statute of limitations defense in South Dakota

2013Jacobson v. Leisinger, 2008 S.D. 19 , ¶ 24, 746 N.W.2d 789, 745 (quoting Cooper v. James, 2001 S.D. 59 , ¶ 6, 627 N.W.2d 784, 787 ). [¶ 8.] Further, “if summary judgment is granted [based] on a statute of limitations defense[:]” The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2010Jacobson v. Leisinger, 2008 SD 19, ¶24 , 746 N.W.2d 739, 745 (quoting Cooper v. James, 2001 SD 59, ¶ 6 , 627 N.W.2d 784, 787 ). [¶ 5.] When summary judgment is granted on a statute of limitations defense: The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2025SALTER, Justice (concurring specially). [¶38.] I join the Court’s opinion, but I write specially to note that our decision today marks a departure from Guthmiller v. Deloitte & Touche, LLP, 2005 S.D. 77 , 699 N.W.2d 493 , where we held that a statute of limitations defense could only be presented in an “answer or other responsive pleading.” Id. ¶ 8, 699 N.W.2d at 497 (citing SDCL 15-2-1).

2025The court can consider exhibits attached to the pleadings or materials referenced in the pleadings when assessing the claims in a complaint against a motion for judgment on the pleadings. [¶18.] Moreover, the rules of civil procedure clearly anticipate an affirmative defense, like the statute of limitations, to be first asserted in a responsive pleading. “[A] party is required to include a statute of limitations defense in its responsive pleadings.” Guthmiller, 2005 S.D. 77 , ¶ 8, 699 N.W.2d at 497 (citing SDCL 15-6- 8(c)); SDCL 15-2-1 (“The objection that the action was not commenced within t

2022See SDCL 15-6-8(a) (authorizing a party to seek “alternative” relief); SDCL 15-6-8(e) (same). -21- #29409, #29420 federal courts of appeals, holding that a decision granting summary judgment on the basis of a statute of limitations defense is very much a decision on the merits. 12 [¶52.] Indeed, as the Supreme Court has observed, “over the years the meaning of the term ‘judgment on the merits’ has gradually undergone change . . . .” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 , 121 S. Ct. 1021, 1025 , 149 L. Ed. 2d 32 (2001) (internal quotation marks omitted) (citation omitte

2022See SDCL 15-6-8(a) (authorizing a party to seek “alternative” relief); SDCL 15-6-8(e) (same). -21- #29409, #29420 federal courts of appeals, holding that a decision granting summary judgment on the basis of a statute of limitations defense is very much a decision on the merits. 12 [¶52.] Indeed, as the Supreme Court has observed, “over the years the meaning of the term ‘judgment on the merits’ has gradually undergone change . . . .” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 , 121 S. Ct. 1021, 1025 , 149 L. Ed. 2d 32 (2001) (internal quotation marks omitted) (citation omitte

2021Strassburg v. Citizens State Bank, 1998 S.D. 72 , ¶ 5, 581 N.W.2d 510, 513 .

2018Therefore, Work's action or inaction following Allgier's default cannot, standing alone, "change the rights of the parties resulting from the maturity of the debt." See Snyder v. Miller , 71 Kan. 410 , 80 P. 970 , 973 (1905) (quoting San Antonio Real Estate Bldg. & Loan Ass'n v. Stewart , 94 Tex. 441 , 61 S.W. 386 , 388 (1901) ).

2018Therefore, Work's action or inaction following Allgier's default cannot, standing alone, "change the rights of the parties resulting from the maturity of the debt." See Snyder v. Miller , 71 Kan. 410 , 80 P. 970 , 973 (1905) (quoting San Antonio Real Estate Bldg. & Loan Ass'n v. Stewart , 94 Tex. 441 , 61 S.W. 386 , 388 (1901) ).

2018Therefore, Work's action or inaction following Allgier's default cannot, standing alone, "change the rights of the parties resulting from the maturity of the debt." See Snyder v. Miller , 71 Kan. 410 , 80 P. 970 , 973 (1905) (quoting San Antonio Real Estate Bldg. & Loan Ass'n v. Stewart , 94 Tex. 441 , 61 S.W. 386 , 388 (1901) ).

2018Therefore, Work's action or inaction following Allgier's default cannot, standing alone, "change the rights of the parties resulting from the maturity of the debt." See Snyder v. Miller , 71 Kan. 410 , 80 P. 970 , 973 (1905) (quoting San Antonio Real Estate Bldg. & Loan Ass'n v. Stewart , 94 Tex. 441 , 61 S.W. 386 , 388 (1901) ).

2018Therefore, this case concerns whether Allgier may rely on the statute of limitations as a defense. [¶ 23.] "Ordinarily, the statute of limitations defense is personal and cannot be asserted for someone else." *865 Kobbeman v. Oleson , 1998 S.D. 20 , ¶ 21, 574 N.W.2d 633 , 640.

2005Wolff v. Secretary of Game, Fish and Parks Dept., 1996 SD 23, ¶ 14 , 544 N.W.2d 531, 533 .

2005Wolff v. Secretary of Game, Fish and Parks Dept., 1996 SD 23, ¶ 14 , 544 N.W.2d 531, 533 .

2002A party is charged with constructive notice when it has “an awareness either that [it] has suffered an injury or that another [party] has committed a legal wrong. . . .†Wissink , 1999 SD 92 , ¶15, 598 NW2d at 216 (quoting Haberer v. First Bank, 429 NW2d 62, 68 (SD 1988)) (additional citation omitted).

2002A party is charged with constructive notice when it has “an awareness either that [it] has suffered an injury or that another [party] has committed a legal wrong. . . .†Wissink , 1999 SD 92 , ¶15, 598 NW2d at 216 (quoting Haberer v. First Bank, 429 NW2d 62, 68 (SD 1988)) (additional citation omitted).

1998Kroeger, 52 S.D. at 434 , 218 N.W. 17 ; State ex rel.

1998Kroeger, 52 S.D. at 434 , 218 N.W. 17 ; State ex rel.

1997If such a contract is entered into it shall be null and void from the beginning. [¶ 32.] SDCL 6-1-4 provides: Any civil action to recover the amounts paid by a county, municipality, township or school district under any of the conditions of 6-1-1 to 6-1-3, inclusive, must notwithstanding any other law or statute of limitation, be commenced within six months from the date of publication of the minutes recording the approval of the voucher and payment thereof or within six months from the filing of any audit report covering the expenditure therefor, whichever of the two events occurs the later;

1990In examining the Chipperfield case, relied upon in Deitz, supra, it is clear that the holding only concerned the fact that in *786 South Dakota a statute of limitations defense is a meritorious defense which should not be regarded with disfavor and which should be treated like any other defense.

1987I dissent from that portion of the majority opinion which extends the Arcon sovereign immunity waiver for Cement Plant to "commercial torts." Contrary to the assertion made therein, I did not intend by my Arcon dissent to imply that I believed "the constitutional provision on sovereign immunity is wholly inapplicable to Cement Plant's commercial operations." ( 399 N.W. 2d at 347 .) To the contrary, there is a fundamental difference between Cement Plant's contractual and tort liability which makes it logical to interpret Article XIII, § 11 [*] as waiving immunity for the former liability, but n

1987As I stated in my Arcon Const. Co. v. Cement Plant, 349 N.W.2d 407 (S.D.1984) dissent, Cement Plant's contractual sovereign immunity waiver eminates from Article XIII, § 11 of the South Dakota Constitution wherein the state is expressly authorized to pledge its credit in connection with the plant.

1987As I stated in my Arcon Const. Co. v. Cement Plant, 349 N.W.2d 407 (S.D.1984) dissent, Cement Plant’s contractual sovereign immunity waiver emi-nates from Article XIII, § 11 of the South Dakota Constitution wherein the state is expressly authorized to pledge its credit in connection with the plant.

1986Thus, 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, see Mandola v. Mariotti, 557 S.W.2d 350 (Tex.Civ.App.1977), and 16 Appleman, Insurance Law and Practice § 8646 (1981); and numerous cases have held, under varying facts and circumstances, that the acts or conduct of an insurance adjuster have estopped the defendant-insured from asserting the statute of limitations, or have created an estoppel question for the resolution of the trier of fact.

1986Thus, 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, see Mandola v. Mariotti, 557 S.W.2d 350 (Tex.Civ.App.1977), and 16 Appleman, Insurance Law and Practice § 8646 (1981); and numerous cases have held, under varying facts and circumstances, that the acts or conduct of an insurance adjuster have estopped the defendant-insured from asserting the statute of limitations, or have created an estoppel question for the resolution of the trier of fact.

1986Schuster v. Woodmen Accident & Life Co., 361 N.W.2d 286 (S.D.1985); Jandreau v. Sheesley Plumbing & Heating Co., 324 N.W.2d 266 (S.D.1982); Moody v. L.

1986Schuster v. Woodmen Accident & Life Co., 361 N.W.2d 286 (S.D.1985); Jandreau v. Sheesley Plumbing & Heating Co., 324 N.W.2d 266 (S.D.1982); Moody v. L.

1986See, e.g., Delson v. Minogue, 190 F.Supp. 935 (E.D.N.Y.1961); Kil burn v. Keenan, 27 Conn.Supp. 394 , 240 A.2d 213 (1967); Zaayer v. Axel, 102 Ill.App.3d 208 , 57 Ill.Dec. 709 , 429 N.E.2d 607 (1981); Farmers Mut.

1986See, e.g., Delson v. Minogue, 190 F.Supp. 935 (E.D.N.Y.1961); Kil burn v. Keenan, 27 Conn.Supp. 394 , 240 A.2d 213 (1967); Zaayer v. Axel, 102 Ill.App.3d 208 , 57 Ill.Dec. 709 , 429 N.E.2d 607 (1981); Farmers Mut.

1986See, e.g., Delson v. Minogue, 190 F.Supp. 935 (E.D.N.Y.1961); Kil burn v. Keenan, 27 Conn.Supp. 394 , 240 A.2d 213 (1967); Zaayer v. Axel, 102 Ill.App.3d 208 , 57 Ill.Dec. 709 , 429 N.E.2d 607 (1981); Farmers Mut.

1986See, e.g., Delson v. Minogue, 190 F.Supp. 935 (E.D.N.Y.1961); Kil burn v. Keenan, 27 Conn.Supp. 394 , 240 A.2d 213 (1967); Zaayer v. Axel, 102 Ill.App.3d 208 , 57 Ill.Dec. 709 , 429 N.E.2d 607 (1981); Farmers Mut.

1986Schuster v. Woodmen Accident & Life Co., 361 N.W.2d 286 (S.D.1985); Jandreau v. Sheesley Plumbing & Heating Co., 324 N.W.2d 266 (S.D.1982); Moody v. L.

1986Schuster v. Woodmen Accident & Life Co., 361 N.W.2d 286 (S.D.1985); Jandreau v. Sheesley Plumbing & Heating Co., 324 N.W.2d 266 (S.D.1982); Moody v. L.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1979Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720 , 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242 , aff. 177 U.S.App.D.C. 270 , 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.

1975In Stokes v. Rabenberg, 1927, 51 S.D. 493 , 215 N.W. 492 , the question was whether one party could waive objection to a notice for intention to seek a new trial outside the statutory 20-day period.

1975In Stokes v. Rabenberg, 1927, 51 S.D. 493 , 215 N.W. 492 , the question was whether one party could waive objection to a notice for intention to seek a new trial outside the statutory 20-day period.