City of Mitchell v. Beauregard, 15807

• Decision Date: 17 February 1988
• Docket Number: No. 15807,15807
• Citation: 430 N.W.2d 704
• Parties: The CITY OF MITCHELL, Davison County, South Dakota, a Municipal Corporation, Plaintiff and Appellee, v. Arlyne W. BEAUREGARD and Dale Knox, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 704

430 N.W.2d 704

The CITY OF MITCHELL, Davison County, South Dakota, a Municipal Corporation, Plaintiff and Appellee, v. Arlyne W. BEAUREGARD and Dale Knox, Defendants and Appellants.

No. 15807.

Supreme Court of South Dakota.

Considered on Briefs Feb. 17, 1988.

Decided Oct. 26, 1988.

Carl J. Koch, Mitchell, for plaintiff and appellee.

Don E. Petersen and E. Steeves Smith and James A. Miskimins, Legal Intern of Tinan, Smith & Taylor, Mitchell, for defendants and appellants.

TALBOTT, Circuit Judge.

Defendants appeal from a jury verdict and judgment given in their favor in a condemnation proceeding. We affirm.

FACTS

City of Mitchell (City) commenced a condemnation proceeding against Stanley N. Beauregard (Stanley) and Arlyne W. Beauregard (Arlyne) in 1973. In view of pending negotiations, City proceeded to make the improvements on the condemned easement. Trial was not held until January 1987.

Stanley died after the commencement of the proceedings. Stanley and Arlyne's attorney suggested that Arlyne and Dale Knox (Knox) were proper parties defendant. After a February 22, 1984 hearing, the trial court substituted Arlyne and Knox as the proper parties defendant.

ISSUE I

WHETHER PUNITIVE DAMAGES MAY BE RECOVERED AGAINST A MUNICIPAL CORPORATION IN CASES INVOLVING THE EXERCISE OF EMINENT DOMAIN.

Defendants counterclaimed for punitive damages. In a pretrial motion, City moved to strike defendants' claim for punitive damages because 1) punitive damages against municipalities are against public policy, and 2) defendants failed to comply with SDCL 21-1-4.1 which provides:

In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.

The trial court ruled that there is no authority to authorize punitive damages against a municipal corporation. The record before us is void of any attempts to effect compliance with SDCL 21-1-4.1 and the trial court never entered the required finding. We need not determine the correctness of the trial court's ruling on the applicability of punitive damages against a municipal corporation; manifestly, the trial court's ruling in striking defendants' punitive damage claim was correct for the reason of the non-compliance with SDCL 21-1-4.1. We are obliged to affirm an appeal where any proper basis appears for a trial court's ruling, even though it is not one upon which the court based its holding. Citizens First Nat. Bank v. Hoyt, 297 N.W.2d 329 (Iowa 1980). Cf. Seymour v. Western Dakota Voc. Tech. Institute, 419 N.W.2d 206 (S.D.1988).

ISSUE II

WHETHER JOINDER OF KNOX AS A PARTY DEFENDANT AFTER THE ENACTMENT OF SDCL 21-35-23 ENTITLES HIM TO ATTORNEY FEES.

Knox seeks to bring himself within the purview of SDCL 21-35-23 which allows condemnees, under certain circumstances, reasonable attorney fees and compensation for not more than two expert witnesses:

If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff's final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court.

At the time defendants Arlyne and Stanley applied to have Knox substituted as a party defendant, their attorney's affidavit represented that after Stanley's death Knox acquired an interest in the realty sought to be condemned. We are aware that trial testimony indicated Knox's title interest pre-dated the commencement of the action; however, the trial court authorized substitution of Knox as a party based upon the representation in the affidavit.

Substitution of parties is provided for by statute. SDCL 21-35-3 authorizes amendments to the condemnation petition to bring in a proper party defendant who may have been omitted from the petition. The amendments have the same effect as though contained in the petition and notice. Additionally, SDCL 15-6-25 provides for substitution of parties.

Knox became a substituted party defendant on February 22, 1984. The effective date of SDCL 21-35-23 was July 1, 1983. The statute has its source in Chapter 170, South Dakota Session Laws of 1983, Section 3 of which provides: "The provisions of this Act apply to all eminent domain proceedings commenced on or after July 1, 1983." (emphasis supplied). This condemnation proceeding commenced on December 10, 1973. It necessarily follows that the trial court did not err in denying Knox the benefit of this statute.

ISSUES III AND IV

WHETHER THE JURY VERDICT MUST BE SET ASIDE DUE TO UTILIZATION OF AN IMPROPER MEASURE OF DAMAGES (III) AND WHETHER THE JURY VERDICT MUST BE SET ASIDE AS NOT SUPPORTED BY THE EVIDENCE (IV).

Defendants contend that the evidence offered by City was not probative of the correct measure of damages and that the jury's verdict was not within the scope of the evidence. We hold that defendants did not preserve these matters on the record so as to enable this court to engage in appellate review of these issues.

SDCL 15-6-59(a) provides in part:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:

* * *

* * *

(6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law;

SDCL 15-26A-8 provides:

Such of the matters specified in subdivisions (6) and (7) of Sec. 15-6-59(a) as may have been timely presented to the trial court by motion for directed verdict, request for findings, or other apt motion, offer, or objection may be reviewed on appeal from the judgment without necessity for an application for new trial.

The record does not reflect any motion for directed verdict or any other apt motion, offer, or objection to any pertinent jury instruction that would preserve defendants' right to appeal on this issue. We may not review this contention in this case. Insufficiency of the evidence may not be reviewed unless it has been timely presented to the trial court by a proper motion for a directed verdict, request for findings, or other apt motion, offer, objection, or exception. SDCL 15-6-59(a); SDCL 15-6-59(f); SDCL 15-26A-8; Pearson v. Adams, 279 N.W.2d 674 (S.D.1979).

The judgment is affirmed.

MORGAN, SABERS and MILLER, JJ., concur.

HENDERSON, J., concurs specially.

TALBOTT, Circuit Judge, sitting for WUEST, C.J., disqualified.

HENDERSON, Justice (specially concurring).

To those facts, cited in the majority, these facts are noted for further understanding in this case: Between August 1973 and August 1975, the City constructed a sewer line across the would-be easement. Settlement negotiations apparently went on from the filing of the summons...