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2016 S.D. 42

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

MARGARET UPELL, Plaintiff and Appellant,

v.

DEWEY COUNTY COMMISSION, Defendant and Appellee,

 and

MOREAU-GRAND ELECTRIC

COOPERATIVE, INC., Intervenor and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

DEWEY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE MICHELLE K. PALMER PERCY

Judge

* * * *

AL ARENDT

Pierre, South Dakota Attorney for plaintiff

 and appellant.

STEVEN ABERLE

Dewey County State’s Attorney

Timber Lake, South Dakota Attorney for defendant and 

appellee.

JOHN W. BURKE

Thomas, Braun, Bernard & Burke, LLP

Rapid City, South Dakota Attorneys for intervenor and 

appellee.

* * * *

CONSIDERED ON BRIEFS

ON MARCH 21, 2016

OPINION FILED 05/18/16
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KERN, Justice 

[¶1.] The Dewey County Commission (the Commission) granted an 

application to erect a power distribution line in a section line right-of-way bordering 

Margaret Upell’s property. She appealed to the circuit court which dismissed her 

appeal for lack of jurisdiction. She now appeals to this Court. We affirm.

Facts and Procedural History

[¶2.] Moreau-Grand Electric Cooperative, Inc. (Coop) filed an application 

with the Commission in December 2014 to erect and maintain a distribution line in 

a section line right-of-way. The application was filed pursuant to SDCL 31-26-1, 

which provides in pertinent part:

The board of county commissioners, upon written 

application designating the particular highway the use of 

which is desired, may grant to any person engaged in the 

manufacture or sale of electric light and power . . . the 

right to erect and maintain poles and wires or to bury 

underground cable for the purpose of conducting 

electricity for lighting, heating, and power purposes, 

together with stay wires and braces . . . in and along any 

public highway in its county for a period not to exceed 

twenty years, subject to the conditions set forth in this 

chapter and such further reasonable regulations as the 

Legislature may hereafter prescribe. 

[¶3.] Upell owned property adjacent to the section line and objected to the 

erection of the power line. The Commission held a hearing on Coop’s application in 

March 2015. All parties appeared, offered testimony, and presented arguments and 

authorities. At the close of the hearing, the Commission voted to approve Coop’s 

application. The Commission published its minutes on March 18, 2015. Upell filed 

a notice of appeal of the Commission’s decision with the circuit court on March 25, 
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2015. Upell served her notice of appeal by mail on counsel for Coop and on the 

Dewey County State’s Attorney. But she did not serve a member of the board of 

county commissioners as required by SDCL 7-8-29, which provides in pertinent 

part:

Such appeal shall be taken within twenty days after the 

publication of the decision of the board by serving a 

written notice on one of the members of the board, when 

the appeal is taken by any person aggrieved by the 

decision of the board[.]

(Emphasis added.) 

[¶4.] On June 29, 2015, Upell, the Commission, and Coop filed a stipulation 

agreeing to Coop’s intervention in Upell’s appeal. The circuit court filed its order 

granting the intervention on that same date. On July 6, 2015, Coop filed a motion 

to dismiss Upell’s appeal for failure to serve the notice of appeal on a member of the 

board of county commissioners as required by SDCL 7-8-29. The motion was heard 

on July 20 and the circuit court dismissed the appeal. The order of dismissal was 

filed on July 30, 2015, and Upell appeals to this Court.

Issue

[¶5.] Whether the circuit court erred in dismissing Upell’s appeal.

[¶6.] Upell argues that the circuit court erred in granting the motion to 

dismiss her appeal. Both parties cite the standard of review set forth in AEG 

Processing Center. No. 58, Inc. v. S.D. Department of Revenue and Regulation, 2013 

S.D. 75, ¶ 7 n.2, 838 N.W.2d 843, 847 n.2.

The “standard of review of a trial court’s grant or denial of 

a motion to dismiss is the same as our review of a motion 

for summary judgment—is the pleader entitled to 
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judgment as a matter of law?” “We review issues 

regarding a court’s jurisdiction as questions of law under 

the de novo standard of review.” Furthermore, “statutory 

interpretation is a question of law, reviewed de novo.”

Id. (citations omitted).

[¶7.] While this statement incorporates the correct standard, we clarify its 

reference to summary judgment. This language goes back to Jensen Ranch, Inc. v. 

Marsden, 440 N.W.2d 762 (S.D. 1989). In that case, a Rule 12(b)(5)1 motion to 

dismiss an action for failure to state a claim was converted to a motion for summary 

judgment. Id. at 764. Summary judgment was granted, and we reviewed the 

judgment according to summary judgment standards. Later, in reviewing the 

denial of a motion to dismiss for failure to state a claim in Estate of Billings v. 

Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D. 1993), we 

cited Jensen Ranch for the proposition that “[o]ur standard of review of a trial 

court’s grant or denial of a motion to dismiss is the same as our review of a motion 

for summary judgment—is the pleader entitled to judgment as a matter of law?” 

Since Estate of Billings, this language has been routinely quoted as part of our 

standard of review for dismissals, even in cases such as AEG that did not involve 

motions for failure to state a claim or summary judgment. See Risse v. Meeks, 1998 

S.D. 112, ¶¶ 6-10, 585 N.W.2d 875, 876 (motion to dismiss and dismissal for lack of 

subject matter jurisdiction); O’Neill Farms, Inc. v. Reinert, 2010 S.D. 25, ¶¶ 5-7, 780 

N.W.2d 55, 57-58 (motion to dismiss and dismissal for lack of personal 

 

1. SDCL 15-6-12(b)(5).
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jurisdiction).2 This confuses the standard of review when a dismissal is on 

jurisdictional grounds. 

[¶8.] Further confusing the standard of review is the fact that motions to 

dismiss for lack of jurisdiction such as in AEG and the present case may take 

different forms and may be raised at various points in the proceedings.3 As 

explained in one treatise:

A motion to dismiss an action for lack of subject matter 

jurisdiction under Rule 12(b)(1) is but one of many ways 

the defense may be presented. For example, in a 

significant number of cases, federal courts have permitted 

a defending party to raise a lack of subject matter 

jurisdiction on a Rule 12(c) motion for judgment on the 

pleadings or on a Rule 12(f) motion to strike. And, in 

keeping with the policy set forth in Rule 12(h)(3) of 

preserving the defense throughout the action, it has long 

been well-established that the court’s lack of subject 

matter jurisdiction may be asserted at any time by any 

interested party, either in the answer or in the form of a 

[Rule 12(h)(3)] suggestion to the court prior to final 

judgment. After final judgment a lack of subject matter 

jurisdiction may be interposed as a motion for relief from 

the judgment under Rule 60(b)(4).

 

2. See also Samuelson v. Jorgenson, 1999 S.D. 13, ¶¶ 4-6, 588 N.W.2d 598, 599 

(denial of motion to dismiss for failure to timely serve summons and 

complaint); Ramsey v. Mathisrud, 1999 S.D. 121, ¶¶ 2-5, 599 N.W.2d 400, 401 

(motion to dismiss and dismissal for expiration of the statute of limitations); 

White Eagle v. City of Fort Pierre, 2000 S.D. 34, ¶¶ 3-4, 606 N.W.2d 926, 927-

28 (denial of motion to dismiss for improper service of process and expiration 

of the statute of limitations); Bison Twp. v. Perkins Cty., 2002 S.D. 22, ¶¶ 5-7, 

640 N.W.2d 503, 505 (motion to dismiss and dismissal for untimely service of 

a notice of appeal). 

3. As this Court has often stated: “The issue of jurisdiction may be raised at 

any time[.]” Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 

N.W.2d 335, 340 (quoting Wold Family Farms, Inc. v. Heartland Organic 

Foods, Inc., 2003 S.D. 45, ¶ 12, 661 N.W.2d 719, 723).
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5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 

(3d ed. 2016) (footnotes omitted). Thus, for example, in Vitek v. Bon Homme County

Board of Commissioners, 2002 S.D. 100, ¶ 6, 650 N.W.2d 513, 515, the motion to 

dismiss the appeal to circuit court was raised by a motion for judgment on the 

pleadings. Rather than setting forth the de novo standard of review for 

jurisdictional issues, however, we cited the standard of review for a judgment on the 

pleadings. Id. ¶ 7, 650 N.W.2d at 516.

[¶9.] Because of this confusion, we take this opportunity to make clear that 

whatever the name of the motion or whatever the title of the court’s disposition, we 

review a dismissal for lack of jurisdiction as a “question[] of law under the de novo 

standard of review.” AEG, 2013 S.D. 75, ¶ 7 n.2, 838 N.W.2d at 847 n.2 (quoting 

O’Neill Farms, 2010 S.D. 25, ¶ 7, 780 N.W.2d at 57-58.4 This is in keeping with the 

principle that “[w]e review issues of jurisdiction de novo because they are questions 

of law.” Tornow v. Sioux Falls Civil Serv. Bd., 2013 S.D. 20, ¶ 10, 827 N.W.2d 852, 

855.5 Further, when statutory interpretation is relevant to the inquiry, “statutory 

 

4. See also In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d 34, 37 

(“Subject matter jurisdiction to conduct an appeal from a county commission 

decision presents a question of law.”); Risse, 1998 S.D. 112, ¶ 10, 585 N.W.2d 

at 876 (“This Court reviews challenges to court jurisdiction de novo.”); Wright

& Miller, at § 1350 (“It is widely—indeed, universally—accepted . . . that 

courts of appeal, when reviewing Rule 12(b)(1) dismissals by district courts, 

for a lack of subject matter jurisdiction, exercise de novo review over legal 

conclusions.”).

5. Accord Cable v. Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 19, 769 

N.W.2d 817, 825; Grajczyk v. Tasca, 2006 S.D. 55, ¶ 8, 717 N.W.2d 624, 627; 

State ex rel. LeCompte v. Keckler, 2001 S.D. 68, ¶ 6, 628 N.W.2d 749, 752; In 

continued . . . 
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interpretation is [also] a question of law, reviewed de novo.” AEG, 2013 S.D. 75, ¶ 7 

n.2, 838 N.W.2d at 847 n.2 (quoting Hass v. Wentzlaff, 2012 S.D. 50, ¶ 12, 816 

N.W.2d 96, 101).6 To this extent, therefore, the standard of review as set forth in 

AEG is correct. However, we caution against rote references to summary judgment 

as part of the standard. Not all summary judgment standards may apply to a 

motion to dismiss for lack of jurisdiction. Compare e.g. Hutterville Hutterian 

Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 20, 791 N.W.2d 169, 175 (holding that in 

a Rule 12(b)(1) factual attack on a circuit court’s subject matter jurisdiction “the 

court must . . . weigh the evidence and resolve disputed issues of fact affecting the 

merits of the jurisdictional dispute.”), with Foster-Naser v. Aurora Cty., 2016 S.D. 6, 

¶ 11, 874 N.W.2d 505, 508 (noting that in ruling on a motion for summary 

judgment, the court must “resolve disputed facts in favor of the nonmoving party[.]”

(quoting Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125)). 

[¶10.] Having clarified the standard of review, we turn our analysis to Upell’s 

claim of error in the dismissal of her appeal. Our analysis begins with Schrank v. 

Pennington County Board of Commissioners, 1998 S.D. 108, 584 N.W.2d 680. In 

Schrank, the county commission issued a conditional use permit to Alexander 

Drilling. Schrank appealed the commission’s decision to the circuit court. Id. ¶ 2. 

Schrank served the notice of appeal on a county commissioner but not upon 

 

. . . continued

re Estate of Galada, 1999 S.D. 21, ¶ 8, 589 N.W.2d 221, 222-23; Kroupa v. 

Kroupa, 1998 S.D. 4, ¶ 10, 574 N.W.2d 208, 210.

6. Accord In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d at 37; 

Vitek, 2002 S.D. 100, ¶ 8, 650 N.W.2d at 516.
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Alexander. Id. ¶ 2, 584 N.W.2d at 681. As he was not served, Alexander moved to 

dismiss. Id. ¶ 3. The circuit court denied the motion and ultimately reversed the 

county’s decision. Id. Both Alexander and the county appealed to this Court. Id. ¶ 

4. Appellants argued that the circuit court did not have jurisdiction over the appeal 

because Alexander was not personally served with the notice of appeal. Id. ¶ 8. We 

disagreed. Id. 

[¶11.] Observing that the appeal was brought under SDCL 7-8-29, we 

accepted the appellants’ premise that compliance with the statute authorizing the 

appeal was jurisdictional. Id. ¶¶ 10-11. We noted: “[W]hen the statute authorizing 

[an] appeal requires a designated person to be made a party . . . the failure to do so 

constitute[s] noncompliance with its terms and thus involve[s] subject matter 

jurisdiction.” Id. ¶ 10. (quoting Fong v. Planning & Zoning Bd. of Appeals, 563 A.2d 

293, 298 (Conn. 1989)). We concluded that there was no lack of subject matter 

jurisdiction because the requirements for service under SDCL 7-8-29 were strictly 

followed; “Schrank was not statutorily required to serve notice on Alexander,” and 

service was made on one of the members of the board. Id. ¶ 9. Accordingly, we 

affirmed the circuit court’s denial of the motion to dismiss the appeal. 

[¶12.] Here, in contrast with Schrank, SDCL 7-8-29’s requirement of service 

on “one of the members of the board” was not fulfilled, and the statute was not

strictly followed. Therefore, this case presents the jurisdictional defect that was not 

present in Schrank. Because there was no subject matter jurisdiction the circuit 

court properly dismissed the appeal under Schrank. 
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[¶13.] Upell cites Bison Township for a contrary result. In Bison Township, 

twelve townships appealed a county decision to circuit court. 2002 S.D. 22, ¶ 1, 640 

N.W.2d at 504. However, the circuit court clerk received the townships’ notice of 

appeal a day late. Id. ¶ 6, 640 N.W.2d at 505. Therefore, the circuit court granted 

the county’s motion to dismiss the appeal as untimely under SDCL 7-8-29. Id. On 

appeal to this Court, the townships argued that, under SDCL 15-6-5(b)7 service by 

mail was complete upon mailing, therefore the appeal was timely because the notice 

of appeal was mailed within the appeal time. Id. ¶ 10, 640 N.W.2d at 506. This 

Court agreed, holding that under SDCL 15-6-5(a)8 service of the notice of appeal fell 

within SDCL chapter 15-6 and, “therefore [could] be deemed complete upon 

mailing.” Id. ¶ 12.9

 

7. SDCL 15-6-5(b) provides in pertinent part: “Service by mail shall be by first 

class mail and is complete upon mailing.” 

8. SDCL 15-6-5(a) provides in pertinent part: 

Except as otherwise provided in this chapter, every order 

required by its terms to be served, every pleading 

subsequent to the original complaint unless the court 

otherwise orders because of numerous defendants, every 

written motion other than one which may be heard ex 

parte, and every written notice, appearance, demand, 

offer or judgment, and similar paper shall be served upon 

each of the parties. 

9. As part of the decision in Bison Township, this Court also rejected the 

county’s contention that SDCL 15-6-4(d)(4)(i) required personal service of the 

notice of appeal on a commissioner. The Court rejected application of this 

statute, which has since been re-numbered as SDCL 15-6-4(d)(2)(i), because it 

applied to service of a summons. Instead, the Court applied SDCL 15-6-5 

because it more generally applied to “the service and filing of pleadings and 

other papers.” See Bison Twp., 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506.

continued . . . 
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[¶14.] Upell argues that SDCL 15-6-5(b),10 which permits service on a

party’s attorney, applies here and therefore her appeal was perfected by her service 

on the commissioners’ attorney (i.e., the state’s attorney). We disagree. Although 

we recognized that “SDCL chapter 15-6 governs the rules of procedure in circuit 

courts[,]” Bison Township, 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506, it is “with the 

exceptions stated in § 15-6-81.” SDCL 15-6-1. SDCL 15-6-81(c) provides: “This 

chapter [15-6] does not supersede the provisions of statutes relating to appeals to 

the circuit courts.” Thus, to the extent the rules of procedure conflict with the 

statutes relating to appeals to the circuit courts, the statutes must prevail.11 SDCL 

7-8-29 specifically requires service of a notice of appeal of a county decision on “one 

of the members of the board” of county commissioners. Upell did not comply with 

this requirement and, as a result, violated the jurisdictional prerequisite for her 

appeal. 

 

. . . continued

10. SDCL 15-6-5(b) provides in pertinent part: “Whenever under this chapter 

service is required or permitted to be made upon a party represented by an 

attorney, the service shall be made upon the attorney unless service upon the 

party himself is ordered by the court.” 

11. We recently reiterated a similar principle in Lake Hendricks Improvement 

Ass’n v. Brookings County Planning & Zoning Commission, holding that the 

rules of civil procedure are applicable in this Court, but “only to the extent 

that ‘a specific statute or rule [does not direct] otherwise.’” 2016 S.D. 17, ¶ 7, 

877 N.W.2d 99, 103 (alteration in original) (quoting Ripple v. Wold, 1997 S.D. 

135, ¶ 10, 572 N.W.2d 439, 441-42). This is consistent with the principle that 

“terms of a statute relating to a particular subject will prevail over the 

general terms of another statute.” Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at 

517 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17).
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[¶15.] This conclusion is reinforced by our decision in Vitek. As noted above, 

in Vitek, we reviewed a circuit court’s dismissal of an appeal from a decision of a 

board of county commissioners. 2002 S.D. 100, ¶ 6, 650 N.W.2d at 515. The 

dismissal was based upon the appellant’s failure to personally serve the notice of 

appeal on a member of the board of county commissioners. The appellee argued 

that personal service was necessary under SDCL 7-8-29 and SDCL 15-6-4(d)(4)(i),12

which required personal service of a summons on a county commissioner. Id. ¶ 13, 

650 N.W.2d at 517. We held that SDCL 7-8-29 does not require personal service of 

a notice of appeal on a county commissioner and that service by mail is sufficient. 

Id. ¶14. In reaching this conclusion we relied on Bison Township and the provisions 

of SDCL 15-6-5. But we cautioned that:

[T]his type of appeal falls somewhere between an 

administrative appeal and an appeal to this Court. An 

appeal from a county commission decision is not covered 

by chapter 1-26, which refers to administrative appeals, 

because the term “agency” does not include “any unit of 

local government.” See SDCL 1-26-1. Neither, however, is 

it completely covered by chapter 15-6, which refers to civil 

appeals generally. 

Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at 517 (emphasis added). Thus, the Court 

recognized that, as in Bison Township, it may be appropriate to consult SDCL 

chapter 15-6 to clarify the method of service of a notice of appeal of a county 

commission decision. Id. (noting that while “chapter 7-8 controls the procedure for 

appealing a county commission decision as far as it goes, . . . in determining the 

proper method of service, it is necessary to look elsewhere.”). It also noted, 

 

12. Re-numbered as SDCL 15-6-4(d)(2)(i). See 2005 S.D. Sess. Laws ch. 287.
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however, that SDCL 7-8-27 and SDCL 7-8-29 “direct when and to whom service is

[to be] made[.]” Id. ¶ 10.

[¶16.] Here, service was not made “on one of the members of the board” of 

county commissioners as directed by SDCL 7-8-29. Therefore, the circuit court 

correctly dismissed the appeal under Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at 

681.

[¶17.] Yet Upell argues that her notice of appeal was adequate to fulfill due 

process considerations and dismissal of her appeal was not required. This ignores 

Schrank’s requirement of strict compliance with the service provisions of SDCL 7-8-

29 and its recognition that lack of strict compliance deprives the circuit court of 

subject matter jurisdiction. See Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at 681. 

Absent jurisdiction, no other course remained for the court but to dismiss the 

appeal. See Woods v. Unified Gov’t of WYCO/KCK, 275 P.3d 46, 51 (Kan. 2012) 

(holding “the district court had no other choice but to dismiss the untimely-filed 

appeal.”); In re Int. of B.M.H., 446 N.W.2d 222, 224 (Neb. 1989) (noting in 

dismissing an appeal that “[a]n appellate court acquires no jurisdiction unless the 

appellant has satisfied the requirements for appellate jurisdiction, including a 

notice of appeal filed within the prescribed time.”).

[¶18.] Upell also argues that she “substantially complied” with the notice 

requirements of SDCL 15-6-5 and, therefore, service of her notice of appeal was 

adequate under Wagner v. Truesdell, 1998 S.D. 9, 574 N.W.2d 627. As already 

discussed, however, SDCL 15-6-5 is not the operative rule as to who must be served 

with a notice of appeal from a decision of a county commission. That is controlled 
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by SDCL 7-8-29. Vitek, 2002 S.D. 100, ¶ 10, 650 N.W.2d at 517. Upell did not 

comply with SDCL 7-8-29.

[¶19.] Further, Wagner was an unusual case involving service of a summons 

and complaint on an unadjudicated incompetent living in his home, under the 

temporary care of a friend. Wagner, 1998 S.D. 9, ¶ 3, N.W.2d at 628. Applying the 

doctrine of substantial compliance, this Court held that, under those circumstances, 

personal service on the temporary caretaker was adequate to commence the action. 

Id. ¶ 11, 574 N.W.2d at 630. Wagner, however, has repeatedly been distinguished 

by this Court on its facts.13 Moreover, this Court has specifically held, in the 

context of reviewing a dismissal of an appeal to circuit court that, “the doctrine of 

substantial compliance cannot be substituted for jurisdictional prerequisites.” AEG, 

2013 S.D. 75, ¶ 23, 838 N.W.2d at 850.

 

13. See e.g. White Eagle, 2000 S.D. 34, ¶¶ 13-14, 606 N.W.2d at 929-30

(distinguishing Wagner and declining to apply the substantial compliance 

doctrine in assessing the sufficiency of service of process to commence a civil 

action against a municipality); Lekanidis v. Bendetti, 2000 S.D. 86, ¶¶ 21-23, 

613 N.W.2d 542, 546-47 (declining to apply the substantial compliance 

doctrine to the requirements for substituted service of process on a 

nonresident motorist); Spade v. Branum, 2002 S.D. 43, ¶ 9, 643 N.W.2d 765, 

768 (distinguishing Wagner and declining to apply the substantial compliance 

doctrine to the requirements for service by publication); Edsill v. Schultz, 

2002 S.D. 44, ¶¶ 9-11, 643 N.W.2d 760, 763-64 (distinguishing Wagner and 

declining to apply the substantial compliance doctrine to the requirements for 

substituted service of process by a sheriff); R.B.O. v. Priests of the Sacred 

Heart, 2011 S.D. 86, ¶¶ 13-17, 807 N.W.2d 808, 811-13 (distinguishing 

Wagner and declining to apply the substantial compliance doctrine to uphold 

personal service of process on a business entity).
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[¶20.] Upell failed to comply with the jurisdictional prerequisites for her 

appeal as defined by Schrank. We decline to apply the doctrine of substantial 

compliance and affirm the court’s dismissal of Upell’s appeal.

[¶21.] Affirmed.

[¶22.] GILBERTSON, Chief Justice and ZINTER, SEVERSON, and 

WILBUR, Justices, concur.