#28497, #28498, #28499, #28500-r-DG
2018 S.D. 75


                                      IN THE SUPREME COURT
                                              OF THE
                                     STATE OF SOUTH DAKOTA
                                                     ****

                                                    (#28497)

SOUTH DAKOTA PUBLIC ASSURANCE
ALLIANCE as subrogee for
PENNINGTON COUNTY, SOUTH DAKOTA,                                       Plaintiff and Appellant,

        vs.

KEITH R. MCGUIRE,                                                      Defendant and Appellee.

---------------------------------------------------------------------------------------------------------------------

                                                    (#28498)

TRINITY BULLINGER,                                                     Plaintiff and Appellee,

        vs.

KEITH R. MCGUIRE and                                                   Defendant and Appellee,
SOUTH DAKOTA PUBLIC
ASSURANCE ALLIANCE,                                                    Defendant and Appellant.

---------------------------------------------------------------------------------------------------------------------

                                                    (#28499)

TRINITY BULLINGER,                                                     Plaintiff and Appellant,

        vs.

KEITH R. MCGUIRE and
SOUTH DAKOTA PUBLIC
ASSURANCE ALLIANCE,                                                    Defendants and Appellees.

                                                     ****


                                                                       CONSIDERED ON BRIEFS
                                                                       ON AUGUST 27, 2018
                                                                       OPINION FILED 10/31/18
---------------------------------------------------------------------------------------------------------------------

                                                    (#28500)

BRANDAN LIPPERT,                                                       Plaintiff and Appellant,

        vs.

KEITH R. MCGUIRE and
SOUTH DAKOTA PUBLIC
ASSURANCE ALLIANCE,                                                    Defendants and Appellees.


                                                     ****

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

                                                     ****

                          THE HONORABLE MATTHEW M. BROWN
                                       Judge

                                                     ****

J. CRISMAN PALMER
REBECCA L. MANN of
Gunderson, Palmer, Nelson
 & Ashmore, LLP
Rapid City, South Dakota                                           Attorneys for Appellant South
                                                                   Dakota Public Assurance Alliance
                                                                   (#28497, #28498).


RONALD R. KAPPELMAN of
Banks, Kappelman & Strommen,
 Prof. LLC
Rapid City, South Dakota                                           Attorneys for Appellee Keith R.
                                                                   McGuire.


REXFORD A. HAGG of
Whiting, Hagg, Hagg, Dorsey
 & Hagg, LLP
Rapid City, South Dakota                                           Attorneys for Appellants Trinity
                                                                   Bullinger (#28499) and Brandan
                                                                   Lippert (#28500).
#28497, #28498, #28499, #28500

GILBERTSON, Chief Justice

[¶1.]        The South Dakota Public Assurance Alliance (SDPAA), Trinity

Bullinger, and Brandan Lippert (Appellants) commenced separate actions against

Keith McGuire by service of a summons without a complaint. No Appellant served

a complaint upon McGuire within 20 days as required by statute, and McGuire

moved to dismiss. Appellants then moved for an enlargement of time to serve their

complaints. The circuit court denied Appellants’ motions and dismissed their cases.

Appellants’ moved for relief from the court’s order on the grounds of mistake. The

court denied the motion. Appellants appealed, and their cases were consolidated by

order of this Court. We reverse and remand.

                          Facts and Procedural History

[¶2.]        On July 2, 2014, Lippert and Bullinger were passengers in a vehicle

involved in an accident with another vehicle driven by McGuire. McGuire failed to

stop at a stop sign, the two vehicles collided, and Lippert and Bullinger alleged

injuries. The vehicle occupied by Lippert and Bullinger was owned by their

employer, Pennington County, and insured by SDPAA. On July 8, 2014, McGuire

pleaded guilty for failure to stop at the stop sign and paid a $120 fine.

[¶3.]        Bullinger negotiated a $94,000 settlement with McGuire’s insurance

company, State Farm Insurance. Bullinger then notified SDPAA that he intended

to pursue Pennington County’s underinsurance coverage through SDPAA. SDPAA

paid Bullinger the $94,000 in order to preserve its right to pursue subrogation from

McGuire. Lippert, represented by the same attorney as Bullinger, also engaged in

settlement negotiations with State Farm.


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#28497, #28498, #28499, #28500

[¶4.]        On June 14, 2017, Bullinger and Lippert sued McGuire and SDPAA to

preserve the three-year statute of limitations on personal injury actions under

SDCL 15-2-14. The separate actions were commenced by service of a summons

without a complaint pursuant to SDCL 15-6-4(b). On June 27, 2017, SDPAA also

commenced an action against McGuire by service of a summons without a

complaint. On June 30, 2017, all three Appellants were served a notice of

appearance from McGuire’s attorney. The body of the notice contained a demand

for a complaint. Counsel for Lippert and Bullinger and counsel for SDPAA claimed

they did not see that the notice contained a written demand for a complaint because

the demand was not contained in the cover letter or the title of the notice.

Appellants therefore failed to forward their complaints to McGuire within 20 days

of his demand as required by SDCL 15-6-4(b).

[¶5.]        On August 9, 2017, McGuire moved to dismiss the actions for

insufficiency of process pursuant to SDCL 15-6-12(b)(3) and insufficiency of service

of process under SDCL 15-6-12(b)(4). Appellants resisted McGuire’s motion and

moved for an enlargement of time to serve their complaints under SDCL 15-6-

6(b)(2). They claimed that their failure to file timely complaints constituted

excusable neglect under South Dakota law. Appellants also claimed that McGuire

would not be prejudiced if the motion for enlargement of time were granted and that

dismissal of their cases would be an extreme remedy. Bullinger and Lippert filed

their complaints two days later on August 11, 2017. SDPAA’s complaint was filed

on August 14, 2017.




                                          -2-
#28497, #28498, #28499, #28500

[¶6.]        After a hearing on September 15, 2017, the circuit court released a

letter decision denying Appellants’ motions for enlargement of time and granting

McGuire’s motion to dismiss. Appellants then moved for relief from the court’s

order on the grounds of mistake pursuant to SDCL 15-6-60(b). Appellants claimed

that the court failed to consider the interests of justice or lesser sanctions before

dismissing their actions. Appellants noted that the court’s dismissal, regardless of

being made with or without prejudice, operated as a time bar to their actions

because the three-year statute of limitations had expired at the time of dismissal.

Following a hearing on November 3, 2017, the circuit court entered findings of fact

and conclusions of law denying Appellants’ motions for relief and again granting

McGuire’s motion to dismiss.

[¶7.]        Appellants’ cases were consolidated on appeal by order of this Court

because they all received identical notices of appearance from McGuire, all failed to

see the demand for complaint within the notice, and all failed to serve a complaint

upon McGuire within 20 days. Appellants also filed similar motions and had their

claims dismissed by a single order of the circuit court. Appellants ask this Court to

consider:

             1.     Whether the circuit court abused its discretion in denying
                    Appellants’ motions for enlargement of time to serve a
                    complaint.

             2.     Whether the circuit court abused its discretion by
                    dismissing Appellants’ actions against McGuire.

             3.     Whether the circuit court abused its discretion by not
                    considering sanctions other than dismissal.




                                           -3-
#28497, #28498, #28499, #28500

                                   Standard of Review

[¶8.]         We review a grant or denial of a motion for enlargement of time 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 refers to a

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.” Id. (quoting Baker v. Atkinson, 2001 S.D. 49, ¶ 12, 625 N.W.2d 265,

270).

                                 Analysis and Decision

              1.      Whether the circuit court abused its discretion in denying
                      Appellants’ motions for enlargement of time to serve a
                      complaint.

[¶9.]         McGuire moved to dismiss Appellants’ actions for insufficiency of

process and insufficiency of service of process under SDCL 15-6-12(b) 1 because

Appellants failed to serve upon McGuire a complaint within 20 days of his demand

as required by SDCL 15-6-4(b). SDCL 15-6-4(b) provides:




1.      SDCL 15-6-12(b) provides, in pertinent part:

              Every defense, in law or fact, to a claim for relief in any
              pleading, whether a claim, counterclaim, cross-claim, or third-
              party claim, shall be asserted in the responsive pleading thereto
              if one is required, except that the following defenses may at the
              option of the pleader be made by motion:
                  ...
                   (3) Insufficiency of process;
                   (4) Insufficiency of service of process[.]
                   ....


                                             -4-
#28497, #28498, #28499, #28500

             A copy of the complaint need not be served with the summons.
             In such case the summons must state where the complaint is or
             will be filed.

             If the complaint is not served with the summons and the
             defendant within thirty days after service of the summons, in
             any such case, causes notice of appearance to be given, in person
             or by attorney, and demands in writing a copy of the complaint
             specifying a place within the state where it may be served, a
             copy of the complaint must, within twenty days thereafter, be
             served accordingly. After such service of the complaint, the
             defendant has thirty days to answer or otherwise proceed
             against the complaint.

             In any of such cases where the same attorney appears for
             different parties, only one copy of a notice, complaint, answer,
             motion, or other paper in the action need be served upon him,
             unless otherwise specifically ordered by the court in any case.

All parties agree that Appellants failed to comply with SDCL 15-6-4(b). In

recognition of this, Appellants moved for an enlargement of time to serve the

complaint under SDCL 15-6-6(b)(2). 2 The circuit court then issued a one-page letter

decision, finding that the plain language of SDCL 15-6-4(b) controlled the case.

Because SDCL 15-6-4(b) required Appellants to serve their complaints within 20

days of McGuire’s written demand and because Appellants failed to do so, the court

denied the motion for enlargement and dismissed all three of Appellants’ actions.



2.    SDCL 15-6-6(b)(2) provides:

             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[.]

                                         -5-
#28497, #28498, #28499, #28500

The court also held that Appellants’ conduct was not “excusable neglect” under

SDCL 15-6-6(b)(2) because the demand for the complaint was appropriately and

timely noticed, because Appellants’ attorneys failed to read McGuire’s demand for a

complaint, and because the complaints were not timely served to McGuire.

[¶10.]         Appellants argue that the circuit court abused its discretion by failing

to consider the interests of justice before denying their motions for enlargement of

time and dismissing their actions. McGuire argues that dismissal was the

appropriate remedy. He asserts that because Appellants chose SDCL 15-6-4(b) as

the method or manner in which to serve their complaints, they were strictly bound

to follow that statute and serve their complaints within 20 days of McGuire’s

written demand. 3



3.       McGuire also asserts that Appellants incorrectly served the complaints by
         mailing them to McGuire’s home address and to McGuire’s attorney, but not
         to the address specified by McGuire in the notices of appearance. He cites
         SDCL 15-6-6(b), which provides, in part:

               Whenever under this chapter service is required or permitted to
               be made upon a party represented by an attorney, the service
               shall be made upon the attorney unless service upon the party
               himself is ordered by the court. Service upon the attorney or
               upon a party shall be made by delivering a copy to him or by
               mailing it to him at his last known address or, if no address is
               known, by leaving it with the clerk of the court. . . . The
               provisions of § 15-6-5 shall not apply to the service of a
               summons or other process or of any paper to bring a party into
               contempt.

         (Emphasis added.) McGuire appears to claim that the service of a
         complaint without a summons qualifies as “other process[es]” under
         the statute and that the provisions of SDCL 15-6-5 do not apply. He
         therefore argues that it was improper to serve the complaints by
         mailing a copy to McGuire and his attorney, and not to the address
         specified by McGuire in the notices of appearance. McGuire does not
                                                             (continued . . .)
                                            -6-
#28497, #28498, #28499, #28500

[¶11.]       Appellants point to this Court’s decision in Mahoney v. Mahoney,

430 N.W.2d 64 (S.D. 1988), to support the proposition that dismissal was not

appropriate in this case. In Mahoney, we reversed the circuit court’s decision to

dismiss a third-party complaint. Part of our reasoning was based on the

observation that “[w]hen further litigation on a claim will be time barred, a

dismissal of the claim, even if it is without prejudice, is a severe sanction and

should not be imposed absent some consideration of the interests of justice.” Id. at

66 (citing McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554 (5th Cir. 1981)).

[¶12.]       The circuit court found that the plain language of SDCL 15-6-4(b)

controlled the case and that the statute mandates dismissal. But the statute does

not mention any sanctions or specifically require dismissal. The court’s decision to

dismiss was therefore a matter of discretion. See Bucklin, 2013 S.D. 57, ¶ 16,

835 N.W.2d at 866 (quoting Colton Lumber, 2002 S.D. 116, ¶ 7, 651 N.W.2d at 873).

[¶13.]       We find Mahoney’s observation to be persuasive in analyzing the

court’s discretionary decision here. The dismissal in Mahoney was based on a

different statute, but in both Mahoney and in this case, the court’s dismissal time

barred further litigation. Because of the time bar here, dismissal should not have

been “imposed absent some consideration of the interests of justice.” Mahoney, 430

N.W.2d at 66.

[¶14.]       Here, the court made no findings of fact as to the interests of justice or

the effect dismissal would have on Appellants. Affidavits in the record by

________________________
(. . . continued)
         provide any authority or other argument in support of this assertion.
         Therefore, we do not address the issue.

                                          -7-
#28497, #28498, #28499, #28500

Appellants’ attorneys establish that Appellants’ summonses were served upon

McGuire to “toll the statute of limitations while the parties . . . continued to

negotiate the claims of both [Bullinger] and [Lippert] arising out of the same

accident.” SDCL 15-2-14 provides that actions for personal injury “can be

commenced only within three years after the cause of action shall have accrued[.]”

In this case, the statute of limitations expired three years after the accident, or on

July 2, 2017. The court’s dismissal of Appellant’s actions, made on September 25,

2017, in effect prevented Appellants from refiling their actions against McGuire,

regardless of the fact that the dismissals were made without prejudice. Appellants

were therefore unfairly prejudiced by the court’s decision.

[¶15.]       The court also rejected Appellants’ argument that McGuire would not

be prejudiced by denying the motion to dismiss. But the court failed to consider the

actual effect denying the motion to dismiss would have on McGuire. Denial of the

motion would simply require McGuire to proceed back into court. On the other

hand, if the motions for enlargement of time were granted, the record does not

indicate that McGuire would have been deprived of the opportunity to fully litigate

and defend against any and all of Appellants’ claims. Therefore, the court erred in

rejecting Appellant’s argument that McGuire would not be prejudiced if the actions

were to proceed.

[¶16.]       The circuit court also failed to adequately address the issue of

excusable neglect. In its findings of fact, the circuit court found that “the failure of

[Appellants’] attorneys to read the demand [for complaint] language in the Notice of

Appearance letter was not ‘excusable neglect’ as defined by law.” The court cited


                                           -8-
#28497, #28498, #28499, #28500

our decision in Bucklin to support its finding. See 2013 S.D. 57, ¶ 21, 835 N.W.2d at

867. In Bucklin, we defined the term “excusable neglect” in SDCL 15-6-6(b), as

being

             ‘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.’

2013 S.D. 57, ¶ 21, 835 N.W.2d at 867 (citations omitted). We also stated in

Bucklin that when a motion for enlargement of time is filed, a circuit court

must consider “whether there is prejudice to the party opposing the

enlargement of time.” Id.

[¶17.]       In dismissing Appellants’ motions for enlargement of time after the

period to serve a complaint had expired, the court found that Appellants’ neglect

was not excusable. Affidavits in the record by the attorneys for Bullinger and

Lippert and the SDPAA establish that the attorneys received and recognized

McGuire’s notices of appearance, failed to see the written demand for a complaint,

and failed to file complaints until after 20 days expired. But the same affidavits

also establish that Appellants’ attorneys: (1) had never seen a notice of appearance

which did not contain a written demand in the title; (2) filed complaints almost

immediately after realizing the 20 days had expired; (3) were still negotiating

settlements at the time McGuire filed a motion to dismiss; and (4) were not

engaging in any dilatory tactics. The attorneys readily admitted their mistakes in

affidavits to the court and recognized that they had caused Appellants’ actions to be


                                         -9-
#28497, #28498, #28499, #28500

dismissed and therefore time barred by the statute of limitations. The fact that

attorneys for both Bullinger and Lippert and the SDPAA separately failed to notice

the written demand for a complaint shows that their neglect was of a nature that

would cause a reasonable person to act similarly under the same circumstances. In

addition, as determined above, there was no prejudice to McGuire, who opposed

Appellants’ motions for enlargement of time. The facts in the record support a

finding that Appellants’ attorney’s neglect was excusable.

                                     Conclusion

[¶18.]       The circuit court made insufficient findings of fact regarding the

interests of justice, prejudice to the parties, and excusable neglect. Evidence in the

record shows that those considerations weigh in favor of Appellants. The court’s

decision to deny Appellants’ motions for enlargement of time was therefore not

justified by the evidence, and the court abused its discretion. We reverse and

remand. Because we reverse and remand based on the court’s decision to deny the

motions for enlargement of time, we do not address Appellants’ remaining claims.

[¶19.]       ZINTER, KERN, JENSEN, and SALTER, Justices, concur.




                                         -10-
