Morris Family LLC v. South Dakota Department of Transportation

#26831-a-DG
2014 S.D. 97IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
THE MORRIS FAMILY LLC,
through its members; Carol Morris,
Alan Morris, Kathleen Morrison
and Ginny Yadegar, Plaintiffs and Appellants,
v.
SOUTH DAKOTA DEPARTMENT
OF TRANSPORTATION, THE
STATE OF SOUTH DAKOTA, Defendant and Appellee,
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT L. TIMM
Judge
****
MARK V. MEIERHENRY
CLINT SARGENT
CHRISTOPHER HEALY of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.
RANDY S. BINGNER
KARLA ENGEL
Special Assistant Attorneys General
South Dakota Department of Transportation
Pierre, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS ON
AUGUST 25, 2014
OPINION FILED 12/23/14
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GILBERTSON, Chief Justice
[¶1.] The Morris Family LLC (Morris Family) initiated an action against the
State of South Dakota and the City of Watertown, claiming unconstitutional taking
or damaging of property for loss of access from their property to Highway 212, and
violation of due process stemming from the State’s and City’s actions denying
access. The State moved for summary judgment, asserting that the State was
granted complete control of access for the land in question in a 1970 judgment. The
circuit court granted summary judgment and dismissed the complaint. Morris
Family appeals, claiming that it was not given proper notice that summary
judgment on the due process issue was before the court and that the court erred in
granting summary judgment. Specifically, Morris Family asserts there were
genuine questions of material fact regarding whether the State was granted control
of access as part of the 1970 condemnation action. We affirm.
Facts and Procedural History
[¶2.] Morris Family owns certain property abutting U.S. Highway 212 in
Watertown, South Dakota. In 1969, a state highway project sought to turn
Highway 212 into a four-lane, controlled-access highway to serve as the primary
entrance to the City of Watertown from Interstate 29. To carry out the plan of
establishing this controlled-access highway, the State commenced a condemnation
action against the plaintiff’s predecessor in title. Through this condemnation
action, the State sought to acquire the necessary “right of way and rights of access”
in accordance with the project plans and specifications.
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[¶3.] Prior to the condemnation action, the driveway to the residence and
farm buildings on Morris Family’s property provided direct access to Highway 212.
As part of the condemnation action, the driveway was moved to connect with a
break in the control of access along the western edge of the property. This break in
control of access was 24-feet wide and shared with the neighboring Endres property.
The record reflects that the defendants to the condemnation action admitted that
the State had the right to take the property under its right of eminent domain but
contested the compensation to be paid, alleging “[t]hat the Plaintiff has failed to
offer just compensation for that property taken from these Defendants and for
deprivation of access to and from said property and the adjacent highway.”
[¶4.] The parties to the 1970 condemnation action eventually signed a
Stipulation for Settlement and for Entry of Judgment compromising and settling
the condemnation action for $6,000 and further agreeing “that of the $6,000, $1,440
is for the land and $4,560 is for severance damages.” A judgment in the
condemnation action in March 1970 granted the State “the right to control access to
the right of way in accordance with Chapter 31-8 of the 1967 South Dakota
Compiled Laws and amendments thereto” on the Morris Family land at issue in this
case. The judgment delineated $6,000 in damages, stating that “$1,440 is
designated as payment for the land taken and $4,560 is designated as damages to
the remainder.” 1 The judgment was never appealed.
1. A special assistant attorney general for the State of South Dakota
recommended this amount—an increase from the State’s original estimate—
in a letter addressed to the Chief Right of Way Agent. That letter stated, in
(continued . . .)
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[¶5.] In December 2010, Morris Family filed a three-count complaint against
the City of Watertown and the State. Count One alleged “Error in Judgment,”
asserting that Morris Family retained “full access rights to State Highway 212”
because the condemnation action never eliminated those rights. Count One also
alleged that the words “in accordance with Chapter 31-8” in the judgment were an
error that should be amended to read “in accordance with Chapter 31-19.” Count
Two of the Complaint was for “Constitutional Taking or Damage.” It alleged that
Morris Family was not compensated for the loss of total access to State Highway
212, and that “Plaintiffs [sic] highest and best use of their property has been
destroyed by the failure of either the City or the State to grant it access to State
Highway 212 upon a change in use of the property.” Count Three alleged “Failure
to Provide Due Process.” It alleged that the State had taken all access without
granting a hearing or any other method to contest the exercise of the State’s alleged
police power in denying all commercial access to the highway. It also alleged that
the failure to have a procedure “whereby a landowner can petition to alter the
declarations of the engineers and the Department of Transportation is a violation of
the rights of due process under both the State and Federal constitution.”
[¶6.] In July 2011, Morris Family filed a “Motion to Correct Judgment under
SDCL 15-6-16(a),” alleging that the State intended only to gain an ordinary right-of-
way in the 1970 condemnation action and never bargained for complete control of
________________________
(. . . continued)
part, “Although the taking was quite small, it was frontage on Highway 212
which offered attractive commercial or subdivision possibilities.”
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access under SDCL chapter 31-8. The circuit court denied the motion 2 and, in a
September 2011 letter decision, stated:
There is little support to the Plaintiff’s theory that a clerical
error was made by Judge H.O. Lund when entering the
Judgment on March 26, 1970, vesting the State of South Dakota
with “. . . all right to control access to the right-of-way . . .” of the
Morris land described therein. Documents from the broader
project file unequivocally evidence the State’s intent to acquire
the right to control access along Highway 212 as it reached
eastward from Watertown to connect with the interstate.
[¶7.] In May 2012, Morris Family filed an Application for Highway Access
Permit with the Watertown Area Engineer. The application sought a 40-foot wide
access in a different location than the existing break in control of access. The stated
purpose of the request was to “[r]elocate existing access and change in use” to
commercial access. In response, the Engineer sent Morris Family an Application for
Relinquishment of Access Control. He explained, “This is an area where the state
has control of access. Because of this we need you to fill out an application for
relinquishment of access control form. The access application is put on ‘hold’ until
the relinquishment is addressed.” In exchange for the Endres giving up their right
to use the Endres/Morris Family shared access, the Endres property was
subsequently granted a relinquishment of access control at another location along
Highway 212.
[¶8.] In December 2012, an attorney representing Morris Family filed an
Application for Relinquishment of Access Control. This application requested a new
60-foot wide break in access, located 238 feet from the west property line.
2. The denial of this motion has not been appealed to this Court.
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Alternatively, it requested expanding the current 12-foot break at the west edge of
the Morris Family property to create a 60-foot wide break in access control. The
State denied the request by mail on February 26, 2013.
[¶9.] In August 2013, the State filed a motion for summary judgment “on
the grounds there are no genuine issues of material fact and the State is entitled to
judgment as a matter of law.” The State asserted that its basis for summary
judgment was that the State owned the right to control of access under SDCL
chapter 31-8 across the property, except for the designated break at the west
property line, where Morris Family had been using the 24-foot shared access. The
State asserted that the 24-foot access was the same as what existed immediately
following the 1970 condemnation action and that the only locations where Morris
Family applied for a break in the control of access were locations where the State
owned control of access pursuant to the judgment in the 1970 action. The State also
asserted that Morris Family had therefore suffered no loss of any property right and
“suffered no damage by the State’s denial of a break in control of access, or
otherwise.” After a hearing on the motion, the circuit court granted the State’s
motion for summary judgment and dismissed the complaint.
[¶10.] Morris Family appeals, alleging that the circuit court should not have
granted summary judgment on the due process claim because it was not properly
before the court. Additionally, it argues that summary judgment was not
appropriate because genuine issues of material fact existed as to whether the State
owned control of access to the land in question.
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STANDARD OF REVIEW
[¶11.] Summary judgment will be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Quinn v. Farmers Ins. Exch.,
2014 S.D. 14, ¶ 13, 844 N.W.2d 619, 623 (quoting SDCL 15-6-56(c)) (internal
quotation marks omitted). “Accordingly, this Court affirms a grant of summary
judgment only if ‘there are no genuine issues of material fact and the legal
questions have been correctly decided.’” Id. (quoting Fix v. First State Bank of
Roscoe, 2011 S.D. 80, ¶ 18, 807 N.W.2d 612, 618). “A disputed fact is not ‘material’
unless it would affect the outcome of the suit under the governing substantive
law . . . .” Gul v. Ctr. for Family Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629, 633
(quoting Weitzel v. Sioux Valley Heart Partners, 2006 S.D. 45, ¶ 17, 714 N.W.2d 884,
891) (internal quotation mark omitted). “When a motion for summary judgment is
made and supported as provided in § 15-6-56, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as
otherwise provided in § 15-6-56, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him.” SDCL 15-6-56(e).
ANALYSIS AND DECISION
[¶12.] Morris Family first argues that the circuit court erred by granting
summary judgment on all issues because Morris Family’s claim of a due process
violation was not presented to the court for summary judgment, and it was
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therefore deprived a reasonable opportunity to respond. See Schroeder v. City of
New York, 371 U.S. 208, 211, 83 S. Ct. 279, 282, 9 L. Ed. 2d 255 (1962) (“An
elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.”). Morris Family asserts that it alleged two
distinct causes of action—one claiming it was the victim of inverse condemnation
and the other claiming that the State and the City of Watertown conspired to
deprive Morris Family of its property rights by denying it due process. It contends
that the State’s motion for summary judgment only addressed the first cause of
action. Accordingly, Morris Family asserts that the court improperly acted on its
own accord when it granted summary judgment on the other issues. This argument
is unpersuasive for several reasons.
[¶13.] First, the State’s motion for summary judgment was not a motion for
partial summary judgment addressing only the inverse condemnation claim. The
motion clearly asserted that there were “no genuine issues of material fact[,]” not
that there were no genuine issues of material fact on the inverse condemnation
claim. Thus, the State’s motion gave Morris Family notice that the State was
challenging any assertion of a genuine issue of material fact.
[¶14.] Moreover, overlapping issues addressed in the motion for summary
judgment eliminated necessary elements of the State’s case for both claims. The
State’s ownership of control of access—the central focus of the motion for summary
judgment and the arguments concerning the motion at the hearing—is fatal to both
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claims. As discussed further below, this eliminated an element of the takings claim
because the State owned control of access, and therefore Morris Family could not
prove that it was deprived of a property interest without compensation.
Additionally, the State’s ownership of control of access eliminated an element of the
due process claim. “To establish a procedural due process violation, a plaintiff must
demonstrate that he has a protected property or liberty interest at stake and that
he was deprived of that interest without due process of law.” Osloond v. Farrier,
2003 S.D. 28, ¶ 16, 659 N.W.2d 20, 24 (quoting Hopkins v. Saunders, 199 F.3d 968,
975 (8th Cir. 1999)) (internal quotation marks omitted). The only claimed property
interest was a denial of a right to access. By asserting that the 1970 judgment
granted the State the “right to control access” to the property in question, the State
removed the element of a property interest necessary for Morris Family to establish
a due process claim.
[¶15.] The record reflects that the State’s motion for summary judgment was
properly served. A hearing was held on the motion, where the parties were given an
opportunity to address the property interests at stake, as well as the actions taken
by the State to allegedly trigger due process and takings claims. In light of the
motion before the court and the hearing in which Morris Family actively
participated, we reject Morris Family’s contention that it was unfairly surprised by
the court granting summary judgment on all claims. We conclude that the motion
for summary judgment was properly before the circuit court to rule on all of Morris
Family’s claims.
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[¶16.] Morris Family also argues that the circuit court erred by granting
summary judgment because there were genuine issues of material fact regarding
whether the State adequately condemned and compensated access to Highway 212
in 1970. Morris Family contends there is no definitive evidence to prove that the
right to commercial access was condemned. The South Dakota Constitution
provides that “[p]rivate property shall not be taken for public use, or damaged,
without just compensation . . . .” S.D. Const. art. VI, § 13. “This Court has
previously determined that South Dakota’s Constitution provides greater protection
for its citizens than the United States Constitution because our Constitution
requires that the government compensate a property owner not only when a taking
has occurred, but also when private property has been damaged.” Rupert v. City of
Rapid City, 2013 S.D. 13, ¶ 9, 827 N.W.2d 55, 60 (quoting Krier v. Dell Rapids Twp.,
2006 S.D. 10, ¶ 21, 709 N.W.2d 841, 846) (internal quotation marks omitted). “As
we have explained, an owner of land abutting on a conventional street or highway
has certain private rights in the street or highway distinct from that of the general
public.” Hall v. State ex rel. S.D. Dep’t of Transp., 2006 S.D. 24, ¶ 14, 712 N.W.2d
22, 27-28 (quoting Hurley v. State, 82 S.D. 156, 160, 143 N.W.2d 722, 724 (1966))
(internal quotation marks omitted). “The right of access is one of those private
property rights and, therefore, cannot be taken for public use or materially impaired
without compensation.” Id., 712 N.W.2d at 28.
[¶17.] “We require those resisting summary judgment [to] show that they will
be able to place sufficient evidence in the record at trial to support findings on all
the elements on which they have the burden of proof.” Bordeaux v. Shannon Cnty.
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Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127 (alteration in original) (quoting
Chem–Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765)
(internal quotation marks omitted). “SDCL 15-6-56(e) requires the opposing party
to be diligent in resisting a motion for summary judgment, and mere general
allegations and denials which do not set forth specific facts will not prevent the
issuance of a judgment.” Id. (quoting Hughes–Johnson Co. v. Dakota Midland
Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972)) (internal quotation marks
omitted). We thus examine whether Morris Family showed it would be able to place
sufficient evidence into the record to prove that its right of access was taken without
just compensation in 1970.
[¶18.] Morris Family’s main contention is that there is a genuine issue of
material fact as to whether the State properly gained control over commercial
access to the property. However, the 1970 condemnation judgment is dispositive on
this issue. It stated that the State was granted “the right to control access to the
right of way in accordance with Chapter 31-8 of the 1967 South Dakota Compiled
Laws.”
[¶19.] The judgment directly describes the extent to which the State was
empowered to control access. The State was granted the power to “control access”
with no qualifiers, except that the control had to be “in accordance with Chapter 31-
8[.]” At the time of the judgment, SDCL chapter 31-8 gave broad discretion to
“regulate, restrict, or prohibit access as to best serve the traffic[.]” SDCL 31-8-5
(1967). This contemplates control over all types of access. At the time, it included
nearly absolute power to permit or restrict ingress and egress, as well as the power
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to place conditions on access once the right to control had been established. See
SDCL 31-8-6 (1967) (“No person shall have any rights of ingress or egress to, from
or across controlled-access facilities to or from abutting lands, except at such
designated points at which access may be permitted, upon such terms and
conditions as may be specified from time to time.” 3). The statutes also allow the
state to work with local governments to develop and implement access control
plans, including agreements concerning the use and vacation of controlled access.
See SDCL 31-8-13.
[¶20.] Morris Family attempted to change the substance of this judgment by
moving to “correct” the judgment. As part of this proposed “correction,” Morris
Family would have changed “Chapter 31-8” to read “Chapter 31-19”—the general
highway condemnation chapter. This portion of statute does not describe the type
of complete control over access described in Chapter 31-8. The court denied this
attempt. Because the judgment is undisturbed, it carries great weight in this
controversy. The State was granted “control of access” and cannot now be decried
for exercising that control, especially by preventing new access along portions of the
right-of-way which have never been used to access the property since the judgment.
[¶21.] Morris Family has enjoyed use of the 24-foot shared access since 1970
to reach the Morris’ residence, despite the 1970 judgment granting the State
3. The phrase “upon such terms and conditions as may be specified from time to
time[,]” coupled with the judgment granting the State power to control access
to the entirety of the right-of-way, may have empowered the State to further
restrict use of the 24-foot shared access. However, that issue is not before us
because the State has taken no action to change Morris Family’s use of the
24-foot access.
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ownership of all control of access. It thus may appear that Morris Family has some
property interest in its continued use of that access. Morris Family attempted to
argue that the access was destroyed because the neighbors gave up the right to use
the neighbor’s half of the access. However, Morris Family has never contended that
it has been deprived of continued use of the access for this purpose.
[¶22.] Morris Family also asserts there is a question “not if access remains
but to what extent.” This is not an element of a takings claim. Instead, Morris
Family must prove that its property was damaged or taken in some way. Yet,
Morris Family has not pointed to any evidence that the State has altered or
impaired Morris Family’s continued use of the 24-foot access—the only access in
which it even arguably has a property interest.
[¶23.] The only alleged impairment of access rights in this case is the State’s
denial of Morris Family’s requests to expand the 24-ft access point—which would
give Morris Family some 48 additional feet of access—or alternatively, the request
for a wider access in a completely separate location. Both of these requests would
require the State to relinquish control of its property right. Namely, the State
would have to relinquish access on land that the State already compensated Morris
Family for, as determined by the 1970 judgment. The State addressed this fact in
its statement of undisputed material facts, asserting that Morris family had “only
applied for an access and a break in control of access at locations where the State
owns control of access.” Morris family refuted this fact with only a bare assertion
that “Plaintiffs have worked for years to work out a resolution with the State of
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South Dakota regarding access.” Again, Morris Family was unable to show that its
right to continued use of the 24-foot access was impaired. 4
[¶24.] Morris Family’s actual argument in this case appears to be more
directly stated in its reply brief: “The Morris’s [sic] were deprived of any meaningful
opportunity to apply for access to highway 212.” It claims that this deprivation of
access, or the right to apply for access, both peculiarly damaged its property rights
and amounted to a violation of due process. This action damaged the rest of Morris
Family’s property, it asserts, because the action deprived the property of its highest
and best use as commercially zoned property. As discussed above, the landowners
were compensated for damage arising from loss of access along the entirety of the
property; therefore, the takings claim fails with regard to this claimed deprivation.
[¶25.] Morris Family’s due process claim also fails because Morris Family is
unable to prove it has a protected property interest at stake that would trigger a
right to due process. “To have a protected right under due process, persons must
possess more than a one-sided expectance. They must have a legal ‘entitlement.’”
Bergee v. S.D. Bd. of Pardons & Paroles, 2000 S.D. 35, ¶ 8, 608 N.W.2d 636, 640.
Morris Family claims that process was due—and denied—when Morris Family
sought access to Highway 212. It claims a conspiracy between the City and the
State denied it a fair opportunity to be heard and prevented appeal of the decision.
4. Although Morris Family asserted that the access was destroyed when the
Endres property owners abandoned the right to use the access, this
contention is not supported in the record. Rather, the record supports the
assertion that the Endres property lost its own use of the shared access, not
that Morris Family’s use of the access was changed or impaired in any way.
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To support its argument that this warrants relief, Morris Family asserts that
“[f]ederal constitutional law teaches that such a deprivation violates the Federal
Due Process Clause, which was incorporated to the states under the 14th
Amendment.”
[¶26.] Unlike the cases cited by Morris Family to support this argument, 5
Morris Family does not have a “legitimate claim of entitlement” to highway access
in this case. As noted above, Morris Family must show that it was deprived of a
protected property or liberty interest without due process. Daily v. City of Sioux
Falls, 2011 S.D. 48, ¶ 14, 802 N.W.2d 905, 911. However, the United States
Supreme Court has “never held that applicants for benefits, as distinct from those
already receiving them, have a legitimate claim of entitlement protected by the Due
Process Clause of the Fifth or Fourteenth Amendment.” Lyng v. Payne, 476 U.S.
926, 942, 106 S. Ct. 2333, 2343, 90 L. Ed. 2d 921 (1986). Here, Morris Family seeks
to gain back highway access, not as a matter of legitimate entitlement, but as a free
benefit to its property. In essence, Morris Family would gain back for free what the
State paid for in 1970.
[¶27.] The United States Supreme Court has recognized “that a benefit is not
a protected entitlement if government officials may grant or deny it in their
discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S. Ct.
5. Morris Family cites to Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). In Memphis, Light, Gas & Water, the
United States Supreme Court specifically noted that electric customers had a
“‘legitimate claim of entitlement’ [to continued utility service] within the
protection of the Due Process Clause.” 436 U.S. at 12, 98 S. Ct. at 1561.
Therefore process was due when the utilities were terminated. Id.-14-
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2796, 2803, 162 L. Ed. 2d 658 (2005). In this case, the State officials have full
discretion to grant or deny requests for relinquishment of access control. Morris
Family has not directed our attention to any statute or other independent source
giving it legitimate claim to entitlement to the access, therefore no process is due
when its request for access is denied. See Bd. of Regents v. Roth, 408 U.S. 564, 577,
92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972) (“Property interests, of course, are not
created by the Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an independent source
such as state law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.”).
[¶28.] The record reveals that Morris Family failed to identify a property
interest damaged or taken to support its takings claim. It was likewise unable to
identify a property or liberty interest needed to support a procedural due process
claim. Accordingly, Morris Family has failed to meet its burden of showing “that
[it] will be able to place sufficient evidence in the record at trial to support findings
on all the elements on which [it has] the burden of proof.” Bordeaux, 2005 S.D. 117,
¶ 14, 707 N.W.2d at 127 (quoting Chem–Age Indus., Inc., 2002 S.D. 122, ¶ 18, 652
N.W.2d at 765) (internal quotation marks omitted). We therefore conclude that the
circuit court did not err when it granted summary judgment on all claims and
dismissed the case.
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CONCLUSION
[¶29.] For the above stated reasons, we conclude that the motion for
summary judgment was properly before the circuit court, and the circuit court did
not err when it granted summary judgment on all issues. We affirm.
[¶30.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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