themselves often worsens over time. Claims must be pursued by plaintiffs in a timely manner, or the plaintiff will lose their opportunity to pursue the claim.

Estate of Phillips, ¶ 10 (internal citations omitted).

¶43 Regarding relation-back, we noted that Phillips had raised that theory for the first

time in a post-judgment motion to set aside the dismissal, which the district court denied

upon concluding Phillips only sought to relitigate the dismissal on a new legal theory.

We affirmed without deciding whether M. R. Civ. P. 15(c) relation-back saved Phillips’

24 amended complaint from the § 27-2-205(1), MCA, time bar. Estate of Phillips, ¶¶ 5, 19-22

(citing M. R. Civ. P. 59(e) and 60).

¶44 Here, it is undisputed that Athy’s medical malpractice claims accrued no later than

Terry’s death on November 23, 2021, and that the November 20, 2023 complaint was

timely filed. However, just like Phillips, Athy failed to serve the complaint within six

months (or ever), subjecting it to mandatory summary dismissal without prejudice under

§ 25-3-106, MCA. And, just like Phillips, Athy filed a “first amended complaint” to

maintain the action, arguing timeliness through relation-back. Relying on Estate of

Phillips, Defendants filed a motion to dismiss the FAC with prejudice on the grounds that

it was time-barred because Athy never perfected the original complaint with timely service

of process.

¶45 Sections 27-2-205(1) and 25-3-106, MCA, effectively work in tandem to impose a

two- and one-half-year deadline for prosecuting medical malpractice claims.22 If a

complaint is timely filed and served within six months of filing, the complaint is perfected

and there is no issue. But, if a complaint is timely filed but not served within six months,

the complaint is subject to mandatory summary dismissal without prejudice.23 Ordinarily,

22 Estate of Phillips, ¶ 9 (one is a statute of limitations and the other a “deadline” for service of process). 23 In Peterson v. Simon, 2024 MT 185, 418 Mont. 12, 555 P.3d 253, we affirmed that § 25-3-106, MCA, mandates dismissal without prejudice where dismissal “rests solely on a failure to serve within 6 months.” Peterson, ¶¶ 8-13 (distinguishing Estate of Phillips and reversing district court dismissal of original complaint with prejudice for failure to timely serve, even though the statute of limitations had since expired, because, unlike in Estate of Phillips, there had been no subsequent refiling to trigger the statute of limitations issue). 25 “without prejudice” means “a dismissal that does not bar the plaintiff from refiling the

lawsuit within the applicable limitations period.” Schmitz v. Engstrom, 2000 MT 275, ¶ 11,

302 Mont. 121, 13 P.3d 38. But, as we said in Estate of Phillips, the “without prejudice”

provision of § 25-3-106 “does nothing to help the plaintiff who,” upon refiling, “is facing

an expired limitation period.” Further, “the limitations period is not tolled during the

pendency of an action which is dismissed without prejudice.”24 Instead, dismissal without

prejudice “leaves the situation the same as if the suit had never been brought.” Estate of

Phillips, ¶¶ 13-17, 23; accord Schimtz, ¶ 11. Therefore, the plaintiff must file a new

complaint to commence the action before the applicable statute of limitations expires. If

he does not meet the statutory deadline for filing, the new complaint is subject to dismissal

with prejudice as time-barred. Estate of Phillips, ¶¶ 11, 15, 23 (“[f]ailure to file a complaint

within the period of limitations results in dismissal of the complaint with prejudice”).

¶46 Here, Athy has found himself in the same scenario as Phillips: he timely filed a

complaint but never accomplished service and, by the end of the six-month service

window, the two-year statute of limitations had expired. In other words, Athy failed to

timely prosecute his malpractice claims under §§ 27-2-205(1) and 25-3-106, MCA.

Therefore (1) the original complaint was subject to summary dismissal without prejudice

by the District Court on its own motion because not timely served and (2) the FAC,

properly construed as a re-filed or new complaint, re-commenced the action but was subject

to dismissal with prejudice because filed beyond expiration of the statute of limitations.

24 Estate of Phillips, ¶ 12, also makes clear that the § 25-3-106 six-month service of process deadline does not affect the § 27-2-205(1) limitations period; it runs with or without service. 26 Estate of Phillips, ¶¶ 9-17. Accordingly, we hold that the District Court correctly dismissed

Athy’s malpractice claims as untimely under § 27-2-205(1), MCA, and Estate of Phillips.

¶47 Here, Athy makes three arguments against application of Estate of Phillips:

(1) public policy favors resolution on the merits; (2) under Webb, which was not addressed

in Estate of Phillips, the statute of limitations was tolled upon filing the original complaint

and remained tolled; and (3) Estate of Phillips leaves unanswered the question of whether

relation-back principles apply to save the FAC from dismissal. We address each argument

in turn.

A. Public Policy Argument

¶48 As for Athy’s first argument, we reject it on the same grounds that we rejected the

plaintiff’s identical argument in Estate of Phillips:

Phillips additionally argues her claims should not have been dismissed because “the policy of the law is to favor trial on the merits.” Schmitz v. Vasquez, 1998 MT 314, ¶ 27, 292 Mont. 164, 970 P.2d 1039. However, certain procedural steps must be followed before a plaintiff can argue the merits of a complaint. Statute of limitations prevent stale claims and compel the exercise of a right of action within a reasonable time. The policy of favoring trial on the merits cannot override the important and clear policy of ensuring the timely pursuit of claims as intended by the Legislature in enacting tighter deadlines for both service of process and statute of limitations for medical malpractice claims.

Estate of Phillips, ¶ 21 n.1 (some internal citations and punctuation omitted); compare

Appellant’s Opening Brief (“public policy favor[s] the resolution of disputes on their

merits” (citing Schmitz, ¶ 27)).

27 B. Webb’s Applicability

¶49 As for Athy’s second argument, Webb is factually distinguishable and does not

contradict our holding in Estate of Phillips. In Webb, we held that a malpractice complaint

was timely under § 27-2-205(1), MCA, because, at all times pertinent, the claim was either

before the district court or concurrently undergoing MMLPA and Chiropractic Legal Panel

(CLP)25 review, tolling the statute of repose.26 Just shy of five years after her injury, Webb

filed an application for MMLPA pre-filing claim review. She then filed her first complaint

within 30 days of the panel’s decision but never served it. While her first complaint was

pending, Webb filed an application for claim review by the CLP. While CLP review was

pending, Webb voluntarily dismissed her first complaint without prejudice. Within 30 days

of the CLP’s decision, Webb filed a second complaint against the same defendants, which

she timely served. The district court granted defendants summary judgment that the second

complaint was untimely. We reversed. Webb, 275 Mont. at 244-48, 912 P.2d at 203-06.

¶50 First, we held that filing a complaint commences an action and thereby tolls the

applicable statutes of limitation and repose. Webb, 275 Mont. at 250-51, 912 P.2d at

207-08 (citing § 27-2-102(1)(b), MCA, and M. R. Civ. P. 3). The dispositive question then

became whether Webb’s voluntarily dismissal of her first complaint without prejudice

25 See supra, note 10. 26 Webb came to us on appeal from a district court grant of summary judgment to defendants “on the ground that Webb’s complaint was barred by the applicable statute of repose.” Webb, 275 Mont. at 245, 912 P.2d at 204. Not at issue here, § 27-2-205(1), MCA, provides that “in no case may an action be commenced after 5 years from the date of injury.” We have called this a “statute of repose.” See Blackburn v. Blue Mt. Women’s Clinic, 286 Mont. 60, 73, 951 P.2d 1, 8 (1997) (citing Webb). 28 “nullified” the tolling of § 27-2-205(1), MCA. We acknowledged the general rule that

voluntary dismissal without prejudice does not toll a limitations period.27 However, by

contrast, MMLPA and CLP claim review expressly toll § 27-2-205(1) limitations periods.

Webb, 275 Mont. at 250-51, 912 P.2d at 207-08 (citing §§ 27-6-702 and 27-12-701, MCA).

Therefore, by initiating MMLPA review, Webb tolled § 27-2-205(1), MCA. Protected

from that point, Webb commenced a district court action prior to expiration of the MMLPA

tolling period, initiated CLP review while that action was pending before the court,

dismissed her first complaint during CLP review, and then re-commenced a second district

court action before expiration of the CLP tolling period—thereby seamlessly avoiding any

lapse in the initial tolling of § 27-2-205(1), MCA. Therefore, despite the general rule,

voluntary dismissal of her first complaint did not “nullify” statutory tolling. Webb, 275

Mont. at 250-51, 912 P.2d at 207-08.

¶51 We rejected the defendants’ argument in Webb that failure to timely serve the first

complaint meant it was subject to dismissal with prejudice. Though decided on different

grounds and long before enactment of § 25-3-106, MCA, the holding remains correct in

light of Estate of Phillips and Peterson v. Simon, 2024 MT 185, 418 Mont. 12, 555 P.3d

253.28 Webb, 275 Mont. at 249-50, 912 P.2d at 206-07. Also, our holding in Webb was

very narrow, so narrow that we have never applied it since in almost 20 years:

Applying the [MMLPA and MCLPA] panel tolling statutes compels the conclusion that, in a medical or chiropractic malpractice case, if a plaintiff’s

27 Webb, 275 Mont. at 250-51, 912 P.2d at 207-08 (citing and discussing § 27-2-407, MCA (Montana’s “saving statute”), and Tietjen v. Heberlein, 54 Mont. 486, 488, 171 P. 928, 928 (1918)). 28 See supra, note 23. 29 first complaint was timely filed but is voluntarily dismissed while the case is pending before a malpractice panel in proceedings which name the original defendants as necessary parties, §§ 27-2-702 and 27-12-701, MCA, provide, as to those originally named defendants, a continuous tolling “bridge” between the first complaint and the subsequently filed complaint, assuming the latter is timely filed under the Panel Acts and names the original defendants.

Webb, 275 Mont. at 251, 912 P.2d at 207-08. Finally, Webb does not contradict our holding

in Estate of Phillips that dismissal without prejudice does not toll the statute of limitations.

Our Webb holding simply depended on unique facts not present here—Webb continuously

maintained her cause of action either before the district court or a legal panel, thereby

keeping § 27-2-205(1), MCA, tolled for all times pertinent. As described above, Athy’s

procedural circumstances are distinct. Instead, Estate of Phillips is nearly identical to

Athy’s case and compels the same result.

C. Relation-Back Theory

¶52 Finally, as for Athy’s third argument that relation-back saves his malpractice claims

from dismissal, we disagree. Unlike in Estate of Phillips, the issue is now squarely before

us, and we affirm the District Court.

¶53 Athy’s M. R. Civ. P. 15(c) relation-back arguments implicate numerous legal

principles regarding notice of litigation and service of process. Rule 15(c) is grounded in

notice, permitting pleading amendments to “relate[] back to the date of the original

pleading” only in specific, enumerated circumstances.29 Prentice Lumber Co. v. Hukill,

29 A defendant on-notice of the claims against it may reasonably expect new, different, or tangential claims to arise “out of the conduct, transaction, or occurrence set out . . . in the original pleading.” M. R. Civ. P. 15(c)(1)(B). Likewise, a defendant implicated by “the conduct, transaction, or occurrence set out . . . in the original pleading” who would have been properly 30 161 Mont. 8, 14-16, 504 P.2d 277, 280-81 (1972); La Forest, 179 Mont. at 46-47, 585 P.2d

at 1319-21. Rule 15(c) relation-back “is based on the concept that a party who is notified

of litigation concerning a given transaction or occurrence has been given all the notice that

statutes of limitation are intended to afford.” Rozan v. Rosen, 150 Mont. 121, 124-25, 431

P.2d 870, 872 (1967) (citation omitted, emphasis added).30 To permit relation-back

without fair notice of the proceedings would defeat the very purpose of the Rule.

See Rierson v. State, 188 Mont. 522, 525-28, 614 P.2d 1020, 1022-24 (1980) (citing Rozan,

150 Mont. at 124-25, 431 P.2d at 871).

¶54 In fact, “the concept of notice is critical to operation of the relation back rule.”

Rierson, 188 Mont. at 528, 614 P.2d at 1024. In Rierson, we held that the relation-back

doctrine “will not operate” upon an original pleading that was never served. Rierson filed

a timely petition for judicial review of an agency decision but never served it. Then, over

named in the complaint “but for a mistake concerning [its] identity,” may be later added by amendment, but only if the defendant “received such notice of the action” and “knew or should have known that the action would have been brought against it.” M. R. Civ. P. 15(c)(1)(C). 30 Accord Prentice Lumber, 161 Mont. at 14-16, 504 P.2d at 280-81 (“if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged . . . or remedies a defective pleading, will relate back even though the statute of limitations has run in the interim” (citation omitted)); La Forest, 179 Mont. at 45-47, 585 P.2d at 1320-21 (Rule 15(c)(1)(C), Montana’s “misnomer rule,” contemplates “situations in which the plaintiff has actually sued and served the correct party, the party he intends to sue, but merely mistakenly used the wrong name of the defendant”—“where the newly named defendant received notice of the action and knew or should have known that he was the intended defendant, . . . there would be no prejudice to the person or entity by allowing the amendment” (citing, among others, the Advisory Committee notes to Rule 15(c) (emphasis added))); Keller v. Stembridge Gun Rentals, 221 Mont. 352, 354-55, 719 P.2d 764, 765-66 (1986) (the “misnomer rule,” as distinct from the fictitious defendant rule, § 25-5-103, MCA, is inapplicable when the plaintiff identifies the wrong defendant from the outset because Rule 15(c) does not permit “the addition or substitution of parties who had no notice of the original act” (citing La Forest) (emphasis added)). 31 a year later, he filed and served an amended petition, which the trial court dismissed on

defendants’ motion for failure to serve the original petition, failure to prosecute, and lack

of jurisdiction (§ 2-4-702(2)(a), MCA, requires “prompt” service). We affirmed, rejecting

Rierson’s claim that the amended petition related back under M. R. Civ. P. 15(c). Rather,

because the defendants “were never served with the original petition,” they “were not given

fair notice by the original petition.” Dismissal was appropriate “since the relation back

doctrine [would] not operate” under those circumstances. Rierson, 188 Mont. at 525-28,

614 P.2d at 1022-24.

¶55 In La Forest, we applied the same construction of Rule 15(c)(1)(C) to preclude

relation-back of an amended complaint filed after expiration of the statute of limitations

that named Texaco as a defendant for the first time. Although the body of the original

complaint implicated Texaco as the proper defendant, the caption did not name it as a party.

Despite subsequent revision and service, we held that relation-back was not permitted

under Rule 15(c) because Texaco was never served with the original complaint and

therefore lacked requisite notice of the lawsuit. La Forest, 179 Mont. at 44-47, 585 P.2d

at 1319-20.

¶56 While Rierson and La Forest independently foreclose relation-back where the

original pleading was never served and thus provided no notice, Estate of Phillips confirms

that conclusion in the specific context of medical malpractice actions subject to § 25-3-106,

MCA, service of process requirements. Montana precedent consistently treats timely

notice to the defendant—not the mere filing of a pleading—as the touchstone of

32 relation-back. Accord La Forest, 179 Mont. at 47, 585 P.2d at 1321 (notice of the existence

of a claim is not notice of a lawsuit); Nolan, ¶ 12; Fonk, 260 Mont. at 383-84, 860 P.2d at

147 (notice of a lawsuit is accomplished only through “valid service”).31 Where, as here,

the original complaint was never served, Defendants had no notice of Athy’s lawsuit within

the limitations period.

¶57 We conclude that Athy’s malpractice claims32 could not relate back to the original

complaint because the original complaint was never served under § 25-3-106, MCA, and

was therefore subject to summary dismissal without prejudice under Estate of Phillips.

As such, dismissal without prejudice left the matter “the same as if the suit had never been

brought.” Accordingly, there was no “original pleading” to which the FAC could relate

back. The FAC was thus a new complaint, not an amended one, and was time-barred by

§ 27-2-205(1), MCA.

¶58 We hold that M. R. Civ. P. 15(c) relation-back could not operate to save Athy’s

malpractice claims from dismissal under these circumstances.

CONCLUSION

¶59 We hold that the District Court correctly construed Counts I-VI of Athy’s FAC as

medical malpractice claims subject to §§ 27-2-205(1) and 25-3-106, MCA, time limits and

31 Athy’s argument that Defendants “should have known that [he] would be pursuing relief” does not meet this standard. 32 Because we hold that the District Court incorrectly dismissed Athy’s business-practices claims—unjust enrichment and contract rescission Counts VII and VIII—as malpractice claims time-barred by § 27-2-205(1), MCA, we do not reach Athy’s relation-back arguments regarding these claims. 33 service of process requirements and that the court correctly dismissed those counts under

Estate of Phillips as time-barred by the two-year statute of limitations for malpractice

claims. However, we hold that Athy’s unjust enrichment and contract rescission claims

were not medical malpractice claims and not subject to §§ 27-2-205(1) or 25-3-106, MCA.

Therefore, the District Court incorrectly dismissed Counts VII and VIII as untimely under

those statutes. Accordingly, we affirm in part, reverse in part, and remand for further

proceedings on Defendants’ motion to dismiss Athy’s unjust enrichment and contract

rescission claims.

/S/ KATHERINE M. BIDEGARAY

We Concur:

/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ JIM RICE