#28626-a-MES
2019 S.D. 19

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****

JULIE A. LEIGHTON,                           Plaintiff and Appellant,

      v.

HERBERT C. BENNETT,                          Defendant and Appellee.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                   BROOKINGS COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE DAWN M. ELSHERE
                               Judge

                                    ****



ELLIE M. VANDENBERG                          Attorney for plaintiff
Volga, South Dakota                          and appellant.


WILLIAM C. GARRY
MELISSA R. JELEN of
Cadwell, Sanford, Deibert
   & Garry, LLP                              Attorneys for defendant and
Sioux Falls, South Dakota                    appellee.


                                    ****


                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 7, 2019
                                             OPINION FILED 04/03/19
#28626

SALTER, Justice

[¶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 substitution 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 applicable 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 moved to dismiss

Leighton’s action, citing SDCL 15-6-25(a)(1), which requires dismissal “[u]nless


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substitution is made not later than ninety days after death is suggested[.]”

Leighton then moved to substitute Bennett’s estate on December 18, 2017—116

days after being served the notice of death—serving Bennett’s defense counsel by

mail and obtaining an admission of personal service from counsel for Bennett’s

estate.

[¶4.]        Leighton argued her motion to substitute was timely under SDCL 15-

6-25(a)(1) because the 90-day deadline for seeking substitution did not begin to run

until Bennett’s defense counsel served her and also served Bennett’s estate or

personal representative. In her view, the August 24, 2017 notice of death served

only upon her was insufficient to trigger the 90-day deadline for substitution.

Alternatively, Leighton requested an enlargement of the 90-day period, claiming

excusable neglect. Leighton argued counsel’s noncompliance with SDCL 15-6-

25(a)(1) deprived her of any information about Bennett’s estate.

[¶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 SDCL 15-6-25(a)(1).” The court also concluded that Leighton’s counsel

had not demonstrated excusable neglect for filing an untimely motion to substitute

Bennett’s estate.




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[¶6.]        We consolidate Leighton’s issues on appeal and restate them as

follows:

             1.    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.

             2.    Whether 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 following 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.
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             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 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.

SDCL 15-6-25(a)(1).

[¶9.]        The provisions of SDCL 15-6-25(a)(1) feature notable flexibility. The

rule allows parties or interested non-parties the ability to provide notice of the

death and seek substitution. The text of the rule does not require any surviving

party or non-party to provide notice of a deceased party’s death. However, if a

notice of death is served, SDCL 15-6-25(a)(1) prescribes the procedure for would-be

movants to promptly effect substitution, with the stern consequence of dismissal for

noncompliance.

[¶10.]       We have previously interpreted SDCL 15-6-25(a)(1), but our earlier

decisions do not address the specific question presented here. For instance, in

Ripple v. Wold (Ripple II), we held that non-parties, such as a deceased party’s

successors or representatives, must be personally served with a suggestion of

death—as opposed to being served by mail through counsel—in order to trigger the

90-day deadline for substitution. 1997 S.D. 135, ¶ 17, 572 N.W.2d 439, 443-44.

However, this conclusion addressed only the manner of service and was based upon

a plain reading of SDCL 15-6-25(a)(1), which specifically requires personal service

upon non-parties. Significantly, in Ripple II we were not confronted with the


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question of whether the notice of death must be served upon a party or non-party

who does not seek substitution.

[¶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 SDCL 15-6-25(a)(1) or a necessary predicate for

commencing the 90-day deadline for substitution.

[¶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 SDCL 15-6-

25(a) contemplates a motion for substitution within 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[.]” Here, Bennett’s counsel complied

with the service requirements by mailing the notice of death to Leighton’s counsel

as permitted by the rule and by SDCL 15-6-4. The parties agree that Leighton was

served on August 24, 2017. However, she failed to seek substitution within the

ensuing 90 days, ultimately moving to substitute Bennett’s estate only after

receiving Bennett’s motion to dismiss.




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[¶13.]       Leighton interprets the final sentence of SDCL 15-6-25(a)(1)

differently. In her view, the text that prescribes “service . . . as provided herein for

the service of the motion” means that the notice of death, like the motion for

substitution, must be served upon surviving parties and interested non-parties,

such as an estate or personal representative. However, we believe that Leighton’s

comparison between service of the motion for substitution and service of the notice

of death is not apt. In our view, this text merely refers to the method of service for

the notice of death upon parties and non-parties, not a requirement to serve both.

The Utah Supreme Court reached the same conclusion in Stoddard when

confronted with a similar issue.

             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 Leighton’s argument that SDCL 15-6-

25(a)(1) places the burden on Bennett’s defense counsel to effectively determine who

Leighton should seek to substitute. The text of the rule does not support this

interpretation. Instead, the provisions of the rule allow both parties and non-


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parties to provide notice of death or move to substitute, but imposes no requirement

upon any party, non-party, or attorney. See ¶ 9, supra. As the record here

illustrates, once Leighton received Bennett’s motion to dismiss, she quickly

identified Bennett’s estate and served it without any apparent difficulty. In fact,

though she was not obligated to do so, Leighton could have sought substitution at

any time after learning of Bennett’s death without regard to service of the notice of

death. Indeed, the commencement of the 90-day deadline has no talismanic

significance to a movant’s ability to seek substitution. SDCL 15-6-25(a)(1); see also

Fed. R. Civ. P. 25(a) advisory committee’s note to 1963 amendment (noting that a

prospective movant does not need to wait for service of a notice of death before

moving to substitute a party).

[¶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 personal

representative is insufficient to trigger 90-day period). We believe our analysis here

is correct, though, because it more faithfully applies the text of SDCL 15-6-25(a)(1).

The contrary views of other courts exalt a strained formulaic approach over the

plain text of this pragmatic rule, which is designed to provide relatively swift and

certain substitution. We recognized the utility of the rule for this purpose in

Swenson when we held that the attorney of a deceased party has the authority to

file and serve a notice of a client’s death.


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               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, SDCL 15-6-6(b)

allows for the enlargement of time periods prescribed by the rules of civil procedure.

               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 period
               permit the act to be done where the failure to act was the result of
               excusable neglect.

Id. (emphasis added).∗ “[W]e review a grant or denial of enlargement of time to file

. . . under the abuse of discretion standard.” Donald Bucklin Constr. v. McCormick

Constr. Co., 2013 S.D. 57, ¶ 16, 835 N.W.2d 862, 866 (quoting Colton Lumber Co. v.

Siemonsma, 2002 S.D. 116, ¶ 7, 651 N.W.2d 871, 873). An abuse of discretion is “a

fundamental error of judgment, a choice outside the range of permissible choices, a

decision, which, on full consideration, is arbitrary or unreasonable.” Supreme Pork,




∗        Rule 6 of the Federal Rules of Civil Procedure previously excepted Rule 25,
         which meant the 90-day period was not subject to enlargement. However,
         Rule 6 was amended in 1963 to remove the Rule 25 exception at the same
         time Rule 25, itself, was amended to ameliorate other harsh effects created
         by the earlier version. See 7C Charles Alan Wright, Arthur R. Miller & Mary
         Kay Kane, Federal Practice and Procedure § 1955 (3d ed. 2018).
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Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 57, 764 N.W.2d 474, 490 (quoting Hogen

v. Pifer, 2008 S.D. 96, ¶ 9, 757 N.W.2d 160, 163).

[¶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 under SDCL
             15-6-55(c) and SDCL 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 (internal 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 “readily 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 SDCL 15-6-60(b) has “the burden of bringing

forth evidence to support [her] claims.”).




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[¶19.]        Here, by contrast, the record contains no such factual showing by

Leighton’s counsel. Although Leighton’s counsel invokes the excusable neglect

standard, counsel did not submit an affidavit to the circuit court or otherwise

provide a factual basis that could support a finding of excusable neglect. Rather,

Leighton’s counsel argues excusable neglect based upon the claim that Bennett’s

defense counsel acted improperly by not advising her of the existence of Bennett’s

estate. However, this is essentially the same claim offered on the merits of

Leighton’s principal argument.

[¶20.]        Leighton’s reply brief does contain a passing reference to the unsettled

nature of SDCL 15-6-25(a)(1)’s service requirements. However, this is solely a legal

argument that was not made to the circuit court and is insufficient to support a

factual finding of excusable neglect. Simply put, the record does not establish that

Leighton failed to act within the 90-day deadline because she had an erroneous view

of an unsettled area of law. Indeed, any uncertainty concerning the 90-day deadline

would seem to heighten the need to take action sooner, rather than later. Without a

sufficient factual record in this regard, we, like the circuit court, are left to

speculate about why Leighton did not take action earlier.

[¶21.]        We acknowledge that our interpretation of SDCL 15-6-25(a)(1) creates

the potential for the harsh result of dismissal in cases where a party fails to seek

substitution within 90 days following service of notice of death. However, our rules

of civil procedure allow for the enlargement of time periods and deadlines, such as

the one in SDCL 15-6-25(a)(1), and operate to temper the potential for the harsh

result of reflexive dismissal. Here, though, without any action by Leighton during


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the 90-day period to confirm or dispel her understanding of the rule and no other

factual showing of excusable neglect, the circuit court acted within its discretion

when it denied Leighton’s motion for an enlargement of time.

                                      Conclusion

[¶22.]       The plain text of SDCL 15-6-25(a)(1) does not require service of the

notice of death on the decedent’s estate or personal representative. Therefore, the

circuit court did not err in its interpretation of the rule. Further, the circuit court

did not err when it denied Leighton’s motion for substitution as untimely. The

circuit court also did not abuse its discretion when it denied Leighton’s motion for

enlargement due to an insufficient factual showing to support a finding of excusable

neglect. Under the circumstances, the circuit court did not err when it dismissed

Leighton’s case.

[¶23.]       We affirm.

[¶24.]       GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and

SEVERSON, Retired Justice, concur.




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