#25912-rev & rem-DG

2012 S.D. 1

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
JILL ROBINSON formerly known
as JILL ROBINSON-KUCHTA,                    Plaintiff and Appellant,

      v.

MICHELLE M. MITCHELL,                       Defendant,

     and

CHELSEY A. EWALT,                           Defendant and Appellee.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                   YANKTON COUNTY, SOUTH DAKOTA

                                   ****

                      THE HONORABLE GLEN W. ENG
                                Judge

                                   ****
WANDA HOWEY-FOX of
Harmelink, Fox
 & Ravnsborg Law Office
Yankton, South Dakota                       Attorneys for plaintiff
                                            and appellant.

LARRY M. VON WALD of
Beardsley, Jensen and
 Von Wald, Prof LLC
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellee.

                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON OCTOBER 3, 2011

                                            OPINION FILED 01/04/12
#25912

GILBERTSON, Chief Justice

[¶1.]         Jill Robinson and Chelsey Ewalt were involved in a car accident.

Robinson sued Ewalt and attempted service of process a few days before the three-

year statute of limitations expired, but Ewalt could not be located. Ewalt was

eventually served almost one month after the statute of limitations had expired.

Ewalt moved for summary judgment, and the circuit court granted Ewalt’s motion.

We reverse and remand.

                                       FACTS

[¶2.]         On April 28, 2007, Robinson, Ewalt, and Michelle Mitchell were

involved in a three-car accident in Yankton, South Dakota. Ewalt rear-ended

Mitchell, who then rear-ended Robinson.

[¶3.]         At the time of the accident, Ewalt was a seventeen-year-old high school

student living in Gayville, South Dakota with her mother. Gayville is located in

Yankton County. After graduating from high school in May 2008, Ewalt moved

several times. Ewalt moved to Sioux Falls, South Dakota in June 2008 to work.

Next, in September 2008, Ewalt moved to Volin, South Dakota and lived with her

father. Volin is also located in Yankton County. In August 2009, Ewalt moved to

Sioux City, Iowa to attend school. Finally, in December 2009, Ewalt moved to

Watertown, South Dakota to attend a different school.1 Ewalt has lived in

Watertown since December 2009, which is located in Codington County.




1.      When Ewalt first moved to Watertown, Ewalt stayed with her sister. A few
        months later, however, Ewalt obtained her own apartment.
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[¶4.]         On April 23, 2010, just a few days before the three-year statute of

limitations expired, Robinson sued both Mitchell and Ewalt. Robinson delivered the

summons and complaint to the Yankton County Sheriff for service of process.

Mitchell was served on April 24, 2010.

[¶5.]         The Yankton County Sheriff unsuccessfully attempted to serve Ewalt

in Yankton County. At some point, Ewalt and the Yankton County Sheriff’s office

communicated, and Ewalt stated that she would personally pick up the papers.

However, Ewalt never retrieved the summons and complaint, so the Yankton

County Sheriff’s office contacted Ewalt to follow up. Ewalt indicated that she lived

in Watertown. The Yankton County Sheriff’s office then faxed the summons and

complaint to the Codington County Sheriff’s office. Ewalt was finally served by the

Codington County Sheriff on May 25, 2010.

[¶6.]         Ewalt answered and moved for summary judgment arguing that the

statute of limitations barred Robinson’s claim. The circuit court held a hearing and

granted Ewalt’s summary judgment motion. Robinson appeals. We address

whether the circuit court erred in granting summary judgment.2

                              STANDARD OF REVIEW

[¶7.]         This Court reviews summary judgment proceedings under the

following standard of review:

              We must determine whether the moving party demonstrated the
              absence of any genuine issue of material fact and showed
              entitlement to judgment on the merits as a matter of law. The


2.      We do not address Robinson’s argument that Ewalt is equitably estopped
        from raising the statute of limitations defense because we reverse the circuit
        court on the summary judgment issue.
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#25912

             evidence must be viewed most favorably to the nonmoving party
             and reasonable doubts should be resolved against the moving
             party. The nonmoving party, however, must present specific
             facts showing that a genuine, material issue for trial exists. Our
             task on appeal is to determine only whether a genuine issue of
             material fact exists and whether the law was correctly applied.
             If there exists any basis which supports the ruling of the trial
             court, affirmance of a summary judgment is proper.

Murray v. Mansheim, 2010 S.D. 18, ¶ 4, 779 N.W.2d 379, 381-82. Furthermore,

where a statute of limitations defense is raised in a summary judgment proceeding,

             The burden of proof is upon the movant to show clearly that
             there is no genuine issue of material fact and that he is entitled
             to judgment as a matter of law. When faced with “‘a summary
             judgment motion where the defendant asserts the statute of
             limitations as a bar to the action and presumptively establishes
             the defense by showing the case was brought beyond the
             statutory period, the burden shifts to the [nonmoving party] to
             establish the existence of material facts in avoidance of the
             statute of limitations[.]’” It is well settled that “‘[s]ummary
             judgment is proper on statute of limitations issues only when
             application of the law is in question, and not when there are
             remaining issues of material fact.’” Generally, a statute of
             limitations question is left for the jury; however, deciding what
             constitutes accrual of a cause of action is a question of law and
             reviewed de novo.

Id. ¶ 5 (citations omitted).

                                     ANALYSIS

[¶8.]        Robinson contends that the circuit court erred in granting Ewalt’s

summary judgment motion. Robinson argues that Ewalt “usually resided” in

Yankton County because Ewalt lived with her parents in Yankton County during

portions of the statutory period. Robinson also argues that Ewalt used a Yankton

County address as her “home address” for her driver’s license, tax filings, and




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#25912

banking documents.3 Thus, Robinson argues that the sixty-day extension for

service of process provided by SDCL 15-2-31 applies in this case because Robinson

delivered the summons to the Yankton County Sheriff, the sheriff of the county

where Ewalt “usually or last resided,” before the statute of limitations expired.

[¶9.]          Ewalt responds that she “usually and last resided” in Codington

County rather than Yankton County. Ewalt argues that an address and a residence

are two separate concepts and what address she used is not indicative of where she

“usually or last resided.” Ewalt contends that the standard for determining an

individual’s voting residence provides guidance to this issue. Ewalt further notes

that she had not lived in Yankton County for eight months when Robinson

delivered the summons to the Yankton County Sheriff. Thus, Ewalt argues that the

circuit court correctly held that the sixty-day extension for service of process does

not apply in this case because Robinson delivered the summons to a sheriff in the

wrong county. Ewalt concludes that without the sixty-day extension, Robinson

failed to serve Ewalt within the statute of limitations and for that reason, the

circuit court did not err in granting Ewalt’s summary judgment motion.

[¶10.]         Summary judgment must be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if



3.       Robinson notes that Ewalt applied for a new driver’s license in September
         2010 and used a Codington County address at that time. Robinson
         emphasizes that Ewalt’s original license with a Yankton County address was
         not to expire until 2011. Robinson contends that Ewalt’s early application for
         a new license shortly after service of process was an attempt to establish a
         Codington County residence solely for purposes of a favorable ruling on
         Ewalt’s summary judgment motion. Ewalt responds that she renewed her
         license at that time because it had been revoked in January 2010.
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#25912

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” SDCL 15-6-56(c). “A disputed

fact is not ‘material’ unless it would affect the outcome of the suit under the

governing substantive law in that a ‘reasonable jury could return a verdict for the

nonmoving party.’” Gul v. Ctr. for Family Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629,

633 (quoting Weitzel v. Sioux Valley Heart Partners, 2006 S.D. 45, ¶ 17, 714 N.W.2d

884, 891). Statute of limitations questions are generally for a jury to decide.

Murray, 2010 S.D. 18, ¶ 5, 779 N.W.2d at 382. Therefore, “summary judgment is

proper on statute of limitations issues only when the application of the law is in

question, and not when there are remaining issues of material fact.” Id. “All

reasonable inferences drawn from the facts must be viewed in favor of the non-

moving party.” Danielson v. Hess, 2011 S.D. 82, ¶ 8, __ N.W.2d __, __ (quoting Gail

M. Benson Living Trust v. Physicians Office Bldg., Inc., 2011 S.D. 30, ¶ 9, 800

N.W.2d 340, 342-43).

[¶11.]       Personal injury actions must be commenced within the applicable

three-year statute of limitations. SDCL 15-2-1, -14. An action is commenced when

a plaintiff serves a defendant with a summons. SDCL 15-2-30. “The summons may

be served by the sheriff . . . where the defendant may be found[.]” SDCL 15-6-4(c).

[¶12.]        South Dakota law provides a sixty-day extension for accomplishing

service of process under certain circumstances. See SDCL 15-2-31. “An attempt to

commence an action is deemed equivalent to the commencement thereof when the

summons is delivered, with the intent that it shall be actually served, to the sheriff .

. . of the county in which the defendants or one of them, usually or last resided[.]”

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#25912

Id. (emphasis added). “Such an attempt must be followed by the first publication of

the summons, or the service thereof, within sixty days.” Id.

[¶13.]        In this case, the accident occurred on April 28, 2007 and the three-

year statute of limitations for Robinson’s personal injury action ran on April 29,

2010. See SDCL 15-6-6(a) (providing that the day of the event is not included when

computing the statute of limitations period). Ewalt was served on May 25, 2010.

Therefore, Ewalt was not served within the statute of limitations.

[¶14.]        However, a question of fact remains regarding whether Ewalt

“usually or last resided” in Codington County or Yankton County. Ewalt moved

several times throughout the three-year period. As the record indicates, Ewalt lived

with her mother in Gayville for the first year, worked in Sioux Falls for about four

months, then lived with her father in Volin for just under a year, attended school in

Sioux City for four months, and attended school in Watertown for the remaining

portion of the statutory period. In addition, Robinson notes Ewalt’s use of a

Yankton County address for banking, tax, and other documents. Thus, although

the parties do not dispute the facts in this case, the parties dispute the inferences

drawn from the facts.

[¶15.]        A jury’s determination regarding the county where Ewalt “usually or

last resided” would control the applicability of SDCL 15-2-31 and the sixty-day

extension period, which would determine whether the statute of limitations barred

Robinson’s claim. Thus, the factual question of Ewalt’s residence is material

because it would affect the outcome of the litigation. Therefore, because a material

question of fact remains, the circuit court’s granting of summary judgment in this

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#25912

case was improper. We reverse and remand this case for a trial on the question of

Ewalt’s usual place of residence.

[¶16.]       Reversed and remanded.

[¶17.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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