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Hughes v. Olheiser Masonry, Inc.

Supreme Court of North Dakota

November 20, 2019

John M. Hughes, Plaintiff and Appellant
v.
Olheiser Masonry, Inc., Curt Olheiser, and Harley D. Rapp, Defendants and Appellees

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable James D. Gion, Judge.

          Mark C. Sherer, Dickinson, ND, for plaintiff and appellant.

          Grant T. Bakke (argued) and Randall J. Bakke (on brief), Bismarck, ND, for defendants and appellees.

          OPINION

          McEVERS, JUSTICE.

         [¶1] John Hughes appeals from a district court order dismissing his negligence action. On appeal, Hughes argues mailing of a summons and complaint to the sheriff's department should be treated as delivery for purposes of commencing his civil action. We affirm the district court's order.

         I

         [¶2] On May 24, 2012, Harley Rapp, who was employed by Olheiser Masonry, and John Hughes collided in a forklift and motor vehicle accident. Rapp was driving a forklift and Hughes was driving a pickup truck. Hughes filed a complaint with the district court on May 22, 2018, alleging injuries as a result of the negligence of Rapp, Curt Olheiser, and Olheiser Masonry. Hughes mailed his complaint and summons to the Stark County Sheriff's Department the same day, requesting the documents be served on the defendants.

         [¶3] The Stark County sheriff's department did not receive the documents until May 31, 2018. Olheiser, Olheiser Masonry, and Rapp were served by the sheriff's department on June 1 and 2, 2018. On October 11, 2018, Olheiser, Olheiser Masonry, and Rapp filed a motion to dismiss arguing the action was not commenced until after the statute of limitations expired. The district court granted the motion to dismiss and concluded the action was not commenced until after the statute of limitations expired because the Stark County sheriff's department did not receive the summons until May 31, 2018. Hughes appeals.

         II

         [¶4] On appeal, Hughes argues the district court erred by granting the motion to dismiss. Specifically, Hughes argues mailing of a summons and complaint should be treated as delivery under N.D.C.C. § 28-01-38, which provides an exception to the statute of limitations.

         [¶5] The district court concluded it did not have jurisdiction because service was outside the statute of limitations.

An action barred by a statute of limitations generally is dismissed under the summary judgment standards of N.D.R.Civ.P. 56. Summary judgment "is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law." Whether summary judgment is properly granted is a question of law which we review de novo on the entire record.

In re Estate of Nelson, 2015 ND 122, ¶ 6, 863 N.W.2d 521 (internal citations omitted).

         [¶6] Under N.D.C.C. § 28-01-16(5), a negligence action that resulted in personal injury must be commenced within six years. See Calavera v. Vix, 356 N.W.2d 901 (N.D. 1984). The accident occurred on May 24, 2012, and it is undisputed the claim expired May 24, 2018, absent some applicable exception or tolling of the statute of limitations. It is also undisputed the complaint was filed with the district court on May 22, 2018. Filing of a complaint in the district court does not commence an action in North Dakota. Under N.D.R.Civ.P. 3 "[a] civil action is commenced by the service of a summons." North Dakota's rule differs from Fed.R.Civ.P. 3, which ...


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