#26948-rev & rem-GAS

2014 S.D. 73

                           IN THE SUPREME COURT

                                  OF THE

                           STATE OF SOUTH DAKOTA

                                   ****

                       ESTATE OF STEVEN C. LESTER,
                               DECEASED.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                    THE HONORABLE WALLY EKLUND
                               Judge

                                   ****


SCOTT SUMNER
Rapid City, South Dakota                    Attorney for appellant
                                            Michelle L. Lamphere.


ROBERT J. GALBRAITH
JOHN C. NOONEY of
Nooney, Solay & Van Norman, LLP
Rapid City, South Dakota                    Attorneys for appellee/Estate of
                                            Steven C. Lester.


                                   ****



                                            CONSIDERED ON BRIEFS
                                            ON OCTOBER 6, 2014
                                            OPINION FILED 10/29/14
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SEVERSON, Justice

[¶1.]        Pamela Lester, personal representative of Steven C. Lester’s estate,

published a Notice to Creditors advising them to file claims within four months of

the notice. She also mailed a notice directly to Michelle Lamphere which provided a

later deadline by which Lamphere needed to file her claim. Lamphere complied

with the deadline established in the personal notice she received, but Pamela Lester

denied the claim. Lamphere then filed a petition to allow the claim. Pamela Lester

moved to dismiss the claim as barred by the statute of limitations provided for

creditors’ claims. The circuit court granted the motion to dismiss, finding that

Lamphere was an unknown creditor whose claim was barred four months after

publication of the Notice to Creditors rather than the time stated in the letter

mailed directly to Lamphere. Lamphere appeals.

                                    Background

[¶2.]        Steven C. Lester died on August 17, 2011. Pamela Lester (PR Lester)

was appointed as the personal representative of the estate on August 24, 2011. She

filed a Notice to Creditors on August 25, 2011. The notice gave creditors four

months to file their claims and was published in the Rapid City Journal once each

week for three successive weeks, beginning on September 3, 2011. Any unknown

creditors that were subject to this publication had until January 3, 2012, to make

claims. At some point in time, PR Lester became aware of an alleged claim by

Michelle L. Lamphere. PR Lester mailed a Notice to Creditors directly to Lamphere

on February 3, 2012. The notice to Lamphere stated that Lamphere must file her

claim by April 10, 2012. Lamphere met that deadline by mailing a claim letter,


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received by PR Lester on April 10, 2012. On May 18, 2012, PR Lester filed A Notice

of Disallowance of Claim dated April 24, 2012. On July 3, 2012, in response to the

disallowance, Lamphere sent a Petition for Allowance of Claim by Michelle L.

Lamphere to PR Lester. On August 23, 2013, PR Lester filed a Motion to Dismiss

Petition for Allowance of Claim by Michelle Lamphere, alleging that it was

untimely filed according to SDCL 29A-3-804. Honorable Judge Wally Eklund held a

hearing on the motion on November 20, 2013. No evidence was presented at the

hearing. The circuit court found that Lamphere was an unknown creditor and

SDCL 29A-3-801(c)(3) barred her claim because it was not filed within four months

after the publication of the Notice to Creditors. If Lamphere had been a known

creditor then she was entitled to the notice mailed to her and her claim would have

been valid under SDCL 29A-3-801(b). Lamphere appeals. She asserts that the

court erred by granting the motion to dismiss because a genuine issue of material

fact exists as to whether Lamphere is an unknown, known, or reasonably

ascertainable creditor.

                                Standard of Review

[¶3.]        SDCL 29A-1-304 provides: “[u]nless specifically provided to the

contrary in this code or unless inconsistent with its provisions, the rules of civil

procedure, including the rules concerning vacation of orders and appellate review,

govern formal proceedings under this code.” Therefore, we consider PR Lester’s

motion to dismiss as a motion for judgment on the pleadings under SDCL 15-6-

12(c). “Judgment on the pleadings provides an expeditious remedy to test the legal

sufficiency, substance, and form of the pleadings. However, it is only an


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appropriate remedy to resolve issues of law when there are no remaining issues of

fact.” Korstad-Tebben, Inc. v. Pope Architects, Inc., 459 N.W. 2d 565, 567 (S.D.

1990) (citation omitted).

                                      Analysis

[¶4.]        PR Lester’s Motion to Dismiss Petition for Allowance of Claim by

Michelle L. Lamphere asserted that the petition was filed outside the statute of

limitations in SDCL 29A-3-804. The brief filed by PR Lester in support of the

motion to dismiss in circuit court asserted for the first time that it was SDCL 29A-

3-803(a)(1) that barred Lamphere’s claim, and the circuit court agreed. SDCL 29A-

3-803(a)(1) provides that creditors’ claims are barred “[a]s to creditors barred by

publication, within the time set in the published notice to creditors.” If Lamphere is

subject to this provision, then she filed her claim too late. She would have had to

file her claim by January 3, 2012. However, the personal representative must:

             give written notice by mail or other delivery to a creditor of the
             decedent, who is either known to or reasonably ascertainable by
             the personal representative, informing the creditor to present
             the claim within four months after the date of the personal
             representative’s appointment, or within sixty days after the
             mailing or other delivery of the written notice, whichever is
             later, or be forever barred.

SDCL 29A-3-801(b). Therefore, if Lamphere was a known or reasonably

ascertainable creditor, she was entitled to the notice that PR Lester mailed to her,

and her claim was timely filed within the four months given by that notice.

[¶5.]        The circuit court made a variety of factual findings, leading it to

ultimately conclude that Lamphere was an unknown creditora material fact it

needed to address before it could determine which statutory provision provided the


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correct statute of limitationsand granted judgment to the estate.* Nothing in the

record would suggest that this is an undisputed fact. There is a complete lack of

record on the issue, and the circuit court took no evidence at the hearing.

Lamphere’s status as a known, reasonably ascertainable, or unknown creditor was

disputed by the parties at the motion hearing. It appears that the court arrived at

its factual conclusions solely by relying on the facts as represented in PR Lester’s

brief and her attorney’s arguments at the motion hearing. As a result, the circuit

court erred when it decided a disputed material fact at this stage of the proceedings.

                                      Conclusion

[¶6.]          On a motion to dismiss, the circuit court resolved a disputed question

of material fact regarding Lamphere’s status as a creditor and granted judgment to

the estate of Steven C. Lester. This was an improper factual finding at this stage of

the proceedings. Genuine issues of fact remain to be resolved and the circuit court

erred in granting judgment to the estate. We reverse and remand for proceedings

not inconsistent with this opinion.

[¶7.]          GILBERTSON, Chief Justice, and ZINTER, and WILBUR, Justices,

concur.

[¶8.]          KONENKAMP, Justice, deeming himself disqualified, did not

participate.




*       The parties use the terminology “statute of limitations.” The distinction
        between a “statute of limitations” and a “nonclaim statute,” which require
        different due process considerations, is not determinative of the issue in this
        case so we are not addressing it. See generally, Tulsa Prof’l Collection Servs.,
        Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988).

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