Sanderson v. Walsh County, 20050303.

• Decision Date: 21 April 2006
• Docket Number: No. 20050303.,20050303.
• Citation: 2006 ND 83,712 N.W.2d 842
• Parties: Mitchell S. SANDERSON, Plaintiff and Appellant Jonah M. Sanderson and Madelyn R. Sanderson, Plaintiffs v. WALSH COUNTY, Bob Thomas, Sharon Martens, and M. Richard Geiger, Defendants and Appellees.
• Court: North Dakota Supreme Court

712 N.W.2d 842

2006 ND 83

Mitchell S. SANDERSON, Plaintiff and Appellant Jonah M. Sanderson and Madelyn R. Sanderson, Plaintiffs v. WALSH COUNTY, Bob Thomas, Sharon Martens, and M. Richard Geiger, Defendants and Appellees.

No. 20050303.

Supreme Court of North Dakota.

April 21, 2006.

COPYRIGHT MATERIAL OMITTED

Mitchell S. Sanderson, pro se, Grand Forks, ND, submitted on brief.

Ronald F. Fischer (on brief), Pearson Christensen Cahill & Clapp, P.L.L.P., Grand Forks, ND and Daniel Lee Gaustad (on brief), Pearson Christensen Cahill & Clapp, P.L.L.P., Grafton, ND, for defendants and appellees Walsh County, Bob Thomas and Sharon Martens.

Douglas Alan Bahr, Solicitor General (on brief), Office of Attorney General, Bismarck, N.D., for defendant and appellee M. Richard Geiger.

CROTHERS, Justice.

[¶ 1] Mitchell Sanderson appeals from district court decisions dismissing without prejudice his action against various state and county officials. We hold the district court's dismissal of Sanderson's action without prejudice is appealable, and the court did not err in concluding there was insufficient service of process. We affirm.

I

[¶ 2] In March 2005, Sanderson attempted to commence an action against Walsh County, Walsh County Deputy Sheriff Bob Thomas ("Thomas"), Walsh County States Attorney Sharon Martens ("Martens"), and District Court Judge M. Richard Geiger ("Judge Geiger"). From the record, Sanderson filed an affidavit of service by mail indicating his Summons and Complaint were mailed March 9, 2005, by certified mail with return receipt and restricted delivery to Walsh County Commissioner Allen Ruzicka, Bob Thomas, Sharon Martens and Richard Geiger. Sanderson filed another affidavit of service by mail indicating the Summons and Complaint were also mailed on May 31, 2005, to the Governor of North Dakota, by certified mail with return receipt and restricted delivery, and to OMB by first-class mail. Other than the affidavits, however, the record does not contain any return receipts indicating delivery to these individuals actually occurred. Sanderson asserted numerous causes of action against the defendants including civil rights and tort claims arising out of Sanderson's divorce action and his March 2003 arrest for felonious restraint. The felonious restraint charge was later dismissed. Sanderson's complaint in this lawsuit seeks damages for actions by Thomas and Martens while employed by Walsh County and actions by Judge Geiger while employed by the State of North Dakota.

[¶ 3] Walsh County, Thomas, and Martens answered Sanderson's complaint and moved for summary judgment, seeking dismissal for lack of proper service of process. Judge Geiger also moved to dismiss, asserting the district court lacked personal jurisdiction over him due to insufficient service of process. In August 2005, the district court dismissed Sanderson's complaint without prejudice against all the defendants concluding there was insufficient service of process.

II

[¶ 4] Before addressing the merits of Sanderson's appeal, we must first consider whether this Court has jurisdiction to hear his appeal. Sanderson's Notice of Appeal purports to appeal from the August 1, 2005, Order of Dismissal and Order Granting Motion for Summary Judgment. With regard to the Order of Dismissal for Judge Geiger, a subsequent judgment was entered on August 22, 2005. No judgment was entered upon the Order Granting Summary Judgment for Walsh County, Thomas, and Martens. Because there was a subsequent consistent judgment entered upon the Order of Dismissal against Judge Geiger, and the other order was obviously intended to be final, this appeal is properly before us. See Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 8 n. 1, 606 N.W.2d 908 (treating order granting summary judgment as appealable final order where order was obviously intended to be final); Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 746 (N.D.1990) (treating appeal from order as properly before the Court where subsequent consistent judgment was entered).

[¶ 5] The right to appeal in this State is governed solely by statute. Mann v. N.D. Tax Comm'r, 2005 ND 36, ¶ 7, 692 N.W.2d 490. Without a statutory basis to hear an appeal, this Court must dismiss the appeal. Id. Generally, an order dismissing a complaint without prejudice is not appealable. See Kouba v. Febco, Inc., 1998 ND 171, ¶ 4, 583 N.W.2d 810; Community Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d 364, 365 (N.D.1993); Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). Because either party may commence another action after a civil complaint is dismissed without prejudice, an order dismissing an action without prejudice neither "determines the action" nor "prevents a judgment from which an appeal might be taken." See N.D.C.C. § 28-27-02(1). Such an order of dismissal does not involve the merits of an action or some part thereof. See N.D.C.C. § 28-27-02(5); Runck, at 488.

[¶ 6] We have also explained, however, a dismissal without prejudice may be final and appealable where the dismissal has the "practical effect of terminating the litigation in the plaintiff's chosen forum." See Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175. We have consistently held that where a statute of limitations has run, a dismissal of the entire action "effectively forecloses litigation in the courts of this state." Id. Thus, a dismissal without prejudice is appealable where a statute of limitations has run. See Beaudoin v. South Texas Blood and Tissue Center, 2004 ND 49, ¶ 7, 676 N.W.2d 103; Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 7, 665 N.W.2d 679; Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1.

[¶ 7] We have also held dismissals without prejudice are final and appealable where litigation is foreclosed in the state courts. See Rolette County Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶ 4, 697 N.W.2d 333 (holding appealable district court's order dismissing for lack of subject-matter jurisdiction due to determination of exclusive tribal court jurisdiction); Pratt v. Altendorf, 2005 ND 32, ¶ 4, 692 N.W.2d 115 (holding appealable dismissal without prejudice where six-year statute of limitation would not bar plaintiff from bringing a subsequent action, but where certain statutory notice prerequisites to filing an action arising out of pesticide application did); Winer v. Penny Enters., Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9 (holding appealable district court's dismissal for lack of subject-matter jurisdiction over enrolled tribal members); Rodenburg v. Fargo-Moor-head Young Men's Christian Ass'n, 2001 ND 139, ¶ 12, 632 N.W.2d 407 (holding appealable dismissal on grounds of lack of personal jurisdiction, particularly where the plaintiff cannot cure the defect that led to dismissal); Triple Quest, Inc. v. Cleveland Gear Co., Inc., 2001 ND 101, ¶¶ 8-10, 627 N.W.2d 379 (holding appealable dismissal where application of forum selection clause permanently put plaintiff out of district court).

[¶ 8] Sanderson's complaint asserts a number of causes of action, including claims of defamation and false imprisonment, which have two-year statutes of limitation. See N.D.C.C. § 28-01-18(1); O'Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D.1988). The district court's dismissal occurred in August 2005, more than two years after Sanderson's arrest. Assuming arguendo the relevant limitations period commenced with the date of Sanderson's March 2003 arrest, he would be barred for at least two causes of action. Cf. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo.1997) (stating exceptions to general rule that dismissal without prejudice is not appealable where the dismissal operates to preclude party "from bringing another action for the same cause and may be res judicata of what the judgment actually decided" or "has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum").

[¶ 9] If this Court were to retain jurisdiction only over those claims which arguably are barred by the relevant statutes of limitations and dismiss the remaining causes of action, this would force Sanderson to proceed in a manner akin to an improper splitting of his cause of action. See Freed v. Unruh, 1998 ND 34, ¶ 10, 575 N.W.2d 433 (allowing plaintiff to proceed with lawsuit would be analogous to an improper splitting of cause of action); Farmers Ins. Exchange v. Arlt, 61 N.W.2d 429, 434 (N.D.1953) (stating when there is a single cause of action, although there may be different kinds of damages, only one suit can be brought); Jacobson v. Mutual Ben. Health & Accident Ass'n, 73 N.D. 108, 11 N.W.2d 442 (1943) (holding a person who has availed himself of part of single claim or obligation in action or defense is thereafter estopped from enforcing the remainder of it). Cf. Choice Fin. Group v. Schellpfeffer, 2005 ND 90, ¶¶ 7-9, 696 N.W.2d 504 (explaining where liability rests on the same transaction, an award of some damages, with additional damages reserved, does not constitute a separate claim under N.D.R.Civ.P. 54(b), but is simply an example of an attempt to split a cause of action). Because dismissal here will effectively foreclose some of his claims in a subsequent action, we conclude the district court's dismissal of Sanderson's entire action is appealable. We therefore turn to the merits of his appeal.

III

[¶ 10] Sanderson asserts the district court erred in dismissing the complaint against Judge Geiger and against Walsh County and its employees based on insufficient service of process. In dismissing Sanderson's complaint, the district court construed the complaint to be against the defendants in their official capacities. The district court also took judicial notice that Judge Geiger is an elected district judge for the State, despite Sanderson's failure to name the State as a party. Prior to the district court's dismissal of Sanderson's action, he moved to file an amended complaint that...