Wagner v. Truesdell

• Decision Date: 27 March 1997
• Docket Number: No. 19790,19790
• Parties: Deloris E. WAGNER, Plaintiff and Appellant, v. Clifford TRUESDELL, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 627

574 N.W.2d 627

1998 SD 9

Deloris E. WAGNER, Plaintiff and Appellant, v. Clifford TRUESDELL, Defendant and Appellee.

No. 19790.

Supreme Court of South Dakota.

Considered on Briefs March 27, 1997.

Reassigned Oct. 29, 1997.

Decided Jan. 28, 1998.

Stan H. Anker, Rapid City, for plaintiff and appellant.

Benjamin J. Eicher of Wallahan and Eicher, Rapid City, for defendant and appellee.

MILLER, Chief Justice (on reassignment).

¶1Deloris E. Wagner appeals the dismissal of her negligence action and a summary judgment for Clifford Truesdell on the grounds of defective service of process. We reverse and remand.

FACTS

¶2In 1993, Wagner slipped and fell in a parking lot owned by Truesdell in Rapid City, South Dakota. She alleges the fall was the result of Truesdell's negligent maintenance of the lot and that she sustained various injuries and damages as a result thereof. She attempted to commence a negligence action against Truesdell in 1996.

¶3Truesdell suffered from Alzheimer's Disease and was, practically speaking, incompetent. ¹ However, he had never been legally adjudicated incompetent and there was no judicially appointed guardian for him. Rather, his wife took care of him and conducted all of his business affairs under a power of attorney. Truesdell and his wife owned homes in both Rapid City and Las Vegas, Nevada. This required Mrs. Truesdell to make periodic visits to Las Vegas. During these visits, she would sometimes leave her husband in Rapid City in the care of a close friend named Gordon Richmond. Richmond, who was not related to Truesdell, also owned a home in Rapid City. However, when Richmond cared for Truesdell, he stayed with him in Truesdells' home.

¶4Wagner attempted to commence the action against Truesdell on January 15, 1996, through service of a summons and complaint by a Pennington County constable. Mrs. Truesdell was on one of her trips to Las Vegas when the constable attempted service, and Richmond was staying with Truesdell in Truesdells' home. Richmond answered the door and, when the constable asked for Truesdell, he told the constable Truesdell was mentally incompetent. The constable then asked for a family member, but was told that Mrs. Truesdell was in Nevada. Richmond also informed the constable that Truesdell was in his care until Mrs. Truesdell returned. At that point, the constable indicated that, since Truesdell was in Richmond's custody, he would leave the papers with Richmond. Richmond said he would see to it the papers got to Truesdell's attorney.

¶5Counsel for Truesdell subsequently filed motions to dismiss and for summary judgment, arguing defective service of process. A hearing was held and the trial court granted Truesdell's motions. Due to expiration of the applicable statute of limitations, Wagner did not have a new summons and complaint served, but instead brought this appeal.

DECISION

Was service of the summons and complaint on Truesdell defective?

¶6We hold that service of process in this case was not defective because there was substantial compliance with the personal service mandates of SDCL 15-6-4(d)(10), which requires that the summons be served "to the defendant personally."

¶7We have held that:

"Substantial compliance" with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982) (internal citations and quotations omitted); see also Larson v. Hazeltine, 1996 SD 100, p 19, 552 N.W.2d 830, 835; Rans v. State, 390 N.W.2d 64, 66 (S.D.1986).

¶8This Court has held that the purpose of service of process is to "advise the defendant that an action or proceeding has been commenced against him by plaintiff, and warn him that he must appear within a time and at a place named and make such defense as he has[.]" Hartley v. Jerry's Radio & Elec. Shop, 74 S.D. 87, 90, 48 N.W.2d 925, 927 (1951) (citation and internal quotation omitted). We hold that, in this case, the purpose of the statute was met.

¶9While we emphasize the purpose of SDCL 15-6-4(d)(10) as being that of notice, it is equally important to state that notice alone is not enough. This is the issue that the Minnesota Supreme Court was faced with in Thiele v. Stich, 425 N.W.2d 580 (Minn.1988). In Thiele, the court held that a service of process statute requiring a defendant to be served personally or by leaving a copy of the papers at the defendant's abode was not satisfied by leaving the papers with the defendant's receptionist at his place of work. The Minnesota Supreme Court held that "actual notice" alone is not enough. The court phrased its holding as: "Actual notice will not subject defendants to personal jurisdiction absent substantial compliance with Rule 4." Id. at 584 (citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982)) (emphasis added). We agree with the Minnesota Supreme Court that actual notice coupled with substantial compliance is sufficient to satisfy personal service of process requirements and we hereby adopt that holding as the law of our state. ²

¶10The realities of a case must be considered when proper service of process is questioned. To follow the strict reading of SDCL 15-6-4(d)(10) urged by Truesdell would be an absurdity. The constable could have handed the papers to Truesdell and then Richmond would have immediately taken them away from Truesdell to give to Truesdell's attorney. There logically is no need in this case for that "middle-person" step to fulfill the purpose of SDCL 15-6-4(d)(10).

¶11In this case, what more could Wagner have done? The constable went to Truesdell's home and asked for Truesdell. Richmond informed him that Truesdell was mentally incompetent and was in his care. When the constable asked for Mrs. Truesdell, he was informed that she was in Nevada. He then presented the papers to Truesdell's caretaker who assured him that he would see to it that Truesdell's attorney received the papers. The entire time, Truesdell, who it is not disputed was mentally incompetent, was present in the house, and for all practical purposes could not have comprehended what was happening when he was handed the service of process papers. Wagner substantially complied with SDCL 15-6-4(d)(10), and that was enough to satisfy the service of process requirements in this case.

¶12We reverse and remand for proceedings consistent with this opinion.

¶13AMUNDSON and KONENKAMP, JJ., concur.

¶14SABERS and GILBERTSON, JJ., concur in result.

SABERS, Justice (concurring in result).

¶15I agree that Wagner effectively served Truesdell by substantial compliance with SDCL 15-6-4(e) (substituted service). The statute contemplates a situation where the person sought to be served (Truesdell) resides with another family (Richmond). This case presents the converse situation, i.e., "the family of another" (Richmond) resides with Truesdell. Here, a strict and technical interpretation of SDCL 15-6-4(e) disallowing service would undermine the purpose of the statute. The spirit and the purpose of the statute were met. Clearly, that constitutes "substantial compliance."

GILBERTSON, Justice (concurring in result).

¶16Given the parties' agreement as to Truesdell's incompetence, I agree with the majority that holding the constable should have served Truesdell directly would simply lead to absurdity in this case. What would have been the practical effect of such service? As the majority mentions, the constable would have handed the papers to Truesdell and then Richmond would have immediately taken them away from Truesdell to give to Mrs. Truesdell or the Truesdells' attorney. That is exactly what happened. Nevertheless, I disagree with the majority view that valid service of process was accomplished through substantial compliance with personal service requirements.

¶17An advocacy of the doctrine of substantial compliance finds absolutely no support in our statutes concerning service of process. In Matter of Gillespi, 397 N.W.2d 476 (S.D.1986), this Court unanimously struck down service of process by first-class mail. Although the defendants admitted they received the pleadings, we held personal service was "mandatory." Gillespi, 397 N.W.2d at 478. Subsequently in Mueller v. Zelmer, 525 N.W.2d 49 (S.D.1994), service of process was carried out by a county nonresident which, at the time, did not conform to the residency requirements of SDCL 15-6-4(c). Rather than relying on any claims of substantial compliance, the three-Justice majority upheld the service as valid only because the defendant had signed an admission of service. In so doing the majority declared:

[The] fact defendant knows of the action because he may have received a copy of the summons and complaint in connection with an attempted but invalid service where no admission of service exists is not sufficient statutory notice of the action.

Mueller, 525 N.W.2d at 51 (citing Brown v. State, 195 Ga.App. 872, 395 S.E.2d 73 (Ga.Ct.App.1990)). Two Justices dissenting, argued for a more strict interpretation of the statute finding that the admission of service did not save the initial improper service.

Without valid service of process the trial court has no jurisdiction to act. Hartley v. Jerry's Radio & Electric Shop, 74 S.D. 87, 48 N.W.2d 925 (1951). One may research over 100 years of decisions and find the law has remained the same. No proper service. No jurisdiction. Ayers, Weatherwax & Reid Co. v. Sundback, 5 S.D. 31, 58 N.W. 4 (1894).

Mueller, 525 N.W.2d at 52 ...