Schreifels v. Kottke Trucking, No. 21495.

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP, Justice
• Citation: 2001 SD 90,631 N.W.2d 186
• Decision Date: 11 July 2001
• Docket Number: No. 21495.
• Parties: Cyril W. SCHREIFELS, Employee, Claimant and Appellant, v. KOTTKE TRUCKING, Employer and Appellee, and Dakota Truck Underwriters, Insurer and Appellee.

631 N.W.2d 186
2001 SD 90

Cyril W. SCHREIFELS, Employee, Claimant and Appellant,
v.
KOTTKE TRUCKING, Employer and Appellee, and
Dakota Truck Underwriters, Insurer and Appellee

No. 21495.

Supreme Court of South Dakota.

Considered on Briefs November 27, 2000.

Decided July 11, 2001.

631 N.W.2d 187

Bret C. Merkle of Merkle Law Firm, Sioux Falls, SD, Attorneys for appellant

Susan Brunick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellees.

KONENKAMP, Justice

[¶ 1.] Cyril W. Schreifels appeals from an order granting Kottke Trucking (Employer) and Dakota Truck Underwriters' (Insurer) motion to dismiss for want of jurisdiction. The matter was dismissed with prejudice due to Schreifels' failure to comply with SDCL 1-26-31. We affirm.

FACTS

[¶ 2.] Schreifels filed a petition for hearing with the South Dakota Department of Labor. Schreifels, a truck driver, claimed that his three heart attacks and resulting bypass surgery were caused by stress from loading Employer's truck and trailer. The Department ultimately concluded that Schreifels failed to sustain his burden of proving that his coronary artery disease arose out of and in the course of his employment. Employer and Insurer's motion for summary judgment was granted.

[¶ 3.] Schreifels, a resident of Big Stone City in Grant County, filed a notice of appeal in the circuit court of the Second Judicial Circuit, Minnehaha County. Employer and Insurer moved to dismiss, arguing that Schreifels failed, within the prescribed time period, to file the appeal in Grant County or Hughes County as required by SDCL 1-26-31. In the alternative, they moved to change venue to Hughes County in accord with SDCL 1-26-31.3. Schreifels responded with a motion for relief pursuant to SDCL 1-26-30.5, seeking an order "curing any irregularity in venue by changing venue in this matter to Grant County, South Dakota."

[¶ 4.] The circuit court dismissed the appeal with prejudice and denied Schreifels' later motion for reconsideration. The court reasoned that the matter was an administrative appeal where the notice provisions of SDCL 1-26-31 had to be specifically followed for the court to obtain jurisdiction.

ISSUE

[¶ 5.] Did Schreifels' failure to file his worker's compensation appeal in Grant County or Hughes County mandate dismissal of the appeal?

DECISION

[¶ 6.] Appeals from Department worker's compensation final orders or decisions are taken pursuant to SDCL 1-26. SDCL 62-7-19. According to SDCL 1-26-31:

An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county

631 N.W.2d 188

in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision, or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon.

[¶ 7.] "SDCL 1-26-31 provides the basis for the circuit court to exercise jurisdiction." Oberle v. City of Aberdeen, 470 N.W.2d 238, 242 (S.D.1991). It is clear and uses mandatory language. Stark v. Munce Bros. Transfer & Storage, 461 N.W.2d 587, 588 (S.D.1990). Consequently, under SDCL 1-26-31 a circuit court acquires subject matter jurisdiction of an appeal if within thirty days after the agency served notice of a final decision:

a) a copy of the notice of appeal is served upon the adverse party, the agency and the hearing examiner, and,

b) the notice of appeal is filed in the office of the clerk of courts in the county in which the venue of the appeal is set.

[¶ 8.] In accord with SDCL 1-26-31, the "county in which the venue of the appeal is set" is established by SDCL 1-26-31.1:

The venue of the appeal is as follows:

(1) If the appellant is a resident of this state, to the circuit court for the county of his residence or to the circuit court for Hughes county, as he may elect;

(2) If the appellant is a nonresident or a foreign corporation, to the circuit court for Hughes county;

(3) The parties may stipulate for venue in any county in the state, and the circuit court for such county shall thereupon hear the appeal.

Appeals from a single administrative action may not proceed in more than one county. If multiple appeals of a single action are filed in more than one

...