Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swenson v. Brown

July 22, 2009

GENA ELIZABETH SWENSON, PLAINTIFF AND APPELLANT,
v.
CARRIE ELLA BROWN, DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DAVISON COUNTY, SOUTH DAKOTA HONORABLE SEAN M. O'BRIEN Judge.

Per curiam.

CONSIDERED ON BRIEFS ON APRIL 27, 2009

[¶1.] Gena Swenson appeals the circuit court's dismissal of her personal injury action following the death of the defendant, Carrie Brown, and the lack of a motion to substitute for Brown within ninety days of the service of a suggestion of death by Brown's attorney pursuant to SDCL 15-6-25(a)(1). We affirm.

FACTS

[¶2.] On May 14, 2004, Swenson commenced this personal injury action against Brown following an automobile accident. Brown passed away on June 1, 2007. On March 28, 2008, a suggestion of death upon the record was served upon Swenson's counsel via first class mail by the attorney that represented Brown prior to her death. That document was filed with the circuit court on March 31, 2008. On that same day, the personal representative for Brown's estate also admitted service of the suggestion of death upon the record.

[¶3.] On July 10, 2008, Brown's attorney filed a motion to dismiss the action because no motion to substitute his deceased client was made within ninety days as required by SDCL 15-6-25(a)(1). This matter has been complicated because Swenson's attorney is a member of the firm that is now handling the estate for Brown. Swenson maintains that the suggestion of death did not trigger the ninety- day provision contained in SDCL 15-6-25(a)(1) because the attorney for the decedent is no longer a party to the action. Swenson did not file a motion to substitute for the decedent at any point or seek to extend the time for the filing of such motion pursuant to SDCL 15-6-6(b).The circuit court granted the motion to dismiss.

DISCUSSION

[¶4.] Whether the circuit court erred as a matter of law in dismissing this action when a motion to substitute for the decedent was not made within ninety days following the suggestion of death upon the record.

[¶5.] This case is controlled by the interpretation of SDCL 15-6-25(a)(1). Statutory interpretation is a question of law to be reviewed under the de novo standard of review. Discover Bank v. Stanley, 2008 SD 111, ¶15, 757 NW2d 756, 761 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611).

The 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.

Id. The same rule applies to construction of this Court's rules of civil procedure. Id.

(citing Maynard v. Heeren, 1997 SD 60, ¶14, 563 NW2d 830, 835).

[¶6.] SDCL 15-6-25(a)(1) provides:

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 ninety days after the death is suggested upon the record by service of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.