#25845-a-GAS

2011 S.D. 87

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                  * * * *

R.B.O., J.H.C., N.T.H., L.M.,
L.Z., K.T., J.J., and B.S.,                  Plaintiffs and Appellees,

      v.

(The) CONGREGATION OF THE PRIESTS
OF THE SACRED HEART, INC.,                   Defendant and Appellant,

      and

THE CATHOLIC DIOCESE OF SIOUX FALLS;
PRIESTS OF THE SACRED HEART; BROTHER
RUSS; FATHER WILLIAM PITCAVAGE, S.C.J.;
BROTHER DAVE; BROTHER BILL; AND
DEACON MARION QUAGLIARIELLO,
S.C.J.; FATHER THOMAS LIND, S.C.J.;
BROTHER MATTHEW L. MILES,                    Defendants.

                                  * * * *

                    APPEAL FROM THE CIRCUIT COURT OF
                       THE SECOND JUDICIAL CIRCUIT
                    MINNEHAHA COUNTY, SOUTH DAKOTA

                                  * * * *

                        HONORABLE BRADLEY G. ZELL
                                 Judge

                                  * * * *


                                            CONSIDERED ON BRIEFS
                                            ON OCTOBER 3, 2011

                                            OPINION FILED 12/14/11
MICHAEL SHUBECK
Law Offices of Gregory A. Yates
Rapid City, South Dakota

and

REBECCA RHOADES of
Manly & Stewart
Newport Beach, California         Attorneys for plaintiffs
                                  and appellees.

RICHARD W. ORR
TIMOTHY M. GEBHART of
Davenport, Evans, Hurwitz &
 Smith, L.L.P.
Sioux Falls, South Dakota

and

STEVEN R. SMITH of
Andera & Smith
Chamberlain, South Dakota         Attorneys for defendant
                                  and appellant.
#25845

SEVERSON, Justice

[¶1.]        Former students of a parochial school brought an action against the

Congregation of the Priests of the Sacred Heart, Inc. (PSHI) and other defendants,

asserting claims of childhood sexual abuse. PSHI filed a motion to dismiss the

action on the grounds that the former students failed to timely serve process on

PSHI in accordance with South Dakota law. The circuit court denied PSHI’s

motion to dismiss, finding that the former students substantially complied with the

applicable service-of-process statute. The circuit court also found service of process

on PSHI was valid under SDCL 15-2-31. We affirm.

                                  BACKGROUND

[¶2.]        R.B.O., J.H.C., N.T.H., L.M., L.Z., K.T., J.J. and B.S. (Plaintiffs) are

members of a recognized Native American tribe who attended St. Joseph’s Indian

Mission School (St. Joseph’s) when they were minors. St. Joseph’s is located on the

Lower Brule Indian Reservation in South Dakota. While they attended St.

Joseph’s, Plaintiffs allege that employees or agents of the school sexually molested

and assaulted them. Plaintiffs claim that St. Joseph’s was operated by PSHI at the

time of the alleged abuse.

[¶3.]        On June 28, 2010, Plaintiffs delivered a summons to the Brule County

Sheriff’s Office with the intent that it be served on PSHI. On June 29, 2010, the

Brule County Sheriff served a copy of the summons on Mike Tyrell, the Executive

Director of Child Services at St. Joseph’s. Tyrell is not the registered agent of

PSHI and does not hold any office in PSHI.




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[¶4.]        During the 2010 Legislative Session, the South Dakota Legislature

amended the applicable statute of limitations in civil actions for childhood sexual

abuse. The amended statute went into effect July 1, 2010. It provides that “no

person who has reached the age of forty years may recover damages from any

person or entity other than the person who perpetrated the actual act of sexual

abuse.” SDCL 26-10-25.

[¶5.]        On July 16, 2010, PSHI filed a motion to dismiss, alleging service of

process on Tyrell was insufficient. Plaintiffs then delivered another summons and

complaint to a private process server in Rapid City. On July 26, 2010, the private

process server served Father Huffstetter, the President of PSHI and one of its

directors.

[¶6.]        In an order entered December 20, 2010, the circuit court denied

PSHI’s motion to dismiss. The circuit court found that the June 29, 2010 service

on Tyrell substantially complied with SDCL 15-6-4(d)(1), South Dakota’s statute

governing the requirements for personal service on a business entity. The circuit

court further held that service of process on PSHI was in compliance with SDCL

15-2-31.

                             STANDARD OF REVIEW

[¶7.]        “[W]hen a defendant moves to dismiss for insufficient service of

process, the burden is on the plaintiff to establish a prima facie case that the

service was proper.” Grajczyk v. Tasca, 2006 S.D. 55, ¶ 22, 717 N.W.2d 624, 631

(citing Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas,

S.A., 51 F.3d 1383, 1387 (8th Cir. 1995)). We review a circuit court’s determination


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regarding whether a plaintiff presented a prima facie case of sufficient service de

novo, giving no deference to the circuit court’s legal conclusions. Id. (citing

Northrup King Co., 51 F.3d at 1387).

                                    DISCUSSION

[¶8.]        1.     Whether the circuit court erred when it determined that
                    service on PSHI was valid under South Dakota Law.

[¶9.]        SDCL 15-6-4(d)(1) governs the requirements for personal service of

process on a business entity. The statute requires that the summons be delivered

to the following individuals:

             the president, partner or other head of the entity, officer,
             director, or registered agent thereof. If any of the above cannot
             be conveniently found, service may be made by leaving a copy of
             the summons and complaint at any office of such business entity
             within this state, with the person in charge of such office . . . .

SDCL 15-6-4(d)(1). Although SDCL 15-6-4(d)(1) uses the word “may,” instead of

“shall,” compliance with the statute is not discretionary. White Eagle v. City of

Fort Pierre, 2000 S.D. 34, ¶¶ 9-11, 606 N.W.2d 926, 929 (citing Matter of Gillespi,

397 N.W.2d 476, 478 (S.D. 1986)). “[T]he statutory list of serviceable parties is

exhaustive.” Id. ¶ 11 (citing Gillespi, 397 N.W.2d at 478).

[¶10.]       Because Tyrell signed an interrogatory answer in his capacity as

Executive Director of Child Services at St. Joseph’s, the circuit court concluded

Tyrell was an agent of PSHI that was authorized to receive service of process on

behalf of the company. Yet SDCL 15-6-4(d)(1) does not authorize service on an

agent of a business entity. The statute only authorizes service on the entity’s

registered agent. Tyrell is not the registered agent of PSHI. He also is not “the

president, partner or other head of [PSHI]” and he does not hold a position as an

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officer or director of PSHI. Thus, Tyrell is not one of the parties authorized to

receive service of process under the first sentence of SDCL 15-6-4(d)(1). 1

[¶11.]         SDCL 15-6-4(d)(1) permits service on a “person in charge” of any office

of the entity if the listed parties in the first sentence of the statute cannot be

“conveniently found.” Plaintiffs argue that Tyrell was a “person in charge” of an

office of PSHI. But in making this argument, Plaintiffs present no evidence that

the individuals authorized to receive process under the first sentence of SDCL 15-

6-4(d)(1) could not be conveniently found. In fact, there is not even a pro forma

recitation to that effect in the return of service. By failing to present evidence that

these parties could not be conveniently found, the Plaintiffs have failed to comply

with the statutory requirements for effectuating service on a business entity.

                                    Substantial Compliance

[¶12.]         Plaintiffs argue service of process in this case was effective because

there was substantial compliance with the personal service mandates of SDCL 15-

6-4(d)(1). In Wagner v. Truesdell, we recognized that “actual notice coupled with

substantial compliance is sufficient to satisfy personal service of process

requirements . . . .” 1998 S.D. 9, ¶ 9, 574 N.W.2d 627, 629. Substantial compliance

is defined as follows:

               “Substantial compliance” with a statute means actual
               compliance in respect to the substance essential to every


1.       PSHI concedes that had Tyrell been an executive of PSHI, service of process
         may have been proper. That is because one of the individuals designated to
         be served under the first sentence of SDCL 15-6-4(d)(1) is the “head of the
         entity.” But there is no allegation that Tyrell was “the president, partner or
         other head of the entity, officer, director, or registered agent thereof.” SDCL
         15-6-4(d)(1).

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             reasonable objective of the statute. It means that a court should
             determine whether the statute has been followed sufficiently so
             as to carry out the intent for which it was adopted. Substantial
             compliance with a statute is not shown unless it is made to
             appear that the purpose of the statute is shown to have been
             served. What constitutes substantial compliance with a statute
             is a matter depending on the facts of each particular case.

Id. ¶ 7 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D. 1982)).

[¶13.]       We have held that “the purpose of service of process is to ‘advise the

defendant that an action or proceeding has been commenced against him by

plaintiff, and warn him that he must appear within a time and at a place named

and make such defense as he has.”’ Id. ¶ 8 (quoting Hartley v. Jerry’s Radio &

Elec. Shop, 74 S.D. 87, 90, 48 N.W.2d 925, 927 (1951)). Although one purpose of

SDCL 15-6-4(d) is to provide notice to a defendant that an action or proceeding has

been commenced against him, we have emphasized notice alone is not sufficient.

Id. ¶ 9. “Actual notice will not subject defendants to personal jurisdiction absent

substantial compliance with [the governing service-of-process statute].” Id.

(quoting Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988)).

[¶14.]       In Wagner, the applicable service-of-process statute was SDCL 15-6-

4(d)(10), which requires the plaintiff to serve the defendant personally. Id. ¶ 6.

The defendant in Wagner suffered from Alzheimer ’s Disease and was unable to

manage his own personal or business affairs. Id. ¶ 3. Service was made on a

caretaker who was living with the defendant. Id. ¶ 4. Service was not made on the

defendant personally. Id. Nonetheless, after considering “the realities” of the case,

we held that a strict reading of SDCL 15-6-4(d)(10) “would be an absurdity.” Id. ¶

10. We noted that even if service had been made on the defendant, the caretaker


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would have immediately taken the papers away from the defendant to give to the

defendant’s attorney. Id. We concluded, “[t]here logically is no need in this case

for that ‘middle-person’ step to fulfill the purpose of SDCL 15-6-4(d)(10).” Id.

[¶15.]       The unique circumstances of Wagner that warranted the application

of the substantial compliance doctrine are not present in this case. SDCL 15-6-

4(d)(1) plainly states that service on a “person in charge” of any office of the entity

is only permitted if the parties listed in the first sentence of the statute cannot be

“conveniently found.” Despite the plain language of SDCL 15-6-4(d)(1), Plaintiffs

made no showing that these individuals could not be conveniently found.

[¶16.]       In White Eagle, the plaintiff attempted to commence an action against

the City of Fort Pierre by serving the city’s financial officer instead of the “mayor or

any alderman or commissioner” as expressly required by SDCL 15-6-4(d)(4). 2000

S.D. 34, ¶ 3, 606 N.W.2d at 927. The circuit court determined that the plaintiff

substantially complied with SDCL 15-6-4(d)(4) and denied the city’s motion to

dismiss for ineffective service of process. Id. On appeal, we declined to apply the

substantial compliance doctrine and held that the service of process was

insufficient. Id. ¶ 14. In so holding, we noted,

             there was no showing that the mayor or any one of the six
             common council members could not have been conveniently or
             timely served. SDCL 15-6-4(d) clearly delineates those that may
             be served in order for a court to obtain jurisdiction. Absent such
             service, there is not actual compliance with respect to the
             substance essential to every reasonable objective of the statute.
             Under the facts of this case the statute has not been followed
             sufficiently to carry out the intent for which it was adopted. We
             therefore decline to apply the substantial compliance doctrine[.]
             Indeed, an extension of the doctrine under these facts would
             ultimately serve to eradicate service of process statutes.


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Id.

[¶17.]       In this case, Plaintiffs did not show that the individuals authorized to

receive process under the first sentence of SDCL 15-6-4(d)(1) could not be

conveniently found. Plaintiffs thus failed to comply with the provisions of the

statute “sufficiently to carry out the intent for which it was adopted.” Id. The

Plaintiffs cannot utilize the substantial compliance doctrine as a substitute for the

express notice requirements of SDCL 15-6-4(d)(1). To hold otherwise would render

the statute meaningless. Accordingly, we decline to apply the substantial

compliance doctrine to the facts of this case.

[¶18.]       2.     Whether the circuit court erred in holding that service
                    on Father Huffstetter related back under SDCL 15-2-31.

[¶19.]       The circuit court found that even if Plaintiffs’ initial service on Tyrell

was insufficient, Plaintiffs’ subsequent service on Father Huffstetter on July 26,

2010 is effective under SDCL 15-2-31. The statute provides:

             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 or other
             officer of the county in which the defendants or one of them,
             usually or last resided; or if a corporation be defendant, to the
             sheriff or other officer of the county in which such corporation
             was established by law, or where its general business was
             transacted, or where it kept an office for the transaction of
             business. Such an attempt must be followed by the first
             publication of the summons, or the service thereof, within sixty
             days.

SDCL 15-2-31.

[¶20.]       When a summons is delivered to the sheriff or other authorized officer

with the intent that it be served on the defendant, SDCL 15-2-31 effectively

extends the time for service 60 days. Meisel v. Piggly Wiggly Corp., 418 N.W.2d

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321, 323 (S.D. 1988)). In this case, Plaintiffs timely delivered a copy of the

summons to the sheriff of the appropriate county, intending that the summons be

served on PSHI. The sheriff then served Tyrell, an individual who is not

authorized to receive service on behalf of PSHI. Because Plaintiffs failed to comply

with the applicable statutory requirements for service of process on a business

entity, this initial attempt at service on Tyrell was ineffective. However, under

SDCL 15-2-31, Plaintiffs had 60 days to complete service on PSHI. Within the 60-

day extension period, Plaintiffs served the president of PSHI through a private

process server on July 26, 2010.

[¶21.]       PSHI contends that personal service by a process server during the

60-day extension period is insufficient under SDCL 15-2-31. In support of its

argument, PSHI cites the rule of statutory construction known as the doctrine of

the last antecedent. The rule provides that “a modifying clause is confined to the

last antecedent unless there is something in the subject matter or dominant

purpose which requires a different interpretation.” State Auto Ins. Cos. v. B.N.C.,

2005 S.D. 89, ¶ 17, 702 N.W.2d 379, 385 (quoting Estate of Fisher v. Fisher, 2002

S.D. 62, ¶ 13, 645 N.W.2d 841, 845). PSHI argues that the last sentence of SDCL

15-2-31 modifies the balance of the statute by placing a time limit on when actual

service of “the summons” must occur. PSHI contends that SDCL 15-2-31 allows for

just two methods of service during the 60-day limitation period. If the defendant to

be served is located within the county, the sheriff must effectuate service. If the

sheriff cannot locate the person, then notice by publication must take place. PSHI




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contends that service by a private process server is not among the two alternative

methods of service allowed under SDCL 15-2-31.

[¶22.]       PSHI’s application of the doctrine of the last antecedent is misplaced.

We have repeatedly stated that when the meaning of a statute is clear, we need not

resort to statutory construction to interpret the plain language of the statute. See

id. (declining to apply the doctrine of the last antecedent to interpret a statute

when the meaning of the statute could be ascertained without the use of extrinsic

aids); see also State v. Ventiling, 452 N.W.2d 123 (S.D. 1990) (finding that the

meaning of the statute was clear and that the doctrine of the last antecedent

“provide[d] no guidance” in interpreting the plain terms of the statute). As we

explained in State Auto Insurance Cos. v. B.N.C.,

             [s]tatutory construction is an exercise to determine legislative
             intent. In analyzing statutory language we adhere to two
             primary rules of statutory construction. The first rule is that
             the language expressed in the statute is the paramount
             consideration. The second rule is that if the words and phrases
             in the statute have plain meaning and effect, we should simply
             declare their meaning and not resort to statutory construction.
             When we must, however, resort to statutory construction, the
             intent of the legislature is derived from the plain, ordinary and
             popular meaning of statutory language.

2005 S.D. 89, ¶ 18, 702 N.W.2d at 386 (quoting State v. Johnson, 2004 S.D. 135, ¶

5, 691 N.W.2d 319, 321-22).

[¶23.]       In this case, we can ascertain the plain meaning of SDCL 15-2-31

without extrinsic aids. While the first sentence of the statute provides that the

party intending to commence an action must deliver the summons to the sheriff or

other officer of the county in which one of the defendants “usually or last resided,”

it does not require that the sheriff or other officer effectuate service on the

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defendant. Likewise, the last sentence of SDCL 15-2-31 imposes a time limit on

when actual service must occur. However, the last sentence of the statute does not

define those individuals that may effectuate actual service within the 60-day time

extension. 2 It only states that an attempt to commence an action “must be

followed by the first publication of the summons, or the service thereof, within

sixty days.” SDCL 15-2-31.

[¶24.]         By its plain terms, SDCL 15-2-31 does not require the sheriff to

effectuate actual service on the defendant within the 60-day time extension. We

thus hold that under SDCL 15-2-31, a summons that is personally served during

the 60-day extension period by a person authorized to serve process under South

Dakota law relates back to the date the summons was “delivered, with the intent

that it . . . be actually served, to the sheriff or other officer of the county in which

the defendants or one of them, usually or last resided . . . .”

[¶25.]         SDCL 15-6-4(c) is the general statute governing who has authority to

serve process under South Dakota law. The statute provides:

               The summons may be served by the sheriff or a constable of the
               county or other comparable political subdivision where the
               defendant may be found, or in the District of Columbia by the
               United States marshal or a deputy, or by any other person not a



2.       Plaintiffs note that in Schebo v. Laderer, the United States District Court for
         the District of South Dakota indicated in dicta that SDCL 15-2-31 requires
         the sheriff to serve the defendant within the 60-day time extension. 720 F.
         Supp. 146, 148 (D.S.D. 1989). However, the Schebo court did not
         acknowledge that SDCL 15-2-31 expressly authorizes “publication of the
         summons, or the service thereof” within the 60-day extension period. SDCL
         15-2-31 (emphasis added). Service by publication would not ordinarily be
         effectuated by a sheriff or other authorized county officer. We therefore
         decline to adopt the federal court’s interpretation of SDCL 15-2-31.

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             party to the action who at the time of making such service is an
             elector of any state.

SDCL 15-6-4(c). As an elector of the state, a private process server has authority to

serve process pursuant to SDCL 15-6-4(c).

[¶26.]       Plaintiffs delivered a summons to the Brule County Sheriff’s Office on

June 28, 2010. The Brule County Sheriff served a copy of the summons on Mike

Tyrell on June 29, 2010. Although this initial attempt at service was defective,

Plaintiffs subsequently served PSHI in accordance with the applicable service-of-

process statute on July 26, 2010. Plaintiffs completed service on PSHI within the

60-day extension period set forth under SDCL 15-2-31. Therefore, we hold that the

Plaintiffs timely served PSHI in accordance with South Dakota law and the circuit

court did not err in denying PSHI’s motion to dismiss.

[¶27.]       Affirmed.

[¶28.]       GILBERTSON, Chief Justice, and ZINTER, Justice, and

THORSTENSON, Circuit Court Judge, concur.

[¶29.]       THORSTENSON, Circuit Court Judge, sitting for KONENKAMP,

Justice, disqualified.

[¶30.]       WILBUR, Justice, did not participate.




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