#29616-aff in pt & rev in pt-SRJ

2022 S.D. 37

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

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.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

YANKTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICK T. SMITH

Judge

* * * *

ARGUED

FEBRUARY 16, 2022

OPINION FILED 06/22/22
* * * *

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.
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JENSEN, Chief Justice

[¶1.] Yankton County brought an action seeking an injunction against Luke 

McAllister, McAllister TD, LLC (MTD), and B-Y Internet, LLC (B-Y) (collectively 

referred to as “McAllisters”) to cease a wireless internet provider business that 

Yankton County alleged was operating in violation of a county zoning ordinance. 

McAllisters answered the complaint. Luke and MTD also asserted counterclaims 

for barratry, alleging the complaint against them was frivolous. Later, B-Y 

counterclaimed against Yankton County for barratry and abuse of process, while 

Luke and MTD added counterclaims for abuse of process and expanded their 

barratry claims against Yankton County. McAllisters also filed a third-party 

complaint asserting an abuse of process claim against Yankton County Commission 

(Commission), Yankton County Board of Adjustment (BOA), and Yankton County 

Planning Commission (collectively referred to as “Yankton County Entities”), 

Yankton County Zoning Administrator Patrick Garrity, and Yankton County State’s 

Attorney Robert Klimisch. McAllisters also included a claim for civil conspiracy to 

commit abuse of process against Garrity and Klimisch.

[¶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 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 
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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

[¶3.] Luke McAllister owned and operated MTD d/b/a Fire & Ice.1 Luke’s 

brother, Cam McAllister, is a co-owner of MTD. In October 2017, Cam emailed 

Garrity regarding a separate business which would provide wireless internet 

services. Cam’s specific question for Garrity was whether a Yankton County zoning 

ordinance (Ordinance) required any permits or licenses to operate the new business 

in Yankton County. Garrity responded that he believed a similar wireless internet 

provider had obtained a conditional use permit (CUP) and asked if Cam’s business 

was associated with that project. Cam told Garrity that he would be starting a new 

business, B-Y, that would provide the same services as current providers in the 

area. Garrity did not respond further. Luke formed B-Y on November 29, 2017, 

and registered the fictitious business name, South Dakota Wireless Internet.

[¶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.

1. Fire & Ice was a recreational and seasonal business that sold various items 

including alcohol, water, ice, and camping supplies in an open-air building in 

the spring and summer of 2017.
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[¶5.] Yankton County commenced a civil action against Luke, MTD, and BY 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 standalone 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 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.
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[¶8.] On May 8, 2019, McAllisters delivered a letter to Klimisch and several 

Commissioners that described the events underlying their claim for barratry. 

McAllisters asserted that Yankton County’s claims were frivolous and meritless, 

and that the County had an insufficient factual basis to file the claim. McAllisters 

also asserted that no other local wireless internet provider had obtained a CUP or 

been sued by Yankton County for allegedly operating in violation of the Ordinance.

[¶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 

2. McAllisters claimed that Fire & Ice ceased operations in October 2017 due to 

harassment and pressure from Garrity.
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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 the matter had been 

turned over to the County’s insurance provider.

[¶11.] On August 23, 2019, Luke, MTD, and B-Y filed a third-party complaint 

for abuse of process against Yankton County Entities, Garrity, individually and in 

his capacity as the Yankton County Zoning Administrator, and Klimisch, 

individually and in his capacity as Yankton County State’s Attorney. The thirdparty complaint asserted that Yankton County Entities, Klimisch, and Garrity 

improperly and wrongfully commenced the lawsuit against McAllisters to prevent 

them from operating B-Y and Fire & Ice. The third-party complaint also included a 

claim against Garrity and Klimisch for civil conspiracy to commit abuse of process, 

alleging that the two conspired to use the lawsuit to stop B-Y and Fire & Ice from 

operating. Luke and MTD amended their counterclaims against Yankton County 

on September 27, 2019, alleging abuse of process and expanding their barratry 

claim. On September 27, 2019, B-Y also amended its answer to add similar 

counterclaims for barratry and abuse of process against Yankton County.

[¶12.] Yankton County Entities and Klimisch filed a motion for summary 

judgment on September 11, 2020, which Garrity joined on September 16, 2020. The 

motion sought dismissal of McAllisters’ claims, asserting that McAllisters had failed 
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to provide timely notice of their claims to the county auditor as required by SDCL 3-

21-2 and SDCL 3-21-3. They also argued that Klimisch was entitled to 

prosecutorial immunity.

[¶13.] The circuit court granted summary judgment in favor of Yankton 

County Entities, Klimisch, and Garrity, determining that McAllisters failed to give 

written notice of their claims to the county auditor within 180 days from the date of 

their injury. The court concluded that McAllisters’ injuries occurred as to all claims 

when McAllisters answered Yankton County’s complaint. The circuit court also 

concluded that the barratry counterclaims did not substantially comply with the 

written notice requirements in SDCL 3-21-2 or SDCL 3-21-3. Additionally, the 

circuit court determined that Klimisch was entitled to prosecutorial immunity 

because he brought the lawsuit in his capacity as the Yankton County State’s 

Attorney. Yankton County, which had not joined in the original summary judgment 

motion, filed a motion for summary judgment on the same grounds after the circuit 

court entered its memorandum decision. Without waiving claims of error, the 

parties stipulated to the inclusion of Yankton County in the circuit court’s order 

granting summary judgment.

[¶14.] McAllisters appeal the circuit court’s order granting the motions for 

summary judgment, raising two issues:

1. Whether the circuit court erred in concluding that 

McAllisters’ claims were barred under SDCL 3-21-2 and 

SDCL 3-21-3.

2. Whether the circuit court erred in concluding that 

Klimisch was entitled to prosecutorial immunity.
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Standard of Review

[¶15.] “A grant or denial of summary judgment is reviewed de novo.” Abata 

v. Pennington Cnty. Bd. of Comm’rs, 2019 S.D. 39, ¶ 8, 931 N.W.2d 714, 718. “When 

conducting a de novo review, we give no deference to the circuit court’s decision to 

grant summary judgment. When reviewing a circuit court’s grant of summary 

judgment, this Court only decides whether genuine issues of material fact exist and 

whether the law was correctly applied.” Lammers v. State by & through Dep’t of 

Game, Fish & Parks, 2019 S.D. 44, ¶ 9, 932 N.W.2d 129, 132 (citation omitted) 

(internal quotation marks omitted). “We view the evidence most favorably to the 

nonmoving party and resolve reasonable doubts against the moving party.” Id. 

(citation omitted).

Analysis and Decision

1. Whether the circuit court erred in concluding that 

McAllisters’ claims are barred by SDCL 3-21-2 and 

SDCL 3-21-3.

Barratry

[¶16.] “This Court has interpreted SDCL 3-21-2 as requiring notice of injury 

for all causes of action sounding in tort.” Wolff v. Sec’y of S.D. Game, Fish & Parks 

Dep’t, 1996 S.D. 23, ¶ 20, 544 N.W.2d 531, 534. SDCL 3-21-2 provides in part that:

No action for the recovery of damages for personal injury, 

property damage, error, or omission or death caused by a public 

entity or its employees may be maintained against the public 

entity or its employees unless written notice of the time, place, 

and cause of the injury is given to the public entity as provided 

by this chapter within one hundred eighty days after the injury.

In applying SDCL 3-21-2, we have held that “[i]n order to commence suit on [tort 

claims], the provision of statutory notice was mandatory.” Finck v. City of Tea, 443 
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N.W.2d 632, 635 (S.D. 1989) (emphasis added); see also Wolff, 1996 S.D. 23, ¶ 21, 

544 N.W.2d at 535 (concluding that the plaintiffs “should have given notice of injury 

as a predicate for bringing [their] cause of action”). SDCL 3-21-3(2) requires the 

notice to be given to the county auditor for claims against a county.

[¶17.] Luke and MTD assert that the circuit court erred in granting summary 

judgment in favor of Yankton County on their barratry claims because their 

counterclaims substantially complied with SDCL 3-21-2. Luke and MTD argue that 

the notice period under SDCL 3-21-2 was triggered, at the earliest, when Yankton 

County commenced the action for injunctive relief against McAllisters. They 

maintain that the counterclaims, served within 30 days after Yankton County 

commenced its action, substantially complied with SDCL 3-21-2 by timely putting 

Yankton County on notice of their barratry claims. Yankton County responds that 

service of the barratry counterclaims does not satisfy the objectives of SDCL 3-21-2 

because the counterclaims did not provide sufficient information to put Yankton 

County on notice of the barratry injury. Yankton County also argues that 

permitting the counterclaims to satisfy the requirements of the notice statute would 

defeat the purpose of the statute.

[¶18.] “[S]ubstantial compliance is sufficient to satisfy the notice 

requirements of SDCL 3-21-2 and -3.” Myears v. Charles Mix Cnty., 1997 S.D. 89, ¶ 

13, 566 N.W.2d 470, 474. For purposes of SDCL 3-21-2 and SDCL 3-21-3, we have 

stated that:

“Substantial compliance” with a statute means actual 

compliance in respect to the substance essential to every 

reasonable objective of the statute. It means that a court should 

determine whether the statute has been followed sufficiently so 
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as to carry out the intent for which it was adopted. Substantial 

compliance with a statute is not shown unless it is made to 

appear that the purpose of the statute is shown to have been 

served. What constitutes substantial compliance with a statute 

is a matter depending on the facts of each particular case.

Id. (quoting Larson v. Hazeltine, 1996 S.D. 100, ¶ 19, 552 N.W.2d 830, 835). It is 

ultimately a legal question for the Court as to whether the facts of a case constitute 

substantial compliance. See id. ¶ 13, 566 N.W.2d at 475 (determining that plaintiff 

substantially complied with the notice statutes as a matter of law); see also Ind. 

State Highway Comm’n v. Morris, 528 N.E.2d 468, 471 (Ind. 1988) (“The question of 

compliance is not a question of fact for the jury but ultimately a legal determination 

to be made by the court.”).

[¶19.] In considering whether a particular notice substantially complies with 

the statute, we have discussed seven purposes for the notice statute in SDCL 3-21-

2. Anderson v. Keller, 2007 S.D. 89, ¶ 13, 739 N.W.2d 35, 40. These purposes 

include:

(1) To investigate evidence while fresh; (2) to prepare a defense 

in case litigation appears necessary; (3) to evaluate claims, 

allowing early settlement of meritorious ones; (4) to protect 

against unreasonable or nuisance claims; (5) to facilitate prompt 

repairs, avoiding further injuries; (6) to allow the [public entity] 

to budget for payment of claims; and (7) to insure that officials 

responsible for the above tasks are aware of their duty to act.

Id. (quoting Myears, 1997 S.D. 89, ¶ 13, 556 N.W.2d at 474). Additionally, 

“[s]ubstantial compliance requires that the person who receives the notice be 

someone who could take necessary action to ensure that the statutory objectives are 

met.” Id. ¶ 16, 739 N.W.2d at 40; see also SDCL 3-21-3.
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[¶20.] A counterclaim may substantially comply with SDCL 3-21-2 and SDCL 

3-21-3 when it satisfies the objectives of the notice statutes. Other courts 

considering a similar issue have held that a counterclaim filed against a public 

entity that arises out of the same facts as the complaint filed by the public entity is 

sufficient to satisfy the purposes of requiring notice to public entities. See Urb. 

Renewal Agency of Coos Bay v. Lackey, 549 P.2d 657, 661 (Or. 1976) (holding that a 

tort counterclaim filed against a state agency substantially satisfies the purposes of 

the notice statute when served on the agency’s attorney); see also State, By & 

Through Welfare Div. of Dep’t of Health, Welfare & Rehab. v. Cap. Convalescent 

Ctr., Inc., 547 P.2d 677, 680 (Nev. 1976) (finding that a compulsory counterclaim 

arising out of the same transaction or occurrence as the complaint does not create 

surprise, and therefore satisfies the purpose of the notice statute).

[¶21.] Here, Luke and MTD’s counterclaims satisfied the written notice 

requirements as the counterclaim advised Yankton County of the time, location, 

and cause of the injury by alleging a claim for injuries that resulted from Yankton 

County’s initiation of an alleged frivolous and meritless action. Although the 

counterclaims were not provided to the county auditor, they were served on 

Klimisch, as the Yankton County State’s Attorney, who was “someone who could 

take necessary action to ensure that the statutory objectives are met” under SDCL 

3-21-3. See Anderson, 2007 S.D. 89, ¶ 16, 739 N.W.2d at 40.

[¶22.] The counterclaims gave Yankton County the opportunity to investigate 

and evaluate the claims, prepare a defense, protect itself from additional claims, 

budget for the action, and put Yankton County officials on notice that they had a 
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duty to act. See Myears, 1997 S.D. 89, ¶ 15, 566 N.W.2d at 475 (finding substantial 

compliance when “the county received all the benefits early notice confers”); see also

Helle v. Brush, 292 N.E.2d 372, 374 (Ill. 1973) (explaining that a counterclaim 

satisfies the objectives of a notice statute because “the fact that the public entity 

commenced the action indicates that the facts were not stale, and the avowed 

purpose of avoiding the expenses of litigation cannot be achieved since the public 

entity initiated the litigation”). The counterclaims further provided Yankton 

County an opportunity to settle or dismiss the alleged meritless claims against 

Luke and MTD. See id.

[¶23.] Because Luke and MTD’s barratry counterclaim arises from the 

complaint filed by Yankton County for the alleged Ordinance violation, any risk of 

surprise to Yankton County was minimal. Additionally, “there is . . . no reason to 

require separate written notice of such a claim in advance of the filing of a 

counterclaim because the expense of litigation has already been substantially 

incurred” once Yankton County initiated the lawsuit. Urb. Renewal, 549 P.2d at 

661. Under these circumstances, allowing Luke and MTD to pursue their 

counterclaim against Yankton County “recognize[s] the fundamental fairness of 

permitting a defendant to assert any claim he might have arising out of the 

occurrence for which he is being sued, as well as the desire to permit a defendant to 

have his complete day in court.” See Helle, 292 N.E.2d at 375.

[¶24.] “We must be mindful of the consequences of a construction that would 

impose a standard of absolute compliance on a claimant who has been injured by a 

public entity.” Myears, 1997 S.D. 89, ¶ 16, 566 N.W.2d at 475 (citation omitted). 
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Notice statutes “are designed to protect governmental agencies from stale and 

fraudulent claims, provide an opportunity for timely investigation and encourage 

settling meritorious claims[, but] should not be used as traps for the unwary when 

their underlying purposes have been satisfied.” Id. ¶ 12, 566 N.W.2d at 473 

(quoting Johnson v. San Diego Unified Sch. Dist., 266 Cal. Rptr. 187, 190 (Cal. Ct. 

App. 1990)) (internal quotation marks omitted). Luke and MTD’s counterclaims 

gave Yankton County “all the benefits early notice confers. To now prohibit a claim 

against it would give the statute an unintended inflexibility and artificial 

importance.” See id. ¶ 15, 566 N.W.2d at 475. We conclude that the circuit court 

erred in granting summary judgment for Yankton County on Luke and MTD’s 

barratry counterclaims.3

[¶25.] B-Y also filed a counterclaim for barratry against Yankton County, but 

unlike Luke and MTD’s barratry counterclaims, B-Y did not file the barratry claim 

against Yankton County for more than a year after Yankton County served its 

complaint. B-Y argues that its injury arising from the barratry action “is one of a 

‘continuing’ nature” and is not complete until Yankton County’s action ends in 

3. In September 2017, Luke and MTD amended their barratry counterclaims to 

include an allegation that Yankton County’s action was also malicious under 

SDCL 20-9-6.1. We have recognized that SDCL 3-21-2 does not require strict 

compliance with the information supplied in the written notice. See Myears, 

1997 S.D. 89, ¶ 15, 566 N.W.2d at 474–75. Rather, written notice is sufficient 

if it “included enough pertinent information to constitute adequate notice” of 

the injury. Id. ¶ 15, 566 N.W.2d at 474. SDCL 3-21-2 does not require the 

claimant to provide every theory of liability; it only requires written notice of 

the time, place, and cause of injury underlying the claimant’s action. 

Because Luke and MTD provided sufficient notice of a barratry claim, they 

can pursue their barratry counterclaim without limitation under SDCL 20-9-

6.1.
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finality. B-Y claims that because the statutory period did not accrue until Yankton 

County dismissed its claims on March 12, 2021, either the July 3, 2019 letter or BY’s counterclaim filed on September 27, 2019 satisfied the notice requirement in 

SDCL 3-21-2.

[¶26.] SDCL 20-9-6.1 defines barratry as “the assertion of a frivolous or 

malicious claim or defense or the filing of any document with malice or in bad faith 

by a party in a civil action.” This Court has further explained that:

A frivolous action exists when “the proponent can present no 

rational argument based on the evidence or law in support of the 

claim” . . . . To fall to the level of frivolousness there must be 

such a deficiency in fact or law that no reasonable person could 

expect a favorable judicial ruling . . . . [F]rivolousness “connotes 

an improper motive or [a] legal position so wholly without merit 

as to be ridiculous.”

Pioneer Bank & Tr. v. Reynick, 2009 S.D. 3, ¶ 15, 760 N.W.2d 139, 143 (quoting 

Citibank (S.D.), N.A. v. Hauff, 2003 S.D. 99, ¶¶ 31–32, 668 N.W.2d 528, 537 (some 

quotation marks omitted)). “A malicious action is one brought for an improper, 

unjustifiable motive.” Harvieux v. Progressive N. Ins. Co., 2018 S.D. 52, ¶ 26, 915 

N.W.2d 697, 704 (citation omitted). A malicious action exists “if it is begun in 

malice, and without probable cause to believe it can succeed, and which finally ends 

in failure.” Id. (citation omitted).

[¶27.] When, as here, there exists a dispute as to the date on which the notice 

requirements of SDCL 3-21-2 are implicated, “we have continuously held that the 

date of the injury is the triggering event for the 180-day period. The statute clearly 

says, ‘after the injury,’ not ‘after the discovery of the injury.’” Gakin v. City of Rapid 
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City, 2005 S.D. 68, ¶ 15, 698 N.W.2d 493, 498 (quoting Purdy v. Fleming, 2002 S.D. 

156, ¶ 14, 655 N.W.2d 424, 430).

[¶28.] Here, contrary to B-Y’s contention, the injury occurred when Yankton 

County brought the alleged frivolous or malicious action. See Citibank (S.D.), N.A., 

2003 S.D. 99, ¶ 30, 668 N.W.2d at 537 (providing that a claim for “barratry exists 

when a party brings a frivolous or malicious claim” (emphasis added)). Any injury 

to B-Y was sustained on that date, and there was no need to wait until the final 

determination of Yankton County’s suit before B-Y could institute the barratry 

action. Rather, as SDCL 20-9-6.1 provides, the barratry cause of action “may be 

asserted by filing a pleading in the same civil action in which the claim of barratry 

arises or in a subsequent action.” (Emphasis added.) Therefore, even if B-Y did not 

discover its alleged injury and was unable to prove all the elements of its barratry 

claim until the Yankton County action was dismissed, the date of injury for the 

barratry claim occurred no later than the date when B-Y was served with Yankton 

County’s complaint.

[¶29.] B-Y took no action to put Yankton County on notice of its barratry 

injury as required by the notice statutes within the 180 days after Yankton County 

commenced the alleged frivolous or malicious action. Neither B-Y’s barratry 

counterclaim nor B-Y’s letters sent to Yankton County were provided within 180 

days of the alleged injury. The circuit court did not err in granting summary 

judgment for Yankton County on B-Y’s claim for barratry.
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Abuse of Process

[¶30.] We next consider whether the circuit court erred in determining that 

McAllisters failed to provide timely notice pursuant to SDCL 3-21-2 and SDCL 3-21-

3 of the abuse of process claims against Yankton County, Yankton County Entities, 

Klimisch, and Garrity. McAllisters filed the third-party complaint for abuse of 

process against Yankton County Entities, Klimisch, and Garrity on August 23, 

2019, more than a year after Yankton County commenced the injunction action 

against McAllisters. Similarly, it was not until a year after Yankton County 

commenced suit that Luke and MTD amended their counterclaims against Yankton 

County to add claims for abuse of process and B-Y filed its abuse of process 

counterclaim against Yankton County.

[¶31.] In the counterclaim and third-party complaint, both the abuse of 

process and barratry claims focus on Yankton County’s commencement of the 

lawsuit, a lawsuit McAllisters believed to be frivolous and initiated for an ulterior 

purpose. In regard to a date of injury for purposes of SDCL 3-21-2, McAllisters’ 

appellate briefs do not clearly distinguish their abuse of process claims from their 

barratry claims.

[¶32.] We recognize that barratry and abuse of process are similar causes of 

action and may have similar underlying injuries for purposes of SDCL 3-21-2. 

However, these claims are distinct and have different elements. In Specialty Mills, 

Inc. v. Citizens State Bank, we provided the following explanation of an abuse of 

process claim:

Abuse of process consists of the malicious misuse or 

misapplication of legal process after its issuance to accomplish 
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some collateral purpose not warranted or properly attainable 

thereby.

. . . .

It differs from malicious prosecution [or barratry] in that it is 

not necessary to show that the action in which the process was 

used was without probable cause or that it terminated favorably 

to the plaintiff.

1997 S.D. 7, ¶ 20, 558 N.W.2d 617, 623 (citation omitted). “The essential elements 

of [the abuse of process] cause of action are 1) an ulterior purpose, and 2) an act in 

the use of process which is improper in the regular prosecution of the proceeding.”4 

Id.

[¶33.] At oral argument, when asked to clarify when the abuse of process 

injury occurred, McAllisters offered that Yankton County’s filing of its complaint in 

July 2018 was the triggering event for purposes of SDCL 3-21-2. McAllisters 

further acknowledged that they did not thereafter provide notice within 180 days of 

Yankton County commencing its lawsuit, and Luke and MTD have not argued that 

their barratry counterclaim provided sufficient notice of the cause of any injury 

associated with their abuse of process claim. Instead, McAllisters rely solely upon 

theories of fraudulent concealment and estoppel to argue that SDCL 3-21-2 was 

tolled with respect to their abuse of process claims. They contend that the July 3, 

2019 letter to Klimisch or their third-party complaint or amended counterclaims 

alleging abuse of process provided sufficient notice of the abuse of process injury 

within the tolled notice period. Therefore, we must determine whether the notice 

period under SDCL 3-21-2 was tolled by fraudulent concealment or estoppel.

4. Whether McAllisters have alleged acts aligning with these elements is not at 

issue in this appeal; rather, only the question whether they provided timely 

notice of their alleged abuse of process claims is before us.
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[¶34.] “[F]raudulent concealment may toll the statute of limitations and this 

doctrine may be extended to a notice of claim provision.” Gakin, 2005 S.D. 68, ¶ 18, 

698 N.W.2d at 499 (quoting Purdy, 2002 S.D. 156, ¶ 18, 655 N.W.2d at 431) 

(internal quotation marks omitted). As we have previously explained:

In the absence of some trust or confidential relationship between

the parties there must be some affirmative act or conduct on the 

part of the defendant designed to prevent, and which does 

prevent, the discovery of the cause of action. Mere silence, in 

the absence of a duty to speak, is not ordinarily sufficient . . . . 

[I]f a trust or confidential relationship exists between the 

parties, which imposes a duty to disclose, mere silence by the 

one under that duty constitutes fraudulent concealment.

Conway v. Conway, 487 N.W.2d 21, 23–24 (S.D. 1992) (citation omitted). Therefore, 

“we first must determine whether a fiduciary relationship existed between the 

parties.” Purdy, 2002 S.D. 156, ¶ 18, 655 N.W.2d at 431.

The existence of a fiduciary duty and the scope of that duty are 

questions of law for the court. Generally, in such a relationship, 

the “property, interest or authority of the other is placed in 

charge of the fiduciary.” In Garrett v. BankWest, Inc., we found 

that a “fiduciary relationship imparts a position of peculiar 

confidence placed by one individual in another.” Normally, in a 

fiduciary relationship, one of the parties has a superior power 

over the other.

Gakin, 2005 S.D. 68, ¶ 19, 698 N.W.2d at 500 (citation omitted).

[¶35.] A fiduciary relationship was not present here. McAllisters did not 

place B-Y or MTD under the authority and control of Yankton County. Further, 

Yankton County, Yankton County Entities, Garrity, and Klimisch did not have a 

confidential relationship with McAllisters, and McAllisters have not identified any 

special duties arising from Yankton County’s application of its zoning regulations. 

See Fodness v. City of Sioux Falls, 2020 S.D. 43, ¶ 15, 947 N.W.2d 619, 626 (A 
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special duty “arises only when there are additional indicia that the municipality has 

undertaken the responsibility of not only protecting itself, but also undertaken the 

responsibility of protecting a particular class of persons[.]” (citation omitted)).

[¶36.] “In the absence of a fiduciary relationship, fraudulent concealment 

does not exist simply because a cause of action remains undiscovered, but only 

when the defendant affirmatively prevents discovery.” Purdy, 2002 S.D. 156, ¶ 20, 

655 N.W.2d at 431. McAllisters claim they were unaware of the alleged malicious 

nature of Yankton County’s action until May 2019, when a commissioner related 

that the County’s decision to commence the lawsuit had to do with an issue related 

to Fire & Ice (the unrelated business owned and operated by Luke). However, 

viewing the evidence most favorably to McAllisters, there is no evidence in the 

record of affirmative actions by Yankton County, Yankton County Entities, Garrity, 

or Klimisch that were designed to prevent McAllisters from discovering their 

alleged abuse of process injury. As such, the doctrine of fraudulent concealment did 

not toll the notice period.

[¶37.] McAllisters also argue that Yankton County, Yankton County Entities, 

Garrity, and Klimisch are estopped from asserting the affirmative defense of SDCL 

3-21-2. “[A]n estoppel can be applied against public entities in exceptional 

circumstances to ‘prevent manifest injustice.’” Smith v. Neville, 539 N.W.2d 679, 

682 (S.D. 1995) (citation omitted). “While the State and its agents have no legal 

duty to gratuitously hand out legal advice on notice statutes, neither do they have 

the right under the statutes to affirmatively mislead.” Id. at 681–82. However, 

“mere innocent silence or inaction will not work an estoppel unless one remains 
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silent when he has a duty to speak. Generally, to work an estoppel, there must be 

some intended deception in the conduct or declaration of the party to be estopped. 

The conduct must have induced the other party to alter his position or do that 

which he would not otherwise have done to his prejudice.” Id. at 682 (quoting 

Hanson v. Brookings Hosp., 469 N.W.2d 826, 828–29 (S.D. 1991)).

[¶38.] In Smith v. Neville, we applied estoppel to toll the 180-day notice 

period when the State and its claims adjuster took affirmative actions “that would 

cause an objectively reasonable person to believe that the proper authorities of the 

State had received notice and that nothing else was necessary on the part of the 

private citizen to have his claim processed.” Id. at 682. Contrary to Smith, 

Yankton County, Yankton County Entities, Garrity, and Klimisch did not take 

affirmative actions that would have created a reasonable impression that 

McAllisters had complied with the notice statute for their abuse of process claims. 

Yankton County had no duty to advise McAllisters to provide notice of any other 

potential injuries arising from Yankton County’s complaint.

[¶39.] Therefore, the circuit court properly dismissed McAllisters’ abuse of 

process claims against Yankton County, Yankton County Entities, Garrity, and 

Klimisch.

Civil Conspiracy of Abuse of Process

[¶40.] McAllisters argue that Garrity and Klimisch conspired to commit 

abuse of process by filing and leveraging the lawsuit against McAllisters in order to 

stop them from operating B-Y and Fire & Ice. “A civil conspiracy is, fundamentally, 

an agreement to commit a tort.” Kirlin v. Halverson, 2008 S.D. 107, ¶ 59, 758 
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N.W.2d 436, 455 (emphasis omitted) (citation omitted). “This is not an independent 

cause of action, but is ‘sustainable only after an underlying tort claim has been 

established.’” Id. (emphasis omitted) (citation omitted) (internal quotation marks 

omitted). McAllisters’ abuse of process claims against Garrity and Klimisch are 

barred under SDCL 3-21-2. As such, McAllisters’ claim for civil conspiracy to 

commit abuse of process cannot be maintained, and the circuit court did not err in 

granting summary judgment as to this claim.5

Conclusion

[¶41.] We affirm the circuit court’s grant of summary judgment for Yankton 

County, Yankton County Entities, Garrity, and Klimisch on B-Y’s counterclaim for 

barratry and on McAllisters’ claims for abuse of process and civil conspiracy to 

commit abuse of process. We reverse the circuit court’s grant of summary judgment 

for Yankton County as to the barratry counterclaims filed by Luke and MTD.

[¶42.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

5. Because we affirm the circuit court’s dismissal of McAllisters’ claims of abuse 

of process and civil conspiracy to commit abuse of process against Klimisch, 

we decline to address whether Klimisch was entitled to prosecutorial 

immunity.