Lead Opinion
[¶ 1.] On Nоvember 21, 2006, the circuit court of the South Dakota Seventh Judicial Circuit issued a decision granting Steve Keller’s (Keller) motion for summary judgment in connection with a personal injury claim filed against him by Robert Anderson (Anderson). An alternative motion for continuance, filed by Anderson, was denied. The circuit court entered its corresponding order on December 8, 2006. We affirm.
FACTS AND PROCEDURE
[¶ 2.] There is no dispute that on July 22, 2003, a vehicle owned by the Angostura Irrigation District (Angоstura) and operated by Keller collided with one driven by Anderson. Anderson was proceeding in a southeasterly direction and had just emerged onto. Fall River County Road 416C from a private drive on his property.
[¶ 3.] In a sworn affidavit, Anderson alleges that following the collision, Keller called Angostura’s manager and secretary Mick Jenniges to inform him of the incident.
[¶ 4.] Anderson did not filе his personal injury complaint against Keller until March 17, 2006. On September 14, 2006, Keller filed a motion for summary judgment alleging that Anderson had failed to comply with the statutory notice provisions of SDCL 3-21-2, which is relevant to personal injury claims against a public entity or its employees. On October 23, 2006, Anderson filed a memorandum in opposition to the motion for summary judgment and an alternative motion for continuance to conduct discovery. On Nоvember 21, 2006, the circuit court issued its decision, granting Keller’s motion for summary judgment and denying Anderson’s alternative motion for continuance. The order of the circuit court was entered on December 8, 2006.
[¶ 5.] Anderson raises two issues on appeal:
1. Whether the notice requirements of SDCL 3-21-2 were satisfied.
2. Whether the circuit court abused its discretion in not granting Anderson’s motion for continuance to conduct discovery as to the scope of notice provided to Angostura.
STANDARD OF REVIEW
In reviewing a trial court’s order granting a motion for summary judgment, “[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” “We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party.”
Gakin v. City of Rapid City,
ANALYSIS AND DECISION
[¶ 6.] 1. Whether the notice requirements of SDCL 3-21-2 were satisfied.
[¶ 7.] Keller’s employer, Angostura, is a political subdivision formed under SDCL 46A-4-19.
No action for the recovery of damages for personal injury, property damage, error, or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.
(Emphasis added). The irrigation district’s secretary is a person designated to receive notice on its behalf. SDCL 3-21-3(5).
[¶ 8.] This Court has stated that notice in accord with SDCL 3-21-2, sufficient to satisfy the statute, is notice of a claim. Gakin,
[¶ 9.] Anderson did not file his complaint against Keller until March 17, 2006, almost two years and eight months after the date of alleged injury that triggered the 180-day notification period under SDCL 3-21-2. See Gakin,
[¶ 10.] Nevertheless, Anderson argues that the statutory notice provisions were satisfied, alleging substantial compliance
[¶ 11.] While this Court has never recognized actual knowledge of a person designated to receive notice for a public entity as a substitute for a plaintiffs adequate notice of claim,
[¶ 12.] In Myears v. Charles Mix County,
[¶ 13.] In order to reacquaint those tasked with detecting its existence we restated our prior definition of substantial compliance:
“Substantial compliance” with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.
Id. ¶ 13,
(1) To investigate evidence while fresh; (2) to prepare a defense in case litigation appears necessary; (3) to evaluate claims, allowing early settlement of meritorious ones; (4) to protect against unreasonable or nuisance claims; (5) to facilitate prompt repairs, avoiding further injuries; (6) to allow the [public entity] to budget for payment of claims; and (7) to insure that officiаls responsible for the above tasks are aware of their duty to act.
Id. (citing Budahl,
[¶ 14.] In its November 21, 2006 letter decision, the circuit court determined that Keller’s, August 3, 2003 insurance form did not constitute substantial compliance with SDCL 3-21-2. In so determining, the circuit court noted that the personal injury portion of the insurance form was left blank.
[¶ 15.] We agree with the circuit court. While the insurance form states the time and location of the collision, the fact that the personal injury section is left blank falls short of meeting the objectives of the statute and hence defeats any notion of substantial compliance. Without notice of injury or claim, we cannot assume that Angostura would have conducted an investigation through the same lens as it would have with such notice and there would have been no reason to prepare for litigation. See Myears,
[¶ 16.] We also conclude that there are two additional bases on which to determine there was no substantial compliance. First, there is nothing in the record to indicate to whom Keller submitted the insurance form. Substantial compliance requires that the person who receives the notice be someone who could take necessary action to ensure that the statutory objectives are met. See Myears,
[¶ 17.] Anderson’s argument for reversal on the ground that Jenniges had actual knowledge is lacking not only because we do not recognize actual knowledge as a substitute for adequate notice, but also because the underlying basis for his claim lacks evidentiary support. In addition to Keller’s insurance form, which we need address no further, Anderson argues that Jenniges had actual knowledge by virtue of Keller’s alleged call following the incident and his alleged visit to the scene of the collision. Once again, there is nothing in the record to indicate that Jenniges was informed of any injury to Anderson or alleged claim, by way of the phone call or on-scene visit. Even had he been so infоrmed such notice would have been conveyed orally, which would have been inadequate. See Gakin,
[¶ 18.] Based on the foregoing analysis we find no ground on which to reverse the circuit court’s order granting Keller’s motion for summary judgment.
[¶ 19.] 2. Whether the circuit court abused its discretion in not granting Anderson’s motion for continuance to conduct discovery as to the scope of notice provided to Angostura.
[¶20.] Anderson argues that the circuit court should have granted him a continuance to conduct additional discovery because “he would more fully be able to show the extent of the Angostura Irrigation District’s notice of his claim if he were allowed the opportunity to depose Steven Keller and Mick Jenniges.” From the record, it appears that the only discovery conducted by Anderson during the three years and three months between the July 2003 collision and his October 2006 motion for continuance was to submit one set of interrogatories to Keller, to which Keller appears to have responded. Anderson had ample time to conduct depositions of Keller and Jenniges, but showed no interest in doing so prior to October 2006. The circuit court may well have decided that Anderson simply wanted to engage in a fishing expedition and we see no reason to compel it to embark on such a voyage at this late date.
[¶ 21.] Affirmed.
Notes
.The record in this case contains little evi-dentiary material. Keller’s statement as to the point of impact is derived from an insurance form that he filled out and submitted following the accident. The insurance form bears a date stamp of August 3, 2003. Who asked Keller to fill out the insurance form and who he submitted it to is not revealed in thе record.
Keller filed a motion to strike with this Court alleging that the insurance form and two other documents were improperly included as appendices to the Appellant’s brief because they were never filed separately with the circuit court as evidence. We subsequently denied this motion and thus consider the appendices as part of the record on appeal.
. Anderson’s affidavit is included as an appendix to the appellant's brief. Keller also filed a motion to strike this document. See supra note 1.
. Excerpts from defendant’s answers to plaintiff’s first set of interrogatories also include a statement by Keller that, following the collision, he called Jenniges to inform him of the incident. Keller also filed a motion to strike this document. See supra note 1.
. SDCL 46A-4-19 provides:
If a majority of all the votes cast are "Irrigation District-Yes,” the [Board of Water and Natural Resources] shall, by resоlution, declare the territory duly organized as an irrigation district, under the name and style designated. Upon filing of a true copy of the resolution with the secretary of state, the irrigation district shall become a political subdivision of the state with the authority, powers, and duties prescribed in chapters 46A-4 to 46A-7, inclusive.
. The statutory provision designating irrigation districts as public entities can be found under SDCL 3-21-1(2).
. In Mount v. City of Vermillion,
. In Smith, the plaintiff was involved in a collision with a state-owned snowplow on February 13, 1993.
Concurrence Opinion
(concurring and concurring in result).
[¶ 25.] I concur on Issue 1. I concur in result on Issue 2, regarding Anderson’s SDCL 15 — 6—56(f) motion for a continuance to conduct discovery so he could oppose the motion for summary judgment.
[¶ 26.] SDCL 15 — 6—56(f) governs motions for continuances to conduct discovery for purposes of opposing a motion for summary judgment:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may. refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
[¶ 27.] Today, the Court affirms the circuit court’s denial of Anderson’s Rule 56(f) motion because he “had ample time to conduct depositions of Keller and Jennig-es, but showed no interest in doing so prior to October 2006.” Supra ¶ 20. I disagree with this justification for affir-mance for three reasons.
[¶ 28.] First, the Court faults Anderson for showing no interest in cоnducting depositions “during the three years and three months between the July 2003 collision and his October 2006 motion for continuance [except for one set of interrogatories to Keller].” Id. However, Anderson cannot be faulted for not having taken depositions for three years because, as the Court itself notes, this action was not even commenced until March 17, 2006. Supra ¶ 4. Obviously, depositions could not have been taken during the two-year, eight-month period before the action was even commenсed. Moreover, the motion for summary judgment was not filed until September 14, 2006, and the request for continuance was made a little more than a month thereafter. Surely, we cannot charge Anderson with a three-year delay, when Anderson’s motion for a continuance was made only a month after the motion for summary judgment.
[¶ 29.] Second, it must be remembered that the motion for summary judgment did not involve the merits of Anderson’s claim. Rather, it was a motion for summary judgment on Keller’s procedural defense. We have affirmed dismissals of summary judgments where plaintiffs “did nothing to obtain [discovery] until some ten months after filing their complaint, when the merits of their case [were] called into question .... ” Farmers & Merchants State Bank v. Mann, 87 S.D. 90, 96,
[¶ 30.] Finally, it must be noted that the adequacy of notice was an affirmative defense. See SDCL 15-6-8(c) (noting that affirmative defenses include any “matter constituting an avoidance or affirmative defense”). Keller alone bore the burden of proving that defense. Burhenn v. Dennis Supply Co.,
[¶ 31.] Ultimately, however, I concur in result because Anderson’s Rule 56(f) affidavit supporting the continuance was plainly insufficient. In that affidavit, Anderson’s sole justification for the continuance was: “I also believe that I would better be able to resist Defendant’s Motion for Summary Judgment if I were allowed an opportunity to depose Steven Keller and Mick Jenniges regarding the extent of their knowledge in this matter.” However, Rule 56(f) requires more. It requires that “it appear from the affidavits of a рarty opposing the motion that he cannot
[¶32.] In Trask v. Franco,
A party seeking to defer a ruling on summary judgment under Rule 56(f) must file an affidavit that “explain[s] why facts precluding summary judgment cannot be presented. This includes idеntifying the probable facts not available and what steps have been taken to obtain these facts.” Comm. for the First Amendment v. Campbell,962 F.2d 1517 , 1522 (10th Cir.1992) (citation omitted). “[T]he nonmovant must also explain how additional time will enable him to rebut the movant’s allegations of no genuine issue of material fact.” Id. We have noted that a summary judgment movant’s exclusive control of information “is a factor favoring relief under Rule 56(f).” [Price ex rel Price v. W. Res., Inc.,232 F.3d 779 , 784 (10th Cir.2000)]. The Rule 56(f) affidavit of [plaintiffs] neither identifies any “probable facts not available,” Campbell,962 F.2d at 1522 , nor “statefe] with specificity how the additional material will rebut the summary judgment motion,” Ben Ezra, Weinstein & Co. v. Am. Online Inc.,206 F.3d 980 , 987 (10th Cir.2000). The affidavit does note that certain records and procedures manuals sought for discovery are under the control of the probation officers and their employer, but “[ejxclusive control does not ... require automatic relief under Rule 56(f).” Price,232 F.3d at 784 (internal quotation marks omitted). Based on the affidavit’s lack of specificity, the district court did not abuse its discretion in denying the request for additional discovery.
Id. at 1042.
[¶ 33.] In this case, Anderson’s affidavit also failed to state with specificity the facts he wanted to discover, why he had not previously been able to obtain them, and how those facts would support his opposition to the summary judgment motion. Anderson also did not claim that the facts he sought were under the exclusive control of Keller or Jenniges. Therefore, his motion for continuance was properly denied.
[¶ 34.] KONENKAMP, Justice, joins this special writing.