Lester K. RIPPLE and Maurine H. Ripple, Plaintiffs and Appellants, v. ROGER WOLD and Nancy Wold, Defendants and Appellees.
No. 19987
Supreme Court of South Dakota.
Dec. 17, 1997
Rehearing Granted Jan. 13, 1998
1997 SD 135
Considered on Briefs Oct. 21, 1997.
[¶ 19.] MILLER, C.J., and GILBERTSON, J., concur.
[¶ 20.] SABERS and AMUNDSON, JJ., dissent.
[¶ 21.] LOVRIEN, Circuit Judge, for KONENKAMP, J., disqualified.
SABERS, Justice (dissenting).
[¶ 22.] I dissent. We do not need to remand to conclude that the circuit court correctly reversed the Board. In fact, it would be error to do so. The Board failed to make a finding of fact that Brown did not comply with the conditions of the suspended sentence requiring sex offender participation. Therefore, Board‘s revocation of his suspended sentence was an abuse of discretion and an error as a matter of law. See, e.g., Schroeder v. Department of Soc. Servs., 1996 SD 34, ¶ 12, 545 N.W.2d 223, 229:
Findings of fact must support conclusions of law. The Commission‘s decision to reinstate Schroeder was not supported by its own factual findings, an error as a matter of law. We thus affirm the circuit court‘s decision to reverse.
(citing Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 297 (S.D.1982) (“A well-established rule is that the findings of fact must support the conclusions of law.“) (agreeing with the circuit court‘s reversal of Career Service Commission‘s factually unsupported legal conclusion)); see also Baldwin v. National College, 537 N.W.2d 14, 19 (S.D.1995) (“This court has consistently held that the conclusions of law ... must find support in the findings.“); accord State v. New, 536 N.W.2d 714, 716 n. 1 (S.D.1995); First Dakota Nat‘l Bank v. Maxon, 534 N.W.2d 37, 40 (S.D.1995).
[¶ 23.] The conference opinion incorrectly attempts to fill in the blank for the Board regarding what its finding of fact must state in order for its decision to be upheld. It is too late. Allowing Board to rewrite its findings of fact to support its conclusion would render our well-established standard of review meaningless.
[¶ 24.] AMUNDSON, J., joins this dissent.
[¶ 1.] Trial court granted defendants’ motion to dismiss on the basis that the motion to substitute parties for deceased plaintiffs was untimely.
Reed C. Richards of Richards & Richards, Deadwood, and John J. Delaney, Sr. of Estes, Porter & Delaney, Rapid City, for plaintiffs and appellants.
Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendants and appellees.
FACTS
[¶ 2.] In November 1992, Lester and Maurine Ripple (Ripples) entered into a contract for deed and a personal care agreement with Roger and Nancy Wold (Wolds). Ripples agreed to sell approximately eighty-seven acres of land to Wolds for $60,000 and Wolds agreed to personally care for Ripples. For each month they provided personal services, Wolds were to receive a $250 credit against their monthly payment on the contract for deed. When a dispute arose under the personal care agreement, Ripples sued Wolds, claiming breach of both agreements. Ripples sought foreclosure of the contract for deed and injunctive relief to prohibit Wolds from living on the property.
[¶ 3.] In August of 1994, the trial court granted Wolds’ motion for summary judgment on Ripples’ foreclosure action, ruling that Wolds had not defaulted on the contract for deed. Ripples successfully moved to amend their complaint to seek rescission on the contract for deed. Wolds then moved to dismiss the rescission claim, arguing that by first seeking foreclosure, Ripples affirmed the contract for deed and were then barred by the “election of remedies” doctrine from disaffirming the contract through rescission. The trial court denied Wolds’ motion to dismiss the amended complaint, and this court granted Wolds’ petition to appeal from that intermediate order. We affirmed the denial of Wolds’ motion to dismiss. See Ripple v. Wold, 1996 SD 68, 549 N.W.2d 673 (Ripple I).
[¶ 4.] Lester and Maurine Ripple both died before Ripple I was decided. See id. at n. 1: “At the time this appeal began Lester and Maurine Ripple were 92 and 85 years old, respectively. Maurine died on October 19, 1995 and Lester died on March 5, 1996.” Ripple I was decided June 5, 1996.
[¶ 5.] Approximately one week before Ripple I was decided, Wolds informed this court
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 party 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 ninety 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.
Ripples1 made a motion to substitute parties on September 5, 1996; assuming the ninety-day rule was properly invoked, the last day the motion could have been timely filed was September 2, 1996.2 Ripples’ motion to substitute parties was denied and Wolds’ motion to dismiss granted.
[¶ 6.] Ripples appeal, claiming that since
STANDARD OF REVIEW
[¶ 7.] This appeal requires us to construe
[¶ 8.] 1. WHETHER THE SUGGESTION OF DEATH UPON THE RECORD OR SUBSTITUTION OF PARTIES CAN BE EFFECTED IN THE SOUTH DAKOTA SUPREME COURT.
[¶ 9.] Ripples argue that suggestion of death “upon the record” cannot be effected when a case is pending before this court. They claim that
[¶ 10.]
Except as otherwise indicated by statute or rule, the statutes and rules of practice and procedure in the circuit courts of this state shall apply to practice and procedure in the Supreme Court.
Therefore, the argument that a suggestion of death upon the record is not effective in a pending appeal is without merit. Ripples’ argument that substitution of parties cannot be accomplished before this court fails for the same reason. Since this court has not adopted a separate rule to govern appellate procedure for substitution of parties,4 we employ circuit court procedural rules pursuant to
[¶ 11.] 2. WHETHER THE NINETY-DAY LIMITATION PERIOD WAS INVOKED BY WOLDS’ “SUGGESTION OF DEATH UPON THE RECORD” IN THE ABSENCE OF PERSONAL SERVICE UPON RIPPLES’ REPRESENTATIVES.
[¶ 12.] According to
While service of a suggestion of death on counsel will satisfy the requirement of Rule 25(a)(1) for service of parties to the litigation, the service required by Rule 25(a)(1) on nonparties, specifically the successors or representatives of the deceased party‘s estate, must be service pursuant to
FedRCivP 4 .7 See Fariss v. Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir.1985) (to satisfy Rule 25(a)(1), motion for substitution or suggestion of death must be personally served on nonparty representative of deceased, rather than deceased‘s attorney).... In the instant case, because the personal representative of decedent‘s estate did not receive service of any purported suggestion of death, the ninety-day limitations period did not begin to run. See [United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1034-35 (10th Cir.1974) ].
913 F.2d at 837 (emphasis added); accord Barlow v. Ground, 39 F.3d 231 (9th Cir. 1994). See also 7C Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1956, at 551 (1986) (“Thus the procedures of [FedRCivP] Rule 4 must be followed in serving the motion [for substitution] on the representative or successor of a deceased party.“) (emphasis added).
[¶ 13.] Here, no personal service was made upon Ripples’ successors or representatives. According to the certificate of service appended to the suggestion of death, the only persons served were the attorneys who had represented the decedents. Wolds state in their brief that “A copy of that Statement of Fact of Deaths was mailed to both attorney Reed C. Richards and attorney John J. Delaney, Sr. by first class mail, postage prepaid, on May 29, 1996. The original of the Statement of Fact of Deaths was
[¶ 14.] The rationale for requiring personal service on the representative or successor is explained as follows:
Personal service of the suggestion of death on the representative achieves a salutary litigation function. It alerts the nonparty to the consequences of death for a pending suit, signaling the need for action to preserve the claim if so desired.
In addition to insuring that the decedent‘s representative has notice of the litigation, a supplemental reason for rejecting service on decedent‘s attorney alone is based on the law of agency. Because the attorney‘s power to act ceases with the client‘s death, counsel has no power to continue or terminate an action on behalf of a dead client.
6 Moore‘s Federal Practice, § 25.10[3][e], at 25-21 (Matthew Bender 3d ed.) (citations and internal quotation omitted); accord Federal Practice & Procedure, supra, § 1955, at 545 & n. 12:
[The attorney for the deceased] is not himself a party to the action and, since his authority to represent the deceased terminated on the death, he is not a “representative of the deceased party” of the sort contemplated in the rule.
(Citations omitted) (noting also that the decedent‘s attorney may not suggest the death on the record).
[¶ 15.] Ineffective service was not argued by Ripples, but it was not necessary to do so. The statute expressly provides that dismissal is conditioned upon proper service of the decedent‘s representatives.8 See
While the service can be waived by appearance where a summons has been actually issued and later filed, the failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction. Black v. Circuit Court of Eighth Judicial Circuit, 78 S.D. 302, 101 N.W.2d 520 (1960); Ayers, Weatherwax & Reid Co. v. Sundback, 5 S.D. 31, 58 N.W. 4 (1894);
SDCL 15-2-30 ,15-2-31 ,15-6-3 , and15-6-5(d) . We conclude by noting that the question of jurisdiction may be raised at any time and even by the reviewing court‘s own motion. Medley v. Salvation Army, Rapid City Corps, 267 N.W.2d 201 (S.D.1978).
(Emphasis added).
[¶ 16.] In addition, we may “vacate,” “modify,” or “otherwise disturb” a judgment if “refusal to take such action appears to the court inconsistent with substantial justice” because “substantial rights of the parties” will otherwise be jeopardized. In re Estate of Tallman, 1997 SD 49, ¶ 14, 562 N.W.2d 893, 897. See
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
(Emphasis added).
[¶ 17.] Here, the limitation period would impose upon Ripples’ successors or representatives an obligation which had to be fulfilled within ninety days—even though they were not personally served as required by
[¶ 18.] AMUNDSON, KONENKAMP, and GILBERTSON, JJ., concur.
[¶ 19.] MILLER, C.J., concurs in part and dissents in part.
MILLER, Chief Justice (concurring in part, dissenting in part).
[¶ 20.] I agree that
[¶ 21.] Ripples never argued ineffective service to the trial court or to this Court.
A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in
§ 15-6-12(g) , or (B) if it is neither made by motion under§ 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by§ 15-6-15(a) to be made as a matter of course. (Emphasis added).
See also Matter of R.P., 498 N.W.2d 364, 367 (S.D.1993); Williams Ins. v. Bear Butte Farms Partnership, 392 N.W.2d 831, 834 (S.D.1986). It seems clear that in past cases this Court has not chosen to make an argument for a party as to insufficiency of service of process, so why start now?
[¶ 22.] While the present case raises the issue of when the ninety-day period begins to run and not a jurisdictional issue as was the case in Williams Ins. and Matter of R.P., there is our general rule that “[w]e will not address issues raised for the first time on appeal.” Mash v. Cutler, 488 N.W.2d 642, 648 (S.D.1992) (citations omitted). The issue was never raised to the trial court and should therefore be deemed waived. See Gesinger v. Gesinger, 531 N.W.2d 17, 22 (S.D.1995) (citing Fullmer v. State Farm Ins. Co., 514 N.W.2d 861 (S.D.1994); Hepper v. Triple U Enterprises, Inc., 388 N.W.2d 525, 527 n. 3 (S.D.1986)). Further, the issue was never raised to this Court and should also be deemed waived. See Id. (citing Zens v. Chicago, Milwaukee, St. Paul & Pac., 479 N.W.2d 155, 159 (S.D.1991)). Ripples had two strikes at this issue and failed to raise it; this Court should not now pinch hit for Ripples’ attorneys. We are a reviewing court and should not consider matters not properly before us or matters not determined by the trial court. Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963).
[¶ 23.] The majority argues that to hold other than it does would be to prejudice the substantial rights of Ripples. But cannot the same be said for all the countless parties in the past whose arguments we have not addressed because they were not properly before us? Were the situations of these other parties different because they actually tried to present their issues to us? It is not the responsibility, nor the duty of this Court to make an argument for a party because that party‘s attorney failed to make it.10 As to
Notes
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served by mail, three days shall be added to the prescribed period....
If anything material to either party is omitted from the record, is misstated therein, or is improper, the parties by stipulation, or the trial court, before the record is transmitted to the Supreme Court, or the Supreme Court, on motion by a party or on its own initiative, may direct the record be corrected and if necessary require a supplemental record be approved and transmitted.
Because the suggestion of death does not constitute omitted, misstated, or improper material, this statute has no application to this case; it does, however, demonstrate this court‘s authority to modify the record.
If this cause of action had ever been properly in our court by appeal, and one of the parties had died or become disqualified to act pending the appeal, then this court could exercise its power to bring the legal representative into the case as one of the incidents of the exercise of its jurisdiction.
The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service:
...
(10) In all other cases, to the defendant personally[.]
See also subdivision (9): “Whenever the manner of service of process is specified in any statute or rule relating to any action, remedy or special proceedings the manner of service so specified shall be followed[.]” (Emphasis added).