Wilkens v. Westby, 071119 NDSC, 20180430

Docket Nº:20180430
Opinion Judge:McEVERS, JUSTICE.
Party Name:Branden Wilkens, Plaintiff and Appellant v. Tarin L. Westby, Deceased, Defendant and Appellee
Attorney:Jeffrey S. Weikum, Bismarck, ND, for plaintiff and appellant. Nils J.D. Eberhardt (argued) and Jerry W. Evenson (on brief), Bismarck, ND, for defendant and appellee.
Judge Panel:Lisa Fair McEvers, Daniel J. Crothers, Jerod E. Tufte, Jon J. Jensen, Gerald W.VandeWalle, C.J.
Case Date:July 11, 2019
Court:Supreme Court of North Dakota

2019 ND 186

Branden Wilkens, Plaintiff and Appellant

v.

Tarin L. Westby, Deceased, Defendant and Appellee

No. 20180430

Supreme Court of North Dakota

July 11, 2019

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Kirsten M. Sjue, Judge.

Jeffrey S. Weikum, Bismarck, ND, for plaintiff and appellant.

Nils J.D. Eberhardt (argued) and Jerry W. Evenson (on brief), Bismarck, ND, for defendant and appellee.

OPINION

McEVERS, JUSTICE.

[¶1] Branden Wilkens appeals from a district court judgment and order dismissing his complaint against Tarin L. Westby without prejudice, concluding service under N.D.C.C. § 39-01-11 was improper. We affirm.

I

[¶2] On February 14, 2012, Wilkens and Westby were involved in a car accident in North Dakota, resulting in Westby's death on the day of the accident. In February 2018, Wilkens served a summons and complaint asserting a claim of negligence against Westby upon the director of the Department of Transportation ("the Department") under N.D.C.C. § 39-01-11, which allows residents to serve legal process upon the director of the Department when the party being served is (1) a resident absent from the state continuously for at least six months following an accident, or (2) a nonresident. In March 2018, an attorney answered on Westby's behalf, asserting affirmative defenses. The attorney moved to dismiss the complaint, arguing personal jurisdiction was lacking and service under N.D.C.C. § 39-01-11 was improper, because Westby, a deceased person, did not fit into the definition of "nonresident," under the statute and was not "absent from the state" by virtue of his death. Wilkens opposed the motion and a hearing was held. The district court issued its findings at the hearing on the record, concluding Westby was neither a "nonresident," nor "absent from the state" by virtue of his death for purposes of service under N.D.C.C. § 39-01-11. The court granted Westby's motion to dismiss without prejudice, basing its decision on lack of jurisdiction, but recognized the practical effect, based on the statute of limitations, would be a dismissal with prejudice. Wilkens appeals from the court's order dismissing his claim.

II

[¶3] Ordinarily, an order dismissing a complaint without prejudice is not appealable, however, such an order may be final and appealable "if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum." James Vault & Precast Co. v. B&B Hot Oil Serv., Inc., 2018 ND 63, ¶ 10, 908 N.W.2d 108. A dismissal without prejudice is appealable where the statute of limitations has run because a dismissal without prejudice in that case effectively forecloses litigation. Id. Here, there is no dispute the statute of limitations has expired. The practical effect of the district court's order dismissing Wilkens' claim was to terminate the litigation. Therefore, the court's order without prejudice is considered final and appealable.

[¶4] The district court's order ruled on the issue of personal jurisdiction which is fully reviewable on appeal: "Analysis of a [district] court's ruling regarding personal jurisdiction is a question of law, and we use the de novo standard of review for legal conclusions and a clearly erroneous standard for factual findings." Bolinske v. Herd, 2004 ND 217, ¶ 7, 689 N.W.2d 397. A finding of fact is clearly erroneous if it is not supported by any evidence, if, although some evidence supports the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law. Id.

Spirit Prop. Mgmt. v. Vondell, 2017 ND 158, ¶ 16, 897 N.W.2d 334.

III

[¶5] There is no factual dispute process was served on the director of the Department. On appeal, Wilkens argues N.D.C.C. § 39-01-11 enables him to serve the director of the Department when initiating a suit against the deceased, Westby, because the term "absent" in the statute contemplates a resident's absence from the state caused by death. North Dakota's nonresident motorist statute, N.D.C.C. § 39-01-11, states: The use and operation by a resident of this state or that person's agent, or by a nonresident or that person's agent, of a motor vehicle upon or over the highways of this state must be deemed an appointment by such resident when that person has been absent from this state continuously for six months or more following an accident or by such nonresident at any time, of the director of the department of transportation of this state to be the person's true and lawful attorney upon whom may be served all legal process in any action or proceeding against the person growing out of the use or operation of the motor vehicle resulting in damages or loss to person or property, whether the damage or loss occurs upon a public highway or upon public or private property, and such use or operation constitutes an agreement that any such process in any action against the person which is so served has the same legal force and effect as if served upon the person personally, or, in case of the person's death, that such process has the same legal force and effect as if served upon the administrator of the person's estate. Service of the summons in such case may be made by delivering a copy thereof to the director with a fee of ten dollars.

(Emphasis added.) Wilkens argues Westby was a North Dakota resident at the time of the accident but that since his death, he "has continually been absent from this state for more than six months." The attorney for Westby argues the death of a resident does not make the resident continually absent from the state for six months for purposes of N.D.C.C. § 39-01-11. The issue of service on a deceased resident under N.D.C.C. §...

To continue reading

FREE SIGN UP