text:
    2005 ND APP 6
    STATE of North Dakota, Plaintiff and Appellee, v. Loren Nelson BERNSTEIN, Defendant and Appellant.
    No. 20040298CA.
    Court of Appeals of North Dakota.
    May 26, 2005.

      Anthony Swain Benson (on brief), Assistant State’s Attorney, for plaintiff and ap-pellee.
    James G. Wolff (argued), The Law Offices of James G. Wolff, Mohall, N.D., for defendant and appellant.
   PER CURIAM.

[¶ 1] Loren Bernstein has appealed from an order deferring imposition of sentence upon a conviction for criminal trespass. We reverse and remand for a new trial, concluding that the district court erred in refusing to admit evidence that Loren’s father had told him to go to the property to retrieve some personal items.

I

[¶ 2] In 1972, LeRoy Bernstein deeded certain land to his daughter, Caroljoy Richard, and her husband. Caroljoy and her husband lived in a house on the property. In 1987, Caroljoy allowed LeRoy to move his house onto the property, and he lived there from 1987 to 2004. Each house had its own driveway. LeRoy’s son, Loren, visited him in his house on a daily basis, regularly bringing the mail and newspaper to his father.

[¶ 3] In late October 2003, LeRoy was hospitalized. He asked Loren to go to the house and bring, certain personal items to him in the hospital. Loren went to the property, but found that LeRoy’s house was locked. A key which LeRoy kept in his garage so his children could get into the house had been removed. When Car-oljoy noticed Loren was at LeRoy’s house, she went over and told him it was her property and he was not allowed to go into LeRoy’s house. Caroljoy also posted a no trespassing sign on the driveway leading to LeRoy’s house.

[¶4] Loren claims that LeRoy, after learning of Caroljoy’s refusal to allow Loren into the house, again told Loren to go to the house and bring back certain items, and to use whatever means-necessary to get in. Loren returned to the property but again found the house locked. During this visit, he removed the no trespassing sign and placed it in LeRoy’s garage.

[¶ 5] When Caroljoy learned that Loren had been in LeRoy’s garage, she signed a criminal complaint against him for trespassing. Loren was charged with criminal trespass in violation of N.D.C.C. § 12.1-22-03(3).

[¶ 6] The case was tried to the court without a jury. At trial, Loren argued that he believed he had a license or privilege to be on the property. When Loren was- asked on direct examination about the statements made to him by his father at the hospital, directing Loren to go to his house, the State objected on hearsay grounds. The trial court reserved ruling on the State’s objection, but allowed Loren to testify about the conversations with his father subject to the court’s subsequent ruling on admissibility. LeRoy had died prior to the trial, • so Loren offered into evidence an affidavit from LeRoy stating that: (1) he had requested Loren to go to his house and bring certain personal items to him in the hospital, and (2) when Loren returned and told him the house was locked and he could not get in, LeRoy told Loren to “go and get thé door opened however would be required to bring me what I was in need of.” The State objected to admission of the affidavit on hearsay grounds, and the trial court again-reserved ruling on the objection.

[¶ 7] At the conclusion of the trial, the court ruled that LeRoy’s affidavit and Loren’s testimony about what his father told him at the hospital were irrelevant, and excluded the evidence. Loren’s counsel asked whether the court was excluding the evidence on relevance grounds and not hearsay grounds, and the court answered, “Correct.” The court found Loren guilty of criminal trespass and ordered a deferred imposition of sentence.

II

[¶ 8] The order deferring imposition of sentence was filed on October 13, 2004. On October 21, 2004, Bernstein filed a notice of appeal “from the Final Judgment entered in this action on October 13, 2004.” However, no separate judgment of conviction was ever entered.

[¶ 9] An order deferring imposition of sentence is not an appealable order under N.D.C.C. § 29-28-06. State v. Nelson, 2005 ND 11, ¶ 5, 691 N.W.2d 218. However, when the order deferring imposition of sentence meets the requirements of N.D.R.Crim.P. 32(b) for criminal judgments and no separate judgment of conviction has been entered, the order serves as the judgment of conviction and is appeal-able. Nelson, at ¶ 5, 691 N.W.2d 218; State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897.- The order in this case includes the plea, the verdict, and the sentence imposed, and therefore satisfies the requirements of N.D.R.Crim.P. 32(b). Accordingly, the order deferring imposition of sentence serves as the judgment of conviction and the appeal is properly before us. See Nelson, at ¶ 5, 691 N.W.2d 218; Berger, at ¶ 8, 683 N.W.2d 897.

Ill

[¶ 10] Loren argues the trial court erred in concluding that evidence of what LeRoy told him at the hospital was irrelevant.

[¶ 11] A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned on appeal unless the court abused its discretion. State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213; City of Fargo v. Habiger, 2004 ND 127, ¶ 31, 682 N.W.2d 300. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. State v. Tupa, 2005 ND 25, ¶ 3, 691 N.W.2d 579.

[¶ 12] Loren was charged with criminal trespass in violation of N.D.C.C. § 12.1-22-03(3), which provides in pertinent part:

A person is guilty of a class B misdemeanor if, knowing that that person is not licensed or privileged to do so, that person' enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders.

Under the criminal trespass statute, “privilege” is the freedom or authority to act and to use the property. State v. Morales, 2004 ND 10, ¶ 10, 673 N.W.2d 250; State v. Purdy, 491 N.W.2d 402, 410 (N.D.1992). A person is privileged if “he may naturally be expected to be on the premises often and in the natural course of his duties or habits.” Morales, at ¶ 10 (quoting State v. Rome, 458 N.W.2d 294, 297-98 (N.D. 1990)). A person is “licensed” to be on property if the entry was consensual. See Purdy, at 410; Ronne, at 297-98.

[¶ 13] Under N.D.C.C. § 12.1-22-03(3), the State was required to prove beyond a reasonable doubt that Loren knew that he was not licensed or privileged to enter his father’s house or garage. See Heckelsmiller v. State, 2004 ND 191, ¶¶ 10, 12, 687 N.W.2d 454; Morales, 2004 ND 10, ¶¶ 15, 21, 673 N.W.2d 250. The defendant’s state of mind is therefore an element of the offense, and evidence tending to show his state of mind would be relevant and admissible. See N.D.R.Ev. 401 and 402.

[¶ 14] For purposes of N.D.C.C. tit. 12.1, a person engages in conduct “knowingly” if, “when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.” N.D.C.C. § 12.1-02-02(l)(b); see Morales, 2004 ND 10, ¶ 26, 673 N.W.2d 250; In re J.D., 494 N.W.2d 160, 162 (N.D.1992); State v. Kaufman, 310 N.W.2d 709, 713 (N.D.1981). Knowledge need not be absolute, but merely a firm belief unaccompanied by substantial doubt. J.D., at 162; Kaufman, at 713. Knowledge is a question of fact. State v. Hammond, 498 N.W.2d 126, 129 (N.D.1993); J.D., at 162; Kaufman, at 713.

[¶ 15] The knowledge requirement is a subjective test, and “[t]he factfin-der must make its determination based upon whether the facts and circumstances would have caused this particular defendant to ‘know’ the requisite facts.” Kaufman, at 714. The finder of fact therefore must consider all of the surrounding facts and circumstances in determining the defendant’s knowledge. Hammond, 498 N.W.2d at 129; Kaufman, at 714. Thus, to satisfy the knowledge element of the offense of criminal trespass under N.D.C.C. § 12.1-22-03(3), the State was required to prove that Loren knew or had a firm belief, unaccompanied by substantial doubt, that he was not licensed or privileged to be on the property.

[¶ 16] The trial court appears to have based its conclusion that evidence about LeRoy’s statements to Loren in the hospital was irrelevant upon a misinterpretation of the elements of criminal trespass under N.D.C.C. § 12.1-22-03(3). At the conclusion of the trial, the court announced from the bench its decision finding Loren guilty of criminal trespass. The court began its oral decision by stating: “And the way the Court sees this matter is that the basic issue is did Loren Bernstein have license or privilege to be on the property on that particular day, Friday, November 1st, 2003?” The court then concluded that, because Caroljoy was the owner of the property and had told Loren to stay off the property, it was not reasonable for Loren to think that he could be on the property. The court concluded it did not matter what LeRoy told Loren because LeRoy did not have authority over the property, and therefore the evidence was irrelevant.

[¶ 17] The court’s analysis essentially eliminates the knowledge element of the offense. The crucial inquiry is not, as the trial court stated, whether Loren was actually licensed or privileged to be on the property, but whether Loren subjectively knew he was not licensed or privileged to be there: The fact that a person who is ultimately ■ determined to be in charge of the premises tells the defendant to stay off of the property is only the beginning of the inquiry. The State must also prove that the defendant knew he was not licensed or privileged to be on the property.

[¶ 18] In this case, there was evidence which may have suggested to a layperson that LeRoy had the authority to allow persons onto the property. In addition to the excluded evidence detailing LeRoy’s statements to Loren, there was evidence of an unrecorded deed purporting to reserve a life estate in LeRoy; LeRoy paid the real estate taxes on the house; Loren had for years gone to the house on a daily basis to visit his father; and Caroljoy admitted LeRoy had authority over his house and could determine its use while he was on the property, but that she exercised control of the house when he was away. The trial court was presented with a disputed factual issue whether Loren knew or had a firm belief, unaccompanied by substantial doubt, that he was not licensed or privileged to enter his father’s house and garage. Under the circumstances, evidence of LeRoy’s statements instructing Loren to go to the house and bring back certain personal items for LeRoy are directly relevant to the issue of Loren’s knowledge or belief that he had a license or privilege to be on the property. If Loren believed that his father had the authority to consent to his entry onto the property, the knowledge element of criminal trespass under N.D.C.C. § 12.1-22-03(3) would be missing.

[¶ 19] We conclude the trial court erred in determining evidence of LeRoy’s statements to Loren was irrelevant, and the court abused its discretion in excluding the evidence on relevance grounds. See Hammond, 498 N.W.2d at 129 (trial court abused its discretion and misapplied the law when it overlooked the issue of whether a post-dated check was “knowingly received”).

IV

[¶ 20] The State contends that, even if the trial court erred in excluding the evidence on relevance grounds, the evidence is nevertheless inadmissible hearsay. The State objected to the evidence on hearsay grounds, but the court did not address the hearsay objection when it excluded the evidence. When the judgment below is entirely favorable to the appellee, he is entitled to attempt to save the judgment upon any ground asserted in the trial court. State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827.

A

[¶ 21] We first consider the trial court’s refusal to admit Loren’s testimony that his father told him to go to the house and bring back to the hospital certain personal items.

[¶ 22] Under N.D.R.Ev. 801(c), hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” If an out-of-court statement is not offered to prove its truth, it is not hearsay. Moen v. Thomas, 2001 ND 95, ¶ 11, 627 N.W.2d 146; Ehrlich v. Baches, 477 N.W.2d 211, 214 (N.D.1991); State v. Welch, 426 N.W.2d 550, 555 (N.D.1988). A statement offered to prove that it was made is not hearsay. Moen, at ¶ 11, 627 N.W.2d 146; Ehrlich, at 214; Welch, at 555.

[¶ 23] Accordingly, a statement offered to show its effect upon the state of mind of the listener, rather than the truth of the matter asserted, is not hearsay. State v. Hart, 1997 ND 188, ¶20, 569 N.W.2d 451. When a person’s knowledge or lack of knowledge is at issue, statements affecting the person’s state of mind are not hearsay:

Words offered to prove the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue.
When a person’s knowledge or state of mind is at issue, evidence that he has heard or read a statement may be relevant, and it lies beyond reach of a hearsay objection. Where reasonableness of a party’s conduct is at issue, knowledge of certain statements may have probative value regardless of the truth of the statements. Thus, an out-of-court statement may be offered to explain responsive conduct....
Evidence which would otherwise be hearsay may be admissible, as bearing on the state of mind of the defendant, if it is not offered for the truth of the statement. This nonhearsay use has been invoked with respect to the issue of duress, authorization, volition, motive, good faith, and knowledge or belief, or the absence of knowledge.

29 Am.Jur.2d Evidence § 666 (1994) (footnotes omitted).

[¶ 24] Loren’s testimony was not offered to prove that the statements made by his father were trae, but to show their effect on Loren’s state of mind and knowledge. The statements are relevant to whether Loren believed he had consent, and therefore a license, to be on the property. The mere fact that the statements were made, regardless of their truth, had independent legal significance. See Towne v. Dinius, 1997 ND 125, ¶ 13, 565 N.W.2d 762; In re Estate of Raketti, 340 N.W.2d 894, 901 (N.D.1983). We conclude Loren’s proffered testimony about the statements made to him by LeRoy at the hospital was not hearsay.

B

[¶ 25] The trial court’s exclusion of Le-Roy’s affidavit, in which LeRoy states he told Loren to go to the house to retrieve certain items, presents a somewhat different evidentiary problem. Although Le-Roy could clearly have testified as a witness at trial about these statements, the fact that LeRoy died prior to trial and his “testimony” is now' available only through his affidavit creates an additional level of potential hearsay. See N-D.R.Ev. 805. In effect, the problem is not with LeRoy’s original statements made to Loren at the hospital, but with LeRoy’s subsequent statement in the affidavit that he had made the earlier statements. LeRoy’s subsequent statement in the affidavit is offered to prove the matter asserted, i.e., the fact that he had made the earlier statements.

[¶ 26] An affidavit offered at trial, in lieu of live testimony-by the witness, is “classic hearsay” and “must be excluded unless it comes within one of the recognized exceptions to the hearsay rule.” Mehus v. Thompson, 266 N.W.2d 920, 924 (N.D.1978); see, e.g., Travelers Cas. and Sun Co. of America v. Wells Fargo Bank N.A., 374 F.3d 521, 524 (7th Cir.2004). The parties have not adequately addressed this issue, and we leave it to the parties and the trial court upon retrial to resolve whether LeRoy’s affidavit falls within an exception to the' hearsay rule under N.D.R.Ev. 803, 804, or 807.

V ■

[¶ 27] We conclude the trial court erred in excluding evidence of LeRoy’s statements to Loren on relevance grounds. We reverse, the conviction and order deferring imposition of sentence, and remand for a new trial.

[¶ 28] EVERETT NELS OLSON, S.J., BENNY A. GRAFF, S.J., and BRUCE E.' BOHLMAN, S.J., concur.


source: Caselaw Access Project

author: KEAN, Circuit Judge.

license: Public Domain

text:
    2005 SD 55
    Don FRANKENFELD, individually and on behalf of all others similarly situated, Plaintiff and Appellee, v. CROMPTON CORPORATION, Uniroyal Chemical Company, Inc., Uniroyal Chemical Company Limited, Defendants and Appellants, Bayer Ag, Bayer Corporation, Rhein Chemie Rheinau Gbmh and Rhein Chemie Corporation, Defendants, and Flexsys NV and Flexsys America LP, Defendants and Appellants.
    Nos. 23265, 23276.
    Supreme Court of South Dakota.
    Argued March 23, 2005.
    Decided May 4, 2005.

      Timothy J. D.ougherty of Dougherty & Dougherty, Sioux- Falls, South Dakota, Sanford SvetcOv and Susan K. Alexander of Leraeh, Coughlin, Stoia, Geller, Rudman & Robbins, San Francisco, California, Attorneys for plaintiff and appellee Franken-feld.
    Ronald A. Parsons, Jr. and Scott N. Heidepriem of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, South Dakota, Daniel G. Swanson of Gibson, Dunn & Crutcher, Los Angeles, California, D. Jarrett Arp and James D. Slear of Gibson, Dunn. & Crutcher, Washington, DC, Attorneys for defendants and appellants Flexsys NV and Flexsys America LP.
    Gary D. Jensen of Beardsley, Jensen & Von Wald, Rapid City, South Dakota, Ian Simmons, Benjamin G. Bradshaw, Charles E. Borden and Jonathan R. Mitchell of O’Melveny & Myers, Washington, DC, Attorneys for defendants and appellants Crompton Corp., Uniroyal Chemical Co., Inc. and Uniroyal Chemical Co. Ltd.
   KEAN, Circuit Judge.

[¶ 1.] Crompton Corporation and its subsidiaries, Uniroyal Chemical Company, Inc. and Uniroyal Chemical Company (collectively Crompton), as well as Flexsys N.V. and Flexsys America L.P. (collectively Flexsys) appeal the circuit court’s denial of their motions to dismiss for lack of personal jurisdiction. Because we hold that personal jurisdiction over these defendants violates due process we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Don Frankenfeld (Frankenfeld), individually and on behalf of himself and others similarly situated, brought this action against multiple defendants including Crompton and Flexsys. Frankenfeld alleged that Crompton and Flexsys conspired to fix the price of rubber processing chemicals used to manufacture tires. Essentially, Frankenfeld argued that an agreement between Crompton and Flexsys inflated the price of tires purchased in South Dakota for both himself and other consumers. Frankenfeld claimed that the price fixing scheme violated South Dakota antitrust laws and sought to recover the damages that he and other consumers incurred by paying higher tire prices.

[¶ 3.] Crompton, a Connecticut corporation with a principal place of business in Greenwich, Connecticut, globally marketed specialty chemical products and processing equipmént including the chemicals used in the manufacture of rubber and tires. Its subsidiaries, the Uniroyal companies, were Delaware corporations with their principal places of business in Akron, Ohio. Flexsys, a Delaware Corporation with headquarters in Akron, Ohio, was the world’s leading supplier of chemicals to the rubber industry.

[¶ 4.] Crompton and Flexsys sold their rubber processing chemicals to tire manufacturers such as Goodyear, Michelin, Firestone and Bridgestone. Those companies, principally located in Tennessee and North Carolina, then used the chemicals to manufacture tires. After those tires were made, the tires proceeded along a chain of distribution from the manufacturers to distributors, then to retailers and eventually to consumers such as Frankenfeld. This chain involved only third parties who were not subject to this action. Once Crompton and Flexsys sold their chemicals to the tire manufacturers they had no control over the rest of the chain by which the tires were distributed. ’ •

[¶5.] Neither Crompton nor Flexsys were incorporated, headquartered or licensed to do business in South Dakota. Neither maintained an office or employees in South Dakota. Neither owned any real property in the state nor maintained any bank accounts here. Neither engaged in any marketing of any sort in South Dakota and neither had any customers here. Neither manufactured, delivered, distributed or sold any product in South Dakota. In short, Crompton and Flexsys did not have any direct relationship with the State of South Dakota. Their only presence in South Dakota was through the tires sold here by third parties, tires which contained the chemicals they produced.

[¶ 6.] In light of the above facts, Crompton and Flexsys moved to dismiss Frankenfeld’s suit for lack of personal jurisdiction. Both Crompton and Flexsys conceded that South Dakota’s long arm statute established jurisdiction, but they argued that their lack of minimum contacts with South Dakota rendered personal jurisdiction inappropriate. The circuit court disagreed and found personal jurisdiction over Crompton and Flexsys to be consistent with the requirements of due process. Crompton and Flexsys appeal the circuit court’s ruling.

STANDARD OF REVIEW

[¶ 7.]Upon review this Court will not disturb findings of.fact “unless the court is firmly and definitely convinced a mistake has been made.” Denver Truck & Trailer Sales, Inc. v. Design and Building Servs. Inc., 2002 SD 127, ¶7, 653 N.W.2d 88, 90 (citations and internal quotation marks omitted). Conclusions of law, however, are given no deference and are reviewed de novo. Id.

ISSUE

[¶ 8.] Did the circuit court err in denying the motion to dismiss the claims against Crompton and Flex-sys for lack of personal jurisdiction?

[¶ 9.] As established by this Court,

The inquiry into whether a court may assert personal jurisdiction ■ over a nonresident defendant is two-fold. First, the court must determine whether the legislature granted the state court jurisdiction over defendants who do not meet the traditional bases for personal jurisdiction. In South Dakota, this legislative approval is found in the state’s Long Arm Statute. Next, the court must determine whether the proposed assertion of jurisdiction comports with federal due process requirements.

Denver Truck, 2002 SD 127, ¶ 9, 653 N.W.2d at 91. In.this case, Crompton and Flexsys concede that personal jurisdiction is appropriate under South Dakota’s Long Arm Statute. Thus, the only issue here is whether jurisdiction over the defendants violates federal due process requirements. Before we proceed to the analysis of this issue, we first set forth the case law of the United States Supreme Court concerning due process requirements for the exercise of personal jurisdiction and our prior decisions interpreting those requirements.

Federal Due Process Requirements

[¶ 10.] In pertinent part, the Fourteenth Amendment to the United States Constitution states that no state shall “deprive any person of life, liberty, or property, without due process of law.” US Const amend XIV, § 1. Due process “protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no. meaningful ‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945)). In International Shoe, the United States Supreme Court established the minimum contacts test for determining whether personal jurisdiction comports with Fourteenth Amendment due process. 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 95. According to the Court, due process requires that a non-resident defendant “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

[¶ 11.] Where a suit arises out of a defendant’s contacts with a forum, the defendant’s activities must be “purposefully directed ” toward the forum for personal jurisdiction to attach. Burger King, 471 U.S. at 472, 105 S.Ct. at 2182, 85 L.Ed.2d at 528. (emphasis added). It is not enough that it is foreseeable that a defendant’s activities may cause injury in a forum. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). Rather, “the foreseeability that is critical to the due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. 559, (citations omitted).

[¶ 12.] To satisfy due process foreseeability, a defendant’s contacts with the forum must “proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Burger King, 471 U.S. at 476, 105 S.Ct. at 2184, 85 L.Ed.2d at 528. (citation omitted) (emphasis in original). Thus, the unilateral activity of a third party with some relationship to a nonresident defendant cannot suffice to establish personal jurisdiction. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Instead, “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Id.

[¶ 13.] Therefore, a defendant’s conduct and connection with a forum must establish “purposeful availment” such that the defendant could reasonably anticipate being haled into that forum’s courts. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 490. In World-Wide Volkswagen, the United States Supreme Court stated that due process is satisfied when a forum state “asserts personal jurisdiction over a corporation that delivers its products into the-stream of commerce with the expectation that they will be purchased by consumers in the forum state,” thereby implying that placing a product in the stream of commerce establishes “purposeful availment.” Id. at 298, 100 S.Ct. 559. In that case, however, the Court found that a plaintiffs unilateral act of bringing the defendant’s product into a forum could not establish personal jurisdiction over the defendant, since the defendant had no notice or expectation that its product would end up in that forum. Id.

[¶ 14.] Four years later, the Court again considered the “stream of commerce” theory in Asahi Metal Industry, Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). In Asahi, a California resident sued in California state court to recover for injuries he sustained when a tire on his motorcycle exploded. Id. at 106, 107 S.Ct. 1026. The plaintiff sued the tire tube manufacturer, a Taiwanese company, who then impleaded the manufacturer of the tube’s valve, a Japanese company. Id. After the underlying case settled, the Japanese valve manufacturer sought to quash the third-party summons for lack of personal jurisdiction, arguing that it manufae7 tured the tubes only in Japan. Id. It was the Taiwanese corporation that incorporated the valves into the tubes in Taiwan and sold the finished tubes throughout the world. Id.

[¶ 15.] With split reasoning, the Supreme Court agreed with the Japanese company and found that due process prevented the company from being haled into court, in’ California. Id. at 108. The plurality opinion, written by Justice O’Con-nor, promulgated what has become known as the “stream of commerce plus” standard, which provides that:

The placement of a product into the .stream of commerce, without more, is not an act of the defendant purposefully directed toward thé foium State. Additional conduct of the defendant may indicate an intent or purpose to serve the market'in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act .purposefully directed toward the forum state.

Id. at 112, 107 S.Ct. 1026. In concurrence, Justice Brennan determined that due process required no such additional conduct. Id. at 117, 107 S.Ct. 1026. Brennan reasoned that “[a] defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly'benefits from the State’s laws that regulate and facilitate commercial activity ... regardless of whether the participant directly conducts business in the forum State, or engages in additional conduct directed toward that State.” Id. No matter what reasoning they employed, all the justices, agreed that personal jurisdiction over the Japanese corporation violated due process. Id. at 116, 121-22, 107 S.Ct. 1026.

[¶ 16.] However, a finding that a defendant purposefully directed its activities toward the forum does not end the inquiry. Additional factors must be considered to determine whether personal jurisdiction comports with “fair play and substantial justice.” Burger King, 471 U.S. at 476-77, 105 S.Ct. at 2184, 85 L.Ed.2d at 528. Those factors “include the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest in furthering fundamental substantive social policies.” Id., at 477, 105 S.Ct. 2174 (citing World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 490).

South Dakota Case Law

[¶ 17.] This Court has construed the above cases as requiring a three step test to determine whether due process is satisfied to allow the exercise of personal jurisdiction. See Rothluebbers v. Obee, 2003 SD 95, ¶ 26, 668 N.W.2d 313, 322. Under that test,

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Second, the cause of action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one.

Id; Denver Truck, 2002 SD 127, ¶ 11, 653 N.W.2d at 91; Opp v. Nieuwsma, 458 N.W.2d 352, 355-356 (S.D.1990)

[¶ 18.] In Rothluebbers, this Court considered whether a tour bus driver and a tour company were subject to personal jurisdiction in South Dakota. Rothluebbers, 2003 SD 95, ¶ 2, 668 N.W.2d at 316. In that case, the driver and company were operating a tour from Chicago to Salt Lake City. Id. When the tour bus traveled through South Dakota it was involved in an accident and the passengers on the tour bus were injured. Id. ¶ 2-3. This Court found that personal jurisdiction attached to the driver and the company and, therefore, the exercise of jurisdiction was consistent with the requirements of due process. Id. ¶ 30. Specifically, we stated that:

[The driver and the company] were not mere tour novices. There is evidence in the record that this was not the first tour that they conducted through the Midwest. It also was not mere happenstance that [the driver and the company] operated in South Dakota. The group had two planned South Dakota stops. In light of these facts, the trial court did not err in determining [the driver and the company] purposefully availed themselves to the laws of South Dakota and as a result it was foreseeable that they could be ‘hauled into court’ in South Dakota.

Id. ¶ 29.

[¶ 19.] There exists no South Dakota case where this Court has specifically analyzed personal jurisdiction under the “stream of commerce plus” analysis. Instead, Rothluebbers merely cited the Asahi decision in passing and relied instead on the reasoning of World Wide Volkswagen. Id. ¶ 28. However, this Court’s decision in Rothluebbers noted that the defendants did more than sweep through South Dakota in a stream of commerce. Id. ¶¶ 25, 29. Rather, we determined that it was a significant factor that the defendants’ conduct was not isolated but they had instead made calculated decisions .to purposefully avail themselves of the privilege of conducting business activities in South Dakota. Id. ¶ 29. Thus, by requiring more than the defendants’ awareness that the stream of commerce would sweep through South Dakota, this Court’s analysis in Rothluebbers is more consistent with the “stream of commerce plus” analysis utilized by Justice O’Connor’s plurality opinion in Asahi See id. ¶¶ 26-29.

[¶ 20.] In fact, one of our earlier cases, Miller v. Weber, 1996 SD 47, 546 N.W.2d 865, confirms this analytical framework. In that case, Miller, a South Dakota resident, purchased cattle from Major, a cattle rancher in New Mexico. Id. ¶2. The transaction occurred through a buyer in New Mexico and a broker in South Dakota. Id. Miller never dealt directly with Major. Id. ¶¶ 2-4. In Miller’s suit against Major and other parties, this Court upheld the dismissal of Major for lack of personal jurisdiction. Id. ¶ 10. In doing so, we noted that had the sale not been completed, Major could not have availed himself of South Dakota’s laws. Id. Rather, his only recourse would have been against the buyer in New Mexico, the only party with whom he had a contract. Id. Further, Major did not direct any activities — -solicitations, phone calls, or correspondence — at South Dakota. Id. ¶¶ 3-10. He knew the ultimate buyer was from South Dakota, but he “left for someone else’s decision the destination for the cattle.” Id. ¶ 10. While Major inquired about the requirements of shipping the cattle to both states, he arranged only to ship the cattle to Nebraska. Id. Therefore, he had no substantial connection with South Dakota and we indicated that personal jurisdiction “would be improper as he could not have reasonably anticipated being brought into court here.” Id. (citation omitted). With this background, we turn to the facts of the present case.

ANALYSIS

[¶ 21.] Because of the paucity of their contacts with South Dakota, Cromp-ton and Flexsys argue that personal jurisdiction in this forum violates due process. Frankenfeld argues that personal jurisdiction is justified simply on the basis that Crompton and Flexsys’ chemicals are necessary to produce each and every tire sold in South Dakota. Further, Frankenfeld asserts that the alleged price-fixing conspiracy provides the “plus” necessary for the “stream of commerce plus” theory. After a consideration of the federal due process requirements and the three part test established by our previous decisions, we hold that the circumstances here failed to satisfy due process standards and, therefore, the circuit court’s determination that personal jurisdiction existed over Crompton and Flexsys was improper.

[¶ 22.] First, applying the analysis from Asahi, Rothluebbers, and Miller, the facts here established that Crompton and Flexsys did not purposefully avail themselves of the privilege of acting in South Dakota. Rather, their products, like the tube valves in Asáh% were incorporated by a third party into a finished product which found its way to South Dakota. At most, Crompton and Flexsys placed their products into a stream of commerce which took them to Tennessee and North Carolina, where they were manufactured into a third party’s product (tires) and then injected into the stream of commerce that eventually lead to South Dakota. Further, Crompton and Flexsys did not enter into a contract with anyone in South Dakota. Because no fact suggests that they purposefully availed themselves of the benefits and protections of South Dakota’s laws, the first element of proper personal jurisdiction is lacking.

[¶ 23.] Additionally, the alleged price-fixing conspiracy by the defendants did not render personal jurisdiction appropriate. While Frankenfeld argues that such a conspiracy provided the “plus” necessary under the “stream of commerce plus” theory, the cases cited for that proposition are all readily distinguishable from the facts here. In those cases, the products subject to price fixing were actually sold to the plaintiffs who were residents of the forum state. See Execu-Tech Business Systems, Inc. v. New Oji Paper Co., 752 So.2d 582, 583 (Fla.2000) (thermal fax paper); St. Joe Paper Co. v. Superior Court, 120 Cal.App.3d 991, 175 Cal.Rptr. 94, 96 (1981). Comparatively, Frankenfeld did not purchase the chemicals produced by Crompton and Flexsys, he purchased tires that allegedly contained some of those chemicals. We decline to hold that a criminal violation in another state automatically satisfies the minimum contacts requirement. See Execu-Tech, 752 So.2d at 585-86. In our opinion, the federal due process standards require more.

[¶ 24.] Moreover, even under Justice Brennan’s analysis in Asahi and the “stream of commerce” test announced by World-Wide Volkswagen, personal jurisdiction over the defendants would offend due process. Crompton and Flexsys did not deliver their products into the stream of commerce vshth the expectation that they would be purchased by consumers in South Dakota. In fact, their product was not purchased by anyone, consumer or company, in South Dakota. Rather, third parties incorporated Crompton’s and Flex-sys’ chemicals into an entirely different product, which those' third' parties then sent to South Dakota. Crompton’s and Flexsys’ products were not purchased in South Dakota, nor were they purchased by a resident of South Dakota. Compare Russell v. Balcom Chems., Inc., 328 N.W.2d 476, 479 (S.D.1983) (distinguishing World Wide Volkswagen because the product at issue was purchased in South Dakota by a resident of South Dakota).

[¶ 25.] Just like the defendant in Miller, the defendants here had no direct contact with Frankenfeld or anyone else in South Dakota. See Miller, 1996 SD 47, ¶ 10, 546 N.W.2d at 868. As World Wide Volkswagen recognized, due process prevents personal jurisdiction based on the unilateral activity of a third party. Because Crompton and Flexsys did not act to purposefully avail themselves of the laws and benefits of South Dakota, the exercise of personal jurisdiction over these defendants would violate due process.

[¶26.] Second, no facts here indicate that Crompton and Flexsys directed their activities toward South Dakota. Unlike our cases upholding personal jurisdiction, Crompton and Flexsys did not plan to use South Dakota for their economic gain, Rothluebbers, 2003 SD 95, ¶ 29, 668 N.W.2d at 323, they did not instruct that their products be delivered to South Dakota, Opp, 458 N.W.2d at 356, they did not sell their products in South Dakota, Russell, 328 N.W.2d at 479, and they had no continuing obligation to residents of South. Dakota, State v. American Bankers Insurance Co., 374 N.W.2d 609, 613 (S.D.1985). On the other hand, we found' that no personal jurisdiction existed in Miller, even when the defendant knew the ultimate buyer lived in South Dakota. Miller, 1996 SD 47, ¶¶ 3, 10, 546 N.W.2d at 866, 868. Crompton and Flexsys were not serving a market for chemicals in South Dakota either directly — selling their • products here — or indirectly — by selling to distributors who distribute the product'here. No such market exists. Thus, it cannot be said that Crompton and Flexsys directed activities toward our state.

[¶27.] Finally, the acts of the defendants must have a substantial connection with the forum state to make the exercise of jurisdiction, over them a reasonable one. As we have noted, an important factor bearing on the reasonableness of asserting jurisdiction is whether a defendant’s conduct and connection with South Dakota are such that he would reasonably anticipate being haled into court here. Opp, 458 N.W.2d at 355-56 (citing World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 490). In this case, as in Miller, the defendants arranged only to ship their product to another state. See Miller, 1996 SD 47, ¶ 10, 546 N.W.2d at 868. The facts indicated nothing more than an extremely attenuated connection between Crompton and Flexsys’ conduct and South Dakota, a connection so distant that Crompton and Flexsys could not have reasonably anticipated being subject to our jurisdiction. While we recognize “the trend to expand the states’ powers to impose jurisdiction over nonresidents,” Russell, 328 N.W.2d at 479, doing so in circumstances such as this would open South Dakota’s courts to suits only tangentially related to South Dakota, suits in which our state has only a minimal interest. Jurisdiction over Crompton and Flexsys, therefore, is not reasonable.

CONCLUSION

[¶ 28.]' Crompton and Flexsys sold their chemical products to third parties who incorporated those chemicals in tires eventually sold to consumers in South Dakota. No facts indicated that they expected their chemicals to end up in South Dakota nor had they engaged in any action directed at South Dakota. The connections between our state and Crompton and Flexsys are not only minimal, they are extremely attenuated. Thus, the exercise of personal jurisdiction over the defendants would violate due process.

[¶ 29.] The circuit court is reversed.

[¶ 30.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 31.] KEAN, Circuit Judge, for SABERS, Justice, disqualified.

      . Frankenfeld also named Bayer AG, Bayer Corp., Rhein Chemie Rheinau GBMH and Rhein Chemie Corp. as defendants. The Bayer defendants did not move for dismissal in the circuit court and the Rhein Chemie defendants were dismissed by the circuit court pursuant to stipulation. Thus, they are not appellants here.

      . Frankenfeld requested that this Court take judicial notice of several items. Frankenfeld submitted selected filings, including a guilty plea, a statement of facts, and an indictment from a Canadian case against Crompton for violating the Canadian Competition Act. Frankenfeld also submitted an information filed by the United States charging Crompton with violating Section 1 of the Sherman Act, 15 USC § 1, as well as selected filings of Crompton with the Securities and Exchange Commission, purportedly revealing a guilty plea to a conspiracy charge. Finally, Frank-enfeld submitted a press release from the Department of Justice regarding a guilty plea by Bayer AG for participating in a rubber chemicals cartel. We acknowledge the receipt of those documents, but we need not take judicial notice of them for purposes of the issue presented in this appeal.

      . Courts often analyze personal jurisdiction by categorizing the issue as either one of general jurisdiction or one of specific jurisdiction. Mary Twitchell, The Myth of General Jurisdiction, 101 HarvLRev 610, 611 (1988) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984)). Specific jurisdiction arises when the suit is “related to or arises out of a defendant’s contacts with the forum,” whereas general jurisdiction exists when the cause of action does not arise out of or relate to a defendant's activities in the forum, but the defendant has sufficient contact with the forum to satisfy due process. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414-15 n. 9, 104 S.Ct. at 1871-72, 80 L.Ed.2d at 404. However, as recognized by one commentator, "[djuring the nearly two decades since the [United States] Supreme Court recognized a bifurcated doctrine of personal jurisdiction, it has made little progress in defining the characteristics that distinguish general and specific jurisdiction.” Linda Sandstrom Simard, Exploring the Limits of Specific Personal Jurisdiction, 62 Ohio St LJ 1619, 1619 (2001). We have never specifically adopted or analyzed this jurisdictional dichotomy and we need not do so to decide the present case.

      . Frankenfeld also maintains that Crompton and Flexsys have global informational websites which could be significant in establishing the necessary minimum contacts with South Dakota. This point was not factually developed in the record to the extent that we can offer an opinion on the impact of these websites in satisfying the minimum contacts requirement. The cases and commentary which have arisen regarding the establishment of minimum contacts by websites have identified a distinction between websites which actively solicit business in the forum state and those which are merely informational in their nature and purpose. The law on this issue is far from settled. See Bensusan Rest. Corp. v. King, 937 F.Supp. 295, 301 (S.D.N.Y.1996), aff'd, 126 F.3d 25 (2d Cir.1997); Kendrick D. Nguyen, Note, Redefining the Threshold for Personal Jurisdiction: Contact and the Presumption of Fairness, 83 BUL Rev 253, 267-71 (2003).


author: JENSEN, Circuit Judge.

text:
    2005 SD 57
    ACTION CARRIER, INC., Plaintiff and Appellant, v. UNITED NATIONAL INSURANCE COMPANY, Defendant and Appellee.
    No. 23204.
    Supreme Court of South Dakota.
    Argued March 21, 2005.
    Decided May 11, 2005.

      John C. Wiles of Wiles & Rylance, Wa-tertown, SD, for plaintiff and appellant.
    R. Alan Peterson and Lee A. Magnuson of Lynn, Jackson, Shultz & LeBrun, Sioux Falls, SD, for defendant and appellee.
   JENSEN, Circuit Judge.

[¶ 1.] Action Carrier, Inc. (Action) appeals a trial court order setting aside a default judgment obtained by Action against United National Insurance Company (United) and a separate order deferring ruling on Action’s request for attorney’s fees and costs. We affirm.

FACTS

[¶ 2.] Action was insured under a policy of insurance issued by United. The insurance policy was reinsured by Assicu-razioni Generali S.P.A. (Generali). United and Generali are large, sophisticated insurers. Under the reinsurance agreement, United merely fronted the Action policy as the named insurer. Generali bore the entire risk for claims associated with the policy.

[¶ 3.] United issued a number of insurance policies under the reinsurance arrangement with Generali. Generali was responsible for the supervision and management of any claims or lawsuits involving these policies. United had no involvement in managing either the claims or lawsuits. Upon receipt of notice of a lawsuit under a reinsured policy, United would forward the lawsuit to Ron Coleman and Associates (Coleman), a third party claims administrator for Generali. Coleman managed the defense of the lawsuit ■unless it alleged claims outside the parameters of Coleman’s claims authority. When a lawsuit fell outside the scope of Coleman’s authority, Coleman sent the lawsuit to Generali to manage the defense in house.

[¶4.] Action filed this lawsuit against United claiming it had overpaid deductibles on the United policy and sought a refund of the claimed overpayments. The South Dakota Division of Insurance (Division) accepted service of the summons on behalf of United on August 16, 2001, which started the thirty day period to answer.

[¶ 5.] United’s general counsel, Richard Marsh (Marsh), received the summons and complaint from Division on August 21, 2001. Marsh directed the summons and complaint to Gerard Durkin (Durkin), Vice President of Claims for United. Durkin faxed the summons and complaint to Coleman on August 27, 2001. Coleman determined that the lawsuit was not within its claims authority because it was a direct claim against the insurer. Coleman faxed and overnight mailed the summons and complaint to John Makowski (Makowski), Vice President of Claims for Generali on' August 28, 2001. Makowski was responsible for the overall management of Genera-li’s New York office. Coleman’s transmittal letter to Makowski noted service of the summons on August -16, and stated “[presumably, you will appoint counsel ..: to file the necessary responsive pleadings.”

[¶ 6.] Makowski was out of the office or in meetings and did not see the lawsuit until late in the day on September 4, 2001. Makowski was scheduled to be out of his office from September 5 until September 12. Since Makowski was unable to assign the claim before he left on September 4, he placed the summons and complaint in the priority bin on his desk so that he could assign it for defense upon his expected return on September 12.

[¶ 7.] Generali’s New York office was located in 1 Liberty Plaza in New York City, directly across the street from the. World Trade Center towers. On September 11, 2001, the World Trade Center towers were tragically destroyed by terrorist attacks. 1 Liberty Plaza was extensively damaged and did not reopen for several months after September 11. During this time, Generali employees were working out of their homes and three temporary makeshift offices. For months following September 11 Makowski spent significant time and energy dealing with the professional and personal upheaval .created by the terrorist attacks.

[¶ 8.] 1 Liberty Plaza was under constant armed guard following September 11, but Makowski was permitted to enter Generali’s office for thirty minutes on October 10, 2001. The office was disheveled,but he gathered up as many documents as he could take with him. On October 11, Makowski reviewed the Action lawsuit and contacted Coleman to obtain a copy of the Action insurance policy. Coleman was not given any information, nor did it inquire, concerning the status of the Action lawsuit during this communication. Coleman express mailed a copy of the policy to Ma-kowski the next day. Makowski did not assign the summons and complaint to a claims adjustor for Generali until mid-November. The adjustor subsequently contacted South Dakota counsel to defend the action on November 28, 2001.

[¶ 9.] . The trial court entered a default judgment against United on November 9, 2001. The notice of entry of default judgment was not served on United until November 27, 2001. United moved to set aside the default judgment on December 18, 2001. Due to discovery delays and a bankruptcy filed by Action, the trial court’s order setting aside the default judgment was not entered until February 2, 2004.

[¶ 10.] Action moved for an award of attorney’s fees and costs incurred by Action in the proceedings to set aside the default judgment, asserting that such an award was proper if the court set aside the default judgment under SDCL 16 — 6—60(b) as part of the terms as are just. The trial court entered an order deferring ruling on this issue until the conclusion of the case.

STANDARD OF REVIEW

[¶ 11.] The circuit court’s findings of fact are reviewed under the cleárly erroneous standard. City of Deadwood v. Summit Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994).

[If 12.] The trial court’s decision to set aside a default judgment rests with the sound discretion of the trial court and [this Court] will not disturb the trial court’s decision absent an abuse of that discretion. Smith v. Hermsen, 1997 SD 138, ¶ 8, 572 N.W.2d 835, 838. “An abuse of discretion occurs only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached the same conclusion.” Elliott v. Cartwright, 1998 SD 53, ¶ 8, 580 N.W.2d 603, 604.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 13.] Did the trial court abuse its discretion in setting aside Action’s default judgment on the grounds of excusable neglect?

[¶ 14.] A trial court may set aside a default judgment under SDCL 15-6-55(c) and SDCL 15-6-60(b) for good cause, including excusable neglect. A party moving to set aside a default judgment for excusable neglect must show both excusable neglect and a meritorious defense. Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, ¶ 13, 656 N.W.2d 323, 327; Smith v. Hermsen, 1997 SD 138 at ¶ 10, 572 N.W.2d at 838; Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994). “We have recently noted that when deciding whether to grant relief from a default judgment under SDCL 15-6-60(b), courts must ‘preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of -all the facts.’ Upper Plains, 2003 SD 3 at ¶ 16; 656 N.W.2d at 328 (quoting Colton Lumber Co. v. Siemonsma, 2002 SD 116, ¶ 10, 651 N.W.2d 871, 874). “The term excusable neglect has no fixed meaning and is to be interpreted liberally to insure that cases are heard on the merits.” Upper Plains, 2003 SD 3 at ¶ 13, 656 N.W.2d at 327. “Excusable neglect must be neglect of a nature that would cause a reasonably prudent person under similar circumstances to act similarly.” Upper Plains, 2003 SD 3 at ¶ 13, 656 N.W.2d at 327. The trial court should exercise its discretion to resolve doubt in favor of the defendant’s' request. Roso v. Henning, 1997 SD 82, ¶ 12, 566 N.W.2d 136, 141.

[¶ 15.] The trial court entered findings of fact and conclusions of law in support of the order setting aside the default judgment. The court’s findings were based upon affidavits, exhibits and deposition testimony taken from the principle actors at United, Coleman and Generali. The trial court found that United made a prima facie showing of meritorious defenses. Action does not contest this determination on appeal. Rather, Action argues that the trial court erred in finding excusable neglect.

[¶ 16.] The trial court found that Gen-erali was responsible for' the defense of the lawsuit based upon the parties contractual relationship and in the normal course of the parties business. This finding is supported by the evidence and is not clearly erroneous. Consistent with established practice, United and Coleman each took immediate action to forward the lawsuit on to the proper company for handling this lawsuit. Based upon past experience, it was reasonable for United and Coleman to each believe that a timely defense would be made to this lawsuit.

[¶ 17.] Action claims that Generali was an undisclosed agent of United and that as such, Generali is absolutely liable to Action under the default judgment because the reinsurance relationship was never disclosed. See, Cooper v. Hileman, 88 S.D. 516, 222 N.W.2d 299, 302 (S.D.1974); Robbins & Steams Lumber Co. v. Thatcher, 453 N.W.2d 613, 616 (S.D.1990). Action claims it was improper for this relationship to exist undisclosed to the insured. The concept of an undisclosed agent has no bearing on whether the default judgment should be set aside. Neither Action’s knowledge of the relationship between United and Generali nor any ultimate liability of Generali is currently at issue before the Court. Rather, the question is whether the actions of United, Generali and Coleman, in the context of their relationships, create excusable neglect for United. The trial court properly heard and considered evidence on this question in determining whether to set aside the default judgment.

[¶ 18.] Action argues that United and Coleman should have confirmed that an answer was timely served. It is undisputed that United and Coleman failed to do so. However, there is no evidence that United and Coleman had done so in the past, or that, either had previously encountered problems with the management or timely response to lawsuits. Although the trial court did not make a specific finding, it was not an abuse of discretion under this record for the trial court to conclude that any neglect by United and Coleman was excusable.

[¶ 19.] Action also argues that Genera-li’s actions should not be considei’ed excusable neglect, claiming that , Generali could have taken action to prevent the default. Action points to the fact that. Makowski reviewed the summons and complaint and contacted Coleman to obtain a copy of the Action’s policy of insurance on October 11, 2001. The default judgment was not actually taken until November 9, 2001. The record is silent as to whether Makowski realized that an answer was already past due, or if he considered contacting Action’s counsel to obtain an extension to answer. It was approximately one month later before Makowski assigned the file to an adjustor and nearly two weeks after the assignment before the adjustor contacted South Dakota counsel to defend the lawsuit.

[¶ 20.] The trial court found that Gen-erali was unable to timely respond to the lawsuit because of the terrorist attacks. While the facts suggest that Generali may have been able take other steps to prevent a default, we do not believe this finding is clearly erroneous in the context of the extraordinary circumstances at Generali following September 11. Makowski and the other Generali employees were working under extremely difficult and unusual circumstances for months following the September 11 attacks.

[¶ 21.] We also note that United took immediate steps to set aside the default judgment by filing a motion approximately two weeks after the notice of default was given. Under these circumstances there was no dilatory behavior that was likely to prejudice Action. See Smith v. Hermsen, 1997 SD 138 at ¶ 11, 572 N.W.2d at 838. On this record, we cannot conclude that the trial court abused its discretion in determining that excusable neglect existed.

ISSUE TWO

[¶ 22.] Did the trial court err in deferring its decision on Action’s request for attorney’s fees and costs after granting United’s motion to set aside default?

[¶ 23.] At the hearing on the motion to set aside default judgment, Action orally moved for sanctions against United in the form of attorney’s fees and costs incurred by Action on the motion to set aside default judgment. Action submitted an affidavit for fees and costs in the amount of $21,019.60. The trial court entered an order deferring ruling on the motion until the conclusion of the case.

[¶ 24.] It is well established that an “appeal may not be taken from an order unless it is authorized under SDCL 15-26A-3.” Smith v. Tobin, 311 N.W.2d 209, 210 (S.D.1981). “An attempted appeal from an oi'der from which no appeal lies confers no jurisdiction on this court, except to dismiss.” Id.

[¶ 25.] The order deferring ruling is not an appealable order or judgment under SDCL 15-26A-3. The order is not a final judgment as it does not finally and completely adjudicate all issues of fact and law on the motion. See Riede v. Phillips, 277 N.W.2d 720, 722 (S.D.1979). Further, the order does not otherwise affect a substantial right as both parties’ appeal rights are preserved pending a final ruling on the motion.

[¶ 26.] We affirm the trial court’s order setting aside the default judgment and dismiss the balance of the appeal for lack of jurisdiction.

[¶ 27.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 28.] JENSEN, Circuit Judge, for SABERS, Justice, disqualified.

      . Ron Coleman, the President of Coleman, testified by deposition that as a third party administrator for Generali, Coleman had complete authority and discretion to manage claims against an insured which did not exceed $100,000. Coleman was required to forward all suits exceeding $100,000 or direct claims against the insurer to Generali for handling. Coleman had no further involvement in these actions, unless Generali contacted Coleman and requested assistance from Coleman. Action points to language in the third party administrator agreement which suggests that Coleman had more contractual authority than Coleman testified to in his deposition, but Action presented no evidence that Coleman's testimony was not consistent with the practice between the companies in handling these claims.

      . 15-6-55(c) provides: "Setting aside default. For good cause shown the court may set aside a judgment by default in accordance with 15-6 — 60(b).”
      15-6-60(b) provides in relevant part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
      (1)'Mistake, inadvertence, surprise, or excusable neglect.

      . SDCL 15-26A-3 provides:
      Appeals to the Supreme Court from the circuit court may be taken as provided in this title from:
      (1) A judgment;
      (2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;
      (3) An order granting a new trial;
      (4) Any final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment;
      (5) An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court;
      (6) Any other intermediate order made before trial, any appeal under this subdivision, however, being not a matter of right but of sound judicial discretion, and to be allowed by the Supreme Court in the manner provided by rules of such court only when the court considers that the ends of justice will be served by determination of the questions involved without awaiting the final determination of the action or proceeding; or
      (7) An order entered on a motion pursuant to 15-6-11.