#25845-a-GAS
2011 S.D. 87
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
R.B.O., J.H.C., N.T.H., L.M.,
L.Z., K.T., J.J., and B.S., Plaintiffs and Appellees,
v.
(The) CONGREGATION OF THE PRIESTS
OF THE SACRED HEART, INC., Defendant and Appellant,
and
THE CATHOLIC DIOCESE OF SIOUX FALLS;
PRIESTS OF THE SACRED HEART; BROTHER
RUSS; FATHER WILLIAM PITCAVAGE, S.C.J.;
BROTHER DAVE; BROTHER BILL; AND
DEACON MARION QUAGLIARIELLO,
S.C.J.; FATHER THOMAS LIND, S.C.J.;
BROTHER MATTHEW L. MILES, Defendants.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE BRADLEY G. ZELL
Judge
* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 3, 2011
OPINION FILED 12/14/11
MICHAEL SHUBECK
Law Offices of Gregory A. Yates
Rapid City, South Dakota
and
REBECCA RHOADES of
Manly & Stewart
Newport Beach, California Attorneys for plaintiffs
and appellees.
RICHARD W. ORR
TIMOTHY M. GEBHART of
Davenport, Evans, Hurwitz &
Smith, L.L.P.
Sioux Falls, South Dakota
and
STEVEN R. SMITH of
Andera & Smith
Chamberlain, South Dakota Attorneys for defendant
and appellant.
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SEVERSON, Justice
[¶1.] Former students of a parochial school brought an action against the
Congregation of the Priests of the Sacred Heart, Inc. (PSHI) and other defendants,
asserting claims of childhood sexual abuse. PSHI filed a motion to dismiss the
action on the grounds that the former students failed to timely serve process on
PSHI in accordance with South Dakota law. The circuit court denied PSHI’s
motion to dismiss, finding that the former students substantially complied with the
applicable service-of-process statute. The circuit court also found service of process
on PSHI was valid under SDCL 15-2-31. We affirm.
BACKGROUND
[¶2.] R.B.O., J.H.C., N.T.H., L.M., L.Z., K.T., J.J. and B.S. (Plaintiffs) are
members of a recognized Native American tribe who attended St. Joseph’s Indian
Mission School (St. Joseph’s) when they were minors. St. Joseph’s is located on the
Lower Brule Indian Reservation in South Dakota. While they attended St.
Joseph’s, Plaintiffs allege that employees or agents of the school sexually molested
and assaulted them. Plaintiffs claim that St. Joseph’s was operated by PSHI at the
time of the alleged abuse.
[¶3.] On June 28, 2010, Plaintiffs delivered a summons to the Brule County
Sheriff’s Office with the intent that it be served on PSHI. On June 29, 2010, the
Brule County Sheriff served a copy of the summons on Mike Tyrell, the Executive
Director of Child Services at St. Joseph’s. Tyrell is not the registered agent of
PSHI and does not hold any office in PSHI.
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[¶4.] During the 2010 Legislative Session, the South Dakota Legislature
amended the applicable statute of limitations in civil actions for childhood sexual
abuse. The amended statute went into effect July 1, 2010. It provides that “no
person who has reached the age of forty years may recover damages from any
person or entity other than the person who perpetrated the actual act of sexual
abuse.” SDCL 26-10-25.
[¶5.] On July 16, 2010, PSHI filed a motion to dismiss, alleging service of
process on Tyrell was insufficient. Plaintiffs then delivered another summons and
complaint to a private process server in Rapid City. On July 26, 2010, the private
process server served Father Huffstetter, the President of PSHI and one of its
directors.
[¶6.] In an order entered December 20, 2010, the circuit court denied
PSHI’s motion to dismiss. The circuit court found that the June 29, 2010 service
on Tyrell substantially complied with SDCL 15-6-4(d)(1), South Dakota’s statute
governing the requirements for personal service on a business entity. The circuit
court further held that service of process on PSHI was in compliance with SDCL
15-2-31.
STANDARD OF REVIEW
[¶7.] “[W]hen a defendant moves to dismiss for insufficient service of
process, the burden is on the plaintiff to establish a prima facie case that the
service was proper.” Grajczyk v. Tasca, 2006 S.D. 55, ¶ 22, 717 N.W.2d 624, 631
(citing Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas,
S.A., 51 F.3d 1383, 1387 (8th Cir. 1995)). We review a circuit court’s determination
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regarding whether a plaintiff presented a prima facie case of sufficient service de
novo, giving no deference to the circuit court’s legal conclusions. Id. (citing
Northrup King Co., 51 F.3d at 1387).
DISCUSSION
[¶8.] 1. Whether the circuit court erred when it determined that
service on PSHI was valid under South Dakota Law.
[¶9.] SDCL 15-6-4(d)(1) governs the requirements for personal service of
process on a business entity. The statute requires that the summons be delivered
to the following individuals:
the president, partner or other head of the entity, officer,
director, or registered agent thereof. If any of the above cannot
be conveniently found, service may be made by leaving a copy of
the summons and complaint at any office of such business entity
within this state, with the person in charge of such office . . . .
SDCL 15-6-4(d)(1). Although SDCL 15-6-4(d)(1) uses the word “may,” instead of
“shall,” compliance with the statute is not discretionary. White Eagle v. City of
Fort Pierre, 2000 S.D. 34, ¶¶ 9-11, 606 N.W.2d 926, 929 (citing Matter of Gillespi,
397 N.W.2d 476, 478 (S.D. 1986)). “[T]he statutory list of serviceable parties is
exhaustive.” Id. ¶ 11 (citing Gillespi, 397 N.W.2d at 478).
[¶10.] Because Tyrell signed an interrogatory answer in his capacity as
Executive Director of Child Services at St. Joseph’s, the circuit court concluded
Tyrell was an agent of PSHI that was authorized to receive service of process on
behalf of the company. Yet SDCL 15-6-4(d)(1) does not authorize service on an
agent of a business entity. The statute only authorizes service on the entity’s
registered agent. Tyrell is not the registered agent of PSHI. He also is not “the
president, partner or other head of [PSHI]” and he does not hold a position as an
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officer or director of PSHI. Thus, Tyrell is not one of the parties authorized to
receive service of process under the first sentence of SDCL 15-6-4(d)(1). 1
[¶11.] SDCL 15-6-4(d)(1) permits service on a “person in charge” of any office
of the entity if the listed parties in the first sentence of the statute cannot be
“conveniently found.” Plaintiffs argue that Tyrell was a “person in charge” of an
office of PSHI. But in making this argument, Plaintiffs present no evidence that
the individuals authorized to receive process under the first sentence of SDCL 15-
6-4(d)(1) could not be conveniently found. In fact, there is not even a pro forma
recitation to that effect in the return of service. By failing to present evidence that
these parties could not be conveniently found, the Plaintiffs have failed to comply
with the statutory requirements for effectuating service on a business entity.
Substantial Compliance
[¶12.] Plaintiffs argue service of process in this case was effective because
there was substantial compliance with the personal service mandates of SDCL 15-
6-4(d)(1). In Wagner v. Truesdell, we recognized that “actual notice coupled with
substantial compliance is sufficient to satisfy personal service of process
requirements . . . .” 1998 S.D. 9, ¶ 9, 574 N.W.2d 627, 629. Substantial compliance
is defined as follows:
“Substantial compliance” with a statute means actual
compliance in respect to the substance essential to every
1. PSHI concedes that had Tyrell been an executive of PSHI, service of process
may have been proper. That is because one of the individuals designated to
be served under the first sentence of SDCL 15-6-4(d)(1) is the “head of the
entity.” But there is no allegation that Tyrell was “the president, partner or
other head of the entity, officer, director, or registered agent thereof.” SDCL
15-6-4(d)(1).
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reasonable objective of the statute. It means that a court should
determine whether the statute has been followed sufficiently so
as to carry out the intent for which it was adopted. Substantial
compliance with a statute is not shown unless it is made to
appear that the purpose of the statute is shown to have been
served. What constitutes substantial compliance with a statute
is a matter depending on the facts of each particular case.
Id. ¶ 7 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D. 1982)).
[¶13.] We have held that “the purpose of service of process is to ‘advise the
defendant that an action or proceeding has been commenced against him by
plaintiff, and warn him that he must appear within a time and at a place named
and make such defense as he has.”’ Id. ¶ 8 (quoting Hartley v. Jerry’s Radio &
Elec. Shop, 74 S.D. 87, 90, 48 N.W.2d 925, 927 (1951)). Although one purpose of
SDCL 15-6-4(d) is to provide notice to a defendant that an action or proceeding has
been commenced against him, we have emphasized notice alone is not sufficient.
Id. ¶ 9. “Actual notice will not subject defendants to personal jurisdiction absent
substantial compliance with [the governing service-of-process statute].” Id.
(quoting Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988)).
[¶14.] In Wagner, the applicable service-of-process statute was SDCL 15-6-
4(d)(10), which requires the plaintiff to serve the defendant personally. Id. ¶ 6.
The defendant in Wagner suffered from Alzheimer ’s Disease and was unable to
manage his own personal or business affairs. Id. ¶ 3. Service was made on a
caretaker who was living with the defendant. Id. ¶ 4. Service was not made on the
defendant personally. Id. Nonetheless, after considering “the realities” of the case,
we held that a strict reading of SDCL 15-6-4(d)(10) “would be an absurdity.” Id. ¶
10. We noted that even if service had been made on the defendant, the caretaker
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would have immediately taken the papers away from the defendant to give to the
defendant’s attorney. Id. We concluded, “[t]here logically is no need in this case
for that ‘middle-person’ step to fulfill the purpose of SDCL 15-6-4(d)(10).” Id.
[¶15.] The unique circumstances of Wagner that warranted the application
of the substantial compliance doctrine are not present in this case. SDCL 15-6-
4(d)(1) plainly states that service on a “person in charge” of any office of the entity
is only permitted if the parties listed in the first sentence of the statute cannot be
“conveniently found.” Despite the plain language of SDCL 15-6-4(d)(1), Plaintiffs
made no showing that these individuals could not be conveniently found.
[¶16.] In White Eagle, the plaintiff attempted to commence an action against
the City of Fort Pierre by serving the city’s financial officer instead of the “mayor or
any alderman or commissioner” as expressly required by SDCL 15-6-4(d)(4). 2000
S.D. 34, ¶ 3, 606 N.W.2d at 927. The circuit court determined that the plaintiff
substantially complied with SDCL 15-6-4(d)(4) and denied the city’s motion to
dismiss for ineffective service of process. Id. On appeal, we declined to apply the
substantial compliance doctrine and held that the service of process was
insufficient. Id. ¶ 14. In so holding, we noted,
there was no showing that the mayor or any one of the six
common council members could not have been conveniently or
timely served. SDCL 15-6-4(d) clearly delineates those that may
be served in order for a court to obtain jurisdiction. Absent such
service, there is not actual compliance with respect to the
substance essential to every reasonable objective of the statute.
Under the facts of this case the statute has not been followed
sufficiently to carry out the intent for which it was adopted. We
therefore decline to apply the substantial compliance doctrine[.]
Indeed, an extension of the doctrine under these facts would
ultimately serve to eradicate service of process statutes.
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Id.
[¶17.] In this case, Plaintiffs did not show that the individuals authorized to
receive process under the first sentence of SDCL 15-6-4(d)(1) could not be
conveniently found. Plaintiffs thus failed to comply with the provisions of the
statute “sufficiently to carry out the intent for which it was adopted.” Id. The
Plaintiffs cannot utilize the substantial compliance doctrine as a substitute for the
express notice requirements of SDCL 15-6-4(d)(1). To hold otherwise would render
the statute meaningless. Accordingly, we decline to apply the substantial
compliance doctrine to the facts of this case.
[¶18.] 2. Whether the circuit court erred in holding that service
on Father Huffstetter related back under SDCL 15-2-31.
[¶19.] The circuit court found that even if Plaintiffs’ initial service on Tyrell
was insufficient, Plaintiffs’ subsequent service on Father Huffstetter on July 26,
2010 is effective under SDCL 15-2-31. The statute provides:
An attempt to commence an action is deemed equivalent to the
commencement thereof when the summons is delivered, with the
intent that it shall be actually served, to the sheriff or other
officer of the county in which the defendants or one of them,
usually or last resided; or if a corporation be defendant, to the
sheriff or other officer of the county in which such corporation
was established by law, or where its general business was
transacted, or where it kept an office for the transaction of
business. Such an attempt must be followed by the first
publication of the summons, or the service thereof, within sixty
days.
SDCL 15-2-31.
[¶20.] When a summons is delivered to the sheriff or other authorized officer
with the intent that it be served on the defendant, SDCL 15-2-31 effectively
extends the time for service 60 days. Meisel v. Piggly Wiggly Corp., 418 N.W.2d
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321, 323 (S.D. 1988)). In this case, Plaintiffs timely delivered a copy of the
summons to the sheriff of the appropriate county, intending that the summons be
served on PSHI. The sheriff then served Tyrell, an individual who is not
authorized to receive service on behalf of PSHI. Because Plaintiffs failed to comply
with the applicable statutory requirements for service of process on a business
entity, this initial attempt at service on Tyrell was ineffective. However, under
SDCL 15-2-31, Plaintiffs had 60 days to complete service on PSHI. Within the 60-
day extension period, Plaintiffs served the president of PSHI through a private
process server on July 26, 2010.
[¶21.] PSHI contends that personal service by a process server during the
60-day extension period is insufficient under SDCL 15-2-31. In support of its
argument, PSHI cites the rule of statutory construction known as the doctrine of
the last antecedent. The rule provides that “a modifying clause is confined to the
last antecedent unless there is something in the subject matter or dominant
purpose which requires a different interpretation.” State Auto Ins. Cos. v. B.N.C.,
2005 S.D. 89, ¶ 17, 702 N.W.2d 379, 385 (quoting Estate of Fisher v. Fisher, 2002
S.D. 62, ¶ 13, 645 N.W.2d 841, 845). PSHI argues that the last sentence of SDCL
15-2-31 modifies the balance of the statute by placing a time limit on when actual
service of “the summons” must occur. PSHI contends that SDCL 15-2-31 allows for
just two methods of service during the 60-day limitation period. If the defendant to
be served is located within the county, the sheriff must effectuate service. If the
sheriff cannot locate the person, then notice by publication must take place. PSHI
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contends that service by a private process server is not among the two alternative
methods of service allowed under SDCL 15-2-31.
[¶22.] PSHI’s application of the doctrine of the last antecedent is misplaced.
We have repeatedly stated that when the meaning of a statute is clear, we need not
resort to statutory construction to interpret the plain language of the statute. See
id. (declining to apply the doctrine of the last antecedent to interpret a statute
when the meaning of the statute could be ascertained without the use of extrinsic
aids); see also State v. Ventiling, 452 N.W.2d 123 (S.D. 1990) (finding that the
meaning of the statute was clear and that the doctrine of the last antecedent
“provide[d] no guidance” in interpreting the plain terms of the statute). As we
explained in State Auto Insurance Cos. v. B.N.C.,
[s]tatutory construction is an exercise to determine legislative
intent. In analyzing statutory language we adhere to two
primary rules of statutory construction. The first rule is that
the language expressed in the statute is the paramount
consideration. The second rule is that if the words and phrases
in the statute have plain meaning and effect, we should simply
declare their meaning and not resort to statutory construction.
When we must, however, resort to statutory construction, the
intent of the legislature is derived from the plain, ordinary and
popular meaning of statutory language.
2005 S.D. 89, ¶ 18, 702 N.W.2d at 386 (quoting State v. Johnson, 2004 S.D. 135, ¶
5, 691 N.W.2d 319, 321-22).
[¶23.] In this case, we can ascertain the plain meaning of SDCL 15-2-31
without extrinsic aids. While the first sentence of the statute provides that the
party intending to commence an action must deliver the summons to the sheriff or
other officer of the county in which one of the defendants “usually or last resided,”
it does not require that the sheriff or other officer effectuate service on the
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defendant. Likewise, the last sentence of SDCL 15-2-31 imposes a time limit on
when actual service must occur. However, the last sentence of the statute does not
define those individuals that may effectuate actual service within the 60-day time
extension. 2 It only states that an attempt to commence an action “must be
followed by the first publication of the summons, or the service thereof, within
sixty days.” SDCL 15-2-31.
[¶24.] By its plain terms, SDCL 15-2-31 does not require the sheriff to
effectuate actual service on the defendant within the 60-day time extension. We
thus hold that under SDCL 15-2-31, a summons that is personally served during
the 60-day extension period by a person authorized to serve process under South
Dakota law relates back to the date the summons was “delivered, with the intent
that it . . . be actually served, to the sheriff or other officer of the county in which
the defendants or one of them, usually or last resided . . . .”
[¶25.] SDCL 15-6-4(c) is the general statute governing who has authority to
serve process under South Dakota law. The statute provides:
The summons may be served by the sheriff or a constable of the
county or other comparable political subdivision where the
defendant may be found, or in the District of Columbia by the
United States marshal or a deputy, or by any other person not a
2. Plaintiffs note that in Schebo v. Laderer, the United States District Court for
the District of South Dakota indicated in dicta that SDCL 15-2-31 requires
the sheriff to serve the defendant within the 60-day time extension. 720 F.
Supp. 146, 148 (D.S.D. 1989). However, the Schebo court did not
acknowledge that SDCL 15-2-31 expressly authorizes “publication of the
summons, or the service thereof” within the 60-day extension period. SDCL
15-2-31 (emphasis added). Service by publication would not ordinarily be
effectuated by a sheriff or other authorized county officer. We therefore
decline to adopt the federal court’s interpretation of SDCL 15-2-31.
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party to the action who at the time of making such service is an
elector of any state.
SDCL 15-6-4(c). As an elector of the state, a private process server has authority to
serve process pursuant to SDCL 15-6-4(c).
[¶26.] Plaintiffs delivered a summons to the Brule County Sheriff’s Office on
June 28, 2010. The Brule County Sheriff served a copy of the summons on Mike
Tyrell on June 29, 2010. Although this initial attempt at service was defective,
Plaintiffs subsequently served PSHI in accordance with the applicable service-of-
process statute on July 26, 2010. Plaintiffs completed service on PSHI within the
60-day extension period set forth under SDCL 15-2-31. Therefore, we hold that the
Plaintiffs timely served PSHI in accordance with South Dakota law and the circuit
court did not err in denying PSHI’s motion to dismiss.
[¶27.] Affirmed.
[¶28.] GILBERTSON, Chief Justice, and ZINTER, Justice, and
THORSTENSON, Circuit Court Judge, concur.
[¶29.] THORSTENSON, Circuit Court Judge, sitting for KONENKAMP,
Justice, disqualified.
[¶30.] WILBUR, Justice, did not participate.
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R.B.O. v. Congregation of the Priests of the Sacred Heart, Inc.
Court: South Dakota Supreme Court
Date filed: 2011-12-14
Citations: 2011 S.D. 87, 806 N.W.2d 907, 2011 SD 87
Copy CitationsCombined Opinion