Moore v. Michelin Tire Co., Inc., No. 20710

CourtSupreme Court of South Dakota
Writing for the CourtGILBERTSON, Justice.
Citation603 N.W.2d 513,1999 SD 152
PartiesScott MOORE and Beth Moore, Plaintiffs and Appellants, v. MICHELIN TIRE COMPANY, INC., Defendant and Appellant, and Iverson Max Motor Company, Inc., Defendant and Appellant, and Ford Motor Company, General Motors Corporation, Chrysler Company, Hayes Wheel International fka Kelsey Hayes, and The Doe Company, Defendants and Appellees.
Docket Number No. 20898, No. 20913., No. 20710
Decision Date15 December 1999

603 N.W.2d 513
1999 SD 152

Scott MOORE and Beth Moore, Plaintiffs and Appellants,
v.
MICHELIN TIRE COMPANY, INC., Defendant and Appellant, and
Iverson Max Motor Company, Inc., Defendant and Appellant, and
Ford Motor Company, General Motors Corporation, Chrysler Company, Hayes Wheel International fka Kelsey Hayes, and The Doe Company, Defendants and Appellees

Nos. 20710, .

Supreme Court of South Dakota.

Argued October 18, 1999.

Decided December 15, 1999.


603 N.W.2d 516
David J. Larson of Larson, Sundall, Larson, Schaub and Fox, Chamberlain, South Dakota, Attorneys for plaintiffs and appellants

David A. Gerdes of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for defendant and appellant Michelin Tire.

Sandra K. Hoglund and Edwin E. Evans of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant Iverson Max.

Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota and C. Paul Carver of Bowman & Brooke, Minneapolis, Minnesota, Attorneys for defendant and appellee Ford.

Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp and Bushnell, Rapid City, South Dakota and Mary E. Bolkcom of Hanson Marek Bolkcom & Greene, Minneapolis, Minnesota, Attorneys for defendant and appellee General Motors.

Rory King of Siegel, Barnett and Schultz, Aberdeen, South Dakota and Terrence C. Thom and William P. Croke of Quale, Feldbruegge, Calvelli, Thom & Croke, Milwaukee, Wisconsin, Attorney for defendant and appellee Chrysler.

Robert C. Riter of Riter, Mayer, Hofer, Wattier & Brown, Pierre, South Dakota and M. Daniel Vogel, Jr. of Vogel, Weir, Bye, Hunke & McCormick, Fargo, North Dakota, Attorneys for defendant and appellee Hayes Wheel.

GILBERTSON, Justice.

[¶ 1.] Plaintiffs Scott and Beth Moore (Moore) appeal the dismissal of their products liability action against Defendants Ford Motor Company, General Motors Corporation, Chrysler Company, and Hayes Wheel International (Auto Manufacturers), granted on the basis of the running of the statute of limitation. Moore also appeals the trial court's denial of his motion to return this action to the original trial court judge. Defendants Michelin Tire Company, Inc. (Michelin) and Iverson Max Motor Company (Iverson Max) appeal the trial court's decision to grant reconsideration and reversal of its previous bench ruling dismissing this action for lack of prosecution. The matters were consolidated in this appeal. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On April 30, 1992, in Kennebec, South Dakota, a tire unexpectedly exploded as Scott Moore was attempting to rotate it from one wheel to another on a recently purchased van. The explosion was caused by what is termed a tire/rim "mismatch." Unknowingly, Moore had attempted to mount a 16-inch tire on a 16.5 inch rim. As a result of the explosion, Moore's arms were broken and his nose was torn from his face. Doctors were able to refashion a nose for Moore with skin taken from his forehead. Moore underwent other extensive surgeries as a result of the accident, and incurred medical expenses of approximately $30,000.

[¶ 3.] In April of 1995, Moore filed a products liability action in the Sixth Judicial Circuit, Lyman County, South Dakota. Moore claims at the time he filed this action, the only defendants known to him were the tire manufacturer, Michelin and the automobile dealer who sold the van, Iverson Max.

[¶ 4.] The original complaint was filed by attorney David Larson. In May 1995, attorney Steve Fox, Larson's partner, who was to be local counsel responsible for Moore's case, asked attorney Thomas Dasse for assistance. Dasse practices law

603 N.W.2d 517
in Scottsdale, Arizona, and devotes a major portion of his law practice to representing plaintiffs in tire/wheel cases similar to Moore's. On June 23, 1995, Dasse contacted Eric Holtzman, the national counsel for Michelin, and advised him of his involvement in the Moore's case. Dasse and Holtzman had previously been opposing counsel in similar lawsuits

[¶ 5.] It is difficult to identify the parties responsible for the manufacture and distribution of an automobile wheel. Unlike tires, where the name of the manufacturer is visibly stamped on the sidewall, the only marking visible on the wheel is a small code number stamped into the metal. It is for this reason at the time Moore filed his complaint; he did not know who had made the wheel or the type of vehicle on which it was included as original equipment. The wheel was not part of the original equipment of the van, but had been included in the sale to Moore as a bonus. Moore included in his complaint as a defendant a "Doe company" (a fictitious name) to represent the wheel manufacturer not yet identified.

[¶ 6.] Because of the difficulty identifying the automaker that put the rim into circulation, Dasse felt discovery should be put on an indefinite hold until that identity could be learned and joined in the case. According to Dasse's affidavit, he spoke with Holtzman on September 29 and October 5, 1995, and explained Moore intended to amend his complaint. According to Dasse, Holtzman agreed Moore and Michelin would cease proceeding on the case pending the amendment of the pleadings to add the rim and vehicle manufacturers as defendants. Following their first conversation, Holtzman wrote attorney David Gerdes1 on September 29, 1995 and outlined Dasse's request for an indefinite extension. Gerdes responded by letter dated October 3, 1995, writing he favored an extension to a date certain, but if Holtzman believed an indefinite extension should be made, he "would have no strong disagreement." Due to their acquaintance and prior dealings, there was no confirming correspondence between Dasse and Holtzman. However, Holtzman did write a letter to Gerdes on October 10, 1995, which stated a sixty-day extension had been given by Michelin. Dasse, on the other hand, informed Fox he had obtained an indefinite extension in the Moore's case. Moore was subsequently informed of this alleged extension. The parties dispute whether Dasse or Moore's local counsel were ever aware of the Holtzman/Gerdes letter.

[¶ 7.] Two years after filing this lawsuit, Moore made a motion to the trial court to amend the pleadings to add parties, allegedly to substitute the name of the correct defendant for the Doe defendants and add the newly identified defendant, Hayes Wheel. On April 10, 1996, the original trial judge gave Moore permission to amend the pleadings by adding Auto Manufacturers as additional defendants.

[¶ 8.] Michelin alleges there was no record activity between Moore and it for fourteen months, between April 1996 and June 1997. Michelin alleges it made requests in August 1995, January 1996 and April 1996 to examine the tire and rim in this case, but Moore did not respond to these requests. Conversely, Moore responds the tire and wheel had been made available to Ford in February 1996, and was then given to GM on April 4, 1996. The tire remained with GM for more than sixteen months until August 5, 1997.

[¶ 9.] On June 6, 1997, Iverson Max and Michelin informally requested the original trial judge, Judge Gors, to remove himself from this case. He did so and on June 17, 1997, another judge, Judge Trandahl, was appointed.

[¶ 10.] Auto Manufacturers subsequently moved to dismiss arguing they had not been sued as defendants prior to the expiration of the time period allowed by the

603 N.W.2d 518
statute of limitation. The trial court granted the motion of these defendants holding that Moore's previous attempt to include them as "Doe Companies" was not sufficient

[¶ 11.] Defendants Iverson Max and Michelin moved to dismiss the action against them, claiming Moore had failed to timely prosecute this action as required by SDCL 15-6-41(b) and 15-11-11. The trial court orally held it would grant the dismissal but this ruling was never reduced to a signed written order.

[¶ 12.] Moore subsequently moved the trial court to reconsider its ruling granting the motion to dismiss. Moore responded he was under the impression Dasse obtained an indefinite continuation from Michelin and Iverson Max while Moore sought to identify the manufacturer of the wheel.

[¶ 13.] Moore further claimed excusable neglect based upon a series of personal problems Moore's lawyer, Steve Fox, was experiencing. These problems included the loss of Fox's wife to cancer, and the nearly simultaneous loss of his father, also due to cancer.2 Fox's partner, David Larson, was also experiencing personal problems during this litigation.3 Moore testified he was completely unaware of his legal counsels' personal problems. On January 9, 1999, the trial court reversed its oral ruling and denied the motion to dismiss by these defendants.

[¶ 14.] Moore appeals raising the following issues for our consideration:

1. Whether compliance with the statute of limitation can be achieved by utilizing SDCL 15-6-9(h).

2. Whether Moore waived his right to disqualify Judge Trandahl.

[¶ 15.] Defendants Iverson Max and Michelin appeal raising the following issues:

1. Whether the trial court abused its discretion when it granted Moore's motion to reconsider and reversed its previous oral ruling to dismiss for lack of prosecution in favor of Iverson Max and Michelin.

2. Whether Moore proved "excusable neglect" under SDCL 15-6-60(b).

3. Whether the trial court's oral ruling dismissing Moore's case for lack of prosecution pursuant to SDCL 15-11-11 and 15-6-41 was supported by the evidence.

STANDARD OF REVIEW

[¶ 16.] This appeal requires us to engage in statutory construction. "Matters of statutory construction are questions of law and thus, the decision below is fully reviewable without deference to the decision of the trial court." Weger v. Pennington County, 534 N.W.2d 854, 856 (S.D. 1995) (citing In re Estate of Steed, 521 N.W.2d 675, 680 (S.D.1994) (other citations omitted)); Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597...

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29 practice notes
  • People ex rel. L.S., No. 23560.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    ...an order becomes effective when reduced to writing, signed by the court or Page 100 judge, attested by the clerk and filed in his office." 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (quoting Mushitz v. First Bank of South Dakota, 457 N.W.2d 849, 857 (S.D. 1990)). "Orders are required to be in w......
  • Eischen v. Wayne Tp., No. 24438.
    • United States
    • Supreme Court of South Dakota
    • January 2, 2008
    ...may be considered as a factor in determining whether to grant the motion. Moore v. Michelin Tire Co., Inc., 1999 SD ¶ 52, If 52, 603 N.W.2d 513, 526 (citing Duncan, 382 N.W.2d at [¶ 27.] The circuit court's decision to dismiss Eischen's claim was not based on prejudice to the Township. Rath......
  • Murray v. MANSHEIM, No. 25097.
    • United States
    • Supreme Court of South Dakota
    • February 24, 2010
    ...are in place to prevent the prosecution of stale claims and to punish litigants who sleep on their rights," Moore v. Michelin Tire Co., 1999 SD 152, ¶ 25, 603 N.W.2d 513, 521 (citation omitted), and "a cause of action raised as a counterclaim may be potentially as stale as a cause of action......
  • Vold v. Broin & Associates, Inc., No. 23464.
    • United States
    • Supreme Court of South Dakota
    • June 22, 2005
    ...court has the inherent power to reconsider and modify an order any time prior to entry of judgment." Moore v. Michelin Tire Co., Inc., 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (citations omitted). Therefore, it is no surprise that arbitrators also have this authority to reconsider their earli......
  • Request a trial to view additional results
29 cases
  • People ex rel. L.S., No. 23560.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    ...an order becomes effective when reduced to writing, signed by the court or Page 100 judge, attested by the clerk and filed in his office." 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (quoting Mushitz v. First Bank of South Dakota, 457 N.W.2d 849, 857 (S.D. 1990)). "Orders are required to be in w......
  • Eischen v. Wayne Tp., No. 24438.
    • United States
    • Supreme Court of South Dakota
    • January 2, 2008
    ...may be considered as a factor in determining whether to grant the motion. Moore v. Michelin Tire Co., Inc., 1999 SD ¶ 52, If 52, 603 N.W.2d 513, 526 (citing Duncan, 382 N.W.2d at [¶ 27.] The circuit court's decision to dismiss Eischen's claim was not based on prejudice to the Township. Rath......
  • Murray v. MANSHEIM, No. 25097.
    • United States
    • Supreme Court of South Dakota
    • February 24, 2010
    ...are in place to prevent the prosecution of stale claims and to punish litigants who sleep on their rights," Moore v. Michelin Tire Co., 1999 SD 152, ¶ 25, 603 N.W.2d 513, 521 (citation omitted), and "a cause of action raised as a counterclaim may be potentially as stale as a cause of action......
  • Vold v. Broin & Associates, Inc., No. 23464.
    • United States
    • Supreme Court of South Dakota
    • June 22, 2005
    ...court has the inherent power to reconsider and modify an order any time prior to entry of judgment." Moore v. Michelin Tire Co., Inc., 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (citations omitted). Therefore, it is no surprise that arbitrators also have this authority to reconsider their earli......
  • Request a trial to view additional results

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