Upell v. Dewey County Commission , 2016 S.D. LEXIS 69 ( 2016 )

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2016 S.D. 42IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MARGARET UPELL, Plaintiff and Appellant,
v.
DEWEY COUNTY COMMISSION, Defendant and Appellee,
and
MOREAU-GRAND ELECTRIC
COOPERATIVE, INC., Intervenor and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
DEWEY COUNTY, SOUTH DAKOTA
****
THE HONORABLE MICHELLE K. PALMER PERCY
Judge
****
AL ARENDT
Pierre, South Dakota Attorney for plaintiff
and appellant.
STEVEN ABERLE
Dewey County State’s Attorney
Timber Lake, South Dakota Attorney for defendant and
appellee.
JOHN W. BURKE
Thomas, Braun, Bernard & Burke, LLP
Rapid City, South Dakota Attorneys for intervenor and
appellee.
****
CONSIDERED ON BRIEFS
ON MARCH 21, 2016
OPINION FILED 05/18/16
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KERN, Justice
[¶1.] The Dewey County Commission (the Commission) granted an
application to erect a power distribution line in a section line right-of-way bordering
Margaret Upell’s property. She appealed to the circuit court which dismissed her
appeal for lack of jurisdiction. She now appeals to this Court. We affirm.
Facts and Procedural History
[¶2.] Moreau-Grand Electric Cooperative, Inc. (Coop) filed an application
with the Commission in December 2014 to erect and maintain a distribution line in
a section line right-of-way. The application was filed pursuant to SDCL 31-26-1,
which provides in pertinent part:
The board of county commissioners, upon written
application designating the particular highway the use of
which is desired, may grant to any person engaged in the
manufacture or sale of electric light and power . . . the
right to erect and maintain poles and wires or to bury
underground cable for the purpose of conducting
electricity for lighting, heating, and power purposes,
together with stay wires and braces . . . in and along any
public highway in its county for a period not to exceed
twenty years, subject to the conditions set forth in this
chapter and such further reasonable regulations as the
Legislature may hereafter prescribe.
[¶3.] Upell owned property adjacent to the section line and objected to the
erection of the power line. The Commission held a hearing on Coop’s application in
March 2015. All parties appeared, offered testimony, and presented arguments and
authorities. At the close of the hearing, the Commission voted to approve Coop’s
application. The Commission published its minutes on March 18, 2015. Upell filed
a notice of appeal of the Commission’s decision with the circuit court on March 25,
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2015. Upell served her notice of appeal by mail on counsel for Coop and on the
Dewey County State’s Attorney. But she did not serve a member of the board of
county commissioners as required by SDCL 7-8-29, which provides in pertinent
part:
Such appeal shall be taken within twenty days after the
publication of the decision of the board by serving a
written notice on one of the members of the board, when
the appeal is taken by any person aggrieved by the
decision of the board[.]
(Emphasis added.)
[¶4.] On June 29, 2015, Upell, the Commission, and Coop filed a stipulation
agreeing to Coop’s intervention in Upell’s appeal. The circuit court filed its order
granting the intervention on that same date. On July 6, 2015, Coop filed a motion
to dismiss Upell’s appeal for failure to serve the notice of appeal on a member of the
board of county commissioners as required by SDCL 7-8-29. The motion was heard
on July 20 and the circuit court dismissed the appeal. The order of dismissal was
filed on July 30, 2015, and Upell appeals to this Court.
Issue
[¶5.] Whether the circuit court erred in dismissing Upell’s appeal.
[¶6.] Upell argues that the circuit court erred in granting the motion to
dismiss her appeal. Both parties cite the standard of review set forth in AEG
Processing Center. No. 58, Inc. v. S.D. Department of Revenue and Regulation, 2013
S.D. 75, ¶ 7 n.2, 838 N.W.2d 843, 847 n.2.
The “standard of review of a trial court’s grant or denial of
a motion to dismiss is the same as our review of a motion
for summary judgment—is the pleader entitled to
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judgment as a matter of law?” “We review issues
regarding a court’s jurisdiction as questions of law under
the de novo standard of review.” Furthermore, “statutory
interpretation is a question of law, reviewed de novo.”
Id. (citations omitted).
[¶7.] While this statement incorporates the correct standard, we clarify its
reference to summary judgment. This language goes back to Jensen Ranch, Inc. v.
Marsden, 440 N.W.2d 762 (S.D. 1989). In that case, a Rule 12(b)(5) 1 motion to
dismiss an action for failure to state a claim was converted to a motion for summary
judgment. Id. at 764. Summary judgment was granted, and we reviewed the
judgment according to summary judgment standards. Later, in reviewing the
denial of a motion to dismiss for failure to state a claim in Estate of Billings v.
Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D. 1993), we
cited Jensen Ranch for the proposition that “[o]ur standard of review of a trial
court’s grant or denial of a motion to dismiss is the same as our review of a motion
for summary judgment—is the pleader entitled to judgment as a matter of law?”
Since Estate of Billings, this language has been routinely quoted as part of our
standard of review for dismissals, even in cases such as AEG that did not involve
motions for failure to state a claim or summary judgment. See Risse v. Meeks, 1998
S.D. 112, ¶¶ 6-10, 585 N.W.2d 875, 876 (motion to dismiss and dismissal for lack of
subject matter jurisdiction); O’Neill Farms, Inc. v. Reinert, 2010 S.D. 25, ¶¶ 5-7, 780
N.W.2d 55, 57-58 (motion to dismiss and dismissal for lack of personal
1. SDCL 15-6-12(b)(5).
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jurisdiction). 2 This confuses the standard of review when a dismissal is on
jurisdictional grounds.
[¶8.] Further confusing the standard of review is the fact that motions to
dismiss for lack of jurisdiction such as in AEG and the present case may take
different forms and may be raised at various points in the proceedings. 3 As
explained in one treatise:
A motion to dismiss an action for lack of subject matter
jurisdiction under Rule 12(b)(1) is but one of many ways
the defense may be presented. For example, in a
significant number of cases, federal courts have permitted
a defending party to raise a lack of subject matter
jurisdiction on a Rule 12(c) motion for judgment on the
pleadings or on a Rule 12(f) motion to strike. And, in
keeping with the policy set forth in Rule 12(h)(3) of
preserving the defense throughout the action, it has long
been well-established that the court’s lack of subject
matter jurisdiction may be asserted at any time by any
interested party, either in the answer or in the form of a
[Rule 12(h)(3)] suggestion to the court prior to final
judgment. After final judgment a lack of subject matter
jurisdiction may be interposed as a motion for relief from
the judgment under Rule 60(b)(4).
2. See also Samuelson v. Jorgenson, 1999 S.D. 13, ¶¶ 4-6, 588 N.W.2d 598, 599
(denial of motion to dismiss for failure to timely serve summons and
complaint); Ramsey v. Mathisrud, 1999 S.D. 121, ¶¶ 2-5, 599 N.W.2d 400, 401
(motion to dismiss and dismissal for expiration of the statute of limitations);
White Eagle v. City of Fort Pierre, 2000 S.D. 34, ¶¶ 3-4, 606 N.W.2d 926, 927-
28 (denial of motion to dismiss for improper service of process and expiration
of the statute of limitations); Bison Twp. v. Perkins Cty., 2002 S.D. 22, ¶¶ 5-7,
640 N.W.2d 503, 505 (motion to dismiss and dismissal for untimely service of
a notice of appeal).
3. As this Court has often stated: “The issue of jurisdiction may be raised at
any time[.]” Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729
N.W.2d 335, 340 (quoting Wold Family Farms, Inc. v. Heartland Organic
Foods, Inc., 2003 S.D. 45, ¶ 12, 661 N.W.2d 719, 723).
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5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350
(3d ed. 2016) (footnotes omitted). Thus, for example, in Vitek v. Bon Homme County
Board of Commissioners, 2002 S.D. 100, ¶ 6, 650 N.W.2d 513, 515, the motion to
dismiss the appeal to circuit court was raised by a motion for judgment on the
pleadings. Rather than setting forth the de novo standard of review for
jurisdictional issues, however, we cited the standard of review for a judgment on the
pleadings. Id. ¶ 7, 650 N.W.2d at 516.
[¶9.] Because of this confusion, we take this opportunity to make clear that
whatever the name of the motion or whatever the title of the court’s disposition, we
review a dismissal for lack of jurisdiction as a “question[] of law under the de novo
standard of review.” AEG, 2013 S.D. 75, ¶ 7 n.2, 838 N.W.2d at 847 n.2 (quoting
O’Neill Farms, 2010 S.D. 25, ¶ 7, 780 N.W.2d at 57-58. 4 This is in keeping with the
principle that “[w]e review issues of jurisdiction de novo because they are questions
of law.” Tornow v. Sioux Falls Civil Serv. Bd., 2013 S.D. 20, ¶ 10, 827 N.W.2d 852,
855. 5 Further, when statutory interpretation is relevant to the inquiry, “statutory
4. See also In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d 34, 37
(“Subject matter jurisdiction to conduct an appeal from a county commission
decision presents a question of law.”); Risse, 1998 S.D. 112, ¶ 10, 585 N.W.2d
at 876 (“This Court reviews challenges to court jurisdiction de novo.”); Wright
& Miller, at § 1350 (“It is widely—indeed, universally—accepted . . . that
courts of appeal, when reviewing Rule 12(b)(1) dismissals by district courts,
for a lack of subject matter jurisdiction, exercise de novo review over legal
conclusions.”).
5. Accord Cable v. Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 19, 769
N.W.2d 817, 825; Grajczyk v. Tasca, 2006 S.D. 55, ¶ 8, 717 N.W.2d 624, 627;
State ex rel. LeCompte v. Keckler, 2001 S.D. 68, ¶ 6, 628 N.W.2d 749, 752; In
continued . . .
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interpretation is [also] a question of law, reviewed de novo.” AEG, 2013 S.D. 75, ¶ 7
n.2, 838 N.W.2d at 847 n.2 (quoting Hass v. Wentzlaff, 2012 S.D. 50, ¶ 12, 816
N.W.2d 96, 101). 6 To this extent, therefore, the standard of review as set forth in
AEG is correct. However, we caution against rote references to summary judgment
as part of the standard. Not all summary judgment standards may apply to a
motion to dismiss for lack of jurisdiction. Compare e.g. Hutterville Hutterian
Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 20, 791 N.W.2d 169, 175 (holding that in
a Rule 12(b)(1) factual attack on a circuit court’s subject matter jurisdiction “the
court must . . . weigh the evidence and resolve disputed issues of fact affecting the
merits of the jurisdictional dispute.”), with Foster-Naser v. Aurora Cty., 2016 S.D. 6,
¶ 11, 874 N.W.2d 505, 508 (noting that in ruling on a motion for summary
judgment, the court must “resolve disputed facts in favor of the nonmoving party[.]”
(quoting Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125)).
[¶10.] Having clarified the standard of review, we turn our analysis to Upell’s
claim of error in the dismissal of her appeal. Our analysis begins with Schrank v.
Pennington County Board of Commissioners, 1998 S.D. 108, 584 N.W.2d 680. In
Schrank, the county commission issued a conditional use permit to Alexander
Drilling. Schrank appealed the commission’s decision to the circuit court. Id. ¶ 2.
Schrank served the notice of appeal on a county commissioner but not upon
. . . continued
re Estate of Galada, 1999 S.D. 21, ¶ 8, 589 N.W.2d 221, 222-23; Kroupa v.
Kroupa, 1998 S.D. 4, ¶ 10, 574 N.W.2d 208, 210.
6. Accord In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d at 37;
Vitek, 2002 S.D. 100, ¶ 8, 650 N.W.2d at 516.
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Alexander. Id. ¶ 2, 584 N.W.2d at 681. As he was not served, Alexander moved to
dismiss. Id. ¶ 3. The circuit court denied the motion and ultimately reversed the
county’s decision. Id. Both Alexander and the county appealed to this Court. Id. ¶
4. Appellants argued that the circuit court did not have jurisdiction over the appeal
because Alexander was not personally served with the notice of appeal. Id. ¶ 8. We
disagreed. Id.
[¶11.] Observing that the appeal was brought under SDCL 7-8-29, we
accepted the appellants’ premise that compliance with the statute authorizing the
appeal was jurisdictional. Id. ¶¶ 10-11. We noted: “[W]hen the statute authorizing
[an] appeal requires a designated person to be made a party . . . the failure to do so
constitute[s] noncompliance with its terms and thus involve[s] subject matter
jurisdiction.” Id. ¶ 10. (quoting Fong v. Planning & Zoning Bd. of Appeals, 563 A.2d
293, 298 (Conn. 1989)). We concluded that there was no lack of subject matter
jurisdiction because the requirements for service under SDCL 7-8-29 were strictly
followed; “Schrank was not statutorily required to serve notice on Alexander,” and
service was made on one of the members of the board. Id. ¶ 9. Accordingly, we
affirmed the circuit court’s denial of the motion to dismiss the appeal.
[¶12.] Here, in contrast with Schrank, SDCL 7-8-29’s requirement of service
on “one of the members of the board” was not fulfilled, and the statute was not
strictly followed. Therefore, this case presents the jurisdictional defect that was not
present in Schrank. Because there was no subject matter jurisdiction the circuit
court properly dismissed the appeal under Schrank.
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[¶13.] Upell cites Bison Township for a contrary result. In Bison Township,
twelve townships appealed a county decision to circuit court. 2002 S.D. 22, ¶ 1, 640
N.W.2d at 504. However, the circuit court clerk received the townships’ notice of
appeal a day late. Id. ¶ 6, 640 N.W.2d at 505. Therefore, the circuit court granted
the county’s motion to dismiss the appeal as untimely under SDCL 7-8-29. Id. On
appeal to this Court, the townships argued that, under SDCL 15-6-5(b) 7 service by
mail was complete upon mailing, therefore the appeal was timely because the notice
of appeal was mailed within the appeal time. Id. ¶ 10, 640 N.W.2d at 506. This
Court agreed, holding that under SDCL 15-6-5(a) 8 service of the notice of appeal fell
within SDCL chapter 15-6 and, “therefore [could] be deemed complete upon
mailing.” Id. ¶ 12. 9
7. SDCL 15-6-5(b) provides in pertinent part: “Service by mail shall be by first
class mail and is complete upon mailing.”
8. SDCL 15-6-5(a) provides in pertinent part:
Except as otherwise provided in this chapter, every order
required by its terms to be served, every pleading
subsequent to the original complaint unless the court
otherwise orders because of numerous defendants, every
written motion other than one which may be heard ex
parte, and every written notice, appearance, demand,
offer or judgment, and similar paper shall be served upon
each of the parties.
9. As part of the decision in Bison Township, this Court also rejected the
county’s contention that SDCL 15-6-4(d)(4)(i) required personal service of the
notice of appeal on a commissioner. The Court rejected application of this
statute, which has since been re-numbered as SDCL 15-6-4(d)(2)(i), because it
applied to service of a summons. Instead, the Court applied SDCL 15-6-5
because it more generally applied to “the service and filing of pleadings and
other papers.” See Bison Twp., 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506.
continued . . .
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[¶14.] Upell argues that SDCL 15-6-5(b), 10 which permits service on a
party’s attorney, applies here and therefore her appeal was perfected by her service
on the commissioners’ attorney (i.e., the state’s attorney). We disagree. Although
we recognized that “SDCL chapter 15-6 governs the rules of procedure in circuit
courts[,]” Bison Township, 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506, it is “with the
exceptions stated in § 15-6-81.” SDCL 15-6-1. SDCL 15-6-81(c) provides: “This
chapter [15-6] does not supersede the provisions of statutes relating to appeals to
the circuit courts.” Thus, to the extent the rules of procedure conflict with the
statutes relating to appeals to the circuit courts, the statutes must prevail. 11 SDCL
7-8-29 specifically requires service of a notice of appeal of a county decision on “one
of the members of the board” of county commissioners. Upell did not comply with
this requirement and, as a result, violated the jurisdictional prerequisite for her
appeal.
. . . continued
10. SDCL 15-6-5(b) provides in pertinent part: “Whenever under this chapter
service is required or permitted to be made upon a party represented by an
attorney, the service shall be made upon the attorney unless service upon the
party himself is ordered by the court.”
11. We recently reiterated a similar principle in Lake Hendricks Improvement
Ass’n v. Brookings County Planning & Zoning Commission, holding that the
rules of civil procedure are applicable in this Court, but “only to the extent
that ‘a specific statute or rule [does not direct] otherwise.’” 2016 S.D. 17, ¶ 7,
877 N.W.2d 99, 103 (alteration in original) (quoting Ripple v. Wold, 1997 S.D.
135, ¶ 10, 572 N.W.2d 439, 441-42). This is consistent with the principle that
“terms of a statute relating to a particular subject will prevail over the
general terms of another statute.” Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at
517 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17).
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[¶15.] This conclusion is reinforced by our decision in Vitek. As noted above,
in Vitek, we reviewed a circuit court’s dismissal of an appeal from a decision of a
board of county commissioners. 2002 S.D. 100, ¶ 6, 650 N.W.2d at 515. The
dismissal was based upon the appellant’s failure to personally serve the notice of
appeal on a member of the board of county commissioners. The appellee argued
that personal service was necessary under SDCL 7-8-29 and SDCL 15-6-4(d)(4)(i), 12
which required personal service of a summons on a county commissioner. Id. ¶ 13,
650 N.W.2d at 517. We held that SDCL 7-8-29 does not require personal service of
a notice of appeal on a county commissioner and that service by mail is sufficient.
Id. ¶14. In reaching this conclusion we relied on Bison Township and the provisions
of SDCL 15-6-5. But we cautioned that:
[T]his type of appeal falls somewhere between an
administrative appeal and an appeal to this Court. An
appeal from a county commission decision is not covered
by chapter 1-26, which refers to administrative appeals,
because the term “agency” does not include “any unit of
local government.” See SDCL 1-26-1. Neither, however, is
it completely covered by chapter 15-6, which refers to civil
appeals generally.
Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at 517 (emphasis added). Thus, the Court
recognized that, as in Bison Township, it may be appropriate to consult SDCL
chapter 15-6 to clarify the method of service of a notice of appeal of a county
commission decision. Id. (noting that while “chapter 7-8 controls the procedure for
appealing a county commission decision as far as it goes, . . . in determining the
proper method of service, it is necessary to look elsewhere.”). It also noted,
12. Re-numbered as SDCL 15-6-4(d)(2)(i). See 2005 S.D. Sess. Laws ch. 287.
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however, that SDCL 7-8-27 and SDCL 7-8-29 “direct when and to whom service is
[to be] made[.]” Id. ¶ 10.
[¶16.] Here, service was not made “on one of the members of the board” of
county commissioners as directed by SDCL 7-8-29. Therefore, the circuit court
correctly dismissed the appeal under Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at
681.
[¶17.] Yet Upell argues that her notice of appeal was adequate to fulfill due
process considerations and dismissal of her appeal was not required. This ignores
Schrank’s requirement of strict compliance with the service provisions of SDCL 7-8-
29 and its recognition that lack of strict compliance deprives the circuit court of
subject matter jurisdiction. See Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at 681.
Absent jurisdiction, no other course remained for the court but to dismiss the
appeal. See Woods v. Unified Gov’t of WYCO/KCK, 275 P.3d 46, 51 (Kan. 2012)
(holding “the district court had no other choice but to dismiss the untimely-filed
appeal.”); In re Int. of B.M.H., 446 N.W.2d 222, 224 (Neb. 1989) (noting in
dismissing an appeal that “[a]n appellate court acquires no jurisdiction unless the
appellant has satisfied the requirements for appellate jurisdiction, including a
notice of appeal filed within the prescribed time.”).
[¶18.] Upell also argues that she “substantially complied” with the notice
requirements of SDCL 15-6-5 and, therefore, service of her notice of appeal was
adequate under Wagner v. Truesdell, 1998 S.D. 9, 574 N.W.2d 627. As already
discussed, however, SDCL 15-6-5 is not the operative rule as to who must be served
with a notice of appeal from a decision of a county commission. That is controlled
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by SDCL 7-8-29. Vitek, 2002 S.D. 100, ¶ 10, 650 N.W.2d at 517. Upell did not
comply with SDCL 7-8-29.
[¶19.] Further, Wagner was an unusual case involving service of a summons
and complaint on an unadjudicated incompetent living in his home, under the
temporary care of a friend. Wagner, 1998 S.D. 9, ¶ 3, N.W.2d at 628. Applying the
doctrine of substantial compliance, this Court held that, under those circumstances,
personal service on the temporary caretaker was adequate to commence the action.
Id. ¶ 11, 574 N.W.2d at 630. Wagner, however, has repeatedly been distinguished
by this Court on its facts. 13 Moreover, this Court has specifically held, in the
context of reviewing a dismissal of an appeal to circuit court that, “the doctrine of
substantial compliance cannot be substituted for jurisdictional prerequisites.” AEG,
2013 S.D. 75, ¶ 23, 838 N.W.2d at 850.
13. See e.g. White Eagle, 2000 S.D. 34, ¶¶ 13-14, 606 N.W.2d at 929-30(distinguishing Wagner and declining to apply the substantial compliance
doctrine in assessing the sufficiency of service of process to commence a civil
action against a municipality); Lekanidis v. Bendetti, 2000 S.D. 86, ¶¶ 21-23,
613 N.W.2d 542, 546-47 (declining to apply the substantial compliance
doctrine to the requirements for substituted service of process on a
nonresident motorist); Spade v. Branum, 2002 S.D. 43, ¶ 9, 643 N.W.2d 765,
768 (distinguishing Wagner and declining to apply the substantial compliance
doctrine to the requirements for service by publication); Edsill v. Schultz,
2002 S.D. 44, ¶¶ 9-11, 643 N.W.2d 760, 763-64 (distinguishing Wagner and
declining to apply the substantial compliance doctrine to the requirements for
substituted service of process by a sheriff); R.B.O. v. Priests of the Sacred
Heart, 2011 S.D. 86, ¶¶ 13-17, 807 N.W.2d 808, 811-13 (distinguishing
Wagner and declining to apply the substantial compliance doctrine to uphold
personal service of process on a business entity).
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[¶20.] Upell failed to comply with the jurisdictional prerequisites for her
appeal as defined by Schrank. We decline to apply the doctrine of substantial
compliance and affirm the court’s dismissal of Upell’s appeal.
[¶21.] Affirmed.
[¶22.] GILBERTSON, Chief Justice and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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