Wolff v. Secretary of South Dakota Game, Fish and Parks Dept., 19057

• Decision Date: 19 October 1995
• Docket Number: No. 19057,19057
• Citation: 1996 SD 23,544 N.W.2d 531
• Parties: Gary WOLFF and Shirley Wolff, Plaintiffs and Appellants, v. SECRETARY OF the SOUTH DAKOTA GAME, FISH AND PARKS DEPARTMENT, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 531

544 N.W.2d 531

1996 SD 23

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 Considered on Briefs Oct. 19, 1995.

Decided March 6, 1996.

Rehearing Denied April 11, 1996.

Andrew B. Reid, Boulder, CO, for plaintiffs and appellants.

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 interference with the use and enjoyment of their property; forcible ejectment or exclusion from the possession of their property; and, the deprivation of their constitutional rights, privileges and immunities under 42 U.S.C. § 1983. Wolffs sought: an injunction to prevent the Secretary from denying them access to their property; actual damages of $250,000 for the loss of access to their property; an alternative award of treble damages totaling $750,000 for forcible ejectment or exclusion from their property; an alternative award of $250,000 for the deprivation of their constitutional rights; plus, their attorney fees and costs.

¶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 SDCL 3-21-2 and 3-21-3.

¶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 alleging a lack of proof that Wolffs are entitled to any prescriptive easement benefitting their property and a lack of proof that the roadway at issue is a public highway. In response to the Secretary's motion, the trial court sent a letter to Wolffs' counsel advising counsel of the time limit for filing a brief in response to the Secretary's "Motion to Dismiss for Failure to Prosecute." ² In answer to that letter, the Secretary's counsel advised the trial court that Circuit Judge Young had already ruled on the motion to dismiss for failure to prosecute, but, that he would renew his motion in that regard.

¶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 SDCL 3-21-2 and 3-21-3.

¶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 and 3-21-3[.]

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 SDCL 3-21-2 and 3-21-3. However, Wolffs' compliance or lack of compliance with the notice provisions was never mentioned in the parties' pleadings. The rule is well established that:

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).

¶12 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 SDCL 3-21-2 and 3-21-3 were, "in the nature of a statute of limitations, rather than a condition precedent necessary to commence an action, and the failure to comply is an affirmative defense to be pleaded by the party relying on it." Brandner, 78 S.D. at 577, 105 N.W.2d at 666. Brandner's holding in this regard was recently reaffirmed in Cody v. Leapley, 476 N.W.2d 257 (S.D.1991) where this Court concluded if the cause of action is independent of the notice requirement, such as is the case herein in regard to a claim of wrongful seizure of one's property, the statute is found to be in the nature of a statute of limitation. As such, under SDCL 15-6-8(c) it is in the nature of an affirmative defense and must not only be pled, but to be granted relief under SDCL 15-6-56, it must be established as a matter of uncontroverted fact.

Cody, 476 N.W.2d at 263 (citations omitted)(emphasis added).

¶15 "Under SDCL 15-6-8(c), a party's pleadings must affirmatively set forth matters constituting an avoidance or affirmative defense. If such an affirmative defense is not pleaded, it is waived." Varga v. Woods, 381 N.W.2d 247, 251 (S.D.1986). However, this does not end the inquiry for this Court has also held:

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...