Leighton v. Bennett

• Decision Date: 03 April 2019
• Docket Number: 28626
• Citation: 926 N.W.2d 465
• Parties: Julie A. LEIGHTON, Plaintiff and Appellant, v. Herbert C. BENNETT, Defendant and Appellee.
• Court: South Dakota Supreme Court

926 N.W.2d 465

Julie A. LEIGHTON, Plaintiff and Appellant,

v.Herbert C. BENNETT, Defendant and Appellee.

28626

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON JANUARY 7, 2019

OPINION FILED April 3, 2019

ELLIE M. VANDENBERG, Volga, South Dakota, Attorney for plaintiff and appellant.

WILLIAM C. GARRY, MELISSA R. JELEN of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

SALTER, Justice

[¶1.] Julie Leighton commenced a personal injury action against Herbert Bennett for injuries she claims to have sustained in a car accident. Bennett died during the pendency of the action, and his defense counsel served notice of his death on Leighton. After Leighton failed to move to substitute Bennett’s estate or personal representative, Bennett’s counsel moved to dismiss the case. Leighton then moved for substitution, arguing the period for seeking substitution had not yet commenced because Bennett’s counsel had not served Bennett’s estate or personal representative. The circuit court determined Leighton’s motion was untimely under the rules of civil procedure and granted Bennett’s motion to dismiss. Leighton appeals, arguing the circuit court erred when it interpreted the applicable rule of civil procedure or, alternatively, the circuit court abused its discretion when it denied her motion for enlargement of the time to seek substitution. We affirm.

Background

[¶2.] Leighton and Bennett were involved in a motor vehicle accident on May 23, 2013, in Brookings. Leighton alleged that Bennett rear-ended her vehicle while she was stopped at a stoplight, and she commenced this action against Bennett on May 18, 2016. Bennett’s counsel filed an answer to Leighton’s complaint on June 2, 2016. Bennett died on July 24, 2017, and his defense counsel served a notice of death (also known as a "suggestion of death") on Leighton’s counsel on August 24, 2017.

[¶3.] On December 11, 2017, Bennett’s defense counsel moved to dismiss Leighton’s action, citing SDCL 15-6-25(a)(1), which requires dismissal "[u]nless substitution is made not later than ninety days after death is suggested[.]" Leighton then moved to substitute Bennett’s estate on December 18, 2017—116 days after being served the notice of death—serving Bennett’s defense counsel by mail and obtaining an admission of personal service from counsel for Bennett’s estate.

[¶4.] Leighton argued her motion to substitute was timely under SDCL 15-6-25(a)(1) because the 90-day deadline for seeking substitution did not begin to run until Bennett’s defense counsel served her and also served Bennett’s estate or personal representative. In her view, the August 24, 2017 notice of death served only upon her was insufficient to trigger the 90-day deadline for substitution. Alternatively, Leighton requested an enlargement of the 90-day period, claiming excusable neglect because counsel’s noncompliance with SDCL 15-6-25(a)(1) deprived her of any information about Bennett’s estate.

[¶5.] The circuit court conducted a hearing on the motions on February 1, 2018, and concluded that Leighton’s motion to substitute was untimely. The court also denied Leighton’s motion for enlargement of the 90-day period and dismissed the action. In its subsequent written findings of fact and conclusions of law, the court reasoned that Bennett’s counsel "was not required to serve the Notice of Death of Party upon his client’s own estate in order to trigger the 90-day period prescribed in SDCL 15-6-25(a)(1)." The court also concluded that Leighton’s counsel had not demonstrated excusable neglect for filing an untimely motion to substitute Bennett’s estate.

[¶6.] We consolidate Leighton’s issues on appeal and restate them as follows:

1. Whether the circuit court erred when it concluded that SDCL 15-6-25(a)(1) ’s 90-day period for substitution of a party began to run when Bennett’s defense counsel served a notice of death on Leighton without serving Bennett’s estate or personal representative.

2. Whether the circuit court abused its discretion when it denied Leighton’s motion for an enlargement of time and dismissed her action as untimely.

Analysis

Timeliness of Leighton’s Motion to Substitute

[¶7.] We review legal questions arising under the rules of civil procedure de novo, utilizing our established rules for statutory construction. Moore v. Michelin Tire Co., Inc. , 1999 S.D. 152, ¶ 16, 603 N.W.2d 513, 519–20. In this regard, we have expressed the essential principles of statutory construction in the following terms:

[t]he purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

Discover Bank v. Stanley , 2008 S.D. 111, ¶ 15, 757 N.W.2d 756, 761 (quoting Martinmaas v. Engelmann , 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 ).

[¶8.] Our rules of civil procedure provide an expedient means to seek the substitution of a proper party following the death of a party during the pendency of an action.

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in § 15-6-5 and upon persons not parties in the manner provided in § 15-6-4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

SDCL 15-6-25(a)(1).

[¶9.] The provisions of SDCL 15-6-25(a)(1) feature notable flexibility. The rule allows parties or interested non-parties the ability to provide notice of the death and seek substitution. The text of the rule does not require any surviving party or non-party to provide notice of a deceased party’s death. However, if a notice of death is served, SDCL 15-6-25(a)(1) prescribes the procedure for would-be movants to promptly effect substitution, with the stern consequence of dismissal for noncompliance.

[¶10.] We have previously interpreted SDCL 15-6-25(a)(1), but our earlier decisions do not address the specific question presented here. For instance, in Ripple v. Wold ( Ripple II ), we held that non-parties, such as a deceased party’s successors or representatives, must be personally served with a suggestion of death—as opposed to being served by mail through counsel—in order to trigger the 90-day deadline for substitution. 1997 S.D. 135, ¶ 17, 572 N.W.2d 439, 443-44. However, this conclusion addressed only the manner of service and was based upon a plain reading of SDCL 15-6-25(a)(1), which specifically requires personal service upon non-parties. Significantly, in Ripple II we were not confronted with the question of whether the notice of death must be served upon a party or non-party who does not seek substitution.

[¶11.] Nor were we faced with this issue in Swenson v. Brown , 2009 S.D. 64, ¶ 10, 771 N.W.2d 313, 316, where we held that an attorney for a deceased party had the authority to file and serve notice of a client party’s death. In doing so, we noted the existence of divergent authority outside of our state and found persuasive the analysis of the Utah Supreme Court in Stoddard v. Smith , 27 P.3d 546, 546–47 (Utah 2001). Although we observed in our factual summation that the parties and the successor estate for the deceased party had both been served in Swenson , we did not endorse this as a requirement of SDCL 15-6-25(a)(1) or a necessary predicate for commencing the 90-day deadline for substitution.

[¶12.] Here, as a matter of first impression, we conclude that the circuit court correctly determined that the 90-day period to seek substitution commenced when Bennett’s counsel served the notice of death upon Leighton. The text of SDCL 15-6-25(a) contemplates a motion for substitution within 90 days "after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion[.]" Here, Bennett’s counsel complied with the service requirements by mailing the notice of death to Leighton’s counsel as permitted by the rule and by SDCL 15-6-4. The parties agree that Leighton was served on August 24, 2017. However, she failed to seek substitution within the ensuing 90 days, ultimately moving to substitute Bennett’s estate only after receiving Bennett’s motion to dismiss.

[¶13.] Leighton interprets the final sentence of SDCL 15-6-25(a)(1) differently. In her view, the text that prescribes "service ... as provided herein for the service of the motion" means that the notice of death, like the motion for substitution, must be served upon surviving parties and interested non-parties, such as an estate or personal representative. However, we believe that Leighton’s comparison between service of the motion for substitution and service of the notice of death is not apt. In our view, this text merely refers to the method of service for the notice of death upon parties and non-parties, not a requirement to serve both. The Utah Supreme Court reached the same conclusion in Stoddard when confronted with a similar issue.

The language in rule 25(a)(1) providing that the suggestion of death should be served "as provided herein for the service of the motion" also speaks to how service of the suggestion of death

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