STATE OF SOUTH DAKOTA IN CIRCUIT COURT

 

COUNTY OF DAY                   FIFTH JUDICIAL CIRCUIT

 

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PICKEREL LAKE SANITARY *       CIV. 97-52

DISTRICT, a Political

Subdivision of the State of *

South Dakota, by JAMES

PORTER and AL SVARE *

Trustees of the District,

*        JUDGMENT OF DISMISSAL

              Plaintiff,

*

     vs.

*

MARGARET BENNETT, MARIE              

REETZ, DAVID R. SANDVE, MARY *

LOU SANIDVE, EUGENE F.

RUMPZA, MELINDA JO RUMPZA, *

LON DOUGLAS CLEMENSEN,

EVERETT H. PECK, CAPON L. *

PECK, DENNIS D. PETERSON,

CAROL L. PETERSON, RICHARD *

D.  SPRENGER, DONNA M.

SPRENGER, ALLAN 0. *

WEISMANTEL, JESS C.

DILLAVOU, LESLIE J. DONMAN, *

BARBARA LYNN SCHMIDT,

CHARLES C. INGRAM, RUTH C. *

INGRAM, DOUGLAS HAROLD

SORENSEN, ANGELA DEE *

SORENSEN. BERDETTE B.

ZASTROW, NANCY D. THIELEN, *

TODD KEVIN JONES, FRANK N.

PEARSON, ELIZABETH A. *

PEARSON, CLINTON E. POWNELL,

VELMA I. POWNELL, ORVAL C.     *

ROSSOW, MURIEL J. ROSSOW,

MAECILLE B. SCHULL, NEIL W.    *

STIANSON, JULAINE ARLEEN

STIANSON, RICHARD D. BEALS,    *

and MELVA I. BEALS,

*

              Defendants.

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The above-captioned action came on for hearing before the Honorable Eugene B. Dobberpuhl in the third floor east courtroom in Aberdeen, Brown County, South Dakota on July 27, 2000, at 9:30 a.m. upon the defendants’ Motions to Dismiss, for partial summary judgment and to allow punitive damages. The plaintiff was represented by attorneys Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Sommers, L.L.C., 305 sixth Avenue S.E., P.O. Box 970, Aberdeen, SD 57402-0970 and J. B. Lammers of Lammers, Lammers & Kleibacker, LLP, 108 North Eqan, PC Box 45, Madison, SD 57042-0045. The defendants were represented by attorney William E. Coester, 232 S. Main Street, PC Box 66, Milbank, SD

57252-0066.

 

The court considered the pleadings on file, the affidavits, the depositions and the presentations of counsel and hereby FINDS AND CONCLUDES:

 

1.     This court has jurisdiction of the parties and the subject matter of this action

 

2.     Defendants submitted an affidavit and depositions in support of their motion to dismiss for failure to state a claim upon which relief can be granted, which motion was filed pursuant to SDCL 15-6-12(b)(5).   These are matters outside the pleadings and therefore, pursuant to SDCL 15-6-12(b), the court treated the motion as one for summary judgment and disposed of the motion as provided in SDCL 15-6-56.  Although given opportunity to do so, neither party submitted any additional information nor requested additional time to do so.

 

3.     Defendants also moved for summary judgment pursuant to SDCL 15-6-56.  In support of their motion for summary judgment, defendants chose to rely solely upon “the pleadings, together with the Voter Registration Affidavits on file in the office of the Day County Auditor, the depositions of Defendants, and the Affidavit of Publication.” At hearing defendants also offered the depositions of Jim Porter and Al Savre. This material shows that the plaintiff acted in good faith and defendants have failed to submit any evidence to support their claims as set forth in their counterclaim.

 

4.     Defendants also moved the court to allow defendants to seek punitive damages.

            5.         Defendants also asked this court to award terms pursuant to SDCL 15-6-11.

 

     6.   Plaintiff responded to the motions with a written response of their attorney. Plaintiff attached to its response the voter registration applications of the defendants and offered the depositions of the  defendants, the discovery material, including the material submitted pursuant to Rule 35 of the Federal Rules of Civil Procedure, and an affidavit from   attorney J. B. Lammers

    7.   The court has determined that there is no genuine issue as to any material fact and that based upon the law the plaintiff's complaint and the defendnats' counterclaim should be dismissed on the merits and with prejudice.

 

     8.   Plaintiff commenced its action against the defendants by Summons and Complaint dated May 1, 1997. The defendants answered and served their counterclaim on May 27, 1997. This court entered its Memorandum Decision in the case of Pickerel Lake Sanitary District, A Political Subdivision of the State of South Dakota, Plaintiff v. Richard Duane Beals, Defendant Civ. 97-37 in Circuit Court, Fifth Judicial Circuit, on June 26, 1997. This court believes that decision bars the plaintiff’s claim and defendants’ counterclaim under the doctrine of res judicata.

 

     9.   Plaintiff timely offered to dismiss its complaint following the court’s June 26, 1997 decision. Defendants refused plaintiff’s offer stating they did not want to give up their counterclaim.

 

     10.  Plaintiff brought its complaint in good faith, seeking a court determination on the issue of defendants’ residency. Plaintiff’s actions were based on well-grounded facts and plaintiff believed its complaint to be warranted by existing law and a good faith argument for the extension, modification or reversal of existing law.

 

     11.  The Day County Auditor is not an indispensable party to this action.

 

 

 

12.     The plaintiff is not estopped by its actions from challenging the defendants’ voter registration. There is no evidence that plaintiff took any action to entice the defendants into registering to vote within the District.

 

13.     The defendants, Gene Rumpza, Melinda Rumpza and Marie Reitz have asked that they be dismissed from the

lawsuit.

 

14.     Two of the defendants have died since this action was begun: Neil Stianson in 1999 and Clinton Pownell on June 23, 2000.

 

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

 

1.     The defendants’ motion to dismiss for failure to state a claim upon which relief can be granted is DENIED.

 

2.     The defendants’ motion for summary judgment is DENIED.

 

3.     The defendants’ motion for terms pursuant to SDCL 15-

6-l1 is DENIED.

 

4.     The defendants’ motion to seek punitive and exemplary damages is DENIED.

 

5.     The defendants’ motion to dismiss for failure to join an indispensable party is DENIED.

 

6.     The plaintiff’s complaint and the defendants’ counterclaim are dismissed with prejudice and without costs to either party.

 

Dated this 27th day of July, 2000.

                               

                              BY THE COURT:

                   

                    /s/_EUGENE E. DOBBERPUHL_________

                    circuit Court Judge

ATTEST:

 

/s/ Susan Campaan

     Clerk of Courts

 

By_/s/_Barbara Kenyon

              Deputy