White Eagle v. City of Fort Pierre

2000 SD 34, 606 N.W.2d 926, 2000 S.D. LEXIS 35
CourtSouth Dakota Supreme Court
DecidedMarch 8, 2000
DocketNone
StatusPublished
Cited by15 cases

This text of 2000 SD 34 (White Eagle v. City of Fort Pierre) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White Eagle v. City of Fort Pierre, 2000 SD 34, 606 N.W.2d 926, 2000 S.D. LEXIS 35 (S.D. 2000).

Opinions

STEELE, Circuit Judge.

[¶ 1.] The trial court denied City of Fort Pierre’s (City) amended motion to dismiss, concluding that service of process on City was effective because there was substantial compliance with the requirements of SDCL 15 — 6—4(d). This Court granted City’s petition for allowance of an intermediate appeal. We reverse.

FACTS

[¶ 2.] Darrell Thomas White Eagle died on or about June 26, 1995. Daron White Eagle, (White Eagle) as Special Administrator for his father’s estate, filed a summons and complaint in circuit court dated June 19, 1997. The complaint named as defendants City, Kevin Steever in his official capacity as City’s chief of police, and Steever individually. White Eagle alleged that Steever and City negligently or intentionally caused the injury and death of decedent. White Eagle further alleged a cause of action pursuant to 42 USC 1983, due to purported violations of the Fourth, Eighth 'and Fourteenth Amendments by City. Finally, White Eagle asserted entitlement to punitive damages.

[¶ 3.] The summons, dated June 19, 1997, was served upon Mary Ellen Garrett, City’s finance officer, on June 24, 1997. On July 18, 1997, Cityjfiled a motion to dismiss on the grounds Of improper service of process and expiratidn of the statute of limitations period. City argued that as a first class municipality} service could be made only by serving the mayor or any alderman, and that none'of those officials were served "within the permitted period. The trial court denied City’s motion. It [928]*928determined there was substantial compliance with the statutory requirement concerning the service of process. City appeals.

STANDARD OF REVIEW

[¶ 4.] “ ‘Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as the review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?’ ” Risse v. Meeks, 1998 SD 112, ¶ 10, 585 N.W.2d 875, 876 (quoting Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D.1993)). “This Court reviews challenges to court jurisdiction de novo.” Id. (citing State v. Vandermay, 478 N.W.2d 289, 290 (S.D.1991)).

ANALYSIS

[¶ 5.] While several issues were raised on appeal, matters not determined by the trial court are not appropriate for appellate review. See Schull Construction Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). Therefore, we limit our decision to determining if the trial court erred in finding that service of process upon City’s finance officer constituted substantial compliance with SDCL 15-6-4(d).

[¶ 6.] In Wagner v. Truesdell, 1998 SD 9, ¶ 9, 574 N.W.2d 627, 629, we adopted the substantial compliance doctrine stating, “actual notice coupled with substantial compliance is sufficient to satisfy personal service of process requirements[.]” We have defined substantial compliance as follows:

“Substantial compliance” with a statute means actual compliance in respect to the substance essential to every 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.
State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982) (internal citations and quotations omitted); see also Larson v. Hazeltine, 1996 SD 100, 552 N.W.2d 830, 835, Rans v. State, 390 N.W.2d 64 (S.D.1986).

Id., 1998 SD 9 at ¶ 7, 574 N.W.2d at 629.

[¶ 7.] We have also stated 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[.]’ ” Hartley v. Jerry’s Radio & Electric Shop, 74 S.D. 87, 90, 48 N.W.2d 925, 927 (1951)(quoting Freeman on Judgments, 5th ed. § 341). In order to ensure that a municipality defendant has been advised that an action or proceeding has been commenced against it, and to warn it to appear within a time and at a place named and make its defense, the South Dakota Legislature enacted 15-6-^4(d) which states, in part:

The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service:
(4) If the action be against a public corporation within this state, service may be made as follows:
(ii) Upon a first or second class municipality, by serving upon the may- or or any alderman or commissioner.

[¶ 8.] White Eagle argues that the trial court correctly found substantial com[929]*929pliance under the delineated test because City’s finance officer was a city agent appointed to receive legal documents.1 He further claims the language of SDCL 15-6~4(d) is discretionary rather than mandatory because of the use of the term “may” rather than “shall” in the first sentence of subsection 4 of the statute. In sum, White Eagle asserts that the trial court correctly found the statute has been followed sufficiently so as to carry out the intent for which it was adopted, i.e. advising City of impending action and warning City to appear and defend. We disagree.

[¶ 9.] In Matter of Gillespi, 397 N.W.2d 476 (S.D.1986), a motion and order to show cause were mailed to the Beadle County State’s Attorney. These documents were never personally served on the Beadle County Treasurer or a Beadle County Commissioner as required by SDCL 15 — 6— 4(d)(4)(i). We held that “in order for the trial court to have jurisdiction in these contempt proceedings, personal service upon Beadle County and the Beadle County Treasurer under the provisions of SDCL 15 — 6—4(d)(4)(i) was mandatory. Because this service is absent, jurisdiction is totally lacking.” Gillespi, 397 N.W.2d at 478.

[¶ 10.] Although Gillespi was decided twelve years before our adoption of the doctrine of substantial compliance, the case is instructive on two points.

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Cite This Page — Counsel Stack

Bluebook (online)
2000 SD 34, 606 N.W.2d 926, 2000 S.D. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-eagle-v-city-of-fort-pierre-sd-2000.