#30441-r-SPM

2024 S.D. 46

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

KEVIN JUCHT, Plaintiff and Appellant,

v.

NATHAN SCHULZ, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

MCCOOK COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CHRIS GILES

Judge

* * * *

ELIZABETH S. HERTZ

MITCHELL A. PETERSON of

Davenport, Evans, Hurwitz

 & Smith, LLP

Sioux Falls, South Dakota Attorneys for defendant and

appellant.

MATTHEW J. MCINTOSH of

Beardsley, Jensen & Lee, Prof. LLC

Rapid City, South Dakota Attorneys for plaintiff and

appellee.

* * * *

ARGUED

MARCH 20, 2024

OPINION FILED 08/14/24
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MYREN, Justice

[¶1.] Kevin Jucht and Nathan Schulz farm on abutting land. Jucht sued 

Schulz for using a chemical spray that allegedly damaged Jucht’s crops. Schulz 

filed a motion to dismiss. The circuit court granted Schulz’s motion to dismiss, and 

Jucht appeals. We reverse and remand.

Factual and Procedural History

[¶2.] The following facts are as set out in Jucht’s complaint. Schulz farms 

land next to Jucht. Schulz “sprayed fields adjacent to Jucht’s property with a 

chemical mixture in such a manner as to cause severe drift on Jucht’s property.” 

“That day at around 11:07 a.m., [Schulz] called Jucht to inquire what Jucht had 

planted on his property.” Schulz “continued spraying, finishing around 6:00 p.m.” 

Subsequently, Jucht’s soybeans were damaged.

[¶3.] Jucht reported the incident to the South Dakota Department of 

Agriculture and Natural Resources (DANR). DANR advised Jucht to refrain from 

any involvement in the DANR’s investigation of the report. Jucht subsequently 

sued Schulz for negligence, strict liability, trespass, and nuisance, requesting actual 

and punitive damages. Jucht’s complaint alleged Schulz “had actual notice of 

DANR’s investigation of Jucht’s complaint.” Jucht’s complaint also alleged: “At no 

time did [Schulz] request entry to Jucht’s property to inspect the damaged 

vegetation, and at no time did Jucht deny [Schulz] entry to his property.”

[¶4.] Schulz filed a motion to dismiss under SDCL 15-6-12(b)(5), asserting 

that Jucht failed to state a claim upon which relief could be granted. Schulz argued 

the circuit court must dismiss Jucht’s complaint because Jucht failed to provide 
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notice to Schulz as required by SDCL 38-21-46. The circuit court granted the 

motion to dismiss. Jucht appeals.

Decision

[¶5.] SDCL 38-21-46 reads:

Any person claiming damages from any use of a pesticide shall

notify by certified mail the pesticide applicator of the alleged 

damage within the earlier of:

(1) Thirty days after the date that the damages were 

observed or should have been observed; or

(2) If a growing crop is alleged to have been damaged, 

before the time that twenty-five percent of the crop has 

been harvested or destroyed.

This section does not apply if the person seeking reimbursement 

for damage was the applicator of the pesticide.

[¶6.] SDCL 38-21-47 reads:

Upon notifying the applicator as required under § 38-21-46, the 

person seeking reimbursement for the alleged damage shall 

permit the applicator and up to four representatives of the 

applicator to enter the person’s property during reasonable 

hours for the purpose of observing and examining the alleged 

damage. If the person fails to allow entry, the person is barred 

from asserting a claim against the applicator.

[¶7.] Schulz claims Jucht did not provide the notice required under the 

statute and is therefore barred from asserting his claim. Jucht contends that 

failure to provide the notice identified in SDCL 38-21-46 does not bar any cause of 

action for damages. In support of his argument, Jucht relies primarily on Durham 

v. Ciba-Geigy Corp., 315 N.W.2d 696, 698 (S.D. 1982). There, interpreting earlier 

versions of these statutes that did not include the notice requirement at issue in 

Jucht’s appeal, this Court rejected the claim that “the filing requirements of SDCL 
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38-21-46 serve as either a condition precedent or a statute of limitations barring 

[plaintiff’s] cause of action because he failed to comply with the filing 

requirements.” Id. When Durham was decided, SDCL 38-21-46 required a person 

claiming damages to file a form with the Secretary of the Department. When 

interpreting that provision, the Durham Court relied heavily on the nature of 

chapter 38-21 as it then existed. The Legislature has significantly amended the 

statutes within chapter 38-21 since Durham. This appeal presents this Court the 

first opportunity to interpret the current version of SDCL 38-21-46. We assess the 

statutes as they currently exist and apply our well-known interpretative rules:

“[W]e give words their plain meaning and effect, and read 

statutes as a whole.” “When the language in a statute is clear, 

certain and unambiguous, there is no reason for construction, 

and the Court’s only function is to declare the meaning of the 

statute as clearly expressed.” “When, however, ‘statutory 

construction is required statutes must be construed according to 

their intent, and the intent must be determined from the statute

as a whole, as well as enactments relating to the same subject.’”

Matter of I.A.D., 2023 S.D. 36, ¶ 16, 993 N.W.2d 911, 916 (citations omitted) 

(alteration in original) (quoting Olson v. Butte Cnty. Comm’n, 2019 S.D. 13, ¶ 5, 925 

N.W.2d 463, 464).

[¶8.] In his complaint, Jucht alleged that Schulz had “actual notice of 

DANR’s investigation of Jucht’s complaint” and that “Schulz had not requested 

entry to Jucht’s property to inspect the damaged vegetation, and at no time did 

Jucht deny [Schulz] entry to his property.” “When reviewing orders on a motion to 

dismiss, this Court accepts the facts alleged in the complaint as true and construes 

them in the light most favorable to the pleader.” Paul v. Bathurst, 2023 S.D. 56, 
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¶ 2, 997 N.W.2d 644, 647 (citing Sisney v. Best Inc., 2008 S.D. 70, ¶ 8, 754 N.W.2d 

804, 809).

[¶9.] The circuit court concluded that Jucht was barred from seeking 

recovery for the alleged damages because he did not provide the notice required by 

SDCL 38-21-46. The circuit court’s construction of SDCL 38-21-46 and 47 was 

incorrect. While SDCL 38-21-46 requires that the person claiming damage give 

notice of the alleged damage to the pesticide applicator, failure to provide such 

notice does not bar the claimant from bringing their claim.∗ Instead, a claimant is 

barred from seeking recovery under SDCL 38-21-47 when the claimant “fails to 

allow entry” to the pesticide applicator to observe and inspect the alleged damage.

[¶10.] The purpose of the notice required by SDCL 38-21-46 is to enable the 

applicator to gain timely access to the property to inspect the alleged damage. The 

opening phrase of SDCL 38-21-47 (“[u]pon notifying the applicator as required 

under § 38-21-46”) presumes the claimant gave the pesticide applicator the required 

notice. See Hollman v. S.D. Dep’t of Soc. Servs., 2015 S.D. 21, ¶ 9, 862 N.W.2d 856, 

859 (“We presume the Legislature does not insert surplusage into its enactments.”). 

When SDCL 38-21-46 and 47 are read in conjunction, it is apparent that the 

Legislature intended to preserve the pesticide applicator’s right to inspect the 

alleged damage shortly after the damage is observed and to bar a claimant from 

∗ By comparison, SDCL 3-21-2 provides that “[n]o 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.” (Emphasis added.)
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asserting a claim if that claimant thwarts the applicator’s right to inspect the 

damage in a timely fashion. A pesticide applicator cannot attempt to exercise its 

statutory right to inspect the damage and thereby be barred entry by the claimant 

unless the applicator knows of the claimant’s alleged damage. Although the 

statutes do not mandate dismissal of a claim based solely on lack of notice, it is 

conceivable that a lack of timely notice to the pesticide applicator could impair that 

applicator’s right to inspect the damage in a timely fashion.

[¶11.] For purposes of ruling on the motion to dismiss, the circuit court was 

obliged to accept as true the allegations in Jucht’s complaint. Taken as true, those 

averments were sufficient to survive the motion to dismiss. Further proceedings 

will establish the nature and timing of the notice Schulz received regarding the 

alleged damage and whether he was afforded the opportunity to exercise his 

statutory right under SDCL 38-21-47 to inspect the alleged damage.

[¶12.] We reverse the order granting the motion to dismiss and remand for 

proceedings consistent with this opinion.

[¶13.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY, 

Justices, concur.