Langowski v. Altendorf

812 N.W.2d 427

2012 ND 34

Kara Lynn LANGOWSKI (f/k/a Kara Lynn Dunnigan), Plaintiff and Appellant,

v.Charleen ALTENDORF, Defendant and Appellee.

No. 20110184.

Supreme Court of North Dakota.

Feb. 17, 2012.

Gretchen M. Handy (appeared), Grand Forks, N.D., and Reed K. Mackenzie (argued), Minneapolis, MN, for plaintiff and appellant.

Kraig A. Wilson (argued), Grand Forks, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Kara Lynn Langowski appeals from a summary judgment dismissing with prejudice her negligence action against Charlene Altendorf. We affirm the judgment, concluding Langowski did not begin her negligence action against Altendorf within the six-year statute of limitations by delivering the summons and complaint to Altendorf within that time.

I

[¶ 2] In her complaint, Langowski alleged Altendorf struck her with a vehicle while she attempted to cross a street in Minto, North Dakota, on August 21, 2004, causing her bodily injury. On August 18, 2010, Langowski sent the summons and complaint to Roughrider Legal Support Services, a private process server, instructing it to serve both documents upon Altendorf on or before August 21, 2010.

[¶ 3] Representatives of Roughrider attempted to personally serve Altendorf at her residence in Minto on August 19 and 20, 2010, but were unsuccessful because she had traveled to Bismarck. On August 19, Sarah Zacher, a paralegal for Langowski's attorney, telephoned Altendorf to arrange a meeting in Bismarck to personally serve Altendorf the next day. Zacher and Altendorf agreed to contact each other on August 20 to discuss a location where service could be accomplished. On the morning of August 20, however, after speaking with her attorney, Altendorf informed Zacher she would not accept service in Bismarck. Roughrider then attempted to serve Altendorf through Deborah Dunham, an office manager at Altendorf's place of employment. After speaking with Altendorf, Dunham refused to accept service on Altendorf's behalf. Roughrider then left the summons and complaint affixed to the front door of Altendorf's home in Minto on August 20, 2010, at 6:04 p.m., after a final attempt to serve Altendorf at her home. Altendorf did not discover the summons and complaint affixed to her door until August 23, 2010. On August 23, 2010, Langowski sent a copy of the summons and complaint by certified mail to Altendorf. Altendorf signed for and received a copy of the summons and complaint on August 25, 2010.

[¶ 4] Altendorf moved to dismiss Langowski's negligence action, arguing Langowskifailed to properly serve her within the six-year statute of limitations. Altendorf claimed the district court therefore lacked personal jurisdiction. After a hearing and a request for additional briefing, the district court granted Altendorf summary judgment dismissal of Langowski's negligence action, concluding Langowski did not begin the action within the six-year statute of limitations because Altendorf did not sign for and receive the summons and complaint until August 25, 2010, two days after the expiration of the statute of limitations.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Langowski timely appealed under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 6] Langowski argues the district court erroneously interpreted N.D.R.Civ.P. 4(d)(2)(A)(v) in concluding her action began when Altendorf signed for and received the summons and complaint on August 25, 2010, two days after the expiration of the statute of limitations. Langowski argues her action began when she placed the summons and complaint in the mail on August 23, 2010.

[¶ 7] “Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law.” Gratech Co., Ltd. v. Wold Eng'g, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672;N.D.R.Civ.P. 56(c). “ ‘Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.’ ” Id. (quoting Koapke v. Herfendal, 2003 ND 64, ¶ 11, 660 N.W.2d 206). We review a district court's grant of summary judgment de novo. Lucas v. Riverside Park Condominiums Unit Owners Ass'n, 2009 ND 217, ¶ 16, 776 N.W.2d 801. We review the evidence in the light most favorable to the party opposing summary judgment. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639.

[¶ 8] Section 28–01–16, N.D.C.C., provides a general six-year statute of limitations for Langowski's tort claims:

The following actions must be commenced within six years after the claim for relief has accrued:

....

5. An action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided.

“The purpose of a statute of limitation is to prevent ‘plaintiffs from sleeping on their legal rights to the detriment of the defendants.’ ” Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990) (quoting Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986)). “Thus, statutes of limitation are designed to prevent the plaintiff's enforcement of stale claims when, through the lapse of time, evidence regarding the claim has become difficult to procure or even lost entirely.” Id.

[¶ 9] Under N.D.R.Civ.P. 3, a civil action begins in North Dakota when a plaintiff serves a summons upon a defendant. Langowski argues she timely served her summons and complaint upon Altendorf for her claimed August 21, 2004, injuries on August 23, 2010, the day she placed both documents in the mail. Langowski argues N.D.R.Civ.P. 6(a) applies when calculating the beginning and ending dates of the statute of limitations governing her claims.

[¶ 10] The explanatory note to N.D.R.Civ.P. 6(a) states the rule was amended effective March 1, 2011, to simplify and clarify the provisions describing the computation of deadlines. See American Family Ins. v. Waupaca Elevator Co., Inc., 2012 ND 13, ¶ 11, 809 N.W.2d. 337. The 2011 amendments to N.D.R.Civ.P. 6(a) created no substantive changes that apply here, however, and our analysis is the same under both versions of the rule. See id. Because the 2011 amendments to N.D.R.Civ.P. 6(a) were not in effect before Langowski's claimed injuries or when she mailed the summons and complaint to Altendorf on August 23, 2010, we apply the former N.D.R.Civ.P. 6(a), which provided in part:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

See also State v. Dimmler, 456 N.W.2d 297, 298 (N.D.1990) (all statutes are applied prospectively unless clearly expressed otherwise, and the statute in effect at the time of the cause of action applies).

[¶ 11] Section 1–02–15, N.D.C.C., also applies to the computation of time, providing:

The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it also is excluded. If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period ends on the last day of that month.

[¶ 12] Under N.D.R.Civ.P. 6(a) and N.D.C.C. § 1–02–15, the date of the event that triggered Langowski's claims, August 21, 2004, is excluded in computing the beginning of the six-year statute of limitations. Instead, the next day, August 22, 2004, begins the six-year statute of limitations countdown. Six years into the future from August 22, 2004, counting every day, including intermediate Saturdays, Sundays, and legal holidays, is Saturday, August 21, 2010. Because the expiration date of Langowski's claims is a Saturday, the statute of limitations period “continues to run until the end of the next day that is not a Saturday, a Sunday, or a legal holiday.” The next day “that is not a Saturday, a Sunday, or a legal holiday” is Monday, August 23, 2010. That date is the last day when Langowski could have timely sued Altendorf under the six-year statute of limitations governing her claims. See Long v. Jaszczak, 2004 ND 194, ¶¶ 9–11, 688 N.W.2d 173.

[¶ 13] Langowski and Altendorf agree Langowski had until the end of August 23, 2010, to begin this action. They disagree, however, whether Langowski's mailing of the summons and complaint on August 23 or Altendorf's receipt of the mailing on August 25 began this action.

[¶ 14] The district court concluded Langowski did not begin the action when she placed the summons and complaint in the mail on August 23; rather, the action began when Altendorf signed for and received both documents on August 25, two days after the statute of limitations had expired. In reaching its conclusion, the district court interpreted N.D.R.Civ.P. 4(d)(2)(A), which provides:

Service must be made on an individual 14 or more years of age by:

(i) delivering a copy of the summons to the individual personally;

(ii) leaving a copy of the summons at the individual's dwelling or usual place of residence in the presence of a person of suitable age and discretion who resides there;

(iii) delivering, at the office of the process server, a copy of the summons to the individual's spouse if the spouses reside together;

(iv) delivering a copy of the summons to the...