Lekanidis v. Bendetti, 21246.

• Decision Date: 05 July 2000
• Docket Number: No. 21246.,21246.
• Citation: 613 N.W.2d 542,2000 SD 86
• Parties: Terry G. LEKANIDIS, Plaintiff and Appellant, v. Anthony M. BENDETTI, Defendant and Appellee.
• Court: South Dakota Supreme Court

613 N.W.2d 542

2000 SD 86

Terry G. LEKANIDIS, Plaintiff and Appellant, v. Anthony M. BENDETTI, Defendant and Appellee.

No. 21246.

Supreme Court of South Dakota.

Considered on Briefs May 30, 2000.

Decided July 5, 2000.

Bruce A. Hubbard of Hansen, Hubbard & Swanson, Sturgis, South Dakota, Attorneys for plaintiff and appellant.

Benjamin J. Eicher of Wallahan & Eicher Rapid City, South Dakota, Attorneys for defendant and appellee.

AMUNDSON, Justice.

[¶ 1.] Terry Lekanidis (Lekanidis) appeals the dismissal with prejudice of his personal injury action. We affirm.

FACTS

[¶ 2.] On August 7, 1995, while attending the Sturgis Motorcycle Rally in Sturgis, South Dakota, Anthony Bendetti (Bendetti), a resident of New York, drove his motorcycle out of a parking lot at a high rate of speed and collided with another motorcycle driven by Lekanidis, a resident of West Virginia. Sturgis Police Officer Hardman investigated the incident and prepared an accident report.

[¶ 3.] The accident report listed Bendetti's home address as "RD1 Box 53E. Nassu N.Y." The report further listed the estimated damage to Bendetti's motorcycle as $5,000 and the damage to Lekanidis' motorcycle as approximately $15,000. Hardman also stated in his report the name of each parties' insurer and the corresponding insurance policy number. Neither party required medical attention at the time of the accident and no traffic or criminal citations were written.

[¶ 4.] Approximately two years later, Lekanidis began experiencing neck and back problems which he alleged were the result of his accident with Bendetti. As a result, Lekanidis sought chiropractic treatment in West Virginia for his injuries.

[¶ 5.] On October 7, 1997, Lekanidis retained South Dakota counsel who prepared a summons and complaint.¹ Since Bendetti was not a resident of South Dakota, counsel completed service of process pursuant to SDCL 15-7-6 and SDCL 15-7-7, South Dakota's non-resident motorist statutes, by serving Secretary of State Joyce Hazeltine (Hazeltine) with a copy of the summons and complaint. Hazeltine signed an admission of service acknowledging her receipt of the documents and the required two dollar fee.

[¶ 6.] On October 8, 1997, counsel mailed a copy of the summons and complaint to Bendetti using the address:

Mr. Anthony M. Bendetti

RD1, Box 53E

Nassau, N.Y. 12123

In the belief that the accident report prepared by Officer Hardman misspelled the city name "Nassau" as "Nassu" and contained no zip code, counsel looked up the proper spelling of the city and found the zip code for "Nassau" to include on the mailing. On that same day, counsel executed an affidavit of compliance with SDCL 15-7-7, but did not include it in the mailing to Bendetti.

[¶ 7.] The letter to Bendetti containing the summons and complaint was ultimately returned to sender as "Attempted-Not Known."²

[¶ 8.] On April 8, 1998, the summons, complaint, admission of service, and affidavit of compliance were filed with the Meade County Clerk of Courts. The complaint claimed Bendetti was negligent in causing the personal injury of Lekanidis and sought damages in the amount of $50,000. On April 24, 1998, an affidavit of default was filed and a hearing on the default judgment was scheduled for July 31, 1998. On June 24, 1998, a notice of hearing on the default judgment was mailed to Bendetti at the same address. Once again, the letter was returned "Attempted Not-Known."

[¶ 9.] A default judgment hearing was held on July 31, 1998 and a default judgment in the amount of $310,447.64³ was entered on August 4, 1998. Notice of entry of default judgment was prepared and mailed to Bendetti on August 7, 1998, at the same address Lekanidis utilized on the prior mailings. As before, this was returned undelivered.

[¶ 10.] After the notice of entry of judgment was returned, counsel for Lekanidis had a "skip trace" done to find Bendetti's address.⁴ The trace determined Bendetti's address was "763 Central Nassau Road, East Nassau, New York 12062." This address was also known as "R.R.1 Box 53, East Nassau, New York 12062." On September 22, 1998, counsel prepared another notice of entry of judgment and mailed it to the address found in the trace. The letter was delivered successfully.

[¶ 11.] On October 1, 1998, Bendetti's counsel filed an answer and motion to vacate the default judgment and allow the answer and other relief. A hearing was held before Judge Moses on October 8, 1998. On November 23, 1998, Judge Moses found that service on Bendetti was insufficient and granted Bendetti's motion to vacate and allowed him to file an answer.

[¶ 12.] On December 14, 1998, Bendetti filed a motion to dismiss the action with prejudice, arguing that the statute of limitations had expired. On February 24, 1999, Bendetti filed a "Motion for Summary Judgment, Dismissal and/or Judgment on the Pleadings." Judge Eckrich held motion hearings on February 5 and March 22, 1999. On August 23, 1999, Judge Eckrich ruled that Lekanidis had not complied with SDCL 15-7-7 by failing to "mail the affidavit of compliance or proof of service" to Bendetti. Judge Eckrich also found that Lekanidis had failed to use Bendetti's "last known address" as required by the statute, but instead, utilized his "own last known address" by correcting the spelling of "Nassau" and including a zip code. Finally, because Lekanidis failed to commence this action within the applicable three year statute of limitations period, the action was dismissed with prejudice.

[¶ 13.] Lekanidis appeals, raising the following issue:

1. Whether the trial court erred in dismissing the action with prejudice.

Bendetti filed a notice of review, raising the following issues:

2. Whether the trial court should have only determined whether the complaint should have been dismissed.

3. Whether the trial court erred regarding whether the "last known address" for substituted service of process can be erroneous.

4. Whether the trial court erred in Finding as Fact that the return envelope could be fairly read as being either "refused" or "attempted-not known."

STANDARD OF REVIEW

[¶ 14.] In the present case, counsel for Bendetti filed motions to dismiss including as grounds for said motion: summary judgment, dismissal and judgment on the pleadings. The trial court, although failing to specify the grounds for the dismissal, could only have granted a motion to dismiss for insufficiency of process under SDCL 15-6-12(b).

[¶ 15.] In reviewing the granting of a motion to dismiss, our standard of review is well settled. We have often stated that "`[o]ur standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment—is the pleader entitled to judgment as a matter of law?'" White Eagle v. City of Fort Pierre, 2000 SD 34, ¶ 4, 606 N.W.2d 926, 928 (quoting Risse v. Meeks, 1998 SD 112, ¶ 10, 585 N.W.2d 875, 876 (quotation omitted)). Further, because the issue of the validity of service of process is a question of law, "we review the trial court's decision de novo, with no deference given to the trial court's legal conclusions." Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 598 (citing Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771)).

[¶ 16.] This case also requires us to apply our rules of statutory construction to South Dakota's nonresident motorist statute, which is set forth under SDCL 15-7-6. We have often stated,

[q]uestions of law such as statutory interpretation are reviewed by the Court de novo.... The 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 court thinks 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. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citation omitted)).

DECISION

[¶ 17.] 1. Whether the trial court erred in dismissing the action with prejudice.

[¶ 18.] Under South Dakota law,

[t]he use and operation by a resident of this state or his agent, or by a nonresident or his agent of a motor vehicle within the state of South Dakota, shall be deemed an irrevocable appointment... by such nonresident or his agent at any time, of the secretary of state of South Dakota to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him or his executor, administrator or personal representative growing out of such use and operation of a motor vehicle within this state, resulting in damages or loss to person or property, whether the damage or loss occurs on a highway or on abutting public or private property.... Such use or operation of a motor vehicle by such ... nonresident is a signification of his agreement that any such process in any action against him or his executor, administrator, or personal representative which is so served, shall be of the same legal force and validity as if served upon him personally or on his executor, administrator, or personal representative.

SDCL 15-7-6 (1984). Under this statute, if a nonresident causes any damage as a result of operating his or her motor vehicle in South Dakota, the damaged party can serve all legal documents on the South Dakota Secretary of State. See ...