Ripple v. WoldRipple v. Wold
John J. Delaney Sr., Estes, Porter & Delaney, Rapid City, SD
Attorneys for Plaintiffs and Appellants.
Gene N. Lebrun, Lynn, Jackson, Shultz & Lebrun, Rapid City, SD
Attorneys for Defendants and Appellees.
SABERS, Justice.
[¶1] Trial court granted defendants’ motion to dismiss on the basis that the motiоn to substitute parties for deceased plaintiffs was untimely.
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 agrеements. 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 сomplaint 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 NW2d 673 (Ripple I).
[¶4] Lester and Maurine Ripple both died before Ripple I was decided. See id. at n1: “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 of the deaths of Ripples by a document dated May 29, 1996. The Clerk‘s office acknowledged receipt by return letter dated May 30, 1996. On September 3, 1996, Wolds moved to dismiss for failure to substitute parties within the ninety days of
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 ninеty-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
1. Whether The Suggestion Of Death Upon The Record Or Substitution Of Parties Can Be Effected In The Sоuth Dakota Supreme Court.
[¶8] Ripples argue that suggestion of death “upon the record” cannot be effected when a case is pending before this court. They claim that
[¶9]
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 befоre 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
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.
[¶10] According to
While service оf 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 F2d 958, 961 (4thCir 1985) (to satisfy Rule 25(a)(1), motion for substitution or suggestion of dеath 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 periоd did not begin to run. See United States v. Miller Bros. Constr. Co., 505 F2d 1031, 1034-35 (10thCir 1974).
913 F2d at 837 (emphasis added); accord Barlow v. Ground, 39 F3d 231 (9thCir 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).
[¶11] 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 mailed on the same day to the Clerk of the Supreme Court for filing.” Even if the successor or representative had actual knowledge of Ripples’ deaths, the ninety-day rule is not invoked absent formal suggestion of death upon the record, and “formal suggestion” includes personal service on those non-parties. Grandbouche, 913 F2d at 836-37.
[¶12] The rаtionale 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 & n12:
[The attorney for the deceased] is not himself a party to the action and, since his authority to represent the dеceased 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).
[¶13] 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 cоurt of jurisdiction. Black v. Circuit Court of Eight Judicial Circuit, 78 SD 302, 101 NW2d 520 (1960); Ayers, Weatherwax & Reid Co. v. Sundback, 5 SD 31, 58 NW 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 NW2d 201 (SD 1978).
(Emphasis added).
[¶14] 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 NW2d 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 ordеr, 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).
[¶15] 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
[¶16] AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.
[¶17] MILLER, Chief Justice, concurs in part and dissents in part.
MILLER, Chief Justice (concurring in part, dissenting in part).
[¶18] I agree that
[¶19] Ripples nеver 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 NW2d 364, 367 (SD 1993); Williams Ins. v. Bear Butte Farms Partnership, 392 NW2d 831, 834 (SD 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?
[¶20] 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 NW2d 642, 648 (SD 1992) (citations omitted). The issue was never raised to the trial court and should therefore be deemed waived. See Gesinger v. Gesinger, 531 NW2d 17, 22 (SD 1995) (citing Fullmer v. State Farm Ins. Co., 514 NW2d 861 (SD 1994); Hepper v. Triple U Enterprises, Inc., 388 NW2d 525, 527 n3 (SD 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 NW2d 155, 159 (SD 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 SD 224, 229, 121 NW2d 559, 561 (1963).
[¶21] 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 thе 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 thаt party‘s attorney failed to make it.10 As to the majority raising the issue of ineffective service, all that can be said is: “The point appears here in its virgin state, wearing all its maiden blushes, and is therefore out of place.” Cleveland v. Chambliss, 64 Ga 352, 359 (1879).
Footnotes