Wilkens v. Westby

• Decision Date: 11 July 2019
• Docket Number: No. 20180430,20180430
• Citation: 931 N.W.2d 229
• Parties: Branden WILKENS, Plaintiff and Appellant v. Tarin L. WESTBY, Deceased, Defendant and Appellee
• Court: North Dakota Supreme Court

931 N.W.2d 229

Branden WILKENS, Plaintiff and Appellant

v.Tarin L. WESTBY, Deceased, Defendant and Appellee

No. 20180430

Supreme Court of North Dakota.

Filed July 11, 2019

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.

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. § 39-01-11 is a matter of first impression for this Court.

[¶6] Issues regarding interpretation and application of statutes are questions of law and are fully reviewable on appeal. Johnston Land Co., LLC v. Sorenson , 2018 ND 183, ¶ 10, 915 N.W.2d 664. When interpreting statutes:

Our primary goal ... is to ascertain the intent of the legislature, and we first look to the plain language of the statute and give each word of the statute its ordinary meaning. When the wording of the statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. If, however, the statute is ambiguous or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute. A statute is ambiguous if it [is] susceptible to meanings that are different, but rational. We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.

Riemers v. Jaeger , 2018 ND 192, ¶ 11, 916 N.W.2d 113 (citations omitted). "Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears." Great W. Bank v. Willmar Poultry Co. , 2010 ND 50, ¶ 7, 780 N.W.2d 437 (citation omitted). "Our interpretation of a statute must be consistent with legislative intent and done in a manner which will accomplish the policy goals and objectives of the statutes." Haugenoe v. Workforce Safety & Ins. , 2008 ND 78, ¶ 8, 748 N.W.2d 378 (citation and quotation omitted).

[¶7] The statute covers two classes of prospective defendants: (1) North Dakota residents who have been continuously absent from the state for at least six months post-accident, and (2) nonresidents at any time. Wilkens cites a dictionary definition of "absent" as "not present or attending, not existing," arguing a person who has died is absent by definition. Wilkens further argues that because the statute does not specify the reason for the resident’s absence, the cause of the absence—even if death—is irrelevant.

[¶8] Because "absent" is not a defined term in statute, we interpret it in its ordinary sense. N.D.C.C. § 1-02-02. A dictionary may provide a reliable starting point in determining the meaning of a word not previously defined.

Cossette v. Cass Cty. Joint Water Res. Dist. , 2017 ND 120, ¶ 19, 894 N.W.2d 858. Using dictionaries close in time to the enactment of a statute is helpful in determining substantive meaning. Id. When originally enacted in 1935, North Dakota’s nonresident motorist statute only covered one class of individuals: nonresidents. S.B. 85, ch. 174, § 1, 24th Leg. Ass. (1935). Amendments in 1951 added the second class of individuals: residents who have been absent from the state for six months or more following an accident. S.B. 42, ch. 202, § 1, 32nd Leg. Ass. (1951). The definition of "absent" at the time of the 1951 amendments was, in relevant part: "1. Being away from a place; withdrawn from a place; not present ... 2. Not existing; lacking." Webster’s New International Dictionary 8 (2nd ed. 1950). A more current definition of "absent," the version Wilkens appears to rely upon in his argument, states: "1. not present or attending ... 2. not existing." Merriam-Webster’s Collegiate Dictionary 4 (11th ed. 2005). Because the term has multiple meanings, the dictionary definitions of "absent" are not helpful to resolve the question whether a resident is "absent" for purposes of North Dakota’s nonresident motorist statute due to his death.

[¶9] Wilkens also argues the statute specifically contemplates service upon the director when a person dies, by using the phrase, "or, in case of the person’s death, that such process has the same force and effect as if served upon the administrator of the person’s estate." N.D.C.C. § 39-01-11....