from the District Court of Williams County, Northwest
Judicial District, the Honorable Kirsten M. Sjue, Judge.
Jeffrey S. Weikum, Bismarck, ND, for plaintiff and appellant.
J.D. Eberhardt (argued) and Jerry W. Evenson (on brief),
Bismarck, ND, for defendant and appellee.
Branden Wilkens appeals from a district court judgment and
order dismissing his complaint against Tarin L. Westby
without prejudice, concluding service under N.D.C.C. §
39-01-11 was improper. We affirm.
On February 14, 2012, Wilkens and Westby were involved in a
car accident in North Dakota, resulting in Westby's death
on the day of the accident. In February 2018, Wilkens served
a summons and complaint asserting a claim of negligence
against Westby upon the director of the Department of
Transportation ("the Department") under N.D.C.C.
§ 39-01-11, which allows residents to serve legal
process upon the director of the Department when the party
being served is (1) a resident absent from the state
continuously for at least six months following an accident,
or (2) a nonresident. In March 2018, an attorney answered on
Westby's behalf, asserting affirmative defenses. The
attorney moved to dismiss the complaint, arguing personal
jurisdiction was lacking and service under N.D.C.C. §
39-01-11 was improper, because Westby, a deceased person, did
not fit into the definition of "nonresident," under
the statute and was not "absent from the state" by
virtue of his death. Wilkens opposed the motion and a hearing
was held. The district court issued its findings at the
hearing on the record, concluding Westby was neither a
"nonresident," nor "absent from the
state" by virtue of his death for purposes of service
under N.D.C.C. § 39-01-11. The court granted
Westby's motion to dismiss without prejudice, basing its
decision on lack of jurisdiction, but recognized the
practical effect, based on the statute of limitations, would
be a dismissal with prejudice. Wilkens appeals from the
court's order dismissing his claim.
Ordinarily, an order dismissing a complaint without prejudice
is not appealable, however, such an order may be final and
appealable "if the dismissal has the practical effect of
terminating the litigation in the plaintiff's chosen
forum." James Vault & Precast Co. v. B&B Hot
Oil Serv., Inc., 2018 ND 63, ¶ 10, 908 N.W.2d 108.
A dismissal without prejudice is appealable where the statute
of limitations has run because a dismissal without prejudice
in that case effectively forecloses litigation. Id.
Here, there is no dispute the statute of limitations has
expired. The practical effect of the district court's
order dismissing Wilkens' claim was to terminate the
litigation. Therefore, the court's order without
prejudice is considered final and appealable.
The district court's order ruled on the issue of personal
jurisdiction which is fully reviewable on appeal:
"Analysis of a [district] court's ruling regarding
personal jurisdiction is a question of law, and we use the de
novo standard of review for legal conclusions and a clearly
erroneous standard for factual findings." Bolinske
v. Herd, 2004 ND 217, ¶ 7, 689 N.W.2d 397. A
finding of fact is clearly erroneous if it is not supported
by any evidence, if, although some evidence supports the
finding, a reviewing court is left with a definite and firm
conviction a mistake has been made, or if the finding is
induced by an erroneous conception of the law. Id.
Spirit Prop. Mgmt. v. Vondell, 2017 ND 158, ¶
16, 897 N.W.2d 334.
There is no factual dispute process was served on the
director of the Department. On appeal, Wilkens argues
N.D.C.C. § 39-01-11 enables him to serve the director of
the Department when initiating a suit against the deceased,
Westby, because the term "absent" in the statute
contemplates a resident's absence from the state caused