Yankton Cnty. v. McAllister
Citation | 977 N.W.2d 327 |
Decision Date | 22 June 2022 |
Docket Number | #29616 |
Parties | YANKTON COUNTY, State of South Dakota, A Political Subdivision, Plaintiff and Appellee, v. Luke E. MCALLISTER, McAllister TD, LLC, and B-Y Internet, LLC, Defendants and Appellants, and Yankton County Commission; Yankton County Board of Adjustment; Yankton County Planning Commission; Patrick E. Garrity, in his capacity as Yankton County Zoning Administrator, and in his Individual Capacity; and Robert W. Klimisch, in his capacity as Yankton County State's Attorney, and in his Individual Capacity, Third-Party Defendants and Appellees. |
Court | Supreme Court of South Dakota |
977 N.W.2d 327
YANKTON COUNTY, State of South Dakota, A Political Subdivision, Plaintiff and Appellee,
v.
Luke E. MCALLISTER, McAllister TD, LLC, and B-Y Internet, LLC, Defendants and Appellants,
and
Yankton County Commission; Yankton County Board of Adjustment; Yankton County Planning Commission; Patrick E. Garrity, in his capacity as Yankton County Zoning Administrator, and in his Individual Capacity; and Robert W. Klimisch, in his capacity as Yankton County State's Attorney, and in his Individual Capacity, Third-Party Defendants and Appellees.
#29616
Supreme Court of South Dakota.
ARGUED FEBRUARY 16, 2022
OPINION FILED June 22, 2022
Rehearing Denied August 2, 2022
JONATHAN A. HEBER, MEREDITH A. MOORE of Cutler Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellants.
DOUGLAS M. DEIBERT of Cadwell, Sanford, Deibert & Garry LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee and third-party defendants and appellees.
MARK D. FITZGERALD of Fitzgerald, Vetter, Temple & Bartell, Norfolk, Nebraska, Attorneys for third-party defendant and appellee Patrick E. Garrity.
JENSEN, Chief Justice
[¶2.] The circuit court granted summary judgment dismissing McAllisters’ claims, concluding that they had failed to provide timely notice to the county auditor of their
[977 N.W.2d 332
injuries as required by SDCL 3-21-2 and SDCL 3-21-3. The circuit court also determined that Klimisch was entitled to prosecutorial immunity. McAllisters appeal raising two issues: (1) whether the circuit court erred in concluding that SDCL 3-21-2 and SDCL 3-21-3 barred their claims, and (2) whether the circuit court erred in concluding that Klimisch is entitled to prosecutorial immunity. We affirm in part and reverse in part.
Facts and Procedural History
[¶4.] On March 12, 2018, Garrity sent a letter to Luke stating that B-Y was operating in violation of the Ordinance and needed to obtain a CUP. This letter was also sent to Klimisch and some members of the Commission. Following this letter, Garrity, Klimisch, Luke, and Cam engaged in further discussions regarding the potential need for a CUP. In late March 2018, Garrity told Luke that he would place B-Y on the Commission meeting agenda to address whether B-Y needed a CUP. The issue was never placed on the Commission calendar.
[¶5.] Yankton County commenced a civil action against Luke, MTD, and B-Y on June 8, 2018, alleging they were operating a wireless internet business in violation of the Ordinance. The complaint sought a cease and desist injunction against McAllisters, as well as a request for fines and other monetary relief. Klimisch signed the complaint on behalf of Yankton County.
[¶6.] Luke and MTD filed separate answers alleging that B-Y was a stand-alone legal entity, therefore they could not be held liable for any of the claims against B-Y under SDCL 47-34A-303. Luke and MTD also filed counterclaims for barratry alleging Yankton County's action against Luke and MTD was frivolous and meritless, and undertaken without probable cause to believe it would succeed on the merits. B-Y filed an answer denying that B-Y is a wireless communication facility under the Ordinance and, in the alternative, alleged that it was exempt from obtaining a CUP.
[¶7.] Between July 2018 and April 2019, the parties engaged in discussions and conducted discovery concerning the issues in the action. On April 17, 2019, the parties entered into a stipulated agreement to dismiss all claims without prejudice, which was conditioned upon reaching a mutual settlement. Luke and MTD later withdrew their consent for the dismissal of the counterclaims. On April 25, 2019, the Yankton County Planning and Zoning Commission (P&Z) held a meeting and voted unanimously (7–0) that B-Y fell within an exception
[977 N.W.2d 333
to the Ordinance and had not been operating in violation of the Ordinance. The P&Z recommended their findings to the Commission. There is no indication that the Commission considered or voted on the recommendation.
[¶9.] Cam met with Commissioners Don Kettering and Dan Klimisch (Commissioner Klimisch) to discuss the lawsuit on May 17, 2019. At this meeting, Cam asked Kettering if he recalled the decision to file the suit and who made the decision to file a lawsuit. Kettering replied, "I think so"; and "I think it was, the issue was over something out at Fire and Ice." Kettering continued when pressed by Cam: "that was, the Fire and Ice reason was, the reason that—the, the issue at Fire and Ice had not been resolved so that was I think the logic of the commission at the time was—[.]"2
[¶10.] On July 3, 2019, McAllisters emailed a letter to Klimisch demanding payment to settle and dismiss their claims against Yankton County. The letter warned that if the parties did not reach a mutual settlement, Luke and MTD intended to amend their counterclaims to add claims for abuse of process. The letter detailed their abuse of process claims asserting that Yankton County was using the lawsuit to stop B-Y from doing business and competing with other local wireless internet providers. The letter stated that McAllisters believed that the lawsuit was motivated by Garrity's close relationship with an individual who owned a competing business in Yankton. McAllisters stated that they may also have claims for civil conspiracy to commit abuse of process and other claims. McAllisters asked Klimisch to share the letter with the members of the Commission and P&Z. Luke emailed a copy of the letter to the Commission and BOA members on July 15, 2019. On August 23, 2019, Klimisch informed McAllisters that...
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