Upell v. Dewey Cnty. Comm'n

• Decision Date: 18 May 2016
• Docket Number: No. 27548.,27548.
• Citation: 880 N.W.2d 69
• Parties: Margaret UPELL, Plaintiff and Appellant, v. DEWEY COUNTY COMMISSION, Defendant and Appellee, and Moreau–Grand Electric Cooperative, Inc., Intervenor and Appellee.
• Court: South Dakota Supreme Court

880 N.W.2d 69

Margaret UPELL, Plaintiff and Appellant,

v. DEWEY COUNTY COMMISSION, Defendant and Appellee,andMoreau–Grand Electric Cooperative, Inc., Intervenor and Appellee.

No. 27548.

Supreme Court of South Dakota.

Considered on Briefs March 21, 2016.

Decided May 18, 2016.

Al Arendt, Pierre, South Dakota, Attorney for plaintiff and appellant.

Steven Aberle, Dewey County State's Attorney, Timber Lake, South Dakota, Attorney for defendant and appellee.

John W. Burke, Thomas, Braun, Bernard & Burke, LLP, Rapid City, South Dakota, Attorneys for intervenor and appellee.

KERN, Justice.

[¶ 1.] The Dewey County Commission (the Commission) granted an application to erect a power distribution line in a section line right-of-way bordering Margaret Upell's property. She appealed to the circuit court which dismissed her appeal for lack of jurisdiction. She now appeals to this Court. We affirm.

Facts and Procedural History

[¶ 2.] Moreau–Grand Electric Cooperative, Inc. (Coop) filed an application with the Commission in December 2014 to erect and maintain a distribution line in a section line right-of-way. The application was filed pursuant to SDCL 31–26–1, which provides in pertinent part:

The board of county commissioners, upon written application designating the particular highway the use of which is desired, may grant to any person engaged in the manufacture or sale of electric light and power ... the right to erect and maintain poles and wires or to bury underground cable for the purpose of conducting electricity for lighting, heating, and power purposes, together with stay wires and braces ... in and along any public highway in its county for a period not to exceed twenty years, subject to the conditions set forth in this chapter and such further reasonable regulations as the Legislature may hereafter prescribe.

[¶ 3.] Upell owned property adjacent to the section line and objected to the erection of the power line. The Commission held a hearing on Coop's application in March 2015. All parties appeared, offered testimony, and presented arguments and authorities. At the close of the hearing, the Commission voted to approve Coop's application. The Commission published its minutes on March 18, 2015. Upell filed a notice of appeal of the Commission's decision with the circuit court on March 25, 2015. Upell served her notice of appeal by mail on counsel for Coop and on the Dewey County State's Attorney. But she did not serve a member of the board of county commissioners as required by SDCL 7–8–29, which provides in pertinent part:

Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board, when the appeal is taken by any person aggrieved by the decision of the board[.]

(Emphasis added.)

[¶ 4.] On June 29, 2015, Upell, the Commission, and Coop filed a stipulation agreeing to Coop's intervention in Upell's appeal. The circuit court filed its order granting the intervention on that same date. On July 6, 2015, Coop filed a motion to dismiss Upell's appeal for failure to serve the notice of appeal on a member of the board of county commissioners as required by SDCL 7–8–29. The motion was heard on July 20 and the circuit court dismissed the appeal. The order of dismissal was filed on July 30, 2015, and Upell appeals to this Court.

Issue

[¶ 5.] Whether the circuit court erred in dismissing Upell's appeal.

[¶ 6.] Upell argues that the circuit court erred in granting the motion to dismiss her appeal. Both parties cite the standard of review set forth in AEG Processing Center No. 58, Inc. v. S.D. Department of Revenue and Regulation,

2013 S.D. 75, ¶ 7 n. 2, 838 N.W.2d 843, 847 n. 2.

The “standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment—is the pleader entitled to judgment as a matter of law?” “We review issues regarding a court's jurisdiction as questions of law under the de novo standard of review.” Furthermore, “statutory interpretation is a question of law, reviewed de novo.”

Id. (citations omitted).

[¶ 7.] While this statement incorporates the correct standard, we clarify its reference to summary judgment. This language goes back to Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762 (S.D.1989). In that case, a Rule 12(b)(5)¹ motion to dismiss an action for failure to state a claim was converted to a motion for summary judgment. Id. at 764. Summary judgment was granted, and we reviewed the judgment according to summary judgment standards. Later, in reviewing the denial of a motion to dismiss for failure to state a claim in Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D.1993), we cited Jensen Ranch for the proposition that “[o]ur standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment—is the pleader entitled to judgment as a matter of law?” Since Estate of Billings, this language has been routinely quoted as part of our standard of review for dismissals, even in cases such as AEG that did not involve motions for failure to state a claim or summary judgment. See Risse v. Meeks, 1998 S.D. 112, ¶¶ 6–10, 585 N.W.2d 875, 876 (motion to dismiss and dismissal for lack of subject matter jurisdiction); O'Neill Farms, Inc. v. Reinert, 2010 S.D. 25, ¶¶ 5–7, 780 N.W.2d 55, 57–58 (motion to dismiss and dismissal for lack of personal jurisdiction).² This confuses the standard of review when a dismissal is on jurisdictional grounds.

[¶ 8.] Further confusing the standard of review is the fact that motions to dismiss for lack of jurisdiction such as in AEG and the present case may take different forms and may be raised at various points in the proceedings.³ As explained in one treatise:

A motion to dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1) is but one of many ways the defense may be presented. For example, in a significant number of cases, federal courts have permitted a defending party to raise a lack of subject matter jurisdiction on a Rule 12(c) motion for judgment on the pleadings or on a Rule 12(f) motion to strike. And, in keeping with the policy set forth in Rule 12(h)(3) of preserving the defense throughout the action, it has long been well-established that the court's lack of subject matter jurisdiction may be asserted at any time by any interested party, either in the answer or in the form of a [Rule 12(h)(3) ] suggestion to the court prior to final judgment. After final judgment a lack of subject matter jurisdiction may be interposed as a motion for relief from the judgment under Rule 60(b)(4).

5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed.2016) (footnotes omitted). Thus, for example, in Vitek v. Bon Homme County Board of Commissioners, 2002 S.D. 100, ¶ 6, 650 N.W.2d 513, 515, the motion to dismiss the appeal to circuit court was raised by a motion for judgment on the pleadings. Rather than setting forth the de novo standard of review for jurisdictional issues, however, we cited the standard of review for a judgment on the pleadings. Id. ¶ 7, 650 N.W.2d at 516.

[¶ 9.] Because of this confusion, we take this opportunity to make clear that whatever the name of the motion or whatever the title of the court's disposition, we review a dismissal for lack of jurisdiction as a “question [ ] of law under the de novo standard of review.” AEG, 2013 S.D. 75, ¶ 7 n. 2, 838 N.W.2d at 847 n. 2 (quoting O'Neill Farms, 2010 S.D. 25, ¶ 7, 780 N.W.2d at 57–58.⁴ ) This is in keeping with the principle that “[w]e review issues of jurisdiction de novo because they are questions of law.” Tornow v. Sioux Falls Civil Serv. Bd., 2013 S.D. 20, ¶ 10, 827 N.W.2d 852, 855.⁵ Further, when statutory interpretation is relevant to the inquiry, “statutory interpretation is [also] a question of law, reviewed de novo.” AEG, 2013 S.D. 75, ¶ 7 n. 2, 838 N.W.2d at 847 n. 2 (quoting Hass v. Wentzlaff, 2012 S.D. 50, ¶ 12, 816 N.W.2d 96, 101 ).⁶ To this extent, therefore, the standard of review as set forth in AEG is correct. However, we caution against rote references to summary judgment as part of the standard. Not all summary judgment standards may apply to a motion to dismiss for lack of jurisdiction. Compare e.g. Hutterville Hutterian Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 20, 791 N.W.2d 169, 175 (holding that in a Rule 12(b)(1) factual attack on a circuit court's subject matter jurisdiction “the court must ... weigh the evidence and resolve disputed issues of fact affecting the merits of the jurisdictional dispute.”), with Foster–Naser v. Aurora Cty., 2016 S.D. 6, ¶ 11, 874 N.W.2d 505, 508 (noting that in ruling on a motion for summary judgment, the court must “resolve disputed facts in favor of the nonmoving party[.]” (quoting Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125 )).

[¶ 10.] Having clarified the standard of review, we turn our analysis to Upell's claim of error in the dismissal of her appeal. Our analysis begins with Schrank v. Pennington County Board of Commissioners, 1998 S.D. 108, 584 N.W.2d 680. In Schrank, the county commission issued a conditional use permit to Alexander Drilling. Schrank appealed the commission's decision to the circuit court. Id. ¶ 2. Schrank served the notice of appeal on a county commissioner but not upon Alexander. Id. ¶ 2, 584 N.W.2d at 681. As he was not served, Alexander moved to dismiss. Id. ¶ 3. The circuit court denied the motion and ultimately reversed the county's decision. Id. Both Alexander and the county appealed to this Court. Id. ¶ 4. Appellants argued that the circuit court did not have jurisdiction over the appeal because Alexander was not personally served with the notice of appeal. Id. ¶ 8. We disagreed. Id.

[¶ 11.] Observing that the appeal was brought under SDCL 7–8–29, we accepted the appellants' premise that compliance with the statute...