Gary WOLFF and Shirley Wolff, Plaintiffs and Appellants, v. SECRETARY OF the SOUTH DAKOTA GAME, FISH AND PARKS DEPARTMENT, Defendant and Appellee.
No. 19057.
Supreme Court of South Dakota.
Decided March 6, 1996.
Rehearing Denied April 11, 1996.
1996 SD 23 | 544 N.W.2d 531
Considered on Briefs Oct. 19, 1995.
Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for defendant and appellee.
GILBERTSON, Justice.
[¶1] Gary and Shirley Wolff (Wolffs) appeal the trial court‘s dismissal of their action against the Secretary of the South Dakota Department of Game, Fish and Parks (the Secretary). We affirm.
FACTS
[¶2] Wolffs own a parcel of real property near the Angostura State Recreation Area (Angostura). The United States Government acquired Angostura in 1949 when the area was condemned pursuant to the Flood Control Act of 1944. The State of South Dakota leases Angostura from the federal government and the South Dakota Department of Game, Fish and Parks (the Department) manages the recreation area.
[¶3] In May 1987, the Department closed a roadway into Angostura that Wolffs had been using for ingress to and egress from their property. Although Wolffs provided no notice of injury to the Commissioner of Administration or the Attorney General,1 on June 26, they served a summons and complaint on the Secretary alleging: violation of their rights of due process and just compensation; trespass; wrongful and unlawful in
[¶4] The Secretary subsequently answered the complaint raising some twenty-two affirmative defenses including failure to state a claim on which relief could be granted and sovereign immunity. However, the answer failed to raise any affirmative defense concerning lack of notice of Wolffs’ claim under
[¶5] A hearing on the issuance of a preliminary injunction to prevent closure of the roadway was held on November 13, 1987. On March 29, 1988, the trial court issued its memorandum opinion denying the injunction. Findings of fact, conclusions of law and an order in conformity with the memorandum opinion were subsequently entered.
[¶6] The record reflects no activity in the file from May 4, 1988 until May 17, 1990 when Wolffs filed a certificate of readiness for trial. In response, the Secretary filed a motion to dismiss for failure to prosecute. An order denying the motion was entered on September 18, 1990. Extensive discovery proceedings followed.
[¶7] On February 23, 1994, the Secretary filed a motion for summary judgment alleg-ing a lack of proof that Wolffs are entitled to any prescriptive easement benefitting their
[¶8] On September 29, 1994, the Secretary filed an additional set of motions including a motion to dismiss, “by reason of the failure of [Wolffs] to give the requisite jurisdictional notice required by §§ 3-21-2 and 3.” This was the first time in these proceedings that the Secretary raised the notice issue. The Secretary subsequently filed affidavits by the Commissioner of the Bureau of Administration and the Attorney General averring they were never given written notice of the time, place and cause of Wolffs’ injury as required by
[¶9] On December 19, 1994, the trial court issued its memorandum decision dismissing Wolffs’ action for failure to comply with the notice provisions. On December 29, the trial court entered the following order in conformity with its memorandum decision:
ORDERED that the above-entitled matter be, and it is hereby dismissed, on the merits and with prejudice, on the grounds and for the reason that [Wolffs] did not give notice to the Attorney General and the Commissioner of Administration, as required by
SDCL 3-21-2 and3-21-3 [.]
Wolffs appeal.
STANDARD OF REVIEW
[¶10] Wolffs raise several issues in an attempt to obtain a reversal of the trial court‘s dismissal of their action. In that regard, we note that the dismissal was granted for Wolffs’ lack of compliance with the notice provisions of
if, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading[s] are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
SDCL 15-6-56 .
Tibke v. McDougall, 479 N.W.2d 898, 903-904 (S.D. 1992).
[¶11] Based upon the above rule, the granting of the Secretary‘s motion to dismiss must be reviewed as the granting of a motion for summary judgment. In a summary judgment case, this Court‘s, “task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.” Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D. 1989).
I. Did the secretary waive the notice defense?
[¶13] As their first contention, Wolffs argue that the trial court erred in granting the Secretary summary judgment because the Secretary waived his notice defense by failing to plead it as an affirmative defense in his answer. While we agree that the notice defense should have been raised in the answer, under the facts of this case, we disagree with the proposition that failure to properly raise the defense waived the defense.
[¶14] In Brandner v. City of Aberdeen, 78 S.D. 574, 105 N.W.2d 665 (1960), this Court held that notice provisions similar to those currently contained in
Cody, 476 N.W.2d at 263 (citations omitted) (emphasis added).
[¶15] “Under
SDCL 15-6-15(b) , however, permits issues not asserted in the pleadings to be tried by the parties’ express or implied consent and the failure to formally plead an affirmative defense “is immaterial if the issue was tried by express or implied consent”The test for allowing an adjudication of an issue under
SDCL 15-6-15(b) tried by implied consent is whether the opposing party will be prejudiced by the implied amendment, i.e., did he have a fair opportunity to litigate the issue, and could he have offered any additional evidence if the case had been tried on the different issue. (footnote omitted; citation omitted.)
Varga, 381 N.W.2d at 251 (citations omitted).
[¶16] In this instance, the notice defense was first raised by the Secretary in a motion served on Wolffs on September 28, 1994. The affidavits establishing the lack of notice were subsequently served on Wolffs on October 6 & 7. Shortly thereafter, on October 12, Wolffs served a written response to the motion without any claim of prejudice or lack of a fair opportunity to litigate the issue. See id. In fact, on October 13, Wolffs filed a pretrial conference checklist specifically mentioning the Secretary had raised certain legal issues by motion which they had answered in their brief. Even more pertinent, the conference checklist states, “The [Secretary] has filed certain motions with the circuit clerk which plaintiff is prepared to argue at the pretrial hearing.” (emphasis added). The checklist also fails to contain any claim of prejudice or lack of opportunity to fairly litigate the issue over the notice defense. Id. Finally, it was not until December 19, nearly two months after the Secretary first raised the notice defense, that the trial court issued its decision dismissing the case on the basis of that defense.
[¶17] Based upon this record, it is clear that Wolffs had a sufficient amount of time to prepare to rebut the notice defense and that they actually consented to its consideration at the pretrial conference when they stated they were prepared to argue the motion at that time. Accordingly, although the Secretary failed to appropriately raise the notice defense in his answer, the record is clear that he did not waive the defense since it was tried with the implied consent of the parties.
II. Were Wolffs required to give notice as to all of their causes of action?
[¶19] Wolffs next contend that, even though they might have been required to give notice of injury as to their cause of action for trespass, they were not required to give notice as to their remaining causes of action. Accordingly, Wolffs contest the trial court‘s summary judgment on those causes of action.
[¶20] In support of their contention, Wolffs rely on the language of
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 injury is given ... (emphasis added).
This Court has interpreted
[¶21] Wolffs’ cause of action for forcible exclusion and ejectment is based upon
[¶22] Wolffs’ causes of action for inverse condemnation and deprivation of rights under
While public officials in their discretionary acts and decisions have immunity from claims founded in tort, § 14 of the North Dakota Constitution guarantees that a person will be recompensed for any taking or damaging of his property by the public. Section 14 authorizes a claim for inverse condemnation, which is not barred by the immunity [previously] discussed ... Such a claim proceeds from a constitutional 3 right and must be distinguished from claims grounded in tort theory only.
Minch, 297 N.W.2d at 789 (citations omitted) (emphasis added). In Hurley v. State, 82 S.D. 156, 143 N.W.2d 722 (1966), this Court similarly determined that
[¶23] Wolffs’ claims under
[A] state court may not decline to hear an otherwise properly presented federal claim because that claim would be barred under a state law requiring timely filing of notice. State courts simply are not free to vindicate the substantive interests underlying a state rule of decision at the expense of the federal right.
Felder v. Casey, 487 U.S. 131, 152, 108 S.Ct. 2302, 2314, 101 L.Ed.2d 123, 147 (1988). Thus, the notice of injury provisions have no effect whatsoever on the viability of Wolffs’
[¶24] Based upon the foregoing, Wolffs’ causes of action for inverse condemnation and under
III. Was the secretary entitled to summary judgment on merits?
[¶26] Having reached the conclusion that two of Wolffs’ causes of action should have survived the notice defense under
[¶27] The roadway at issue is in Angostura. As previously observed, Angostura is owned by the United States Government and is merely leased to South Dakota for purposes of a recreational area administered by the State. A condemnation judgment in the settled record conclusively establishes that the United States obtained fee title to what is now Angostura by condemnation on May 2, 1949. “[O]rdinarily an unqualified taking in fee by eminent domain takes all interests although they are not specified in detail, and so easements over lands condemned in fee simple are taken unless they are specifically excluded from the taking.” United States v. Belle View Apartments, 217 F.2d 636, 639 (4th Cir. 1954). See also 3 Julius L Sackman, Nichols’ The Law of Eminent Domain § 9.2[5] (Revised 3rd ed 1994) (where fee simple absolute title to land has been acquired, the condemnor acquires all appurtenances thereto and easements, as to which the lands taken constitute the servient estate, are effectively destroyed).
[¶28] The condemnation judgment4 reflects no exclusion for the easement Wolffs now claim. Thus, any easement Wolffs might claim was acquired by their predeces-sors in title was taken by the United States in 1949. Wolffs can claim no easement acquired since that time because:
[T]he United States may not lose property by adverse possession,5 absent properly divesting itself of the property:
The government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act.
Bryant v. Butte County, 457 N.W.2d 467, 471-72 (S.D. 1990) (footnote added) (quoting United States v. California, 332 U.S. 19, 40, 67 S.Ct. 1658, 1669, 91 L.Ed. 1889, 1900 (1947)).
[¶29] It follows from the above that Wolffs can claim no easement on a roadway in Angostura because any such easement was taken by the United States Government in 1949. It is elementary that Wolffs cannot claim damages from the Secretary for denying them the use of a roadway they have no right to use. While Wolffs might have some claim against the United States Government for taking an easement acquired by their predecessors in title (See 2 Sackman, supra § 5.14 (Revised 3rd ed 1995) (when servient tene
[¶30] The dissent argues that the Secretary should be estopped from asserting the notice defense of
[¶31] The facts are undisputed. Wolffs hold no property interest in the road. The State of South Dakota owns no property interest in the road. The United States, a non-party to this case, owns the road in fee. Yet we are supposed to determine that it is appropriate for Wolffs to continue to sue the Secretary over the road. How can the State be estopped from pointing out it can give no property right to the Wolffs over property the State does not own? Neither party having a property right in the road, from what source comes a claim for damages by the Wolffs? In effect, Wolffs ask us to issue an advisory opinion concerning a set of facts that has not, and in all likelihood will never occur, Wolffs and/or the State acquiring an interest in the road.
[¶32] While it is true that the trial court did not consider the merits of this matter in either its memorandum decision or order of dismissal, it is a well entrenched rule of this Court that, where a judgment is correct, it will not be reversed even though it is based on erroneous conclusions or wrong reasons. Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D. 1994); Kirby v. Western Surety Co., 70 S.D. 483, 488, 19 N.W.2d 12, 14 (1945). In fact, this Court has gone so far as to state that, “[s]ummary judgment will be affirmed if there exists any basis which would support the trial court‘s ruling.” St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D. 1994) (emphasis added). Even the author of the dissent has adhered to these precepts. See e.g. Kehn v. Hoeksema, 524 N.W.2d 879 (S.D. 1994). The foundations of this rule are soundly based on principles of judicial economy. It is only appropriate, for reasons of judicial economy, to address issues on appeal that would be capable of repetition on remand. See e.g. Dept of Social Services v. McCarty, 506 N.W.2d 144, 147 (S.D. 1993). In this instance, the Secretary has thoroughly briefed the issue of the merits of Wolffs’ suit. Wolffs have had an opportunity to respond and have done so. See Wolffs’ Reply Brief at pages 14-20. Is there any doubt that, were we to reverse the summary judgment as urged by the dissent, these very same arguments would be repeated to the trial court on remand? Moreover, is there any doubt that, in the event the trial court were to rule in a manner contrary to our conclusions herein, the Secretary would urge these very same arguments in yet another appeal to this Court? This case has been pending since 1987 (approximately nine years). It is a sad example of the very sort of protracted and expensive litigation so commonly condemned by our citizens. The authorities discussed above clearly establish that Wolffs simply cannot prevail. They have sued the wrong party in the wrong court at the wrong time. It was the United States that acquired any interest by condemnation in 1949 that Wolffs’ predecessors would have owned and it is the United States that continues to own the land upon which Wolffs seek to travel. Summary judgment against them was the inevitable result. It is time for that judgment to be affirmed and for this controversy to finally be put to rest.
[¶33] Affirmed.
[¶34] KONENKAMP, J., concurs.
[¶35] MILLER, C.J., concurs in result.
[¶36] SABERS and AMUNDSON, JJ., dissent.
MILLER, Chief Justice (concurring in result).
[¶37] While I agree with Justice Sabers’ dissent on Issues I and II, I join the majori
SABERS, Justice (dissenting).
[¶38] I would reverse and remand for the trial court to consider and decide this case.
[¶39] 1. The Secretary is estopped from asserting the notice defense.
[¶40] The Secretary should be estopped from asserting Wolffs’ failure to comply with the notice statute seven years after the claim was filed and after lengthy discovery.
[¶41] The Secretary answered Wolffs’ complaint, filed motions, participated in hearings, and continued discovery from June 26, 1987 until September 29, 1994. This was affirmative conduct which “create[d] an objectively reasonable impression” in Wolffs that they had fully complied with the procedure. Smith v. Neville, 539 N.W.2d 679, 681 (S.D. 1995). The Secretary should be estopped from now claiming lack of notice. See Erickson v. Brookings County, 1996 SD 1, ¶15.
[¶42] “[A]n estoppel can be applied against public entities in exceptional circumstances to ‘prevent manifest injustice.‘” Smith, 539 N.W.2d at 682 (citing City of Rapid City v. Hoogterp, 85 S.D. 176, 180, 179 N.W.2d 15, 17 (S.D. 1970)). Wolffs have invested substantial time and expense in preparing their case.
Furthermore, mere innocent silence or inaction will not work an estoppel unless one remains silent when he has a duty to speak. Generally, to work an estoppel, there must be some intended deception in the conduct or declaration of the party to be estopped. The conduct must have induced the other party to alter his position or do that which he would not otherwise have done to his prejudice.
Smith, 539 N.W.2d at 682 (quoting Hanson v. Brookings Hosp., 469 N.W.2d 826, 828-29 (S.D. 1991) (emphasis added)).
[¶43] The roadway was closed in May 1987.
[¶44] Generally, a party‘s pleadings must affirmatively set forth affirmative defenses. Varga v. Woods, 381 N.W.2d 247, 251 (S.D. 1986). “If such an affirmative defense is not pleaded, it is waived.” Id. (citation omitted). The majority contends the Secretary did not waive the defense of lack of notice because it was tried with the implied consent of the parties.
The test for allowing an amendment under
Isakson v. Parris, 526 N.W.2d 733, 736 (S.D. 1995) (emphasis omitted) (quoting Beyer v. Cordell, 420 N.W.2d 767, 769-70 (S.D. 1988)).1 The majority states the Wolffs were not prej
[¶45] The provisions of
[¶46] 2. The Secretary is not entitled to summary judgment on the merits.
[¶47] After seven years, the Secretary made a motion to dismiss based on lack of notice. The trial court converted it to a summary judgment by considering evidence outside the pleadings.2 The trial court did so without notice to the parties as required by
[¶48] Generally, this court will not decide an issue “until the trial court has had an opportunity to pass on it.” Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 751 (S.D. 1995); Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D. 1994) (citations omitted); Schull Constr. Co. v. Koenig, 80 S.D. 224, 227-29, 121 N.W.2d 559, 561 (1963) (citations omitted). The majority states we should affirm the trial court‘s summary judgment though it was granted for the wrong reason, and proceeds to discuss the merits of the Wolffs’ claim. The trial court‘s order incorrectly stated that the action was dismissed “on the merits and with prejudice.” The trial court did not consider the merits in either its memorandum decision or order dismissing the claims.
[¶49] The majority points out that this court has stated summary judgment will be affirmed if there exists any basis which would support the trial court‘s ruling. Affirming the result for reasons other than
[¶50] Where a judgment is correct, this court will not reverse although it was based on incorrect reasons or erroneous conclusions. However, in cases where this court affirmed the trial court‘s result despite its wrong rationale, the trial court generally has considered all pertinent facts. Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D. 1994) (trial court denied instruction during jury trial); Cowell v. Leapley, 458 N.W.2d 514, 519 (S.D. 1990) (trial court used different standard to reach the same result); Brown v. Egan Consol. School Dist., 449 N.W.2d 259, 261 (S.D. 1989) (trial court‘s denial of summary judgment motion affirmed); Seymour v. Western Dakota Voc. Tech. Institute, 419 N.W.2d 206, 209 (S.D. 1988) (trial court memorandum opinion included findings of fact and conclusions of law); Western Air Lines, Inc. v. Hughes County, 372 N.W.2d 106, 109 (S.D. 1985) aff‘d. 480 U.S. 123, 107 S.Ct. 1038, 94 L.Ed.2d 112 (1987) (trial court judgment upholding tax for wrong reason affirmed); S.D. Med. Service v. Minn. Mut. Fire & Cas. Co., 303 N.W.2d 358, 362 (S.D. 1981) (trial court entered summary judgment after motion and agreement that facts were not in dispute); Owens v. City of Beresford, 87 S.D. 8, 14-16, 201 N.W.2d 890, 893-94 (1972) (during full trial, trial court found ordinance not mandatory which Supreme Court found mandatory); House of Seagram, Inc. v. Assam Drug Co., 83 S.D. 320, 326-28, 159 N.W.2d 210, 214 (1968) (denial of injunction after presentation to trial court on admitted facts); Holmes v. Miller, 71 S.D. 258, 261-62, 23 N.W.2d 794, 796 (1946) (“Upon the merits the trial court found ... This finding is unchallenged.“); Kirby v. Western Surety Co., 70 S.D. 483, 488, 19 N.W.2d 12, 14 (1945) (“Even conceding that the trial court so determined, the facts upon which such determination is based are undisputed.” (Emphasis added)). Though there exist cases which affirm a trial court for its result without the trial court fully considering the facts (See Kehn v. Hoeksema, 524 N.W.2d 879, 880 (S.D. 1994)), those cases are and should be the exception and not the rule.
[¶51] The majority reaches the merits and affirms the summary judgment even though the trial court only considered and determined the notice issue. Whether or not the majority‘s conclusion turns out to be correct, we should reverse on the notice issue and remand, and should not reach issues neither discussed nor reached by the trial court. In other words, even if the majority is right, we should remand so the trial court can say so, not this court.
[¶52] AMUNDSON, J., joins this dissent.
Notes
At the time of Wolffs’ injury in May 1987,