statute of limitations defense in North Dakota

2022We did not analyze the issue of failing to raise the defense in an answer as provided under N.D.C.C. § 28-01-39 in Estate of Nelson. [¶16] This Court has held that under N.D.C.C. § 28-01-39,1 a statute of limitations defense “cannot be raised by demurrer, but must be pleaded by answer,” and “even though the fact is apparent upon the face of the complaint.” 1 Previously codified at N.D.R.C. § 28-0139 (1943). 6 Hagen v. Altman, 79 N.W.2d 53, 59 (N.D. 1956).

2022We did not analyze the issue of failing to raise the defense in an answer as provided under N.D.C.C. § 28-01-39 in Estate of Nelson. [¶16] This Court has held that under N.D.C.C. § 28-01-39,1 a statute of limitations defense “cannot be raised by demurrer, but must be pleaded by answer,” and “even though the fact is apparent upon the face of the complaint.” 1 Previously codified at N.D.R.C. § 28-0139 (1943). 6 Hagen v. Altman, 79 N.W.2d 53, 59 (N.D. 1956).

2011N.D.C.C. § 28-01-36; Pear v. Grand Forks Motel Assoc., 553 N.W.2d 774, 782 (N.D.1996).

2011N.D.C.C. § 28-01-36; Pear v. Grand Forks Motel Assoc. , 553 N.W.2d 774, 782 (N.D. 1996).

2004See, e.g. , Vaughn v. Speaker , 533 N.E.2d 885, 889-92 (Ill. 1988) (rejecting the relation-back doctrine to permit substitution of executor for decedent but remanding for factual determination whether defendant was equitably estopped from raising the statute of limitations defense); Wells , 358 N.E.2d at 295 (same); Moore v. Luther , 35 P.3d 277, 279-81 (Kan.

2004See, e.g., Vaughn v. Speaker, 126 Ill.2d 150 , 127 Ill.Dec. 803 , 533 N.E.2d 885, 889-92 (1988) (rejecting the relation-back doctrine to permit substitution of executor for decedent but remanding for factual determination whether defendant was equitably estopped from raising the statute of limitations defense); Wells, 3 Ill.Dec. 126 , 358 N.E.2d at 295 (same); Moore v. Luther, 29 Kan.App.2d 1004 , 35 P.3d 277, 279-81 (2001) (applying nullity theory when decedent was sued, but modifying dismissal to be without prejudice and suggesting executor could be sued and equitable estoppel could be raise

2004It is widely recognized that “an insurance adjuster acting for an insurance company may be considered the agent of the insured so as to estop the defendant-insured from raising the statute of limitations defense.” Sander v. Wright , 394 N.W.2d 896, 899 (S.D. 1986).

2004It is widely recognized that “an insurance adjuster acting for an insurance company may be considered the agent of the insured so as to estop the defendant-insured from raising the statute of limitations defense.” Sander v. Wright, 394 N.W.2d 896, 899 (S.D.1986).

2004See, e.g. , Vaughn v. Speaker , 533 N.E.2d 885, 889-92 (Ill. 1988) (rejecting the relation-back doctrine to permit substitution of executor for decedent but remanding for factual determination whether defendant was equitably estopped from raising the statute of limitations defense); Wells , 358 N.E.2d at 295 (same); Moore v. Luther , 35 P.3d 277, 279-81 (Kan.

2004See Wells , 358 N.E.2d at 295 . [¶33] We conclude the district court erred in dismissing Muhammed’s complaint because he raised a genuine issue of material fact whether the defendant is estopped from claiming the statute of limitations defense.

2004See, e.g. , Vaughn v. Speaker , 533 N.E.2d 885, 889-92 (Ill. 1988) (rejecting the relation-back doctrine to permit substitution of executor for decedent but remanding for factual determination whether defendant was equitably estopped from raising the statute of limitations defense); Wells , 358 N.E.2d at 295 (same); Moore v. Luther , 35 P.3d 277, 279-81 (Kan.

2004See, e.g., Vaughn v. Speaker, 126 Ill.2d 150 , 127 Ill.Dec. 803 , 533 N.E.2d 885, 889-92 (1988) (rejecting the relation-back doctrine to permit substitution of executor for decedent but remanding for factual determination whether defendant was equitably estopped from raising the statute of limitations defense); Wells, 3 Ill.Dec. 126 , 358 N.E.2d at 295 (same); Moore v. Luther, 29 Kan.App.2d 1004 , 35 P.3d 277, 279-81 (2001) (applying nullity theory when decedent was sued, but modifying dismissal to be without prejudice and suggesting executor could be sued and equitable estoppel could be raise

2024Lehman v. State, 2014 ND 103, ¶¶ 3, 7-8 , 847 N.W.2d 119 (holding that the two- year time limit for postconviction relief applications is “akin to” a statute of limitations, that a statute of limitations defense in a civil proceeding is an affirmative defense, and that affirmative defenses are waived if not pleaded); Johnson v. State, 2010 ND 213, ¶ 10 , 790 N.W.2d 741 (holding that res judicata is an express affirmative defense under N.D.C.C. § 29-32.1-12(3) to be pleaded by the State). [¶18] The district court erred by dismissing Chase’s application sua sponte on grounds waived by the State.

2024Lehman v. State, 2014 ND 103, ¶¶ 3, 7-8 , 847 N.W.2d 119 (holding that the two- year time limit for postconviction relief applications is “akin to” a statute of limitations, that a statute of limitations defense in a civil proceeding is an affirmative defense, and that affirmative defenses are waived if not pleaded); Johnson v. State, 2010 ND 213, ¶ 10 , 790 N.W.2d 741 (holding that res judicata is an express affirmative defense under N.D.C.C. § 29-32.1-12(3) to be pleaded by the State). [¶18] The district court erred by dismissing Chase’s application sua sponte on grounds waived by the State.

2004The court also ruled that the amended summons and complaint could not relate back to the original summons and complaint to avoid the statute of limitations because the original action against the deceased was a “legal nullity” and, therefore, “there exists no action to which the amendment can relate back.” Id. at 271-72. [¶28] Van Slooten is distinguishable because the plaintiff did not assert that the defendant was equitably estopped from claiming the statute of limitations defense.

2004The court also ruled that the amended summons and complaint could not relate back to the original summons and complaint to avoid the statute of limitations because the original action against the deceased was a “legal nullity” and, therefore, “there exists no action to which the amendment can relate back.” Id. at 271-72 . [¶ 28] Van Slooten is distinguishable because the plaintiff did not assert that the defendant was equitably estopped from claiming the statute of limitations defense.

2024He argues jurisdictional issues can be raised at any time and thus his application for postconviction relief is not subject to the two-year deadline. [¶10] Lyons relies on State v. Hersch, 445 N.W.2d 626, 629-30 (N.D. 1989), where this Court decided a criminal defendant did not waive a statute of limitations defense by failing to raise it in the district court because “the statute of limitations in a criminal case is a jurisdictional fact which creates a bar to prosecution.” The question in Hersch was whether a jurisdictional argument could be waived on direct appeal in a criminal case.

2021Section 32-29.3-07(7), N.D.C.C., states, “If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.” (Emphasis added.) See also Kottschade, 896 N.W.2d at 548-49 (holding district court erred in dismissing 16 action after ordering arbitration because state statutory law states the court “shall on just terms stay any judicial proceeding that involves a claim subject to the arbitration” and required the court to stay judicial proceedings when granting a motion to compel arbitration); Widener, 674 S.E.2d at 174 (ho

2021Section 32-29.3-07(7), N.D.C.C., states, “If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.” (Emphasis added.) See also Kottschade, 896 N.W.2d at 548-49 (holding district court erred in dismissing 16 action after ordering arbitration because state statutory law states the court “shall on just terms stay any judicial proceeding that involves a claim subject to the arbitration” and required the court to stay judicial proceedings when granting a motion to compel arbitration); Widener, 674 S.E.2d at 174 (ho

2021Section 32-29.3-07(7), N.D.C.C., states, “If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.” (Emphasis added.) See also Kottschade, 896 N.W.2d at 548-49 (holding district court erred in dismissing 16 action after ordering arbitration because state statutory law states the court “shall on just terms stay any judicial proceeding that involves a claim subject to the arbitration” and required the court to stay judicial proceedings when granting a motion to compel arbitration); Widener, 674 S.E.2d at 174 (ho

2006Co., 286 N.W.2d 489, 491 (N.D.1979) (no abuse of discretion where district court allowed defendant to amend its answer to assert a statute of limitations defense more than 19 months after the complaint was originally filed). [¶ 10] In addition to failing to make an affirmative showing of prejudice, the Leets did not request a continuance in their response to Minot's summary judgment motion under Rule 56(f), N.D.R.Civ.P., which permits a court to order a continuance for further discovery upon affidavit from the opposing party.

2006Co., 286 N.W.2d 489, 491 (N.D.1979) (no abuse of discretion where district court allowed defendant to amend its answer to assert a statute of limitations defense more than 19 months after the complaint was originally filed). [¶ 10] In addition to failing to make an affirmative showing of prejudice, the Leets did not request a continuance in their response to Minot’s summary judgment motion under Rule 56(f), N.D.R.Civ.P., which permits a court to order a continuance for further discovery upon affidavit from the opposing party.

2003See Rowell v. McCue, 188 Ga.App. 528, 373 S.E.2d 243, 245-46 (1988) (mere misdiagnosis insufficient to support equitable estoppel); Dasha v. Maine Med.

2003See Rowell v. McCue, 188 Ga.App. 528, 373 S.E.2d 243, 245-46 (1988) (mere misdiagnosis insufficient to support equitable estoppel); Dasha v. Maine Med.

2001Waxier v. Dalsted, 529 N.W.2d 176, 179 (N.D.1995). [¶ 10] “The purpose of a Rule •12(b)(v) motion is to test the legal sufficiency of the statement of the claim presented in the complaint.” Towne v. Dinius, 1997 ND 125, ¶ 7 , 565 N.W.2d 762 .

1995A trial court faced with a motion to dismiss on a statute of limitations defense must act with “delicacy and circumspection.” United States v. Coia, 719 F.2d 1120, 1125 (11th Cir.1983).

1995A trial court faced with a motion to dismiss on a statute of limitations defense must act with "delicacy and circumspection." United States v. Coia, 719 F.2d 1120, 1125 (11th Cir.1983).

1992See Schmidt v. Grand Forks Country Club, 460 N.W.2d 125 (N.D.1990) (unsuccessful use of equitable estoppel); Szarkowski v. Reliance Ins.