Hedel-Ostrowski v. City of Spearfish

• Decision Date: 21 April 2004
• Docket Number: No. 22842,22842
• Citation: 2004 SD 55,679 NW 2d 491
• Parties: DAWN HEDEL-OSTROWSKI, Plaintiff and Appellant, v. CITY OF SPEARFISH and KEITH HEPPER, Defendants and Appellees, and MIRACLE RECREATION EQUIPMENT COMPANY, PLAYPOWER, INC. and CAMERON HOLDINGS CORPORATION, Defendants.
• Court: South Dakota Supreme Court

2004 SD 55

679 NW 2d 491

DAWN HEDEL-OSTROWSKI, Plaintiff and Appellant, v. CITY OF SPEARFISH and KEITH HEPPER, Defendants and Appellees, and MIRACLE RECREATION EQUIPMENT COMPANY, PLAYPOWER, INC. and CAMERON HOLDINGS CORPORATION, Defendants.

No. 22842

Supreme Court of South Dakota.

Considered on Briefs February 17, 2004

Opinion Filed April 21, 2004.

JON J. LaFLEUR of LaFleur, LaFleur and LaFleur, Attorneys for plaintiff, Rapid City, South Dakota and appellant.

THOMAS E. BRADY of Brady & Pluimer, Attorneys for defendants, Spearfish, South Dakota and appellees.

MEIERHENRY, Justice

[¶ 1.] The trial court granted City of Spearfish and Keith Hepper's motion for summary judgment. The trial court found that Dawn Hedel-Ostrowski's (Hedel-Ostrowski) negligence claim against the City and the negligence and nuisance claims against Hepper were barred by the statute of limitations. The trial court further dismissed Hedel-Ostrowski's nuisance claim against the City. We affirm.

FACTS

[¶ 2.] Hedel-Ostrowski accompanied her two children to a Spearfish city park on September 18, 1999. Hedel-Ostrowski fell when the swing she was using broke. The fall caused nerve damage in her lower leg. She retained counsel and timely submitted a claim against the City of Spearfish for her injuries. The City denied her claim. Subsequently, she was referred to another attorney who failed to pursue her claim in court.¹ She then retained a third attorney who commenced an action on her behalf during September 2002. The complaint named the City, Miracle Recreation Company, Playpower, Inc., and Cameron Holdings Corp. as defendants.

[¶ 3.] Hedel-Ostrowski filed a Motion to Amend Complaint on November 7, 2002 to add Keith Hepper (Hepper), head of Spearfish Parks and Recreation, as a defendant. The Amended Complaint also added a claim for nuisance against the City in addition to her initial negligence claim. The City filed a Motion for

Summary Judgment claiming the negligence action was barred by SDCL 9-24-5 which requires commencement of an action against a municipality within two years of the occurrence. The City also filed a Motion for Summary Judgment claiming that the negligence action against Hepper was barred by the three year statute of limitations in SDCL 15-2-14(3) and that the nuisance action against the City should be dismissed for failure to state a claim. The trial court granted Hedel-Ostrowski's Motion to amend. The trial court, however, granted summary judgment to the City and Hepper dismissing the negligence and nuisance claims.

ISSUES

1. Whether the trial court erred in granting summary judgment to Hepper based on a statute of limitations defense.

2. Whether the trial court erred in granting summary judgment to Hepper and the City on the nuisance cause of action.

STANDARD OF REVIEW

[¶ 4.] We review a summary judgment as follows:

"Summary judgment is proper where, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. SDCL 15-6-56 (c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law." Luther v. City of Winner, 2004 SD 1, ¶6, 674 NW2d 339, 343 (citing Roden v. General Cas. Co. of Wisconsin, 2003 SD 130, 5, 671 NW2d 622, 624). Statutory construction and interpretation present questions of law and are reviewed de novo. State v. Schroeder, 2004 SD 21, ¶5, 674 NW2d 827, 829.

DECISION

1. Whether the trial court erred in granting summary judgment to Hepper based on a statute of limitations defense.

[¶ 5.] The trial court found Hedel-Ostrowski's claims against Hepper were untimely. The parties disagree which statute of limitations applies to the claim against Hepper. Hepper argues that the two-year statute of limitations in SDCL 9-24-5 applies because he was an employee of the City.² Hedel-Ostrowski argues that the statute does not apply to individual employees and asserts that the three-year statute of limitations in SDCL 15-2-14 applies.³ The trial court found that even if the three-year statute of limitations were applicable, Hedel-Ostrowski's claims were untimely, thus barring suit against Hepper. The trial court determined that the only way that Hedel-Ostrowski's claim against Hepper could be resurrected was by allowing the amended complaint to relate back to the date of the original complaint pursuant to SDCL 15-6-15(c). The trial court, however, determined that the requirements of SDCL 15-6-15(c) were not met because there was no showing of mistake or question of identity of the proper party to sue. The trial court did not err in this analysis.

[¶ 6.] The chronology of events starts with the injury on September 18, 1999.

The date the statute of limitations expired against the City under SDCL 9-24-5 was September 18, 2001. Almost a year after the statute had run on September 12, 2002, Hedel-Ostrowski filed suit against the City. The three year statute of limitations under SDCL 15-2-14(3) expired on September 18, 2002. On November 7, 2002, Hedel-Ostrowski moved to amend the complaint to add Hepper as a party and to add the nuisance claim against the City. Hepper was not served with the Summons and Amended Complaint until February 21, 2003.

[¶ 7.] Hedel-Ostrowski asserts that her claims against Hepper should be allowed under SDCL 15-6-15(a) and (c)⁴ because they "relate back" to the date of her original pleading dated September 12, 2002, thereby tolling the statute of limitations. In determining if an amendment to a complaint relates back under Rule 15(c), we rely on a three-prong analysis. We recently outlined the requirements:

(1) the claim asserted in the amended complaint `arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading';

(2) the new defendant `has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits'; and

(3) the new defendant `knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.'

Sjoland v. Carter, 2003 SD 66, ¶12, 664 NW2d 48, 52 (citing to SDCL 15-6-15(c)). The parties agree that requirements one and two were met. They disagree on whether the third requirement was met. The trial court found that because Hedel-Ostrowski did not omit Hepper as a party because of "a mistake concerning [his] identity [as a] proper party," the requirements of SDCL 15-6-15(c) were not satisfied.

[¶ 8.] Generally an amended pleading naming a new party in a lawsuit does not relate back under Rule 15(c). In Moore v. Michelin Tire Co. Inc., 1999 SD 152, 603 NW2d 513, this Court affirmed the trial court's finding that "SDCL 15-6-15(c) does not allow for adding new parties to a pending action after the statute of limitation has expired." Id. at 22. In Moore, the plaintiffs had named some defendants but used John Doe pleadings for another. It was not until after the statute of limitations had run that they attempted to substitute the name of the party for John Doe. We said, "`for all practical purposes all defendants specifically unnamed are not yet parties to a suit and, if added later, are considered new parties to the litigation. Therefore, amendments to a complaint that add new parties do not relate back.'" Id. at 27 (quoting Thomas v. Process Equipment Corp., 154 MichApp 78, 397 NW2d 224, 226 (1986)). In the present case, Hedel-Ostrowski did not use John Doe pleadings.

[¶ 9.] Relation back was also denied in McCloud v. Andersen, 485 NW2d 799 (SD 1992). In that case, the plaintiff failed to name the defendant's insurer before the statute of limitations expired. The plaintiff knew the insurer's identity prior to the running of the statute of limitations. This Court determined that the plaintiff had "simply ignored or failed to respond in a reasonable fashion to notice that State Farm was a potential defendant." Id. at 802. We held that "Rule 15(c) should not be applied to assist [plaintiff's] lack of diligence." Id.

[¶ 10.] Hedel-Ostrowski argues that because Hepper admitted he had notice of the suit before the statute of limitations ran, Rule 15 applies.⁵ Whether Hepper had notice is, however, only part of the requirement. The party must have known that "but for a mistake concerning [his] identity, the action would have been brought against him." Hedel-Ostrowski attempts to use the relate back rule to add a defendant who she simply failed to identify as a potential defendant before the running of the statute of limitations. In McCloud we said, "Rule 15(c) was never intended to assist a plaintiff who ignores or fails to respond in a reasonable fashion to notice of a potential party, nor was it intended to permit a plaintiff to engage in piecemeal litigation." Id. 801 (quoting Kilkenny v. Arco Marine, Inc., 800 F2d 853, 857 (9thCir 1986)).

[¶ 11.] Hedel-Ostrowski claims that adding Hepper as a party should be allowed because he was omitted as a party because of a mistake. She relies on a West Virginia case which allowed relation back because of a mistake of law. Brooks v. Isinghood, 584 SE2d 531 (WVa 2003). In Brooks, the plaintiff's complaint alleged "that the City, through certain employees acting within the scope of their employment with the City, acted recklessly and in willful disregard of the safety of Mr. Brooks." Id. at 536. The plaintiff, however, had omitted naming individual employees as defendants. Plaintiff's attorney claimed a mistake of law based on the language of WVaCode, 29-12A-1...