Dittus v. Black Hills Care & Rehab and Avantara

#30496-dismiss-PJD
2024 S.D. 80

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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KRISTA DITTUS, Plaintiff and Appellant,

v.

BLACK HILLS CARE AND
REHABILITATION CENTER, LLC, Defendant,

and

RC NORTH SD SKILLED NURSING
FACILITY, LLC d/b/a AVANTARA
NORTH, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE JEFFREY R. CONNOLLY
Judge

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JAY C. SHULTZ of
The Shultz Law Firm, Prof. LLC
Rapid City, South Dakota Attorneys for plaintiff
and appellant.

MICHAEL M. HICKEY
JOHN HARALDSON of
Bangs, McCullen, Butler,
Foye & Simmons, L.L.P.
Rapid City, South Dakota Attorneys for defendant
and appellee.

****

CONSIDERED ON BRIEFS
NOVEMBER 5, 2024
OPINION FILED 12/18/24
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DEVANEY, Justice

[¶1.] In a lawsuit claiming a wrongful termination, Krista Dittus appeals

from an order striking her response to a motion for summary judgment, and from

an order granting summary judgment in favor of RC North SD Skilled Nursing

Facility, LLC d/b/a Avantara North (Avantara). We dismiss the appeal for lack of

appellate jurisdiction.

Factual and Procedural Background

[¶2.] Dittus sued her former employer, Black Hills Care and Rehabilitation

Center, LLC (Black Hills Care), a skilled nursing facility in Rapid City, South

Dakota, as well as the company that purchased and took over operations of the

facility, Avantara. Her complaint alleged she was wrongfully terminated in

retaliation for filing and pursuing a workers’ compensation claim. Avantara

answered the complaint, denying the allegations and asserting that it had no

employment relationship with Dittus when she was terminated. Black Hills Care

did not answer or make any appearance in the case. 1

[¶3.] Avantara filed a motion for summary judgment. After Dittus filed an

untimely response to the motion, Avantara moved to strike her response. At a

hearing, the circuit court struck Dittus’s response and granted summary judgment

in favor of Avantara after determining there were no genuine issues of material fact

and Avantara was entitled to judgment as a matter of law. The court entered

1. Prior to the transfer of the facility to Avantara, Black Hills Care had been
placed into a court-ordered receivership due to financial difficulties, and its
status as a limited liability company was administratively dissolved by the
South Dakota Secretary of State for failure to file its annual report(s) when
due. See SDCL 47-34A-809 and -810.
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written orders and Avantara’s counsel served notice of entry of the orders upon

Dittus’s counsel via Odyssey, the court’s electronic filing and serving system, 2 on

September 15, 2023. Dittus’s deadline for perfecting an appeal to this Court was

11:59 p.m. on Monday, October 16, 2023. See SDCL 15-26A-6, 15-6-6(a); see also

SDCL 16-21A-4(1).

[¶4.] On October 13, 2023, Dittus’s counsel timely filed a notice of appeal

through the Odyssey system. Minutes later he filed a civil case docketing statement

via Odyssey. Both documents included a certificate of service signed by Dittus’s

counsel indicating that the documents had been served upon Avantara’s counsel via

“Odyssey File & Serve.” However, this did not actually occur. Although the

docketing statement was served on, and received by, Avantara’s counsel, the notice

of appeal was not.

[¶5.] Thereafter, Avantara filed a motion to dismiss the appeal for lack of

appellate jurisdiction based on Dittus’s failure to serve the notice of appeal as

required by SDCL 15-26A-4. In support of the motion, Avantara included in its

attached documents an email from a Unified Judicial System (UJS) employee who

confirmed the notice of appeal had only been “EFiled” but not served through the

Odyssey system.

[¶6.] In Dittus’s response to the motion, her counsel stated that he

submitted the notice of appeal for filing through Odyssey at 5:41 p.m. CST on

October 13, and the docketing statement at 5:48 p.m. CST. He acknowledged that

2. Filing and service of circuit court documents through the Odyssey system is
addressed in SDCL 15-6-5(b), 15-6-5(e), and SDCL chapter 16-21A.
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he learned approximately two weeks later that the notice of appeal was not served

upon Avantara. He stated that “[c]learly, this was an inadvertent error[,]” and he

had “no explanation for how the notice of appeal was submitted for ‘EFile’ while the

docketing statement was submitted for ‘FileAndServe.’” He attached copies of the

confirmation emails that were automatically generated by the Odyssey system and

sent to him immediately upon his submission of the documents for filing on October

13. The email for the notice of appeal shows the filing type was “EFile,” whereas

the email for the docketing statement indicates “EFileAndServe” as the filing type.

[¶7.] This Court took the motion to dismiss under consideration and directed

the parties to address the issue in their briefs on the merits of the appeal.

Analysis and Decision

[¶8.] At the outset, we must determine whether this Court has jurisdiction

to consider this appeal. Our appellate “jurisdiction must affirmatively appear from

the record and this Court is required sua sponte to take note of jurisdictional

deficiencies, whether presented by the parties or not.” In re S.A., 2023 S.D. 47, ¶ 6,

996 N.W.2d 66, 67 (quoting Wright v. Temple, 2023 S.D. 34, ¶ 22, 993 N.W.2d 553,

559).

[¶9.] Under SDCL 15-26A-4, a party seeking to appeal must timely file the

notice of appeal and the docketing statement with the clerk of the circuit court, and

“shall serve the notice of appeal and docketing statement on counsel of record of

each party other than appellant, or, if a party is not represented by counsel, on the

party at his or her last known address.” The statute further states that “[f]ailure of

an appellant to take any step other than timely service and filing of a notice of

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appeal does not affect the validity of the appeal, but is ground only for such action

as the Supreme Court deems appropriate, which may include dismissal of the

appeal.” Id.

[¶10.] We have interpreted this statute as requiring timely filing and service

of the notice of appeal. Rabo Agrifinance, Inc. v. Rock Creek Farms, 2012 S.D. 20,

¶¶ 7, 11, 813 N.W.2d 122, 125, 127. Failure to do both is jurisdictionally fatal to the

appeal. See id. (citing our prior decisions). Moreover, this Court may not suspend

or waive jurisdictional prerequisites to an appeal. Id. ¶ 10; In re Guardianship of

Murphy, 2013 S.D. 14, ¶ 9, 827 N.W.2d 369, 371–72. “Because ‘the right to an

appeal is purely statutory and no appeal may be taken absent statutory

authorization[,]’ compliance with the required notice of appeal is mandatory.”

LaCroix v. Fluke, 2022 S.D. 29, ¶ 16, 975 N.W.2d 150, 158 (alteration in original)

(citation omitted). We recognize that “[w]hen an attorney files a certificate of

service, under SDCL 15-6-5(b), a presumption arises as to the sufficiency of the

service.” State v. Waters, 472 N.W.2d 524, 525 (S.D. 1991). However, “[i]t is the fact

of service, not proof thereof, that gives the [C]ourt jurisdiction.” In re L.R., 2014

S.D. 95, ¶ 4 n.1, 857 N.W.2d 886, 887 n.1 (first alteration in original) (quoting

Johnson v. Kusel, 298 N.W.2d 91, 93 (S.D. 1980)).

[¶11.] Dittus does not dispute that the notice of appeal was not served on

Avantara’s counsel. In both her response to the motion to dismiss the appeal and

her initial appellate brief, Dittus states, without further explanation, that the

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omission “was an inadvertent error.” 3 Moreover, the fact the notice of appeal was

only electronically filed, but not served, was readily apparent in the Odyssey

confirmation email sent to Dittus’s counsel on October 13. Under SDCL 16-21A-

7(2), “[e]lectronic service is not effective if the party making service learns that the

attempted service did not reach the person to be served.” Because service of the

notice of appeal is jurisdictional, we lack appellate jurisdiction. Therefore, we

dismiss this appeal.

[¶12.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

3. In her reply brief, Dittus suggests, for the first time, that this Court may
grant relief if electronic filing or service through the Odyssey system is
incomplete or fails. She cites SDCL 15-26C-6, which authorizes the court to
grant relief, on a showing of good cause, “if electronic filing or electronic
service was not completed due to technical problems.” Although this statute
pertains to filing and service of documents in this Court, an identical statute
is found in the circuit court’s electronic filing rules. See SDCL 16-21A-9.
However, we need not determine whether or how either of these statutes
could apply to the issue here because Dittus’s counsel has not demonstrated
that the failure to serve Avantara was due to technical problems beyond his
control.
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