Lead Opinion
[¶ 1.] Terry Lekanidis (Lekanidis) appeals the dismissal with prejudice of his personal injury action. We affirm.
FACTS
[¶ 2.] On August 7, 1995, while attending the Sturgis Motorcycle Rally in Sturgis, South Dakota, Anthony Bendetti (Bendet-ti), a resident of New York, drove his motorcycle out of a parking lot at a high rate of speed and collided with another motorcycle driven by Lekanidis, a resident of West Virginia. Sturgis Police Officer Hardman investigated the incident and prepared an accident report.
[¶ 3.] The accident report listed Bendet-ti’s home address as “RD1 Box 53E. Nassu N.Y.” The report further listed the estimated damage to Bendetti’s motorcycle as $5,000 and the damage to Lekanidis’ motorcycle as' approximately $15,000. Hard-man also stated in his report the name of each parties’ insurer and the. corresponding insurance policy number. Neither party required medical attention at the time of the accident and no traffic or criminal citations were written.
[¶ 4.] Approximately two years later, Lekanidis began experiencing neck and back problems which he alleged were the result of his accident with Bendetti. As a result, Lekanidis sought chiropractic treatment in West Virginia for .his injuries.
[¶ 5.] On October 7, 1997, Lekanidis retained South Dakota counsel who prepared a summons and complaint.
[¶ 6.] On October 8, 1997, counsel mailed a copy of the summons and complaint to Bendetti using the address:
Mr. Anthony M. Bendetti
RD1, Box 53E
Nassau, N.Y. 12123
In the belief that the accident report prepared by Officer Hardman misspelled the city name “Nassau” as “Nassu” and contained no zip code, counsel looked up the proper spelling of the city and found the zip code for “Nassau” to include on the mailing. On that same day, counsel executed an affidavit of compliance with SDCL 15-7-7, but did not include it in the mailing to Bendetti.
[¶ 7.] The letter to Bendetti containing the summons and complaint was ultimately returned to sender as “Attempted-Not Known.”
[¶ 8.] On April 8, 1998, the summons, complaint, admission of service, and affidavit of compliance were filed with the Meade County Clerk of Courts. The complaint claimed Bendetti was negligent in causing the personal injury of Lekanidis and sought damages in the amount of
[¶ 9.] A default judgment hearing was held on July 31, 1998 and a default judgment in the amount of $310,447.64
[¶ 10.] After the notice of entry of judgment was returned, counsel for Lekanidis had a “skip trace” done to find Bendetti’s address.
[¶ 11.] On October 1, 1998, Bendetti’s counsel filed an answer and motion to vacate the default judgment and allow the answer and other relief. A hearing was held before Judge Moses on October 8, 1998. On November 23, 1998, Judge Moses found that service on Bendetti was insufficient and granted Bendetti’s motion to vacate and allowed him to file an answer.
[¶ 12.] On December 14, 1998, Bendetti filed a motion to dismiss the action with prejudice, arguing that the statute of limitations had expired. On February 24, 1999, Bendetti filed a “Motion for Summary Judgment, Dismissal and/or Judgment on the Pleadings.” Judge Eckrich held motion hearings on February 5 and March 22, 1999. On August 23, 1999, Judge Eckrich ruled that Lekanidis had not complied with SDCL 15-7-7 by failing to “mail the affidavit of compliance or proof of service” to Bendetti. Judge Eck-rich also found that Lekanidis had failed to use Bendetti’s “last known address” as required by the statute, but instead, utilized his “own last known address” by correcting the spelling of “Nassau” and including a zip code. Finally, because Lekanidis failed to commence this action within the applicable three year statute of limitations period, the action was dismissed with prejudice.
[¶ 13.] Lekanidis appeals, raising the following issue:
1. Whether the trial court erred in dismissing the action with prejudice.
Bendetti filed a notice of review, raising the following issues:
2. Whether the trial court should have only determined whether the complaint should have been dismissed.
3. Whether the trial court erred regarding whether the “last known address” for substituted service of process can be erroneous.
4. Whether the trial court erred in Finding as Fact that the return envelope could be fairly read as being either “refused” or “attempted-not known.”
STANDARD OF REVIEW
[¶ 14.] In the present case, counsel for Bendetti filed motions to dismiss including as grounds for said motion: summary judgment, dismissal and judgment on the pleadings. The trial court, although failing to specify the grounds for the dismissal, could only have granted a motion to
[¶ 15.] In reviewing the granting of a motion to dismiss, our standard of review is well settled. We have often stated that “ ‘[o]ur standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?’ ” White Eagle v. City of Fort Pierre,
[¶ 16.] This case also requires us to apply our rules of statutory construction to South Dakota’s nonresident motorist statute, which is set forth under SDCL 15-7-6. We have often stated,
[questions of law such as statutory interpretation are reviewed by the Court de novo.... The 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 court thinks 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. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.
Dahn v. Trownsell,
DECISION
[¶ 17.] 1. Whether the trial court erred in dismissing the action with prejudice.
[¶ 18.] Under South Dakota law,
[t]he use and operation by a resident of this state or his agent, or by a nonresident or his agent of a motor vehicle within the state of South Dakota, shall be deemed an irrevocable appointment ... by such nonresident or his agent at any time, of the secretary of state of South Dakota to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him or his executor, administrator or personal representative growing out of such use and operation of a motor vehicle within this state, resulting in damages or loss to person or property, whether the damage or loss occurs on a highway or on abutting public or private property.... Such use or operation of a motor vehicle by such ... nonresident is a signification of his agreement that any such process in any action against him or his executor, administrator, or personal representative which is so served, shall be of the same legal force and validity as if served upon him personally or on his executor, administrator, or personal representative.
SDCL 15-7-6 (1984). Under this statute, if a nonresident causes any damage as a result of operating his or her motor vehicle in South Dakota, the damaged party can serve all legal documents on the South Dakota Secretary of State. See id.
[¶ 19.] The process of serving the documents on the Secretary of State is gov
Service of process as authorized by § 15-7-6 shall be made by serving a copy thereof upon the secretary of state, or by filing such copy in the office of said secretary of state, together with payment of a fee of two dollars, and such service shall be sufficient service upon the ... nonresident or his executor, administrator, or personal representative; provided that notice of such service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant at his last-knoum address and that the plaintiff’s affidavit of compliance with the provisions of this section is attached to the summons. The secretary of state shall keep a record of all such process so served which shall show the day and hour of such service. The fee of two dollars paid by the plaintiff to the secretary of state at the time of service of process shall be taxed in his cost if he prevails in the suit.
SDCL 15-7-7 (1984) (emphasis added). The statute requires that for valid service of process under the nonresident motorist statute, the party shall (1) file a copy of the process on the secretary of state or the office of the secretary of state; (2) pay a two dollar fee; and (3) mail a copy of the notice of service, the affidavit of compliance attached to the summons, and copy of the process to the defendant’s “last-known address” within ten days of service on the secretary of state. See id.
[¶ 20.] In the present case, there is no dispute that Lekanidis failed to attach the affidavit of compliance to the summons before mailing it to Bendetti, or that he failed to send the legal documents to Ben-detti’s “last known address.” The court concluded that these omissions constituted a failure to comply with SDCL 15-7-7.
[¶ 21.] Lekanidis contends that he “substantially complied ” with the requirements of SDCL 15-7-7, therefore, the service of process should have been held valid. The only support Lekanidis cites for his argument is Wagner v. Truesdell,
[¶ 22.] We find Lekanidis’ reliance on Wagner misplaced. The present case is not a “personal service” of process case, but rather, involves “substituted service” of process. Despite the fact that we have allowed “substantial compliance” with personal service of process statutes as in Wagner, we have never previously addressed this issue in regards to “substituted service” cases such as this. The Eighth Circuit Court of Appeals case of Marshall v. Warwick,
[¶ 23.] In Marshall, the court was faced with substituted service of process under South Dakota law where the trial court had granted a motion for dismissal. On appeal, Marshall contended that there was substantial compliance “with the requirements of substituted service” under SDCL 15-6-4(e).
Moreover, there are several compelling reasons to limit the application of the substantial compliance standard to personal service of process. In cases of personal service of process, a court can be reasonably certain that the defendant had notice of the impending suit because the defendant was present for the service. Substituted service of process, in contrast, carries the risk that the defendant never received notice. Allowing only substantial compliance with the requirements for substituted service of process further increases the risk involving an unsuspecting defendant in a lawsuit about which the defendant did not have notice. Arguably, only strict compliance ivith the requirements of substituted service of process will sufficiently reduce this risk.
Id. at 1031 (emphasis added).
[¶ 24.] Other jurisdictions have also held that strict compliance is required when dealing with “substituted service.” See, e.g., Messmer v. Olstad,
[¶ 25.] We must now turn to whether Lekanidis failed to “strictly comply” with the statute by not attaching the affidavit of compliance to the original documents sent to Bendetti and by not sending the documents to Bendetti’s “last known address.”
Failure to Attach Affidavit of Compliance with Mailings to Bendetti
[¶ 26.] Under SDCL 15-7-7, the plaintiff is required to send “notice of such service and a copy of the process” within ten days to the defendant and “that plaintiffs affidavit of compliance with the provisions of this section is attached to the summons.” (Emphasis added). The statute clearly and unambiguously requires the affidavit of compliance be attached to the summons and mailed to the defendant along with the notice of service and copy of process. Lekanidis failed to attach the affidavit of compliance with his mailings to Bendetti; therefore, he has failed to strictly comply with SDCL 15-7-7.
The “Last Known Address” Requirement
[¶ 27.] As previously noted, the trial court also dismissed Lekanidis’ action based upon his failure to use the “last known address” of Bendetti, but instead, “supplied his own last known address” by correcting the spelling of “Nassau” and providing a zip code.
[¶ 28.] Lekanidis argues that Bendetti was at fault in providing the incorrect address to Officer Hardman and Lekanidis should not be punished for the fault of Bendetti in not clearly providing his correct address to Officer Hardman. Lekani-dis contends that the last known address “was the address on the police report, whether correct or incorrect,” and he did in fact mail to the address on that report. Lekanidis’ sole support for his argument is Dahn,
[¶ 30.] Bendetti argues that use of an incorrect address by Lekanidis does not satisfy the statutory requirement of mailing to the defendant’s “last known address.” Bendetti argues that Lekanidis should have taken other measures to assure service of notice after receiving the letters back marked “Address-Not Known.” In support of his argument, Bendetti cites Permenter v. Feurtado,
[¶ 31.] In Permenter, Feurtado filed suit against Permenter, a Michigan resident, for damages sustained in an automobile accident in Florida.
[¶ 32.] Lekanidis further contends that our decision in Dahn eliminates any duty on Lekanidis to make an independent inquiry into Bendetti’s correct address. In Dahn, we noted that a holder of a tax deed could reasonably rely on the last known address of the property owner which was contained in the records of the county treasurer and was not required to make independent inquiry to determine the correct address of the property owner because the property owner had a duty to insure that his address on file with the county was correct. See Dahn,
[¶ 33.] We have often stated that “ ‘[without valid service of process the trial court has no jurisdiction to act.’ ” Wagner,
[¶ 34.] It is well settled that “an action is commenced in this jurisdiction by the service of a summons” on the defendant. See Meisel v. Piggly Wiggly Corp.,
[¶ 35.] Based upon our disposition of this issue, we need not address the issues contained in Bendetti’s notice of review.
[¶ 36.] We affirm.
. Lekanidis retained this same counsel for this appeal.
. The parties disputed whether or not the letter was returned “refused” or "atlempted-not known.” The trial court made a finding of fact that "[a] fair reading of the ‘For reason checked’ is either ‘Refused’ or ‘Attempted Not Known.’ ” (Emphasis in original). It clearly appears to this Court that the check mark is located on the “Attempted-Not Known” line.
. "Skiplracing” is a "[sjervice which assists creditors in locating delinquent debtors or persons who have fled to avoid prosecution.” Black’s Law Dictionary 1387 (6thEd 1990).
. The trial court further held,
[Lekanidis] did not use the address on the report whether supplied by [Bendetti] or not. The report address was an error - but the Defendant [sic] affirmatively compounded the error by independently determining the and [sic] erroneously determining that "Nassu” meant Nassau and [Lekanidis] supplied the (erroneous) zip code. [Lekani-dis] did not rely on the erroneous “last known address” - Which [Lekanidis] must have known was erroneous because he did not use the address supplied by the report. -He supplied his own last known address. (Emphasis in original.)
Concurrence Opinion
(concurring in result).
[¶ 39.] I agree that due diligence must be used to obtain a correct last known address when presented with a facially incomplete or inaccurate address.
[¶ 40.] This case is a good reminder to do things as soon, not as late, as possible, especially when flawed or defective in procedures. Had counsel erred earlier, he could have corrected his mistakes before the statute of limitation ran.