827 N.W.2d 55 (S.D. 2013), 26252, Rupert v. City of Rapid City

Docket Nº:26252, 26265.
Citation:827 N.W.2d 55, 2013 S.D. 13
Opinion Judge:GILBERTSON, Chief Justice.
Party Name:Conrad D. RUPERT and Reone A. Rupert, Plaintiffs and Appellees, v. CITY OF RAPID CITY, South Dakota, Defendant and Appellant.
Attorney:Travis B. Jones, Michael S. Beardsley of Beardsley, Jensen, and Von Wald, LLC, Rapid City, South Dakota, Attorneys for plaintiffs and appellees. Timothy J. Becker of Banks, Johnson, Kappelman & Becker, PLLC, Rapid City, South Dakota, Attorneys for defendant and appellant.
Judge Panel:ZINTER, SEVERSON, and WILBUR, Justices, and HOFFMAN, Circuit Court Judge, concur. HOFFMAN, Circuit Court Judge, sitting for KONENKAMP, Justice, disqualified.
Case Date:January 30, 2013
Court:Supreme Court of South Dakota
 
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827 N.W.2d 55 (S.D. 2013)

2013 S.D. 13

Conrad D. RUPERT and Reone A. Rupert, Plaintiffs and Appellees,

v.

CITY OF RAPID CITY, South Dakota, Defendant and Appellant.

Nos. 26252, 26265.

Supreme Court of South Dakota.

January 30, 2013

Argued Nov. 6, 2012.

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Travis B. Jones, Michael S. Beardsley of Beardsley, Jensen, and Von Wald, LLC, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

Timothy J. Becker of Banks, Johnson, Kappelman & Becker, PLLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Conrad and Reone Rupert (the Ruperts) owned land in Rapid City, South Dakota. During the winter, the City of Rapid City (the City) applied a deicer to the streets adjacent to the Ruperts' property. In 2009, the Ruperts sued the City, claiming that the deicer ran onto their property and destroyed several pine trees. The trial court granted the Ruperts' motion for summary judgment on their inverse condemnation claim, and proceeded to trial to have a jury determine the amount of " just compensation" the Ruperts were entitled to. The jury awarded the Ruperts $126,530 to compensate them for the damage to their property. The City appeals several of the trial court's decisions. In addition, the Ruperts filed a notice of review. We affirm in part, reverse in part, and remand.

FACTS

[¶ 2.] On April 2, 2009, the Ruperts filed a complaint against the City. The Ruperts alleged that the deicer the City applied to the streets adjacent to their property during the winter had run off one

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of the streets and onto their property, killing 42 pine trees and other vegetation on their property. The Ruperts claimed that the damage to their property began no later than the winter of 2004-2005. Further, the Ruperts indicated that they repeatedly complained to the City about the damage being done to their trees, but the City failed to address their concerns. The Ruperts asserted the City was liable for the damage to the trees and vegetation under theories of inverse condemnation, negligence, and trespass.

[¶ 3.] On September 10, 2009, the City filed a motion for partial summary judgment as to the Ruperts' negligence and trespass claims. The City asserted it was entitled to summary judgment on these claims based on sovereign immunity.1 The trial court denied the City's partial motion for summary judgment on January 10, 2010. The City filed a second motion for summary judgment on January 5, 2011, claiming that it was entitled to judgment as a matter of law on all three of the Ruperts' causes of action. On February 22, 2011, the trial court granted the City's second motion for summary judgment on the Ruperts' negligence and trespass claims, and denied the City's second motion for summary judgment on the Ruperts' inverse condemnation claim.

[¶ 4.] On September 20, 2011, the trial court held a hearing to address various motions filed by the parties. One of the more significant issues the trial court considered was the measure of damages that would be used for the Ruperts' inverse condemnation claim. The City argued that the proper measure of damages for inverse condemnation was the difference between the fair market value of the Ruperts' property before and after it was damaged. Alternatively, the Ruperts argued that the proper measure of damages in this case was the clean-up and replacement costs of the trees along with damages attributable to loss of shade, ornamental value, aesthetic value, and loss of enjoyment of the trees. Ultimately, the trial court rejected the City's arguments and concluded that " just compensation" would be calculated in accordance with the measure of damages method proposed by the Ruperts. Based on this ruling, the trial court determined that all evidence regarding the fair market value of the Ruperts' property would be excluded from trial.

[¶ 5.] On September 26, 2011, the Ruperts moved for partial summary judgment on their inverse condemnation claim. The trial court granted the Ruperts' motion for partial summary judgment on October 17, 2011. The trial court issued findings of fact and conclusions of law along with its order granting summary judgment on the Ruperts' inverse condemnation claim. The trial court found that the Ruperts established each element of inverse condemnation, and it made specific findings regarding some of those elements.

[¶ 6.] Upon granting summary judgment in favor of the Ruperts on their

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inverse condemnation claim, the trial court concluded that the only remaining issue for the jury to determine was the amount of damages suffered by the Ruperts. The case proceeded to trial on October 18, 2011. On October 19, 2011, the jury awarded the Ruperts " just compensation" of $126,530 to compensate them for the damages to their property caused by the City's use of the deicer. Following trial, the Ruperts moved for attorney fees pursuant to SDCL 21-35-23. The trial court denied the Ruperts' motion for attorney fees, finding that SDCL 21-35-23 did not expressly authorize the trial court to award attorney fees in inverse condemnation cases. Thus, the trial court concluded that SDCL 21-35-23 was not applicable in this case. The City appeals, raising several issues. The Ruperts filed a notice of review, seeking review of two additional issues.

ANALYSIS AND DECISION

[¶ 7.] 1. Whether the trial court erred in granting summary judgment in favor of the Ruperts on their inverse condemnation claim based on its determination that the Ruperts submitted sufficient evidence to prove that the injury to their property was " a peculiar injury and not of a kind suffered by the general public as a whole" and that the City engaged in " direct and substantial action or abuse."

[¶ 8.] " This Court reviews a grant of summary judgment ‘ to determine whether the moving party has demonstrated the absence of any genuine issue of material fact and entitlement to judgment on the merits as a matter of law.’ " Hall v. S.D. Dep't of Transp., 2011 S.D. 70, ¶ 9, 806 N.W.2d 217, 221. A trial court's grant of summary judgment will be affirmed " if there is any legal basis to support its ruling." Krier v. Dell Rapids Twp., 2006 S.D. 10, ¶ 12, 709 N.W.2d 841, 845. Further, an alleged violation of a constitutional right is " an issue of law to be reviewed under the de novo standard of review." Benson v. State, 2006 S.D. 8, ¶ 39, 710 N.W.2d 131, 145.

[¶ 9.] The United States Constitution provides that private property shall not " be taken for public use, without just compensation." U.S. Const. amend. V. Article VI, § 13 of the South Dakota Constitution provides that " [p]rivate property shall not be taken for public use, or damaged, without just compensation...." 2 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.’ " Krier, 2006 S.D. 10, ¶ 21, 709 N.W.2d at 846. Thus, " where no part of an owner's land is taken[,] but because of the taking and use of other property so located as to cause damage to an owner's land, such

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damage is compensable ..." Id. ¶ 23, 709 N.W.2d at 847 (quoting State Highway Comm'n v. Bloom, 77 S.D. 452, 461, 93 N.W.2d 572, 577 (1958)).3 " The underlying intent of the [damages] clause is to ensure that individuals are not unfairly burdened by disproportionately bearing the cost of projects intended to benefit the public generally." Hall, 2011 S.D. 70, ¶ 37, 806 N.W.2d at 230 (alteration in original) (quoting DeLisio v. Alaska Super. Ct., 740 P.2d 437, 439 (Alaska 1987)). " The tendency under our system is too often to sacrifice the individual to the community; and it seems very difficult in reason to show why the State should not pay for property which it destroys or impairs the value, as well as for what it physically takes." Id. (quoting Bakke v. State, 744 P.2d 655, 657 (Alaska 1987)).

[¶ 10.] In our seminal case of Searle v. City of Lead, we held that an action by a landowner for inverse condemnation 4 is maintainable where a governmental entity causes an invasion of the land by " water, earth, sand, or other matter or artificial structures placed upon it, so as effectually to destroy or impair its usefulness ... [,]" but that it is not required " that the damage shall be caused by a trespass or an actual physical invasion of the owner's real estate[.]" 10 S.D. 312, 73 N.W. 101, 103, 104 (1897). However, in Krier v. Dell Rapids Township, this Court recognized that in order for a plaintiff to recover under the consequential damages rule, he or she must prove that " the consequential injury is peculiar to [their] land and not of a kind suffered by the public as a whole." 2006 S.D. 10, ¶ 26, 709 N.W.2d at 847-48 (alteration in original) (quoting Bloom, 77 S.D. at 461, 93 N.W.2d at 577). Further, the plaintiff's injury " must be different in kind and not merely in degree from that experienced by the general public." Id. ¶ 26, 709 N.W.2d at 848 (quoting Hurley v. State, 82 S.D. 156, 163, 143 N.W.2d 722, 726 (1966)). Nevertheless, there is " no magic formula [that] enables a court to judge, in every case, whether a given government interference with property is a taking." Ark. Game & Fish Comm'n v. United States, --- U.S. ----, 133 S.Ct. 511, 518, 184 L.Ed.2d 417 (2012). Instead, the viability of a takings claim is dependent upon " situation-specific factual inquiries." Id.

[¶ 11.] The City argues that the trial court erred in granting summary...

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