JULIE A. LEIGHTON, Plaintiff and Appellant, v. HERBERT C. BENNETT, Defendant and Appellee.
#28626-a-MES
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 04/03/19
2019 S.D. 19
THE HONORABLE DAWN M. ELSHERE, Judge
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, BROOKINGS COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS ON JANUARY 7, 2019.
WILLIAM C. GARRY, MELISSA R. JELEN of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
[¶1.] Julie Leighton commenced a personal injury action against Herbert Bennett for injuries she claims to have sustained in a car accident. Bennett died during the pendency of the action, and his defense counsel served notice of his death on Leighton. After Leighton failed to move to substitute Bennett’s estate or personal representative, Bennett’s counsel moved to dismiss the case. Leighton then moved for substitution, arguing the period for seeking substitutiоn had not yet commenced because Bennett’s counsel had not served Bennett’s estate or personal representative. The circuit court determined Leighton’s motion was untimely under the rules of civil procedure and granted Bennett’s motion to dismiss. Leighton appeals, arguing the circuit court erred when it interpreted the аpplicable rule of civil procedure or, alternatively, the circuit court abused its discretion when it denied her motion for enlargement of the time to seek substitution. We affirm.
Background
[¶2.] Leighton and Bennett were involved in a motor vehicle accident on May 23, 2013, in Brookings. Leighton alleged that Bennett rear-ended her vehicle while she was stopped at a stoplight, and she commenced this action against Bennett on May 18, 2016. Bennett’s counsel filed an answer to Leighton’s complaint on June 2, 2016. Bennett died on July 24, 2017, and his defense counsel served a notice of death (also known as a “suggestion of death“) on Leighton’s counsel on August 24, 2017.
[¶3.] On December 11, 2017, Bennett’s defense counsel mоved to dismiss Leighton’s action, citing
[¶4.] Leighton argued her motion to substitute was timely under
[¶5.] The circuit court conducted a hearing on the motions on February 1, 2018, and concluded that Leighton’s motion to substitute was untimely. The court also denied Leighton’s motion for enlargement of the 90-day period and dismissed the action. In its subsequent written findings of fact and conclusions of law, the court reasoned that Bennett’s counsel “was not required to serve the Notice of Death of Party upon his client’s own estate in order to trigger the 90-day period prescribed in
- Whether the circuit court erred when it concluded that
SDCL 15-6-25(a)(1) ’s 90-day period for substitution of a party began to run when Bennett’s defense counsel served a notice of death on Leighton without serving Bennett’s estate or personal representative. - Whеther the circuit court abused its discretion when it denied Leighton’s motion for an enlargement of time and dismissed her action as untimely.
Analysis
Timeliness of Leighton’s Motion to Substitute
[¶7.] We review legal questions arising under the rules of civil procedure de novo, utilizing our established rules for statutory construction. Moore v. Michelin Tire Co., Inc., 1999 S.D. 152, ¶ 16, 603 N.W.2d 513, 519–20. In this regard, we have expressed the essential principles of statutory construction in the follоwing terms:
[t]he purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.
Discover Bank v. Stanley, 2008 S.D. 111, ¶ 15, 757 N.W.2d 756, 761 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).
[¶8.] Our rules of civil procedure provide an expedient means to seek the substitution of a proper party following the death of a party during the pendency of an action.
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased pаrty and, together with the notice of hearing, shall be served on the parties as provided in
§ 15-6-5 and upon persons not parties in the manner provided in§ 15-6-4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
[¶9.] The provisions of
[¶10.] We have previously interpreted
[¶11.] Nor were we faced with this issue in Swenson v. Brown, 2009 S.D. 64, ¶ 10, 771 N.W.2d 313, 316, where we held that an attorney for a deceased party had the authority to file and serve notice of a client party’s death. In doing so, we noted the existence of divergent authority outside of our state and found persuasive the analysis of the Utah Supreme Court in Stoddard v. Smith, 27 P.3d 546, 546–47 (Utah 2001). Although we observed in our factual summation that the parties and the successor estate for the deceased party had both been served in Swenson, we did not endorse this as a requirement of
[¶12.] Here, as a matter of first impression, we conclude that the circuit court correctly determined that the 90-day period to seek substitution commenced when Bennett’s counsel served the notice of death upon Leighton. The text of
The language in rule 25(a)(1) providing that the suggestion of death should be served “as provided herein for the service of the motion” also speaks to how service of the suggestion of death must be made. It must be served on the parties in accordance with rule 5, and it must be served on any nonparties who are served at all in the manner provided by rule 4. Plaintiff’s interpretation of the rule, that the rule mandates that at least one unspecified nonparty must be served with the suggestion of death for the suggestion of death to trigger the 90-day limitation period, is incorrect. There is no definition for, or limitation of, the category of “persons not parties.” The rule does not define “persons not parties” because the rule does not prescribe who must be served with the suggestion of death, but rather how they are served, once a party decides which nonparties, if any, need to be served with the suggestion of death.
27 P.3d at 550 (second emphasis added).
[¶14.] Also incorrect, in our view, is Lеighton’s argument that
[¶15.] The parties’ briefs principally focus upon this Court’s previous decisions, but our own research reveals differing views expressed by other courts on the question of whether a suggestion of death must be served upon all parties and non-parties in order to commence the 90-day period. See, e.g., Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990) (failure to serve the pеrsonal representative is insufficient to trigger 90-day period). We believe our analysis here is correct, though, because it more faithfully applies the text of
In the absence of such an interpretation, the case could continue in the decedent’s name pending another suggestion of death, although her counsel’s representation has since ceased under the rule—a paradox that would exist if this Court were to hold the suggestion of death ineffective because the decedent’s attorney is not qualified to serve the notice as the result of his client’s death.
2009 S.D. at ¶ 12, 771 N.W.2d at 317.
Leighton’s Motion for Enlargement of Time
[¶16.] Subject to limited exceptions not applicable here,
When by this chapter or by a notice given thereunder or by an order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:
. . .
(2) Upon motion made after the expiration of the specified periоd permit the act to be done where the failure to act was the result of excusable neglect.
[¶17.] Where, as here, the 90-day deadline provided by the rules expired before Leighton moved for enlargement of time, we have identified the following principles to guide our excusable neglect analysis.
Excusable neglect in the context of
SDCL 15-6-6(b)(2) “is closely analogous to the excusable neglect which must be shown to set aside a default judgment or other final judgment underSDCL 15-6-55(c) andSDCL 15-6-60(b) .” “‘Excusable neglect must be neglect of a nature that would cause a reasonable, prudent person to act similarly under similar circumstances.’” “‘Excusable neglect’ has no fixed meaning and should be ‘interpreted liberally to insure that cases are heard and tried on the merits.”
Bucklin, 2013 S.D. 57, ¶ 21, 835 N.W.2d at 867 (citations omitted).
[¶18.] We recently applied this standard and held that a circuit court abused its discretion when it refused to allow an enlargement of time for plaintiffs to file complaints after they commenced their action with a summons and later overlooked the defendant’s demand to serve a complaint. See S.D. Pub. Assurance All. for Pennington Cty. v. McGuire, 2018 S.D. 75, ¶ 17, 919 N.W.2d 745, 750. In McGuire, the plaintiffs’ attorneys submitted affidavits in which they “rеadily admitted their mistakes[,]” detailed mitigating circumstances, and described their efforts to undertake prompt remedial action. Id. ¶ 17, 919 N.W.2d at 750; see also Estes v. Ashley Hosp., Inc., 2004 S.D. 49, ¶ 13, 679 N.W.2d 469, 474 (A party seeking to establish excusable neglect under
[¶20.] Leighton’s reply brief does contain a passing reference to the unsettled nature of
[¶21.] We acknowledge that our interpretation of
Conclusion
[¶22.] The plain text of
[¶23.] We affirm.
[¶24.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and SEVERSON, Retired Justice, conсur.