APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE TIM D. TUCKER Judge and THE HONORABLE DAVID R. GIENAPP Retired Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON MOTION ON DECEMBER 26, 2012
[¶1.] We address the question whether an LLC must be represented by an attorney on appeal.
[¶2.] Rustic Home Builders, LLC, contracted with Michael and Maggie Smith to provide the Smiths with specialty lumber products, services, and log home supplies for constructing a home north of Flandreau. Disagreements eventually led to a lawsuit. On May 1, 2007, the Smiths obtained a default judgment against Rustic for $174,963.01. Although Jay Driesen, Rustic's manager, and Jared Driesen were listed as individual defendants, the default judgment was only against Rustic Home Builders, LLC. Rustic and Jay Driesen moved to set aside the default judgment, but the motion was denied.
[¶3.] The default judgment against Rustic was executed in Iowa in 2007.
Almost five years later, in March 2012, the Smiths and Rustic stipulated that the judgment had been partially satisfied "based upon [the Smiths'] seizure of truckloads of logs from [Rustic]." A partial satisfaction of judgment was entered for $45,377.52. In April 2012, the trial court issued an order that the "claims against Jay Driesen which if proven would allow for the 'piercing of the corporate veil' may be dismissed without prejudice[.]" The order went on to state that any other "claims [against Jay Driesen], presently made or presented in the future, arising from the facts or circumstances which gave rise to this case, other than the previously entered [m]oney [j]udgment" were "dismissed with prejudice." Later, Rustic unsuccessfully challenged the amount of the partial satisfaction of judgment, arguing that the entire judgment had been satisfied.
[¶4.] On October 25, 2012, Jay Driesen, individually, and on behalf of
Rustic, served and filed a notice of appeal. Driesen is not a licensed attorney. The notice provided that Driesen and Rustic sought to appeal: the April 11, 2007, temporary restraining order; the May 1, 2007, default judgment; the June 12, 2007, order denying setting aside the default judgment; and the September 18, 2012, partial satisfaction of judgment order. The Smiths moved to dismiss the appeal, asserting that: (1) the appeal is untimely; (2) Driesen is not an attorney and cannot represent Rustic; and (3) Driesen is not an aggrieved party.
[¶5.] The Smiths argue that portions of this appeal are untimely. SDCL 15- 26A-6 provides that "[a]n appeal from a judgment or order must be taken within thirty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party." If a party is served by mail, "three days shall be added to the prescribed period." SDCL 15-6- 6(e). We have no jurisdiction over an untimely appeal. People ex rel. S.D. Dep't of Soc. Servs., 2011 S.D. 26, ¶ 8, 799 N.W.2d 408, 409. "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." In re Estate of Geier, 2012 S.D. 2, ¶ 17, 809 N.W.2d 355, 360.
[¶6.] Driesen and Rustic appeal four separate orders. Three of these orders are from 2007: the April 11, 2007, temporary restraining order; the May 1, 2007, default judgment; and the June 12, 2007, order denying setting aside the default judgment. Because each 2007 order is at least five years old, this Court is without jurisdiction to consider Driesen's and ...