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Rabo Agrifinance, Inc., F/K/A Ag Services of America, Inc., and v. Rock Creek Farms

March 14, 2012

RABO AGRIFINANCE, INC., F/K/A AG SERVICES OF AMERICA, INC., AND RABO AGSERVICES, INC.,
PLAINTIFFS,
v.
ROCK CREEK FARMS,
DEFENDANT AND APPELLANT, AND MICHAEL ARNOLDY; ANN ARNOLDY; AND THE UNITED STATES OF AMERICA,
DEFENDANTS AND APPELLEES,
v.
DAVID M. FINNEMAN AND CONNIE S. FINNEMAN, LUTZ/LAIDLAW PARTNERSHIP; DANIEL R. MAHONEY; SUCCESSORS IN INTEREST TO DAVID M. FINNEMAN AND CONNIE S. FINNEMAN, D/B/A AIRPORT FARMS; FARM CREDIT SERVICES OF AMERICA F/K/A FARM CREDIT SERVICES OF THE MIDLANDS, FCLA; BLACK HILLS FEDERAL CREDIT UNION; AXA EQUITABLE LIFE INSURANCE COMPANY; LAIDLAW FAMILY PARTNERSHIP; TOM J. WIPF; AMY WIPF; JOHNNY JAY WIPF, D/B/A WIPF FARMS; JOANN WIPF; CEN-DAK LEASING OF NORTH DAKOTA, INC.; SHEEHAN MACK SALES AND EQUIPMENT, INC.; FARM CAPITAL COMPANY, LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC; PFISTER HYBRID CORN CO.; KAUP SEED & FERTILIZER, INC.; JOYCE M. WOLKEN; CHARLES W. WOLKEN; STAN ANDERSON; DENNIS ANDERSON; KENT KJERSTAD; WILLIAM J. HUBER; KENDA K. HUBER; YU BLU SNI, LLC; U.S. BANCORP EQUIPMENT FINANCE, INC.; KENCO INC. D/B/A WARNE CHEMICAL & EQUIPMENT COMPANY, INC.; DOUG KROEPLIN AG SERVICES, INC.; CREDICO, INC. D/B/A CREDIT COLLECTIONS BUREAU; SCOT D. EISENBRAUN, MELODY EISENBRAUN; BART CHENEY; HALL OBERLANDER, KEI OBERLANDER, RAY S. OLSEN; PATRICK X. TRASK; ROSE MARY TRASK; PENNINGTON COUNTY, SOUTH DAKOTA; AND, MEADE COUNTY, SOUTH DAKOTA,
DEFENDANTS.
RABO AGRIFINANCE, INC., F/K/A AG SERVICES OF AMERICA, INC., AND RABO AGSERVICES, INC.,
PLAINTIFFS,
v.
DAVID M. FINNEMAN; CONNIE S. FINNEMAN, DEFENDANTS AND APPELLANTS, AND MICHAEL ARNOLDY; ANN ARNOLDY; AND THE UNITED STATES OF AMERICA,
DEFENDANTS AND APPELLEES,
v.
LUTZ/LAIDLAW PARTNERSHIP; DANIEL R. MAHONEY; SUCCESSORS IN INTEREST TO DAVID M. FINNEMAN AND CONNIE S. FINNEMAN, D/B/A AIRPORT FARMS; FARM CREDIT SERVICES OF AMERICA F/K/A FARM CREDIT SERVICES OF THE MIDLANDS, FCLA; BLACK HILLS FEDERAL CREDIT UNION; AXA EQUITABLE LIFE INSURANCE COMPANY; LAIDLAW FAMILY PARTNERSHIP; TOM J. WIPF; AMY WIPF; JOHNNY JAY WIPF, D/B/A WIPF FARMS; JOANN WIPF; CEN-DAK LEASING OF NORTH DAKOTA, INC.; SHEEHAN MACK SALES AND EQUIPMENT, INC.; FARM CAPITAL COMPANY; LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC; PFISTER HYBRID CORN CO.; KAUP SEED & FERTILIZER, INC.; JOYCE M. WOLKEN; CHARLES W. WOLKEN; STAN ANDERSON; DENNIS ANDERSON; KENT KJERSTAD; WILLIAM J. HUBER; KENDA K. HUBER; YU BLU SNI, LLC; U.S. BANCORP EQUIPMENT FINANCE, INC.; KENCO INC. D/B/A WARNE CHEMICAL & EQUIPMENT COMPANY, INC.; DOUG KROEPLIN AG SERVICES, INC.; CREDICO, INC. D/B/A CREDIT COLLECTIONS BUREAU; SCOT D. EISENBRAUN, MELODY EISENBRAUN; BART CHENEY; HALL OBERLANDER, KEI OBERLANDER, RAY S. OLSEN; PATRICK X. TRASK; ROSE MARY TRASK; PENNINGTON COUNTY, SOUTH DAKOTA; AND, MEADE COUNTY, SOUTH DAKOTA, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JOHN J. DELANEY, SR. Judge

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

CONSIDERED ON BRIEFS ON NOVEMBER 23, 2011

[¶1.] Defendants and appellees Ann and Michael Arnoldy (Arnoldys) and the United States of America move to dismiss appeals filed by defendants and appellants Connie and David Finneman (Finnemans) (Appeal No. 26093) and Rock Creek Farms (RCF) (Appeal No. 26092) for failure to serve their notices of appeal on each party in this foreclosure action. The motions are granted and the appeals are dismissed.

Facts and Procedural History

[¶2.] Rabo Agrifinance, Inc., and Rabo AgServices, Inc. (Rabo) commenced a foreclosure action in 2009 on a mortgage granted by Finnemans on approximately 17,000 acres of farmland. Rabo commenced its action against Finnemans, RCF (Finnemans' successor in interest), and all parties who had or may have had an ownership or leasehold interest in the land. Approximately 44 defendants were listed in Rabo's complaint, including Arnoldys and the United States as lienholders. Arnoldys and the United States both filed answers in the action.

[¶3.] In late 2009, Rabo moved for judgment on the pleadings. The trial court granted the motion and, in January 2010, entered a judgment and decree of foreclosure in which it recognized RCF's owner's right of redemption. A sheriff's sale took place in April 2010. In March 2011, Ann Arnoldy redeemed from an assignee of the purchaser of the sheriff's certificate. In May 2011, Arnoldys filed a Rule 60(b) motion to partially vacate the order for judgment on the pleadings and judgment and decree of foreclosure with regard to RCF's redemption rights. On May 26, 2011, the trial court entered an order granting Arnoldys' motion. The order struck and vacated the portion of the judgment and decree of foreclosure recognizing RCF's redemption rights on the basis that RCF and its predecessors, Finnemans, waived those rights. The order also contained the following provision concerning payment of the lien held by the United States:

The Judgment and Decree of Foreclosure is partially vacated upon the condition that the US Government's one-million dollar conviction lien against David M. Finneman and Connie Finneman be satisfied after Ann Arnoldy or Michael Arnoldy receive a deed to the foreclosed land from the Sheriff of Pennington County and after all appeals from this Order have been fully determined.

[¶4.] On July 12, 2011, RCF filed a notice of appeal from the trial court's order partially vacating the judgment and decree of foreclosure and order granting the motion for judgment on the pleadings. Finnemans filed a separate notice of appeal from the same order on July 13, 2011.*fn1

[¶5.] On August 22, 2011, Arnoldys and the United States filed a joint motion for dismissal of Finnemans' appeal for failure to serve the notice of appeal on the United States and a number of other named parties. On August 24, 2011, Arnoldys and the United States filed a similar motion to dismiss RCF's appeal. On September 30, 2011, this Court entered orders in both cases deferring its decision, directing briefing on the motions, setting forth a briefing schedule, and staying briefing on the merits pending our final decision. We have consolidated the cases for purposes of deciding the motions to dismiss.

Issue

[¶6.] Whether Finnemans' and RCF's appeals should be dismissed for failure to serve notices of appeal on the United States and other named parties.

[¶7.] In In re Reese Trust, 2009 S.D. 111, ¶¶ 5, 14, 776 N.W.2d 832, 833, 836, this Court held:

SDCL 15-26A-4 sets forth the steps for taking an appeal to this Court. SDCL 15-26A-4(3) provides in pertinent part: "The appellant, or his or her counsel, shall serve the notice of appeal and docketing statement on counsel of record of each party other than appellant, or, if a party is not represented by counsel, on the party at his or her last known address." (Emphasis added). Failure to timely serve and file a notice of appeal is jurisdictionally fatal to the appeal. Hardy v. W. Cent. Sch. Dist., 478 N.W.2d 832, 834 (S.D. 1991) (citing W. States Land & Cattle Co., Inc. v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D. 1990)).

Failure to serve a notice of appeal on a party before the time for taking an appeal has expired is fatal to the appeal and requires its dismissal. See Long v. Knight Const. Co., Inc., 262 N.W.2d 207 (S.D. 1978) (citing Morrell Livestock ...


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