Grajczyk v. Tasca, 23638.

• Decision Date: 21 June 2006
• Docket Number: No. 23638.,23638.
• Parties: Jolene GRAJCZYK, Plaintiff and Appellant, v. John G. TASCA, Defendant and Appellee.
• Court: South Dakota Supreme Court

717 N.W.2d 624

2006 SD 55

Jolene GRAJCZYK, Plaintiff and Appellant, v. John G. TASCA, Defendant and Appellee.

No. 23638.

Supreme Court of South Dakota.

Argued on March 20, 2006.

Decided June 21, 2006.

Gregory P. Grajczyk of Boos and Grajczyk, Milbank, South Dakota, Attorneys for plaintiff and appellant.

Chad C. Nelson, Milbank, South Dakota, Attorney for defendant and appellee.

ZINTER, Justice.

[¶1.] Jolene Grajczyk filed an action to establish paternity and child support. The circuit court dismissed, reasoning that there was insufficient substitute service of process and a lack of personal jurisdiction (insufficient minimum contacts) to assert jurisdiction over John Tasca, a nonresident putative father. On appeal, Grajczyk contends that these defenses were waived or, in the alternative, that the service of process was sufficient and that there were sufficient minimum contacts to assert personal jurisdiction. We conclude that: (1) the service of process defense was not waived; (2) the substitute service of process was valid; and (3) the personal jurisdiction defense was waived because it was not raised in the first defensive pleading. Because Tasca was properly served and because the personal jurisdiction defense was waived, we hold that the circuit court had jurisdiction to determine paternity and child support.

Facts and Procedural History

[¶2.] Grajczyk and Tasca were both stationed in Mississippi while serving in the United States Air Force. They formed a relationship that resulted in the birth of J.G. on October 14, 1986.¹ At the time of J.G.'s birth, Grajczyk was a resident of Texas, and Tasca was a resident of Florida. After moving numerous times, Grajczyk and J.G. established residency in South Dakota, where they have lived the past eight years. Tasca established residency in Indiana, where he has lived for at least eight years.

[¶3.] In February 1986, soon after Grajczyk discovered she was pregnant, she informed Tasca that he was the father. However, seven months later, she told Tasca that he was not the father. It was not until the fall of 1999, or spring of 2000, that Grajczyk again informed Tasca that he was J.G.'s father.

[¶4.] After a subsequent paternity test indicated that Tasca was the father, J.G. and Tasca began to form a relationship. They communicated over the telephone at least once a month, and on one occasion, Tasca sent money to South Dakota for J.G. to purchase an airplane ticket to visit him in Indiana. Tasca, however, has never been physically present in or had any other contact with South Dakota.

[¶5.] While J.G. and Tasca were forming a relationship, Grajczyk and Tasca began informal negotiations regarding past child support. In addition to these negotiations, Grajczyk filed a petition to establish paternity, child custody, and child support on July 15, 2004.² Grajczyk provided the summons and complaint to the sheriff of Bartholomew County, Indiana, for service on Tasca. The deputy sheriff that served the summons and complaint indicated on the sheriff's return that the documents were "Left with girlfriend." The complaint was subsequently filed with the Grant County Clerk of Courts.³

[¶6.] Tasca initially retained attorney William Gerdes to defend. Gerdes filed a notice of appearance of counsel on October 21, 2004, and informally requested an extension of time to file an answer. Thereafter, the negotiations for back child support continued. But, on December 1, 2004, Tasca retained new counsel, Chad Nelson. On December 8, Nelson filed Tasca's first defensive pleading: an answer alleging, among other things, the 12(b)(4) defense⁴ that the court was "without jurisdiction to hear this matter because there has been no service of summons upon the Defendant." The answer did not raise the 12(b)(2) defense that the court lacked personal jurisdiction over Tasca. However, the next day, December 9, Nelson filed a motion to dismiss. This second defensive pleading generally alleged a "lack of jurisdiction" but did not identify the alleged defect.⁵ Following a hearing on the issues raised by both pleadings, Grajczyk requested to provide a more complete sheriff's return. After considering additional evidence concerning substitute service on Tasca, the circuit court dismissed the action. The circuit court concluded that the substitute service of process was invalid and that Tasca had insufficient minimum contacts with this state to assert personal jurisdiction.

[¶7.] On appeal, Grajczyk raises the following issues:

1) Whether Tasca waived the 12(b)(2) and 12(b)(4) defenses of lack of personal jurisdiction and insufficient substitute service of process:

a) Because Tasca's attorney "appeared" in the action by filing a notice of appearance of counsel, informally requesting a continuance, and engaging in preliminary discovery without raising these defenses;

b) Because Tasca's first defensive pleading was an answer that only raised the failure to serve the summons; and

c) Because Tasca's second defensive pleading was a motion to dismiss that only alleged a "lack of jurisdiction" without further specification;

2) If the 12(b) defenses were not waived:

a) Whether the substitute service of process was sufficient; and

b) Whether there were sufficient minimum contacts for the circuit court to assert personal jurisdiction over Tasca.

Standard of Review

[¶8.] This appeal raises jurisdictional issues. We review issues regarding a court's jurisdiction as questions of law under the de novo standard of review. State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citations omitted).

Analysis and Decision

1) Waiver of Personal Defenses

[¶9.] Personal jurisdiction and insufficient service of process are defenses that may be waived. SDCL 15-6-12(h)(1) provides that the defenses are waived if they are not included in a motion under the circumstances provided in SDCL 15-6-12(g) or in a responsive pleading (in this case, the answer).⁶ If the defenses are raised by motion, SDCL 15-6-12(g) requires that they be consolidated.⁷ The effect of these statutes is that objections to personal jurisdiction and "insufficiency of service of process are waived unless the objections are raised in the answer or by... motion before the filing of a responsive pleading." Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8thCir.1986) (citation omitted). Stated in other words, "[i]f [a defendant] wishes to raise any of these defenses, that must be done at the time the first significant defensive move is made—whether it be by way of a Rule 12 motion or a responsive pleading." 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1391, at 515 (3d ed 2004).

Waiver by Appearance

[¶10.] Grajczyk argues that Tasca waived the right to assert either defense because his first attorney filed a notice of appearance of counsel, informally requested an extension of time to answer, and performed some informal discovery without raising the defenses. Grajczyk relies on SDCL 25-9B-201(2), a provision in the Uniform Interstate Family Support Act, which allows this state to assert jurisdiction over a nonresident in child support matters if "[t]he individual submits to the jurisdiction ... by entering a general appearance." (Emphasis added.) Grajczyk contends that these activities by Tasca's first attorney constituted a general appearance by Tasca. We disagree.

[¶11.] With respect to the notice of appearance of counsel, we preliminarily note that the notice was not a motion or responsive pleading within the meaning of SDCL 15-6-12(h)(1).⁸ Therefore, the failure to raise these 12(b) defenses in the attorney's notice of appearance does not subject a party to the peril of a SDCL 15-6-12(g) and SDCL 15-6-12(h)(1) waiver.

[¶12.] Furthermore, in determining whether an appearance is a general appearance, "the test is the relief asked... and . . . the real question is whether there is a submission to the power of the court or an active invocation of its power on nonjurisdictional matters." Union Bond & Mortgage Co. v. Brown, 64 S.D. 600, 609-10, 269 N.W. 474, 479 (1936) (quoting Robinson v. Glover, 60 S.D. 270 244 N.W. 322, 323 (1932)). Here, Gerdes' notice of appearance of counsel did not invoke the court's powers or submit Tasca to the jurisdiction of the court. It only provided notice that Gerdes was appearing to represent Tasca.⁹ As the Florida Supreme Court explained:

There is no basis in the rules and no reason in policy for a determination that the mere filing of an entirely neutral and innocuous piece of paper [a notice of appearance of counsel], which indicates no acknowledgment of the court's authority, contains no request for the assistance of its process, and, most important, reflects no submission to its jurisdiction should nevertheless be given just that effect. Such a conclusion represents, we think, no less than the apotheosis of a meaningless technicality. It cannot be accepted in a judicial era which requires that, as far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions.

Public Gas Co. v. Weatherhead Co., 409 So.2d 1026, 1027 (Fla.1982) (citation omitted). Thus, Gerdes' notice of appearance of counsel was not a general appearance that waived Tasca's 12(b) defenses.

[¶13.] Similarly, counsel's informal request for an extension of time to answer and the performance of informal discovery reflect no submission to the court's jurisdiction. On the contrary, it is only through an extension of time to answer and preliminary discovery that counsel can evaluate whether 12(b) defenses are even available. Cf. Crouch v. Friedman, 51 Wash.App. 731, 735, 754 P.2d 1299, 1301 (1988) ("[T]he fact that [defendant] proceeded with discovery does not preclude him from asserting that service of process was insufficient because it is by way of discovery that a party determines whether a particular defense is available."). We finally...