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Jill Robinson Formerly Known v. Michelle M. Mitchell

January 4, 2012

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

The opinion of the court was delivered by: Gilbertson, Chief Justice

#25912-rev & rem-DG

CONSIDERED ON BRIEFS ON OCTOBER 3, 2011

[¶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.*fn1 Ewalt has lived in Watertown since December 2009, which is located in Codington County.

[¶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.*fn2

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 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, ΒΆ 4, 779 N.W.2d 379, 381-82. Furthermore, where a statute of limitations defense is raised ...


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