Spade v. Branum, No. 22051.

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP, Justice.
• Citation: 2002 SD 43,643 N.W.2d 765
• Docket Number: No. 22051.
• Decision Date: 17 April 2002
• Parties: Darrell D. SPADE and Michelle Spade, Plaintiffs and Appellants, v. Matthew BRANUM, Defendant and Appellee.

643 N.W.2d 765
2002 SD 43

Darrell D. SPADE and Michelle Spade, Plaintiffs and Appellants,
v.
Matthew BRANUM, Defendant and Appellee

No. 22051.

Supreme Court of South Dakota.

Argued February 13, 2002.

Decided April 17, 2002.

643 N.W.2d 766

Melissa B. Nicholson, Thomas J. Nicholson of Johnson, Eklund, Nicholson & Peterson Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants

Paul T. Barnett of Siegel, Barnett & Schutz, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice.

[¶ 1.] In a case apparently requiring service by publication, can the summons be published without first obtaining a court order granting permission to do so? The circuit court ruled in the negative and dismissed the suit for invalid service. We affirm because service by publication requires strict compliance with statutory mandates, and a court order is an indispensable prerequisite to proper service by publication.

Background

[¶ 2.] This is a personal injury action arising from an automobile accident in Sioux Falls, South Dakota, on December 24, 1997. Plaintiffs Darrell and Michelle Spade (the Spades) sought compensation from the insurer of the other driver, Matthew Branum. Unable to arrive at a satisfactory

643 N.W.2d 767

resolution with Branum's insurer, the Spades' attorney prepared to sue

[¶ 3.] On December 13, 2000, eleven days before the statute of limitations on their action would expire, the Spades' attorney filed a summons and complaint with the Minnehaha County Clerk of Courts. He also sent copies of these to Branum's insurer, with whom he had been corresponding for over two years. On the same date, the summons and complaint were delivered to the Minnehaha County Sheriff for service on Branum. Branum's address was listed on the accident report. Some days later, the Spades' attorney received a sheriff's return, indicating that a deputy sheriff had attempted to serve process on Branum, but was "unable to locate" him because he was "avoiding service." On that date and at least on one other occasion, on January 5, 2001, a deputy left a notice at Branum's front door, requesting that he "contact the Civil Section at the Minnehaha County Sheriff's Department."

[¶ 4.] According to Branum's affidavit, he had a night job and slept during the day; therefore, he would not have heard someone knocking at his front door. Furthermore, he seldom used that door, he claimed, and thus he did not see the notices right away. Branum acknowledged, however, that he had some parking citations outstanding at the time, so when he eventually found the notices, he assumed they referred to his parking violations. Meanwhile, he learned from his attorney no later than January 2, 2001, that a lawsuit against him was imminent. Branum's attorney knew of the lawsuit because he received copies of the summons and complaint from Branum's insurer. Even so, Branum ignored the notices until January 26, 2001, when he went to the Sheriff's office. On that occasion, personnel at the Sheriff's office were unable to locate the summons and complaint.

[¶ 5.] On January 30, 2001, Branum's attorney wrote to the Spades' attorney, advising that Branum had attempted to obtain the summons and complaint from the Sheriff's office and that he believed "Branum would probably be willing to make one more trip to pick them up," provided the Spades' attorney saw to it that the papers were in fact "return[ed.]" Nevertheless, apparently believing that further attempts to effect personal service on Branum would be fruitless, counsel for the Spades resorted to service by publication, arranging to have the summons printed in the Sioux Falls Argus Leader. The summons ran in the Argus from February 6, 2001 to February 27, 2001. Counsel did not seek or obtain a court order allowing for service by publication.

[¶ 6.] Defendant Branum moved to dismiss for insufficient service of process. After a hearing, the court granted the motion. The dismissal was with prejudice because the three-year period allowed for filing a personal injury suit under SDCL 15-2-14 had elapsed. However, the property damage claim was dismissed without prejudice. On appeal, plaintiffs assert the following issues: (1) "Plaintiff's actions constitute valid service of process, pursuant to SDCL § 15-2-31 and § 15-9-7." (2) "Plaintiffs have met the requirements to receive an order for service by publication, although they dispute South Dakota Codified Law requires an order in this scenario." (3) "Even if the court finds that an order for publication is required, plaintiffs have substantially complied with the spirit and essence of the publication statutes." (4) "Since defendant and defendant's attorney had actual knowledge of the plaintiffs' efforts to commence a lawsuit, substantial compliance with the statutes [is] sufficient to justify effective service of process; defendant should be estopped from now complaining

643 N.W.2d 768

of insufficient service by his own actions and by his attorney's words and actions." On review, we combine these issues to ask, can plaintiffs publish their summons without first obtaining a court order granting permission to do so, and if...