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Bingham Farms Trust v. City of Belle Fourche

Supreme Court of South Dakota

August 14, 2019

BINGHAM FARMS TRUST, Plaintiff and Appellant,
CITY OF BELLE FOURCHE, a South Dakota Municipal Corporation, Defendant and Appellee.



          DAVID L. CLAGGETT of Claggett & Dill, Prof. LLC Spearfish, South Dakota Attorneys for plaintiff and appellant.

          KELLEN B. WILLERT of Bennett, Main, Gubbrud & Willert, P.C. Belle Fourche, South Dakota Attorneys for defendant and appellee.


         [¶1.] Bingham Farms Trust (Bingham) objected to a special assessment lien levied upon its property by the City of Belle Fourche (City). The circuit court concluded that it lacked subject matter jurisdiction to determine Bingham's claims and granted the City's motion to dismiss, but denied its request for attorney fees. Bingham appeals the dismissal, and the City seeks review of the circuit court's denial of attorney fees. We reverse the circuit court's dismissal, affirm its denial of attorney fees, and remand for further proceedings consistent with this opinion.


         [¶2.] On August 1, 2016, the Belle Fourche City Council conducted a public hearing to discuss, among other items, a proposed special assessment roll for nuisance abatements. The assessment roll included an assessment in the amount of $1, 374.45 for vegetation removal at 903 Edmonds Street in Belle Fourche (Edmonds Street property), then owned by Juanita Bowman (Bowman). During the meeting, the Council adopted Resolution 13-2016 (the Resolution), which approved the assessment roll.

         [¶3.] The Resolution stated that "unpaid assessments will be certified and filed with the Butte County Auditor on September 30, 2016." The Resolution also provided that "on October 1, 2016, assessments included in this Assessment Roll . . . that remained unpaid . . . shall be collected . . . by the Butte County Treasurer in accordance with procedure in SDCL 9-43, as amended." See SDCL 9-43-105 (providing, in part, that "the assessment roll shall be delivered to the county auditor not later than November first next following the date of approval or at the expiration of the thirty-day period for prepayment without interest, whichever is later[]").

         [¶4.] The Resolution was published in the Butte County Post on August 10, 2016 and Bowman had 20 days to appeal the assessment. See SDCL 9-43-96 and SDCL 9-43-125. However, Bowman did not appeal the assessment applied to the Edmonds Street property.

         [¶5.] On January 17, 2017, Bingham purchased the Edmonds Street property from Bowman. Bingham claims it had no notice of the special assessment lien. The title commitment (dated November 10, 2016-prior to Bingham's purchase) did not show the lien. For reasons not revealed in the record, Bingham alleges it did not receive the full title insurance policy until March 2, 2017.[1] There are no dates on the cover letter, but the policy indicates a "date of policy" as January 17, 2017, and reflects the City's special assessment lien.

         [¶6.] Throughout the spring and summer of 2017, Bingham attempted to obtain further information from the City about the special assessment without apparent success. Bingham was also unable to persuade the City to remove the lien based upon its claim that it lacked notice of the assessment. According to Bingham, the Butte County Treasurer would not accept its property tax payments until the lien was paid and later published Bingham's name on a list of delinquent taxpayers.

         [¶7.] After providing the City with notice of its claim regarding the lien, Bingham commenced this action against the City alleging slander of title, seeking a declaration that the lien is invalid, and requesting removal of the lien from its chain of title. See SDCL 3-21-2 (requiring written notice of a potential claim against a public entity or employee within 180 days of the alleged injury). The City filed a motion to dismiss under SDCL 15-6-12(b)(1), contending the circuit court lacked subject matter jurisdiction because Bingham was beyond the 20-day deadline to appeal the assessment. The City alternatively filed a motion for summary judgment, alleging defects with Bingham's notice of claim under SDCL 3-21-2.

         [¶8.] Bingham filed a cross-motion for summary judgment, challenging the lien under the theory that a statutory lien cannot attach to real property if it is not recorded. Bingham alleged the City failed to record the lien by September 30, 2016, as required by its Resolution or at any other time prior to its purchase of the Edmonds Street property. In its summary judgment submissions, Bingham produced a document in which the Belle Fourche City Finance Officer certified she filed the special assessment roll with the Butte County Treasurer on September 29, 2017-over nine months after Bingham purchased the Edmonds Street property and one year after the ...

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