#24399-a-DG 

2007 SD 89 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

ROBERT ANDERSON, Plaintiff and Appellant, 

 v. 

STEVEN KELLER, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

FALL RIVER COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE THOMAS L. TRIMBLE 

Judge 

* * * * 

STEVEN C. BEARDSLEY 

BRAD J. LEE of 

Beardsley, Jensen and VonWald, LLC 

Rapid City, South Dakota Attorneys for plaintiff 

and appellant. 

GENE R. BUSHNELL of 

Costello, Porter, Hill, Heisterkamp, 

Bushnell & Carpenter, LLP 

Rapid City, South Dakota Attorneys for defendant 

 and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON MAY 21, 2007 

 OPINION FILED 08/15/07 
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GILBERTSON, Chief Justice 

[¶1.] On November 21, 2006, the circuit court of the South Dakota Seventh 

Judicial Circuit issued a decision granting Steve Keller’s (Keller) motion for 

summary judgment in connection with a personal injury claim filed against him by 

Robert Anderson (Anderson). An alternative motion for continuance, filed by 

Anderson, was denied. The circuit court entered its corresponding order on 

December 8, 2006. We affirm. 

FACTS AND PROCEDURE 

[¶2.] There is no dispute that on July 22, 2003, a vehicle owned by the 

Angostura Irrigation District (Angostura) and operated by Keller collided with one 

driven by Anderson. Anderson was proceeding in a southeasterly direction and had 

just emerged onto Fall River County Road 416C from a private drive on his 

property. Keller, who was employed by Angostura and at the time was carrying out 

his duties as a “ditch runner,” was west bound on the county road when the incident 

occurred. Keller allegedly collided with the driver’s rear quarter of Anderson’s 

vehicle.1 

1. The record in this case contains little evidentiary material. Keller’s 

statement as to the point of impact is derived from an insurance form that he 

filled out and submitted following the accident. The insurance form bears a 

date stamp of August 3, 2003. Who asked Keller to fill out the insurance 

form and who he submitted it to is not revealed in the record. 

Keller filed a motion to strike with this Court alleging that the insurance 

form and two other documents were improperly included as appendices to the 

Appellant’s brief because they were never filed separately with the circuit 

court as evidence. We subsequently denied this motion and thus consider the 

appendices as part of the record on appeal. 

 
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[¶3.] In a sworn affidavit, Anderson alleges that following the collision, 

Keller called Angostura’s manager and secretary Mick Jenniges to inform him of 

the incident.2, 3 According to Anderson, Jenniges arrived at the scene about 10 – 20 

minutes after the collision. Anderson avers that Jenniges spoke to him and Keller 

at the scene and then also to a Fall River County sheriff’s deputy who arrived at the 

scene about 45 – 60 minutes after the collision. 

[¶4.] Anderson did not file his personal injury complaint against Keller until 

March 17, 2006. On September 14, 2006, Keller filed a motion for summary 

judgment alleging that Anderson had failed to comply with the statutory notice 

provisions of SDCL 3-21-2, which is relevant to personal injury claims against a 

public entity or its employees. On October 23, 2006, Anderson filed a memorandum 

in opposition to the motion for summary judgment and an alternative motion for 

continuance to conduct discovery. On November 21, 2006, the circuit court issued 

its decision, granting Keller’s motion for summary judgment and denying 

Anderson’s alternative motion for continuance. The order of the circuit court was 

entered on December 8, 2006. 

2. Anderson’s affidavit is included as an appendix to the appellant’s brief. 

Keller also filed a motion to strike this document. See supra note 1. 

3. Excerpts from defendant’s answers to plaintiff’s first set of interrogatories 

also include a statement by Keller that, following the collision, he called 

Jenniges to inform him of the incident. Keller also filed a motion to strike 

this document. See supra note 1. 
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[¶5.] Anderson raises two issues on appeal: 

1. Whether the notice requirements of SDCL 3-21-2 were 

satisfied. 

2. Whether the circuit court abused its discretion in not 

 granting Anderson’s motion for continuance to conduct 

 discovery as to the scope of notice provided to Angostura. 

 

STANDARD OF REVIEW 

 In reviewing a trial court’s order granting a motion for summary 

judgment, “[w]e will affirm only when there are no genuine 

issues of material fact and the legal questions have been 

correctly decided.” “We view all reasonable inferences drawn 

from the facts in the light most favorable to the non-moving 

party.” 

Gakin v. City of Rapid City, 2005 SD 68, ¶7, 698 NW2d 493, 497 (internal citations 

omitted). Questions of law, such as statutory interpretation, are reviewed de novo. 

Id. “We review the trial court’s rulings on discovery matters under an abuse of 

discretion standard.” Maynard v. Heeren, 1997 SD 60, ¶5, 563 NW2d 830, 833 

(citing Weisbeck v. Hess, 524 NW2d 363, 364 (SD 1994) (citing Aberle v. 

Ringhausen, 494 NW2d 179, 182-83 (SD 1992))). 

ANALYSIS AND DECISION 

[¶6.] 1. Whether the notice requirements of SDCL 3-21-2 

 were satisfied. 

[¶7.] Keller’s employer, Angostura, is a political subdivision formed under 

SDCL 46A-4-19.4 Our legislature has set out the terms under which tort claims can 

 

 (continued . . .) 

4. SDCL 46A-4-19 provides: 

If a majority of all the votes cast are “Irrigation District-Yes,” the [Board of 

Water and Natural Resources] shall, by resolution, declare the territory duly 

organized as an irrigation district, under the name and style designated. 
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be filed against public entities, and their employees, including irrigation districts, 

such as Angostura.5 SDCL 3-21-2 provides in pertinent part: 

 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. 

(Emphasis added). The irrigation district’s secretary is a person designated to 

receive notice on its behalf. SDCL 3-21-3(5). 

[¶8.] This Court has stated that notice in accord with SDCL 3-21-2, 

sufficient to satisfy the statute, is notice of a claim. Gakin, 2005 SD 68, ¶17, 698 

NW2d at 499. We have also commented that where a plaintiff’s right to bring a 

cause of action against a public entity exists only by virtue of statute, the cause of 

action is subject to such conditions and limitations as public policy may require or 

deem desirable. Griffis v. State, 68 SD 360, 2 NW2d 666, 668 (1942) (citing 

Barnsdall Refining Corp. v. Welsh, 64 SD 647, 269 NW 853 (1936); Goodhope v. 

State, 50 SD 643, 211 NW 451 (1926))) (holding that there was no jurisdiction to 

render a judgment for claims in absence of an appropriation for their payment 

where a cause of action against the state was premised by statute on an available 

________________________ 

(. . . continued) 

Upon filing of a true copy of the resolution with the secretary of state, the 

irrigation district shall become a political subdivision of the state with the 

authority, powers, and duties prescribed in chapters 46A-4 to 46A-7, 

inclusive. 

5. The statutory provision designating irrigation districts as public entities can 

be found under SDCL 3-21-1(2). 
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appropriation); see also Rowe v. Richards, 32 SD 66, 142 NW 664, 655 (1913) 

(acknowledging that in a case alleging negligence of a municipality resulting in 

personal injury and death, where the right to bring a cause of action can be 

maintained only by virtue of statute, it must be prosecuted in the manner and 

under the conditions specified), overruled in part on other grounds by Ulvig v. 

McKennan Hosp., 56 SD 509, 229 NW 383 (1930). 

[¶9.] Anderson did not file his complaint against Keller until March 17, 

2006, almost two years and eight months after the date of alleged injury that 

triggered the 180-day notification period under SDCL 3-21-2. See Gakin, 2005 SD 

68, ¶15, 698 NW2d at 498 (citing Purdy v. Fleming, 2002 SD 156, ¶14, 655 NW2d 

424, 430) (reaffirming that the triggering event for the 180-day notice period under 

SDCL 3-21-2 is the date of the injury, not the date that the injury is discovered). No 

other notice of claim is contained in the record nor alleged by Anderson. 

[¶10.] Nevertheless, Anderson argues that the statutory notice provisions 

were satisfied, alleging substantial compliance through Keller’s insurance form. 

Alternatively, Anderson argues that Angostura’s secretary, Jenniges, had actual 

knowledge of his claim through the telephone call from Keller, informing him of the 

incident; through his visit to the collision scene, where Anderson alleges he spoke 

with the parties and a sheriff’s deputy; and through Keller’s insurance form. 

[¶11.] While this Court has never recognized actual knowledge of a person 

designated to receive notice for a public entity as a substitute for a plaintiff’s 
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adequate notice of claim,6 we have set out two exceptions to the express notice 

requirements of SDCL 3-21-2. In Smith v. Neville, 539 NW2d 679, 681-82 (SD 

1995), we held that when the acts of a public entity or its agents would 

affirmatively mislead an objectively reasonable person to believe that the proper 

authority of the public entity received notice of the plaintiff’s injury claim, the 

public entity and its employees are estopped from using the plaintiff’s failure to 

strictly comply with the statutory notice provisions as a shield to defeat his claim.7 

6. In Mount v. City of Vermillion, 250 NW2d 686, 687 (SD 1977) we reversed the 

circuit court’s order, granting the City of Vermillion summary judgment for 

the plaintiff’s failure to comply with the notice provisions of SDCL 9-24-2, the 

predecessor to SDCL 3-21-2. Although we cited the city’s admission of actual 

knowledge, we also cited the plaintiff’s numerous affirmative acts to notice 

the city of his claim that preceded actual knowledge. Id. at 688. The plaintiff 

was a city employee. Among the affirmative acts that he took to notice the 

city, the plaintiff filed a claim with the city’s hospitalization insurer and 

submitted an application to the city’s accident insurer. In addition, before 

preparing the application, he discussed it with the city auditor, the person 

who was statutorily designated to receive notice of claims on behalf of the 

city. In holding for the plaintiff, we cited the written notice to the city’s 

insurance carrier. Id. at 689. 

7. In Smith, the plaintiff was involved in a collision with a state-owned 

snowplow on February 13, 1993. 539 NW2d at 680. Within a month of the 

incident, the plaintiff contacted a claims adjuster, who was working on behalf 

of the State. Id. at 681. The plaintiff subsequently received a check for 

damages to his vehicle. Id. at 682. On March 16, 1993, the plaintiff received 

a letter and claim form from the South Dakota Department of 

Transportation. The return address printed on the claim form was that of an 

office and address other than the statutorily designated recipient of notice of 

claims. Along with the claim form, the plaintiff included a message 

requesting the status of his physical injury claim. The addressee did not 

respond to the plaintiff’s inquiry. Following the expiration of the 180-day 

notice period, the defendant filed a motion for summary judgment on the 

ground that the plaintiff had failed to comply with SDCL 3-21-2 and SDCL 3-

21-3. Id. at 681. 
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There is nothing in the record of the instant case to suggest that Angostura in any 

way affirmatively misled Anderson; therefore estoppel does not apply. 

[¶12.] In Myears v. Charles Mix County, 1997 SD 89, ¶¶3, 13, 556 NW2d 470, 

474, we recognized substantial compliance as a stand alone basis for meeting the 

requirements of SDCL 3-21-2. In establishing this precedent, we reviewed our prior 

holding in Mount, recounting the affirmative acts of the plaintiff in that case to 

provide notice of claim. Id. ¶10, 556 NW2d at 473; see also supra note 6 (reciting 

material facts of Mount). We noted that prior to SDCL 3-21-2 this Court had 

recognized substantial compliance in Inlagen v. Town of Gary, 34 SD 198, 147 NW 

965 (1914) and Walters v. City of Carthage, 36 SD 11, 153 NW 881 (1915) and 

implicitly in Budahl v. Gordon David Assoc., 287 NW2d 489 (SD 1980) following the 

adoption of SDCL 9-24-2, the predecessor to SDCL 3-21-2. Myears, 1997 SD 89, 

¶11, 556 NW2d at 473. We then concluded that substantial compliance with SDCL 

3-21-2 was sufficient since that statute is materially comparable to its predecessor 

and that the legislature did not take the opportunity when drafting the new statute 

to include language requiring strict construction. Id. ¶10, 556 NW2d at 473. 

[¶13.] In order to reacquaint those tasked with detecting its existence we 

restated our prior definition of substantial compliance: 

“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 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. 
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Id. ¶13, 556 NW2d at 474 (emphasis added) (citations omitted). Determining the 

purpose of SDCL 3-21-2 to be consistent with that of its predecessor, we then 

confirmed the following seven objectives of SDCL 9-24-2 as still applicable: 

(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. (citing Budahl, 287 NW2d at 492) (citations omitted)). 

[¶14.] In its November 21, 2006 letter decision, the circuit court determined 

that Keller’s, August 3, 2003 insurance form did not constitute substantial 

compliance with SDCL 3-21-2. In so determining, the circuit court noted that the 

personal injury portion of the insurance form was left blank. 

[¶15.] We agree with the circuit court. While the insurance form states the 

time and location of the collision, the fact that the personal injury section is left 

blank falls short of meeting the objectives of the statute and hence defeats any 

notion of substantial compliance. Without notice of injury or claim, we cannot 

assume that Angostura would have conducted an investigation through the same 

lens as it would have with such notice and there would have been no reason to 

prepare for litigation. See Myears, 1997 SD 89, ¶13, 556 NW2d at 474 (citing 

Budahl, 287 NW2d at 492 setting out statutory objectives (1) and (2)). Without 

notice of injury or claims, objectives (3), (4) and (6), set out in Budahl and recited in 

Myears are moot. See id. (citing Budahl, 287 NW2d at 492). Only objectives (5) and 

(7) could conceivably be met assuming the appropriate person had been noticed and 
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that there was some remedial measure that Angostura could have taken, to head off 

similar incidents. See id. (citing Budahl, 287 NW2d at 492). 

[¶16.] We also conclude that there are two additional bases on which to 

determine there was no substantial compliance. First, there is nothing in the 

record to indicate to whom Keller submitted the insurance form. Substantial 

compliance requires that the person who receives the notice be someone who could 

take necessary action to ensure that the statutory objectives are met. See Myears, 

1997 SD 89, ¶¶8, 14, 566 NW2d at 472, 474 (identifying several individuals, besides 

the county auditor who were statutorily directed to receive notice, were notified of 

the plaintiff’s claim, and were in a position to insure that the objectives of SDCL 3-

21-2 were met). Finally, for Anderson to claim there to have been substantial 

compliance on the basis of this record is a misnomer since it appears that he did 

nothing to comply with the statute during the 180-day notice period. 

[¶17.] Anderson’s argument for reversal on the ground that Jenniges had 

actual knowledge is lacking not only because we do not recognize actual knowledge 

as a substitute for adequate notice, but also because the underlying basis for his 

claim lacks evidentiary support. In addition to Keller’s insurance form, which we 

need address no further, Anderson argues that Jenniges had actual knowledge by 

virtue of Keller’s alleged call following the incident and his alleged visit to the scene 

of the collision. Once again, there is nothing in the record to indicate that Jenniges 

was informed of any injury to Anderson or alleged claim, by way of the phone call or 

on-scene visit. Even had he been so informed such notice would have been conveyed 

orally, which would have been inadequate. See Gakin, 2005 SD 68, ¶17 n4, 698 
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NW2d at 498 n4 (opining that written notice is the only form of notice acceptable 

under SDCL 3-21-2). 

[¶18.] Based on the foregoing analysis we find no ground on which to reverse 

the circuit court’s order granting Keller’s motion for summary judgment. 

[¶19.] 2. Whether the circuit court abused its discretion 

 in not granting Anderson’s motion for continuance 

 to conduct discovery as to the scope of notice 

 provided to Angostura. 

[¶20.] Anderson argues that the circuit court should have granted him a 

continuance to conduct additional discovery because “he would more fully be able to 

show the extent of the Angostura Irrigation District’s notice of his claim if he were 

allowed the opportunity to depose Steven Keller and Mick Jenniges.” From the 

record, it appears that the only discovery conducted by Anderson during the three 

years and three months between the July 2003 collision and his October 2006 

motion for continuance was to submit one set of interrogatories to Keller, to which 

Keller appears to have responded. Anderson had ample time to conduct depositions 

of Keller and Jenniges, but showed no interest in doing so prior to October 2006. 

The circuit court may well have decided that Anderson simply wanted to engage in 

a fishing expedition and we see no reason to compel it to embark on such a voyage 

at this late date. 

[¶21.] Affirmed. 

[¶22.] MEIERHENRY, Justice, concurs. 

[¶23.] KONENKAMP and ZINTER, Justices, concur in part and concur in 

result in part. 

[¶24.] SABERS, Justice, deeming himself disqualified, did not participate. 
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ZINTER, Justice (concurring and concurring in result). 

[¶25.] I concur on Issue 1. I concur in result on Issue 2, regarding Anderson’s 

SDCL 15-6-56(f) motion for a continuance to conduct discovery so he could oppose 

the motion for summary judgment. 

[¶26.] SDCL 15-6-56(f) governs motions for continuances to conduct 

discovery for purposes of opposing a motion for summary judgment: 

Should it appear from the affidavits of a party opposing the 

motion that he cannot for reasons stated present by affidavit 

facts essential to justify his opposition, the court may refuse the 

application for judgment or may order a continuance to permit 

affidavits to be obtained or depositions to be taken or discovery 

to be had or may make such other order as is just. 

[¶27.] Today, the Court affirms the circuit court’s denial of Anderson’s Rule 

56(f) motion because he “had ample time to conduct depositions of Keller and 

Jenniges, but showed no interest in doing so prior to October 2006.” Supra ¶20. I 

disagree with this justification for affirmance for three reasons. 

[¶28.] First, the Court faults Anderson for showing no interest in conducting 

depositions “during the three years and three months between the July 2003 

collision and his October 2006 motion for continuance [except for one set of 

interrogatories to Keller].” Id. However, Anderson cannot be faulted for not having 

taken depositions for three years because, as the Court itself notes, this action was 

not even commenced until March 17, 2006. Supra ¶4. Obviously, depositions could 

not have been taken during the two-year, eight-month period before the action was 

even commenced. Moreover, the motion for summary judgment was not filed until 

September 14, 2006, and the request for continuance was made a little more than a 
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month thereafter. Surely, we cannot charge Anderson with a three-year delay, 

when Anderson’s motion for a continuance was made only a month after the motion 

for summary judgment. 

[¶29.] Second, it must be remembered that the motion for summary judgment 

did not involve the merits of Anderson’s claim. Rather, it was a motion for 

summary judgment on Keller’s procedural defense. We have affirmed dismissals of 

summary judgments where plaintiffs “did nothing to obtain [discovery] until some 

ten months after filing their complaint, when the merits of their case [were] called 

into question. . . .” Farmers & Merchants State Bank v. Mann, 87 SD 90, 96, 203 

NW2d 173, 176 (1973) (emphasis added). Here, however, the issue over which 

discovery was requested did not involve the merits of Anderson’s claim. It involved 

Keller’s procedural defense. It is one thing to charge a party like Anderson with a 

lack of due diligence in failing to pursue the merits of his own claim. However, 

Anderson cannot be faulted for having failed to take depositions on Keller’s 

procedural defense before that defense became a real issue on October 23, 2006, 

when Keller filed the motion for summary judgment. 

[¶30.] Finally, it must be noted that the adequacy of notice was an 

affirmative defense. See SDCL 15-6-8(c) (noting that affirmative defenses include 

any “matter constituting an avoidance or affirmative defense”). Keller alone bore 

the burden of proving that defense. Burhenn v. Dennis Supply Co., 2004 SD 91, 

¶32, 685 NW2d 778, 786 (stating that: “Since [defendant] asserted the affirmative 

defenses . . . it bore the burden of proving those . . . claims.”). Because Keller bore 

the burden of proof on the notice issue, it is inappropriate to hold Anderson 
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accountable for failing to depose witnesses on Keller’s affirmative defense before the 

defense was even pursued. 

[¶31.] Ultimately, however, I concur in result because Anderson’s Rule 56(f) 

affidavit supporting the continuance was plainly insufficient. In that affidavit, 

Anderson’s sole justification for the continuance was: “I also believe that I would 

better be able to resist Defendant’s Motion for Summary Judgment if I were allowed 

an opportunity to depose Steven Keller and Mick Jenniges regarding the extent of 

their knowledge in this matter.” However, Rule 56(f) requires more. It requires 

that “it appear from the affidavits of a party opposing the motion that he cannot for 

reasons stated present by affidavit facts essential to justify his opposition[.]” SDCL 

15-6-56(f) (emphasis added). This requires a showing how further discovery will 

defeat the motion for summary judgment. 11 James Moore, Moore’s Federal 

Practice, § 56.10[8][d] (3d ed 2006). It further requires that the affidavit must 

specify why the party cannot present the essential facts at the time of the affidavit. 

[¶32.] In Trask v. Franco, 446 F3d 1036 (10thCir 2006), the Tenth Circuit 

examined these requirements and an analogous affidavit. Like the affidavit here, 

the affidavit in Trask merely stated “that ‘disputed issues of material fact’ existed, 

and ‘the information sought by formal discovery would include deposition of the 

individual defendants, and their supervisor, as well as access to records . . . under 

the exclusive control of the Defendants . . . .’” Id. at 1041. In affirming the denial of 

a continuance under that showing, the Tenth Circuit explained: 

A party seeking to defer a ruling on summary judgment under 

Rule 56(f) must file an affidavit that “explain[s] why facts 

precluding summary judgment cannot be presented. This 

includes identifying the probable facts not available and what 
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steps have been taken to obtain these facts.” Comm. for the 

First Amendment v. Campbell, 962 F2d 1517, 1522 (10thCir 

1992) (citation omitted). “[T]he nonmovant must also explain 

how additional time will enable him to rebut the movant’s 

allegations of no genuine issue of material fact.” Id. We have 

noted that a summary judgment movant’s exclusive control of 

information “is a factor favoring relief under Rule 56(f).” [Price 

ex rel Price v. W. Res., Inc., 232 F3d 779, 784 (10thCir 2000)]. 

The Rule 56(f) affidavit of [plaintiffs] neither identifies any 

“probable facts not available,” Campbell, 962 F2d at 1522, nor 

“state[s] with specificity how the additional material will rebut 

the summary judgment motion,” Ben Ezra, Weinstein & Co. v. 

Am. Online Inc., 206 F3d 980, 987 (10thCir 2000). The affidavit 

does note that certain records and procedures manuals sought 

for discovery are under the control of the probation officers and 

their employer, but “[e]xclusive control does not . . . require 

automatic relief under Rule 56(f).” Price, 232 F3d at 784 

(internal quotation marks omitted). Based on the affidavit’s 

lack of specificity, the district court did not abuse its discretion 

in denying the request for additional discovery. 

Id. at 1042. 

 

[¶33.] In this case, Anderson’s affidavit also failed to state with specificity the 

facts he wanted to discover, why he had not previously been able to obtain them, 

and how those facts would support his opposition to the summary judgment motion. 

Anderson also did not claim that the facts he sought were under the exclusive 

control of Keller or Jenniges. Therefore, his motion for continuance was properly 

denied. 

[¶34.] KONENKAMP, Justice, joins this special writing.