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Openhowski v. Mahone6/14/2000
support of their separate motions for summary judgment, Alex and Grinnell allege that Openhowski failed to commence his personal injury claim within the time required by the applicable statute of limitations.
[ ] The standard for summary judgment is well settled.
In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
In response to a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations. Summary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact. Wissink v. Van De Stroet, 1999 SD 92, , 598 NW2d 213, 215 (internal citations omitted).
[ ] Statutes of limitations are necessarily arbitrary. Chipperfield v. Woessner, 84 SD 13, 166 NW2d 727, 728 (1969). They are regarded as statutes of repose designed to eliminate fraudulent and stale claims and operate against those who sleep on their rights. A defense based on a statute of limitations is meritorious and should not be regarded with disfavor, rather it should be treated like any other defense. Id.
[ ] Pursuant to SDCL 15-2-14(3), Openhowski's action to recover for an alleged personal injury must be commenced within three years after the cause of action accrues. Openhowski alleges the injury occurred September 26, 1995. Thus, absent some tolling statute, the limitations period expired September 26, 1998.
[ ] On September 18, 1998, Openhowski delivered the summons, with the intent that it be served, to the sheriff's office of Minnehaha County, the county in which Alex last resided. Pursuant to SDCL 15-2-31, Openhowski's attempt to commence the action on September 18, 1998, "is deemed equivalent to the commencement thereof" provided the attempt is "followed by the first publication of the summons, or the service thereof, within sixty days" of the delivery of the summons to the sheriff's office. As noted, personal service was not obtained. The summons was first published November 20, 1998, sixty-three days after Openhowski attempted to commence the action. Again, absent some tolling statute, the limitations period expired on November 17, 1998.
[ ] Openhowski argues the applicable tolling statute is SDCL 15-2-20. This statute provides in pertinent part:
If when the cause of action shall accrue against any person he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action[.]
[ ] Th
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