*1 employees, may argue the record from which Dillard’s Several experienced. Greens jury that it Dil- negligent. and the store to the was not supervisor including her had in an place employee training lard’s that Dillard’s manager, told Greens program and a procedure to handle em- McCrary “for this” or that disciplined had ployee disciplinary problems, it disciplined “with this” in McCrary problems had had behavior, McCrary posted for rude it had to rac- “this” referred past. Whether signs informing the store customers question of fact on this ist behavior is procedure, complaint about a and other McCrary record, inference that but employees were courteous Greens racially discriminatory ten- displayed had apologized McCrary’s for behavior. not inconsistent with past in the dencies Agüero testi- the other evidence. While III. for which that one of the incidents fied there are material of fact Since issues reprimanded involved McCrary had been the elements to make out a case woman, McCrary’s personnel neither white the district court erred in testimony deponents of the file nor the granting summary judgment to Dillard’s. customers indicate the race of the other For judg- these reasons we reverse the complained. who ment and remand the case for trial. by that inaction juryA could also infer incident. Dillard’s contributed pro-
There is evidence that Dillard’s lacked remedy discrimination toward
cedures
customers, consistently keep did not rec- complaints, employed manag- ords of HARDING, DA- COUNTY OF SOUTH prompt not take corrective ers who did KOTA, political subdivision against action discrimination. Dillard’s Dakota, State South apparently inquire also did not into unex- Commissioners; through its Board of McCrary’s plained employ- anomalies Casey Olson, for himself and on be- history applied job ment when she for a similarly half all the other situated being purportedly After “down- its store. taxpayers Harding County, South sized,” McCrary relatively moved from a Dakota, Plaintiffs/Appellees, job at AT T high paying & to unskilled position employed at Kmart. Kmart her only two months and laid her off FRITHIOF, Hollrah, Melody Ron Kim holiday month of December when the Harrell, Defendants/Appellants, shopping presumably in- season Debrovner, Fred Unidentified crease Kmart’s demand for labor. through Defendants A pro- have plaintiffs We conclude E, Defendants. jury duced sufficient evidence to raise No. 06-2793. knew or issue about whether Dillard’s McCrary’s racially known of should have of Appeals, United States Court only propensities
hostile and not Eighth Circuit. it, stop take measures to reasonable Dec. 2006. Submitted: McCrary place continued to on the sales April Filed: 2007. her to interact with floor and authorize (Second) customers. See Restatement
Agency § There is also evidence in
excavating general fossils in the same area pursuant agreement negotiated to a lease Gary Company with Gilbert Cattle Gilbert, adjacent landowner. Gilbert Company the 200 acres from Cattle leased grazing purposes. provision The “Rent” of the lease did not provide payment, for a fixed annual indicated Frithiof pay: instead (10%) percent selling of the actual Gusinsky, argued, Rapid City, [T]en Robert *4 (Thomas Fritz, Jackson, price fossils collected from the Lynn & G. SD Lessor(s) SD, property and which are sold City, Joseph Eugene Ellingson, Rapid SD, brief), by the for a sum exceeding for Defen- Lessee One Spearfísh, Thousand and Dollars dants/Appellants. No/100 ($1,000.00). pay Lessee will such sum to Barker, argued, Kenneth E. Barker & Lessor(s) (30) thirty days within of such Fourche, SD, Reynolds, Belle for Plain- receipt sale and of the purchase price tiffs/Appellees. Lessee. BYE, COLLOTON, and Before “Rent” provision This is identical to the BENTON, Judges. Circuit payment terms used in one of exemp- two County provided lar leases the Frithiof s BYE, Judge. Circuit lease, attorney during negotiations for the Frithiof, Hollrah, Melody Kim and Ron specifically, fossil-collecting lease the determi- appeal Harrell district court’s County reached with an individual named fossil-collecting agree- nation that a Mike Triebold 1996. Harding Frithiof and ment between Coun- 19, 2004, August County On brought Dakota, ty, South was invalid because the against suit partners Frithiof and his County Commission did not hold a federal alleged district court. The suit approving the lease. Fri- before Frithiof excavated the fossil remains of a thiof, Hollrah, appeal and Harrell also juvenile Tyrannosaurus rex—referred to unjust of their enrichment coun- dismissal as prior Tinker —from the leased land County. against terclaim We reverse 2000,1 year secured million $8.5 further proceedings. and remand for Tinker, offer for and did not advise the County discovery during of the the lease
I negotiations “despite having duty to dis- 9, 2000, Harding County On November close such information.” The suit con- five-year agreement with Ron sounding reached tained nine in actual counts collect, fraud, conversion, allowing prepare, fraud, Frithiof him to constructive tres- might rescission, and vertebrates he on pass, conspiracy, sell fossil find civil breach of County’s 200 land in the good dealing, acres of bad- faith and fair Dakota. fiduciary duty, lands of western South Prior breach of and one count for lease, negotiating declaratory judgment. declaratory Frithiof had been The located, discovered, payment Under the or removed terms fos- provisions apply Property prior terms and other would still sils on the Leased ... to the the event it "[i]n lease[J” is determined that Lessee date of this
545 Frithiof part count “because countered no was comply with vari- because the the Commission lease should be con- (sic) governing rules the sale strued as of the date on which it ous was and/lease made, by County owned when exe- of that date the lease’s value Lease,2 highly speculative cuted the Second Second contingent upon Lease is void voidable.” Frithiof the sale of fossils found on and/or land, partners and his denied the alle- and no sale had occurred. He gations brought a counterclaim for further contended did not unjust breach of contract and enrich- present any prove evidence to the value of ment/quantum meruit. the contingency. alternative, In the he contended the failure to hold a public hear- partners brought and his a mo- ing did not render the lease void ab initio summary judgment arguing they tion for merely meant the exercised its did not commit fraud and had title to power irregularly estopped and was from pursuant Tinker to the valid and enforce- rescinding the lease under South Dakota able lease.3 filed motion for Arnold, law. See Mellette partial summary judgment arguing the (S.D.1956) S.D. 75 N.W.2d agreement grounds: was invalid on three *5 (distinguishing irregular between the exer- a) agreement actually the was a contract granted power cise of a a and total absence lease, public property, for the sale of not a power, of stating: “When an act or con- and invalid because the did not beyond tract is power upon the conferred a statutory requirements follow for the sale When, it county, estopped. cannot be b) public property; of if a the Coun- however, power act, a to it ty public hearing did not follow the re- estopped by be the of agents acts al- quirements under South Dakota Codified though the method of exercising power the § rendering Law 7-18-32 the lease void ab was c) irregular.”). initio; and the lease should be rescind- upon ed based a mutual mistake of law. court granted County’s district the partial summary motion for judgment and respect argument, to the second With denied Frithiofs motion. The district § requires 7-18-32 the to hold a County’s court focused on the argument public hearing authorizing before a lease regarding public hearing requirements the exceeding “for a term twenty one hundred § Although County’s of 7-18-32. the com- days exceeding and for an amount five plaint alleged In Frithiof received an mil- hundred dollars annual value.”4 $8.5 court, Tinker, district lion offer for the sale of contended the district receiving lease had an annual value of more than court noted he denied such an Instead, five hundred dollars in because Frithiof re- offer his answer. the district portion moved a of the fossils before the court indicated Frithiof did not contest negotiated, lease diversity jurisdiction was and then later re- federal which re- quired ceived million offer for their sale. the amount in controversy to be $8.5 contrast, § 2. The to the “Second Lease” to reference 4.In 7-18-31 of South Dakota the lease executed on November 2000. generally Codified Laws allows the to county-owned property,” “lease its thus indi- provided: "Legal 3. The lease title to this fossil cating is not for specimen located collected the Les- and/or specified leases other than those in 7-18- see on the Lessor shall be in the Lessee, whether or not removed from the property.” dismissed, independently ad- or be a coun- would more, and had
$75,000 or counterclaim. merits of the dressing the in the unjust enrichment terclaim those Based $200,000. amount of II it concluded court facts, the district two grant court’s the value review district place We “not unreasonable novo, viewing the exceeding judgment de summary an amount the contract favorable to the light court most The district evidence dollars.” five hundred Vincenz, 382 public nonmoving party. to hold Revels County’s failure held Cir.2004). (8th ini- invalid ab the lease F.3d hearing rendered granting the order Pursuant tio. the dis first contends Frithiof summary judg- partial for County’s motion determining lease erred trict court was entered ment, a final hearing lack for was invalid in a favor, also resulted which County pre § 7-18-32 because un- for counterclaim s of Frithiof dismissal the value of the lease no evidence sented just enrichment. agree. We it was entered. at the time require does not 7-18-32 timely Section filed partners and his “for an amount a lease is hearing unless pub- they contend appeal, On appeal. annual val dollars exceeding five hundred do 7-18-32 requirements of lic not further the statute does ue.” Because pres- not did apply not because “value,” we understand the term value of the define ent evidence addition, In fair market value. alterna- mean entered. at the time was contention the with Frithiofs agree to we County’s failure tive, they contend the fair analyzing period time irreg- relevant merely an hearing was hold a *6 it to be requires the market value of County’s power the ular exercise the on which was as of date re- construed estopped from be County should the which made, events regard without to con- Finally, Frithiof the lease. scinding execution.5 subsequent to its it en- have occurred when court erred the district tends determining Thus, to the value relevant favor in full tered is required was whether the counterclaim notice giving without (Tenn. 1966) ("It this Court to is the directly Dakota cases are Although no South issue, the date of their plethora of cases as of contracts point on construe on this agreements exegesis "it well jurisdictions making. establish of such Our from other as of occurring must be construed upon that a subse settled contract events be based cannot cannot execution."); [and] it was made the date which Walker M.H. Re quent to their occurring subsequent to 435, events upon N.Y., be based Utah alty 60 Co. v. Am. Sur. Co. of Square, L.L.C. v. Bowdoin [its] execution." 1922) ("[W]e 998, (Utah must 1005 211 P. Inc., So.2d Montgomery, 873 Winn-Dixie light in the terms [a contract’s] consider (internal 1091, (Ala.2003) quotation 1101 they at the time the as existed conditions Co., omitted); v. Am. Tobacco also Texas see light not in the entered into and contract Cir.2006) ("[A] 399, (5th con- 463 F.3d 407 conditions.”). subsequent it was made and of the time tract is viewed as to believe South have no reason We events.") (applying subsequent light of not in disagree with Supreme Court Dakota law); v. Ma- Supply Co. Robins Texas Warner jurisdictions if faced with this other these 709, 332, lone, 712 238 S.E.2d Ga.App. 143 Transp. Int’l v. See Novak Navistar issue. ("The surrounding circum- (Ga.App.1977) 844, Cir.1995) (8th ("If 847 Coip., 46 F.3d as of time be considered stances must unsettled, duty to apply is our law is state light of and not in the subse- is made contract Parks, South Dakota Su- we believe the events.”); the rule Allright Auto Inc. quent follow.”). preme Court would 364 Berry, 409 S.W.2d 219 Tenn. County County could in that the attempting amount for which the itself is to lease on November have sold the show a should have been (as basis), i.e., an annual held, calculated on upon it is still incumbent day signed. value on the it was fair market prove to the fair market value of the lease at the time it was entered. inquiry view that the relevant re- Our us to determine fair market value quires allegations by The three relied upon day signed lease was is but- on the proof district court or the §of 7- by apparent purpose tressed one lease’s fair market value at the time it was 18-32, to ensure assets are which is 1) entered are: million $8.5 private in- unfairly advantage not used 2) Tinker; offer for the sale of the fact is, terests, prevent jurisdiction diversity depends on the entering from sweetheart Commission controversy $75,000; amount in being over deals with select individuals. The circum- 3) the allegation unjust enrichment meaning under which 7-18-32’s stances $200,000. counterclaim has a value of We in disputed of value is this case are some- each of these address contentions turn. unusual; expect what we the more com- a dispute mon situation which about A. The $8.5 Million Offer might value would arise be where a tax- payer County alleging sues the someone Although the district court did not received a sweetheart deal without rely upon the million offer for the sale $8.5 hearing. benefit of such Tinker, appeal, does. On situation, it would be incumbent deny Frithiof does not receiving an $8.5 adequate to show it received com- Tinker, offer million for the sale of i.e., fair pensation, market value. Similar argues the offer is irrelevant because it explicitly statutes other states refer to was received subsequent to the date the See, e.g., “fair market value.” Neb.Rev. lease was entered and never consummated. (providing “county 23-107.01 Stat. above, agree. We As discussed the rele power board sell or lease real estate inquiry vant is the fair market value of the county owned and not entered, lease at the time it was without at a fair purposes market value *7 regard may to events which have occurred open public hearing”); an [after] W. subsequent to its execution. Because the (requiring agen- § 20-1A-5 Va.Code state million offer for the sale of Tinker $8.5 public hearing prior cies to hold a subsequent occurred to the lease’s execu minerals, sale or lease of land or title to at tion, County rely upon the cannot it to by which the evidence must a establish the fair prove market value of the lease. preponderance appraisal that an of the County’s reliance upon The the subse- true, item to be “reflect[s] transferred the quent fair prove offer to the market value value”); fair market see also Salt Lake the of lease is based two flawed County County Comm’n v. Salt Lake At- First, (Utah 1999) premises. County the to appears torney, 985 P.2d 909-10 equate contingency the value aof realized (discussing policy “preventing gov- of of contingency the value itself. any way ernment from in using public provision Because the rent the lease is private purposes” assets for which re- contingency, based on a the lease’s fair quires counties to receive “fair market val- market future ue” transfer of an interest in value is the value of the Thus, exceeding property). though even the circum- chance fossils will be dis- $1000 unusual, sold, stances of this case are somewhat covered on the land and as present value in order to per- to receive ten to determine by right reflected price. Equating hearing a their sale determine whether cent of of the chance with the value required. value analo- contingency is somewhat
realized County agreed if the example, For lottery value of a equating the gous to 200 acres to a rancher for same jackpot. The the value of ticket with pay- year one and decided the rancher’s Similarly, the value not the same. two are would be calves which two of his ment discovering fossils a chance at dinosaur of following year, produced cows of is not the particular parcel land obligation still have the of the dinosaur fossils as the value same by present determine the value of the lease In this they have been discovered. after considering chance the two cows would case, present any calves, of they have the number calves the value of the competent evidence of have, price and the market those might the lease was the time contingency in the future. The might bring calves testimony an apprais- as from signed, such following could not wait until the value of fossil-collect- er familiar with the leases, year the value of the lease at because ing appraise who could evaluate $0 calves, of the sale right percent to receive ten the two cows did not have or at price any fossils excess because the cows each had two $1000 $1000 parcel of might particular be found on this calves.
County land. second flawed argument, the took At oral premise is the notion the fair market value argument regarding contingent na of the lease is affected the information by argu further step ture the lease one to Frithiof at the time the lease was known requiring ing 7-18-32 should be read negotiated, County alleges he which contingent public hearing whenever duty disagree. had a to disclose. We in fu potential resulting lease has the fraudulently, Whether acted payments exceeding ture five hundred dol whether he had a to disclose certain disagree. lars annual value. We Section during negotiations information for the only requires 7-18-32 not, lease which he did his whether days for a term over 120 when a lease is may give indepen fraud to an rise exceeding five hundred and “for amount invalidating dent basis for are all value.” The statute dollars annual does issues that remain to be resolved in the require not whenever fu court, and are not at this district before us payments poten ture under the lease purposes determining time. For wheth annual tially exceed five hundred dollars *8 public hearing er a nothing compelled the Certainly, value. 7-18-32, we cannot presume pres contingency to introduce a future County proves ence of fraud before the
into this lease. The fact the com Thus, juncture, at such fraud. this our plicated the determination of the lease’s analysis must be limited to what the Coun introducing fair market a future value knew, ty actually without consideration of contingency there was no did not mean lease, any alleges additional Fri- of the information present ascertainable value duty and did not thiof had a to disclose.6 absolve the agree concurring opinion part, upon parties having 6. We with the in "both reasonable depends, knowledge the calculation of value of the relevant facts.” In re Disso- fair market $75,000 B. The Amount in Controver- year. The district $500 court never ex- sy plained how the value of the counterclaim related to the fair market value of the The district court relied Fri- upon lease at time it was entered. Frithiof s thiof s failure to contest the court’s diversi counterclaim is for the amount he and his ty jurisdiction, concomitant in amount partners in spent finding, excavating, pre- controversy, proof as the fair market value paring, marketing Equat- fossils. of the lease a year. exceeded This $500 ing those costs to the value of lease is misplaced reliance is for two reasons. like equating the cost of an oil' lease with First, the alleged amount in con all the oil, costs associated with finding the troversy cannot proof substitute as of it, it, capturing refining and the marketing actual amount in controversy. Such an costs placing attributable to same approach epitome is the of circular reason the stream of commerce. The simply two ing. A party prove up cannot its case cannot be equated. The County offered no simply by referring back allegations to its evidence to establish a relationship be- regarding the in controversy. amount Cf. tween the value of a lease, fossil-collecting Zhuang Corp., Datacard 414 F.3d and the costs associated excavating, (8th Cir.2005) (“When a motion for preparing, marketing pursuant fossils summary judgment is made and supported to such a lease. rule, provided as an adverse party this Although the record in case this is be- upon not rest allegations [ ] mere or reft direct evidence of the fair mar- 56(e))). (quoting denials.” Fed.R.Civ.P. ket value lease at the time it was Second, in case, this particular fair entered, sparse evidence which does market value of the lease is not the same supports exist an inference the an- lease’s as the amount in controversy event. nual value was less than $500. The amount in controversy relates to the to deposition refers testimony indicating Tinker, full value of whatever such value the County customarily failed to pub- hold might be. The market fair value lic hearings entering when into fossil-col- lease is not the as same Tinker’s value. lecting example, For leases. the Harding Further, explained above, as the estimated County Auditor testified a value of Tinker is based on events which lease, was not held on the Triebold which subsequent occurred to the lease’s execu- contains contingency-based the identical tion, and cannot be relied to prove payment provisions as Frithiof s ex- the fair market value of the plaining no was held be- time it was entered. cause the lease did not have an annual value in Appellant’s excess App. $500. $200,000
C. The Counterclaim Although argued could be The district court also relied upon County’s practice of past holding a not value of Frithiof s counterclaim hearing on contingency-based fossil- to conclude the value of the lease collecting equally exceeded supports leases an infer- Enters., Midnight addition, lution Star L.P. genuine rel. ex factual issues remain Enters., Ltd.,
Midnight Star 724 N.W.2d *9 to whether Frithiof knew the fossils were on (S.D.2006). 338 Which facts are “relevant” the County's land when the lease was entered. case, however, Therefore, in this remains to be deter County’s summary for motion noted, mined. As we County yet has not irrespective fail must of what facts established committed ultimately fraud or which are determined to be “relevant” to facts he had a County. disclose to the the calculation of the fair value. market 550 III County was in the habit of violat-
ence the 7-18-32, § requirements of ing the County urges us to affirm the accept district court was ground, court on an alternative district purposes for of sum- inference adverse a contending the lease should be treated as mary judgment. property public contract for the sale of Frithiof title to grants because fos Dakota refers to South Co- Frithiof also may find. The contends sils he 5-1-16, § entitled “Promul- dified Law agreement is therefore void because paleonto- issue of governing gation of rules statutory did not follow the Under subdivision logical excavation.” public proper requirements for the sale of right to collect fossils on the fees for ty Codify under South Dakota Laws ch. 6- public lands” are the state’s “school disagree. 13. We twenty-five dollars for an “not to exceed fifty and two hundred exploration permit Chapter applies surplus govern- 6-13 permit.” Again, dollars for an excavation property. mental South Dakota Codified evidence of the annual while not direct surplus property Laws 6-13-1 indicates fossil-collecting a lease on the value of longer that determined “no neces- is to be by particular 200 acres owned useful, sary, purpose or for suitable for here, the minimal value the issue acquired.” which it was Dinosaur fossils generally placed fossil-collecting on state statutory do not meet definition of (albeit an a weak supports leases inference surplus property, they neither since were one) involved here had an annual the lease acquired initially particular purpose, for a than value of less they necessary, $500. longer nor did become no useful, Thus, chapter or suitable. 6-13 Finally, grazing the annual value of the apply. does not between the and Gilbert Cat- lease respect to the same 200 Company tle contends, As Frithiof there is a acres covered Frithiofs lease was county’s private distinction between a Appellee’s App. Although $283.92. property property public held for use. relation- there is no direct evidence Huron, City Huron Waterworks Co. v. ship grazing (S.D.1895). between leases and value S.D. 62 N.W. A leases, fossil-collecting the record here in- governmental entity’s authority to sell and habitually dicates the held dispose property of interests in not held entering grazing when leases. hearings for use is broader than it for fact, App. 402-03. Such Appellant’s Compare held for use. conjunction with the failure to (generally S.D. Codified Law 7-18-31 public hearings fossil-collecting authorizing county-owned hold the lease of leases, suggests fossil-collecting property) lease with S.D. Law Codified eh.7-30 grazing value than a (imposing have less lease.7 limits on the lease of real recognize making likely 7. We the inherent flaws in while there is to be a more direct rela- apples-to-apples comparison respect between a tion between value and size with to a grazing fossil-collecting grazing lease and lease. lease. We call attention to the infer- paleontologist may example, by comparing County’s past For know she ence raised likely practices regarding public hearings is twice as to find a valuable dinosaur more to particular emphasize tract fossil on of 100 acres than the dearth of evidence in this rec- respect she is to find one on different tract of 1000 ord of kind with to the fair mar- acres, making emphasize a lease value than to smaller tract ket larger, twice as valuable as a lease on the inference. *10 vacated, need not Fossils must be we ad- public purposes). estate held for judgment public purpose, dress his contention should governmental or serve no county’s not have been entered without the be considered merits and thus should Here, being of of the counterclaim the transfer addressed. property. private fossils was inciden- ownership to dinosaur vacate final judgment We entered was for purpose tal to a lease whose stated favor, and remand this case survey and collection of fossils. We proceed- to the district court for further between the transfer see little difference ings opinion. consistent with this fossil-collecting ownership under an oil and the transfer which occurs COLLOTON, Judge, concurring Circuit lease, where the extraction of grazing or judgment. in the land inciden- grass oil or from the leased law, county may Under South Dakota “a lease, and not considered tal county-owned property,” “any lease its surplus property which must be sale of upon such lease shall be for a term and upon. The has auctioned or bid provided by conditions resolution of the any provision attention to not called our § governing body.” 7-18-31. If S.D.C.L. require Dakota law which would the South county any county- “decides” to lease differently than it to treat dinosaur fossils exceeding owned for a term one transferred incident county property other twenty days hundred and for “an amount to a lease. exceeding five hundred dollars val- .annual ue,” a public hearing then shall conduct IV authorizing before the lease. S.D.C.L. sum, hear- in order to show 7-18-32. The statute is pursuant should have been held ing easily applied to a lease that calls for a 7-18-32, was incumbent fixed amount of If a consideration. fair present evidence of the payment twelve-month lease calls for the lease at the time it year, market value of then the shall hold per $1000 entered, relying upon events authorizing was without before subsequently. case, however, Neither which occurred This involves a con- lease. County rely upon paid could the an evaluation to be tingent where the amount alleges information it Fri- depends entirely which included on the occurrence of a it, fraudulently thiof concealed from before future event that is indeterminate when proven principal he committed the lease is authorized. The evi- present appeal fraud. The questions presented on are how situation, dence of the fair market value of the lease apply statute should to this entered, and at the time it was thus a failure to conduct a hear- whether granting erred in the Coun- required, district court if voids the ing, lease.
ty’s partial summary judgment. motion for unclear in its The text of the statute is lease, but I am summary application contingent to a
Having judgment concluded majority’s decision improperly granted, we need not ad- doubtful about hearing depen- of a argument requirement re- make the dress Frithiofs alternative county- value” of County’s failure to hold a dent on the “fair market garding interpre- property. proposed owned public hearing merely being irregular evidentiary prob- complicated tation raises power require exercise of which did not Furthermore, citizenry, it can lead to lems for the the lease to be voided. be- county seeking for a in favor of the unreasonable results cause the final *11 552 recognizes a “broad dis- Dakota South “Fair market the statute. comply with
to a irregular exercise of between an tinction price “the at which means typically value” pow- of and a total absence granted power hands between change the Arnold, 76 County v. S.D. Mellette er.” seller, willing neither and a willing buyer a (S.D.1956). 210, 641, 643 When 75 N.W.2d buy or to compulsion to any being under act, may be county “power a has knowledge having reasonable both sell and agents although by the acts of its estopped v. Cart- States United relevant facts.” of power exercising of the method 551, 1713, 546, 36 93 S.Ct. 411 wright, U.S. Id.; City v. River Tel. Co. irregular.” Mo. (1973) Treas. (quoting Reg. L.Ed.2d 528 Mitchell, 67, 70 22 116 N.W. S.D. of added). 20.2031-2(b)) In (emphasis this § (S.D.1908). ir- an The between distinction that Ron case, very it is power and a total ab- exercise of regular a facts and of relevant had knowledge had in context raises essen- power sence of this county, facts to the these duty to disclose legislative intention: tially question a until after the them that he withheld prerequisite made “Are conditions allegation is If this authorized. lease was limita- very power existence of —a interpretation majority’s then the proved, Cot- power on the itself?” Summers tion finding in a that § would result of 7-18-32 493, 117 Cape May, 19 N.J. tage Ass’n hearing stat- county public violated (N.J.1955). A.2d market value” of the the “fair ute because meaning question, like the Although this annum at the time per lease exceeded $500 doubt, 7-18-32, § not free from though the it was entered —even to be that the authori appears better view I hesitate knowledge of value. had no this public an a lease advance zation of without legislature. this intention to ascribe irregular an exercise hearing amounts to granted to counties South power of a given argument, There is reasonable that coun question Dakota. There is no and the evident statu- ambiguous text authority county-owned ties have to lease county should be tory purposes, that proce § property. S.D.C.L. 7-8-31. when- public to conduct public hearing of a for requirement dural a lease to enter into that ever decides separately, and certain leases is codified exceeding of an amount payment for calls pro fit to legislature not seen has contingen- if future year, certain per $500 it has in situations —that vide—as other at 548. ante cies are met. Cf. procedure renders irregularity accept consideration case, decision to (“It § void. 5-18-19 null and S.D.C.L. Cf. made, there been excess $500 any public corpora for shall be unlawful hear- opportunity is no further to enter into con tion or officers before that decision is or comment ing this chap tract in violation of the terms of however, I Ultimately, conclude executed. chapter 5-21, such contract ter or unnecessary to decide whether that it is null and void and of entered into shall be technically hearing requirement effect.”); City Bozied v. no force and in these circumstances. Under applied (S.D. Brookings, 638 269-70 N.W.2d law, assuming even Dakota 2001) South change order was void (holding that by entering into the lease county did err city comply where 7-18-32, 5-18-19). § without bidding requirements automatically Therefore, not void a applied that failure does 7-18-32 assuming entry governing county’s I into is authorized this believe lease that undertaken lease was not disputed body. *12 power,” Mellette a “total absence that County, 75 N.W.2d the va- estopped deny
county “may be it has led others to
lidity of a [lease] Mo. River legally adopted.”
believe was
Co.,
Tel. reasons, judg- I concur
For these that the case should be agree
ment and proceedings further on the
remanded for appel-
county’s against other claims
lants.
Rodney FISCHER, Appellant, P. CORPORATION,
ANDERSEN
Appellee.
No. 06-2273. Appeals, Court of
United States
Eighth Circuit. Dec. 2006.
Submitted: April
Filed: