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Leighton v. Bennett

Supreme Court of South Dakota

April 3, 2019

JULIE A. LEIGHTON, Plaintiff and Appellant,
v.
HERBERT C. BENNETT, Defendant and Appellee.

          Considered On Briefs On January 7, 2019

          Appeal From The Circuit Court Of The Third Judicial Circuit Brookings County, South Dakota The Honorable Dawn M. Elshere Judge

          Ellie M. Vandenberg Volga, South Dakota Attorney for plaintiff and appellant.

          William C. Garry Melissa R. Jelen of Cadwell, Sanford, Deibert & Garry, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee.

          Salter, Justice

         [¶1.] Julie Leighton commenced a personal injury action against Herbert Bennett for injuries she claims to have sustained in a car accident. Bennett died during the pendency of the action, and his defense counsel served notice of his death on Leighton. After Leighton failed to move to substitute Bennett's estate or personal representative, Bennett's counsel moved to dismiss the case. Leighton then moved for substitution, arguing the period for seeking substitution had not yet commenced because Bennett's counsel had not served Bennett's estate or personal representative. The circuit court determined Leighton's motion was untimely under the rules of civil procedure and granted Bennett's motion to dismiss. Leighton appeals, arguing the circuit court erred when it interpreted the applicable rule of civil procedure or, alternatively, the circuit court abused its discretion when it denied her motion for enlargement of the time to seek substitution. We affirm.

         Background

         [¶2.] Leighton and Bennett were involved in a motor vehicle accident on May 23, 2013, in Brookings. Leighton alleged that Bennett rear-ended her vehicle while she was stopped at a stoplight, and she commenced this action against Bennett on May 18, 2016. Bennett's counsel filed an answer to Leighton's complaint on June 2, 2016. Bennett died on July 24, 2017, and his defense counsel served a notice of death (also known as a "suggestion of death") on Leighton's counsel on August 24, 2017.

         [¶3.] On December 11, 2017, Bennett's defense counsel moved to dismiss Leighton's action, citing SDCL 15-6-25(a)(1), which requires dismissal "[u]nless substitution is made not later than ninety days after death is suggested[.]" Leighton then moved to substitute Bennett's estate on December 18, 2017-116 days after being served the notice of death-serving Bennett's defense counsel by mail and obtaining an admission of personal service from counsel for Bennett's estate.

         [¶4.] Leighton argued her motion to substitute was timely under SDCL 15-6-25(a)(1) because the 90-day deadline for seeking substitution did not begin to run until Bennett's defense counsel served her and also served Bennett's estate or personal representative. In her view, the August 24, 2017 notice of death served only upon her was insufficient to trigger the 90-day deadline for substitution. Alternatively, Leighton requested an enlargement of the 90-day period, claiming excusable neglect. Leighton argued counsel's noncompliance with SDCL 15-6-25(a)(1) deprived her of any information about Bennett's estate.

         [¶5.] The circuit court conducted a hearing on the motions on February 1, 2018, and concluded that Leighton's motion to substitute was untimely. The court also denied Leighton's motion for enlargement of the 90-day period and dismissed the action. In its subsequent written findings of fact and conclusions of law, the court reasoned that Bennett's counsel "was not required to serve the Notice of Death of Party upon his client's own estate in order to trigger the 90-day period prescribed in SDCL 15-6-25(a)(1)." The court also concluded that Leighton's counsel had not demonstrated excusable neglect for filing an untimely motion to substitute Bennett's estate.

         [¶6.] We consolidate Leighton's issues on appeal and restate them as follows:

1. Whether the circuit court erred when it concluded that SDCL 15-6-25(a)(1)'s 90-day period for substitution of a party began to run when Bennett's defense counsel served a notice of death on Leighton without serving Bennett's estate or personal representative.
2. Whether the circuit court abused its discretion when it denied Leighton's motion for an enlargement of time and ...

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