Ripple v. Wold

• Decision Date: 21 October 1997
• Docket Number: No. 19987,19987
• Parties: Lester K. RIPPLE and Maurine H. Ripple, Plaintiffs and Appellants, v. ROGER WOLD and Nancy Wold, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 439

572 N.W.2d 439

1997 SD 135

Lester K. RIPPLE and Maurine H. Ripple, Plaintiffs and Appellants, v. ROGER WOLD and Nancy Wold, Defendants and Appellees.

No. 19987.

Supreme Court of South Dakota.

Considered on Briefs Oct. 21, 1997.

Decided Dec. 17, 1997.

Rehearing Granted Jan. 13, 1998.

Reed C. Richards of Richards & Richards, Deadwood, and John J. Delaney, Sr. of Estes, Porter & Delaney, Rapid City, for plaintiffs and appellants.

Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendants and appellees.

SABERS, Justice.

¶1 Trial court granted defendants' motion to dismiss on the basis that the motion to substitute parties for deceased plaintiffs was untimely.

FACTS

¶2 In November 1992, Lester and Maurine Ripple (Ripples) entered into a contract for deed and a personal care agreement with Roger and Nancy Wold (Wolds). Ripples agreed to sell approximately eighty-seven acres of land to Wolds for $60,000 and Wolds agreed to personally care for Ripples. For each month they provided personal services, Wolds were to receive a $250 credit against their monthly payment on the contract for deed. When a dispute arose under the personal care agreement, Ripples sued Wolds, claiming breach of both agreements. Ripples sought foreclosure of the contract for deed and injunctive relief to prohibit Wolds from living on the property.

¶3 In August of 1994, the trial court granted Wolds' motion for summary judgment on Ripples' foreclosure action, ruling that Wolds had not defaulted on the contract for deed. Ripples successfully moved to amend their complaint to seek rescission on the contract for deed. Wolds then moved to dismiss the rescission claim, arguing that by first seeking foreclosure, Ripples affirmed the contract for deed and were then barred by the "election of remedies" doctrine from disaffirming the contract through rescission. The trial court denied Wolds' motion to dismiss the amended complaint, and this court granted Wolds' petition to appeal from that intermediate order. We affirmed the denial of Wolds' motion to dismiss. See Ripple v. Wold, 1996 SD 68, 549 N.W.2d 673 (Ripple I ).

¶4 Lester and Maurine Ripple both died before Ripple I was decided. See id. at n. 1: "At the time this appeal began Lester and Maurine Ripple were 92 and 85 years old, respectively. Maurine died on October 19, 1995 and Lester died on March 5, 1996." Ripple I was decided June 5, 1996.

¶5 Approximately one week before Ripple I was decided, Wolds informed this court of the deaths of Ripples by a document dated May 29, 1996. The Clerk's office acknowledged receipt by return letter dated May 30, 1996. On September 3, 1996, Wolds moved to dismiss for failure to substitute parties within the ninety days of SDCL 15-6-25(a)(1), which provides the procedure for substitution of parties when a party dies:

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 ninety 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.

Ripples ¹ made a motion to substitute parties on September 5, 1996; assuming the ninety-day rule was properly invoked, the last day the motion could have been timely filed was September 2, 1996. ² Ripples' motion to substitute parties was denied and Wolds' motion to dismiss granted.

¶6 Ripples appeal, claiming that since SDCL 15-6-25(a)(1) prescribes the procedure for substitution of parties at the circuit court level, the ninety days did not begin to run until the settled record was returned to the Lawrence County Clerk of Courts. They claim that while the case was on appeal to this court, "the record was set and was not modifiable" and therefore, Wolds' "efforts to suggest the deaths on the record were futile." We disagree but reverse and remand because the ninety-day rule was not properly invoked.

STANDARD OF REVIEW

¶7 This appeal requires us to construe SDCL 15-6-25(a)(1), which provides for service of notice and substitution of parties upon the death of a party. The construction of that statute and its application to these facts present questions of law, which we review de novo. Kern v. City of Sioux Falls, 1997 SD 19, p 4, 560 N.W.2d 236, 237 (citing Johnson v. Rapid City Softball Ass'n, 514 N.W.2d 693, 695 (S.D.1994)).

¶8.1. WHETHER THE SUGGESTION OF DEATH UPON THE RECORD OR SUBSTITUTION OF PARTIES CAN BE EFFECTED IN THE SOUTH DAKOTA SUPREME COURT.

¶9 Ripples argue that suggestion of death "upon the record" cannot be effected when a case is pending before this court. They claim that SDCL 15-6-25(a)(1) has no application to Supreme Court procedure, and that the settled record can only be modified on appeal in accordance with SDCL 15-26A-56. ³ Therefore, they argue, the ninety-day provision of SDCL 15-6-25(a)(1) was not triggered by Wolds' suggestion of death and the motion to substitute parties was timely made.

¶10 SDCL 15-6-25(a)(1) is part of SDCL ch. 15-6 "Rules of Procedure in Circuit Courts." However, this court employs those rules unless a specific statute or rule directs otherwise. See SDCL 15-24-1:

Except as otherwise indicated by statute or rule, the statutes and rules of practice and procedure in the circuit courts of this state shall apply to practice and procedure in the Supreme Court.

Therefore, the argument that a suggestion of death upon the record is not effective in a pending appeal is without merit. Ripples' argument that substitution of parties cannot be accomplished before this court fails for the same reason. Since this court has not adopted a separate rule to govern appellate procedure for substitution of parties, ⁴ we employ circuit court procedural rules pursuant to SDCL 15-24-1. ⁵

¶11. 2. WHETHER THE NINETY-DAY LIMITATION PERIOD WAS INVOKED BY WOLDS' "SUGGESTION OF DEATH UPON THE RECORD" IN THE ABSENCE OF PERSONAL SERVICE UPON RIPPLES' REPRESENTATIVES.

¶12 According to SDCL 15-6-25(a)(1), ⁶ both the suggestion of death and the motion to substitute parties must be personally served upon "persons not parties"--that term has been construed to mean "specifically the successors or representatives of the deceased party's estate." Fehrenbacher v. Quackenbush, 759 F.Supp. 1516, 1518 (D.Kan.1991) (citing Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir.1990) (per curiam)). The Grandbouche court noted:

While service of a suggestion of death on counsel will satisfy the requirement of Rule 25(a)(1) for service of parties to the litigation, the service required by Rule 25(a)(1) on nonparties, specifically the successors or representatives of the deceased party's estate, must be service pursuant to FedRCivP 4. ⁷ See Fariss v. Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir.1985) (to satisfy Rule 25(a)(1), motion for substitution or suggestion of death must be personally served on nonparty representative of deceased, rather than deceased's attorney).... In the instant case, because the personal representative of decedent's estate did not receive service of any purported suggestion of death, the ninety-day limitations period did not begin to run. See [United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1034-35 (10th Cir.1974) ].

913 F.2d at 837 (emphasis added); accord Barlow v. Ground, 39 F.3d 231 (9th Cir.1994). See also 7C Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1956, at 551 (1986) ("Thus the procedures of [FedRCivP] Rule 4 must be followed in serving the motion [for substitution] on the representative or successor of a deceased party.") (emphasis added).

¶13 Here, no personal service was made upon Ripples' successors or representatives. According to the certificate of service appended to the suggestion of death, the only persons served were the attorneys who had represented the decedents. Wolds state in their brief that "A copy of that Statement of Fact of Deaths was mailed to both attorney Reed C. Richards and attorney John J. Delaney, Sr. by first class mail, postage prepaid, on May 29, 1996. The original of the Statement of Fact of Deaths was mailed on the same day to the Clerk of the Supreme Court for filing." Even if the successor or representative had actual knowledge of Ripples' deaths, the ninety-day rule is not invoked absent formal suggestion of death upon the record, and "formal suggestion" includes personal service on those non-parties. Grandbouche, 913 F.2d at 836-37.

¶14 The rationale for requiring personal service on the representative or successor is explained as follows:

Personal service of the suggestion of death on the representative achieves a salutary litigation function. It alerts the nonparty to the consequences of death for a pending suit, signaling the need for action to preserve the claim if so desired.

In addition to insuring that the decedent's representative has notice of the litigation, a supplemental reason for rejecting service on decedent's attorney alone is based on the law of agency. Because the attorney's power to act ceases with the client's death, counsel has no power to continue or terminate an action on behalf of a dead client.

6 Moore's Federal Practice, § 25.10[e], at 25-21 (Matthew Bender 3d ed.) (citations and internal quotation omitted); accord Federal Practice & Procedure, supra, § 1955, at 545 & n. 12:

[The attorney for the deceased] is not himself a party to the action and, since his authority to represent the deceased terminated on the death, he is not a "representative of the deceased party" of the sort contemplated in...