#30395-aff in pt & rev in pt-MES

2024 S.D. 24

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

SCOTLYNN TRANSPORT, LLC, Plaintiff and Appellant,

v.

PLAINS TOWING AND RECOVERY, LLC, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

MEADE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN H. FITZGERALD

Judge

* * * *

DAVID J. JENCKS of

Jencks Law, P.C.

Madison, South Dakota Attorneys for plaintiff

and appellant.

JOHN W. BURKE

LORA A. WAECKERLE of

Thomas Braun Bernard &

 Burke, LLP

Rapid City, South Dakota Attorneys for defendant

and appellee.

* * * *

CONSIDERED ON BRIEFS

FEBRUARY 13, 2024

OPINION FILED 04/24/24
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SALTER, Justice

[¶1.] Scotlynn Transport, LLC, commenced this action against Plains 

Towing and Recovery, LLC, alleging several claims related to the disputed 

ownership of a semi-tractor. Plains Towing removed the tractor from an accident 

site and later acquired title to it using the statutory procedure outlined in SDCL 32-

36-8 and 32-36-9. The circuit court granted Plains Towing’s motion for summary 

judgment after concluding that it had complied with SDCL 32-36-8 and lawfully 

obtained title to the tractor. Scotlynn appeals, arguing that there are genuine 

issues of material fact relating to claims raised in Scotlynn’s complaint that were 

not addressed by the court. We reverse in part and affirm in part.

Factual and Procedural Background

[¶2.] On June 6, 2020, a law enforcement officer directed Plains Towing to 

remove a semi-tractor and trailer owned by Scotlynn from a crash site in Meade 

County. The tractor had sustained significant damage, and Plains Towing towed 

both the tractor and the trailer to its impound lot in Sturgis.

[¶3.] On June 8, Fredi Bilbili, fleet manager for Scotlynn, called Plains 

Towing’s office administrator, Deb Leverington, to discuss taking possession of the 

trailer, storage of the tractor, and payment of fees for both. The record does not 

contain any specific accounts of their conversation, but it does include a subsequent 

email exchange in which Bilbili first wrote:

Hello,

Please email us the invoice for both units.

As per our conversation we will have the driver pick up the 

trailer tomorrow morning and tractor will be at your yard till the 

insurance adjuster comes.
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If you have any questions please let us know 

Thank you

Fredi Bilbili – Fleet Manager

(Emphasis added.)

[¶4.] Leverington’s response reads:

Fredi,

Attached you will find billing invoices for both the tractor & 

trailer. BOTH invoices will need to be paid before we can 

release the trailer tomorrow. We don’t take credit cards over the 

phone. Your driver can pay in person with a credit card, or you 

can also pay via EFS Check or Wire transfer.

Storage will continue to accumulate for the tractor after 

tomorrow’s payment. Our storage fees are $100 per day.

If you have any questions regarding these invoices, please call 

John at [redacted], or [redacted] and press Option 2 for Accounts 

Receivable.

Thank you,

Deb

(Emphasis added.)

[¶5.] On June 9, a representative from Scotlynn arrived in Sturgis, paid the 

Plains Towing invoices which included all current fees to date for the tractor and 

the trailer, and took custody of the trailer. Scotlynn left the damaged tractor at the 

Plains Towing impound lot.

[¶6.] Plains Towing is considered a “removal agency” under South Dakota 

law, meaning it is “authorized to remove and salvage abandoned and junk motor 

vehicles and . . . may be authorized by chapter 32-30 to remove vehicles . . . or may 

be in the business of removing or salvaging vehicles[.]” SDCL 32-36-2(5). As 
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explained more fully below, a removal agency must act promptly to send notice to a 

removed vehicle’s registered owner in order to preserve its ability to collect 

accumulating storage fees. See SDCL 32-36-8. In instances where a removed 

vehicle goes unclaimed, proper statutory notice also allows a removal agency to 

apply for the issuance of a new title from the South Dakota Department of Revenue 

(DOR). See SDCL 32-36-9 (allowing removal agencies to apply to the DOR for the 

title to an impounded vehicle once 30 days after sending notice to the registered 

owner have expired).

[¶7.] On June 16, Plains Towing completed a pre-printed notice form (the 

Notice) developed by the DOR and sent it to Scotlynn by certified mail.1 The DOR 

form lists four reasons for the notice:

1) Abandoned – Vehicle was towed (notice must be sent within 

45 days)

2) Unpaid Repair Bill – Vehicle has a repair bill

3) Storage Facility Lien – Vehicle has a storage bill

4) Auction Agency – Vehicle obtained through an insurance 

company request tow

Plains Towing selected the “abandoned vehicle” reason for its Notice, which 

Scotlynn claims it never received.

[¶8.] Agents of Scotlynn and Plains Towing did not communicate directly 

with each other further after the June 9 meeting when a Scotlynn representative 

paid Plains Towing’s invoices and collected its trailer. It is undisputed that 

1. The DOR form is designated as “SD EForm 2469, Notice of Abandoned, 

Unpaid Repair Bill, Storage Facility Lien, or Auction Agency.”
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Scotlynn did not pay any additional storage fees for the tractor after the initial 

payment on June 9, and Plains Towing did not seek payment by sending an invoice 

or bill. It is also undisputed that the insurance adjuster referenced in the June 8 

email by Scotlynn’s fleet manager did not come to the Plains Towing impound lot to 

inspect the tractor and did not contact Plains Towing until October 29.

[¶9.] In the meantime, on July 23, Plains Towing applied for the title to the 

tractor. Plains Towing’s manager, John Fabris, called Scotlynn on July 27 in an 

attempt to discuss the tractor and the Notice. However, there was no answer, and 

Fabris left a voice message that Scotlynn acknowledges it did not return.

[¶10.] On September 2, the DOR issued Plains Towing a title to the tractor, 

which stated “ABANDONDED” under the heading “TYPE.” Scotlynn later learned 

of the newly issued title, and after unsuccessful efforts by its insurer in late-October 

to negotiate the tractor’s return, Scotlynn commenced this action.

[¶11.] In its complaint, Scotlynn alleged four causes of action: (1) claim and 

delivery under the theory that Plains Towing had not validly obtained the title to 

the tractor; (2) conversion under a similar theory that Plains Towing was in 

wrongful possession of the tractor; (3) a claim that Plains Towing fraudulently 

misrepresented the legal status of the tractor to the DOR in an attempt to 

wrongfully take possession of it; and (4) breach of an implied contract for storing the 

tractor.

[¶12.] Plains Towing filed two separate summary judgment motions. The 

first motion requested partial summary judgment relating to the sufficiency of the 

Notice under SDCL 32-36-8. At issue was whether the statute required 
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confirmation of receipt when a removal agency sends notice to the registered owner. 

Relying upon SDCL 32-36-8’s text that simply requires a removal agency to “send

written notice by certified mail to the registered owner,” the circuit court concluded 

that receipt of notice was not required and granted Plains Towing’s motion for 

partial summary judgment. (Emphasis added.) That ruling has not been 

challenged and is not before us in this appeal.

[¶13.] Plains Towing subsequently filed a second motion for summary 

judgment on all of Scotlynn’s claims, arguing that compliance with SDCL 32-36-8’s 

notice requirements meant that Plains Towing was the lawful owner of the tractor 

and, therefore, entitled to judgment as a matter of law on each of Scotlynn’s four 

claims. In Scotlynn’s opposition to this motion, it relied primarily on two claims 

alleged in its complaint.

[¶14.] First, Scotlynn argued that there were genuine issues of material fact 

relating to the possessory interest in the tractor because, in its view, the tractor 

could not be properly classified as “abandoned” under SDCL 32-36-8 and 32-36-9. 

Second, Scotlynn argued that there were issues of material fact concerning whether 

the parties’ conduct had created an implied contract for storing the tractor.

[¶15.] The circuit court agreed with Plains Towing and granted its motion for 

summary judgment. In its memorandum opinion, the court addressed only the 

issues of the validity of the Notice and Plains Towing’s claim of ownership. The 

court reasoned that the plain language of SDCL 32-36-9 vested Plains Towing with 

the title to the tractor by operation of law 30 days after sending the Notice to 

Scotlynn. Further, the court explained that SDCL 32-36-9 provided Scotlynn with a 
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right to reclaim the tractor within the same 30-day period and prevent Plains 

Towing from obtaining the title, but Scotlynn failed to do so. The court did not 

analyze Scotlynn’s separate claim relating to the issue of an implied contract 

between the parties.

[¶16.] Scotlynn appeals, claiming that the circuit court erred by granting 

Plains Towing’s motion for summary judgment. In Scotlynn’s view, there are 

genuine issues of material fact that should have precluded summary judgment 

relating to whether an implied contract existed between the parties regarding the 

storage of the tractor and whether Plains Towing acted fraudulently. Scotlynn also 

argues that the Notice contained certain drafting errors that demonstrate fatal 

noncompliance with SDCL 32-36-8 and that the tractor was not subject to the 

ownership transfer provisions of SDCL 32-36-9.

Analysis and Decision

Summary judgment and the statutory procedures for a “removal agency”

[¶17.] Summary judgment is authorized under SDCL 15-6-56(c) “if . . . there 

is no genuine issue as to any material fact and . . . the moving party is entitled to a 

judgment as a matter of law.” Our rules for evaluating a circuit court’s 

determination of a summary judgment motion are well-settled:

We must determine whether the moving party demonstrated the 

absence of any genuine issue of material fact and showed 

entitlement to judgment on the merits as a matter of law. The 

evidence must be viewed most favorably to the nonmoving party 

and reasonable doubts should be resolved against the moving 

party. The nonmoving party, however, must present specific 

facts showing that a genuine, material issue for trial exists. Our 

task on appeal is to determine only whether a genuine issue of 

material fact exists and whether the law was correctly applied. 
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If there exists any basis which supports the ruling of the trial 

court, affirmance of a summary judgment is proper.

Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 19, 921 N.W.2d 479, 486 (quoting 

Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874).

[¶18.] The statutory procedure lying at the heart of this appeal exists in 

SDCL chapter 32-36, which is accessed through specific provisions found in SDCL 

chapter 32-30. Under SDCL 32-30-19, police officers are authorized to remove a 

vehicle or cause it to be removed “to the nearest garage or other place of safety” 

when a “person or persons in charge of the vehicle are unable to provide for its 

custody or removal[.]” In cases where a police officer uses the services of a removal 

agency to remove the vehicle, SDCL 32-30-15 requires the removal agency to comply 

with certain statutes set out in chapter 32-36 that govern notice to the vehicle’s 

registered owner and any lienholder as well as the ultimate disposition of the 

vehicle if it is not claimed:

Any removal agency as defined by § 32-36-2 which has removed 

an abandoned or wrecked vehicle pursuant to this chapter or a 

vehicle impounded pursuant to § 32-30-19 shall comply with the 

provisions of § 32-36-8 to notify the registered owner, and if 

encumbered, the lien holder of the vehicle. If no person claims 

the vehicle within thirty days of that notice, the provisions of 

§§ 32-36-9 and 32-36-11 shall apply to the disposal of the 

vehicle.

[¶19.] The notice requirements of SDCL 32-36-8, in turn, provide in 

relevant part:

Within forty-five days after any abandoned or junk motor 

vehicle, any wrecked vehicle as provided by § 32-30-14, or any 

impounded vehicle . . . has been removed, the removal agency 

shall send written notice by certified mail to the registered 

owner, if any, of the abandoned or junk motor vehicle, wrecked 

vehicle . . . at [its] last known address. If the removal agency 
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does not give notice within ten days from the date of removal, no 

storage may be charged beyond the ten-day period until the 

notice is mailed. The notice shall set forth the date and place of 

the taking, the year, the make, model and serial number of the 

abandoned or wrecked motor vehicle and the place where the 

vehicle is being held, and shall inform the owner . . . of [its] right 

to reclaim the vehicle under § 32-36-9. The notice shall be on a 

form provided by the Department of Revenue.

[¶20.] This statute provides an economic incentive for removal agencies to 

provide notice to a registered owner sooner rather than later. Though the removal 

agency has 45 days within which to “send written notice by certified mail[,]” the 

removal agency cannot recover storage fees beyond ten days after a vehicle’s 

removal “until the notice is mailed.” Id. By sending the notice within the initial 

ten-day period, however, the removal agency can avoid any such disruption in the 

accrual of its storage fees. Id.

[¶21.] Sending the notice required by SDCL 32-36-8 is not only significant for 

its effect on a removal agency’s ability to recover storage fees, but it also allows a 

removal agency to invoke SDCL 32-36-9 to obtain ownership of a removed vehicle 

that has gone unclaimed:

Notwithstanding any statutes to the contrary, title to any 

abandoned or junk motor vehicle, any impounded vehicle . . .[2]

2. The list of vehicles in SDCL 32-36-9 for which a removal agency may 

ultimately obtain the title following notice is similar to the list contained in 

SDCL 32-36-8 with one notable exception: the text of SDCL 32-36-9 does not 

provide authority for a removal company to obtain the title to a “wrecked 

vehicle as provided by § 32-30-14,” which is a class of removed vehicles listed 

in the notice provisions of SDCL 32-36-8. The parties have not noted this 

omission, and it may not be all that meaningful given the fact that SDCL 32-

30-15 does apply to wrecked vehicles and incorporates SDCL 32-36-9 by

stating, “If no person claims the vehicle within thirty days of that notice, the 

provisions of §§ 32-36-9 and 32-36-11 shall apply to the disposal of the 

vehicle.” And, regardless, the circuit court considered the tractor to be an 

(continued . . .)
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shall vest in the removal agency after a period of thirty days 

from the date on which notice was sent under § 32-36-8. The 

record holder of title or the lien holder may reclaim the motor 

vehicle . . . . The lien holder and record holder of title shall 

notify the department in writing within thirty days of their 

intent to reclaim the motor vehicle. However, if the record 

holder of title fails to claim and remove the motor vehicle or 

other scrap metal within thirty days after mailing of notice, title 

to the vehicle is irrevocably vested in the removal agency.

[¶22.] Scotlynn challenges Plains Towing’s assertion that it owns the tractor 

by virtue of the title that the DOR issued by advancing two principal arguments. 

First, Scotlynn asserts the existence and breach of an implied contract under which 

Plains Towing was obligated to store the tractor for an indefinite period of time. 

Second, Scotlynn argues that Plains Towing did not strictly comply with statutory 

notice provisions and that issuance of the title was not authorized. Although 

Scotlynn’s complaint also asserts claims for conversion and fraud, these are in many 

ways derived from Scotlynn’s principal arguments, as noted below. We review these 

issues de novo because they arise in the context of a summary judgment proceeding 

and, additionally, because Scotlynn’s statutory interpretation arguments present 

legal questions. Ries v. JM Custom Homes, LLC, 2022 S.D. 52, ¶ 14, 980 N.W.2d 

217, 222.

“impounded vehicle,” and it seems that the tractor was both a wrecked 

vehicle and an impounded vehicle.
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Implied contract3

[¶23.] “An implied contract is a fiction of the law adopted to achieve justice 

where no true contract exists.” Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 

841 (S.D. 1991) (quoting Mahan v. Mahan, 80 S.D. 211, 214, 121 N.W.2d 367, 369 

(S.D. 1963)).

An implied-in-fact contract is created when the intention as to 

the contract is not manifested by direct or explicit words by the 

parties, but is to be gathered by implication or proper deduction 

from the conduct of the parties, language used, or acts done by 

them, or other pertinent circumstances attending the 

transaction. Because an implied contract must contain all the 

elements of an express contract, both express and implied-in-fact 

contracts require mutual assent. For implied contracts, 

however, assent occurs when, after reviewing the facts 

objectively, a party voluntarily indulges in conduct reasonably 

indicating assent.

J. Clancy, Inc. v. Khan Comfort, LLC, 2021 S.D. 9, ¶ 20, 955 N.W.2d 382, 389–90 

(cleaned up).4

[¶24.] Here, we conclude that genuine issues of material fact remain 

concerning the existence of an implied contract. Viewing the summary judgment 

record in the light most favorable to Scotlynn, we conclude that it has produced 

3. The fact that the circuit court did not specifically analyze the implied 

contract claim is not, itself, consequential. We review summary judgment 

claims as the circuit court did, and we can affirm a decision to grant 

summary judgment on a different basis as long as it exists in the record. See 

Zochert, 2018 S.D. 84, ¶ 41 n.5, 921 N.W.2d at 491 n.5 (“Although the circuit 

court overlooked the existence of the bad faith tort in the insurance context, 

we can affirm the court for any basis which supports the court’s ultimate 

determination.” (citation omitted)).

4. The essential elements “to the existence of a contract are: (1) Parties capable 

of contracting, (2) Their consent, (3) A lawful object, and (4) Sufficient cause 

or consideration.” SDCL 53-1-2.
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sufficient information to resist summary judgment. Specifically, Scotlynn asserts 

that its fleet manager, Bilbili, and Plains Towing’s office administrator, 

Leverington, reached a de facto agreement for storing the tractor at Plains Towing’s 

standard rate until an insurance adjuster was able to inspect the damaged tractor.

[¶25.] This agreement, Scotlynn alleges, was part and parcel of the 

arrangement by which Scotlynn would, and did, pay all costs associated with both 

the tractor and the trailer on June 9 before Scotlynn took possession of the trailer. 

Bilbili’s email stated that the “tractor will be at your yard till the insurance 

adjuster comes[,]” and Leverington’s response acknowledged the plan to leave the 

tractor at the Plains Towing impound yard by stating, “Storage will continue to 

accumulate for the tractor after tomorrow’s payment.” In our view, the parties’ 

writings and conduct support the inference of an implied contract to store the 

tractor.

[¶26.] It may well be, as Plains Towing asserts, that it did not agree to store 

the tractor indefinitely after Scotlynn’s insurance adjuster did not arrive promptly, 

but this only illustrates the factual nature of the dispute between the parties. If 

there was an implied contract to store the tractor, additional material facts may 

relate to the term of any such storage or may perhaps implicate questions of breach. 

See Van De Walle & Assocs., L.L.C. v. Buseman, 2003 S.D. 70, ¶ 10, 665 N.W.2d 84, 

87 (discussing summary judgment for implied contract claims).5

5. We feel differently about Scotlynn’s fraud claim. As pled and briefed in the 

circuit court, Scotlynn presented this claim as fraud allegedly perpetrated 

upon the DOR as a result of inaccuracies it alleged in Plains Towing’s Notice. 

On appeal, the argument seems to have changed, and Scotlynn is now 

(continued . . .)
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[¶27.] Though our determination regarding Scotlynn’s implied contract 

theory requires us to reverse the circuit court’s decision to grant Plains Towing’s 

motion for summary judgment, we will address Scotlynn’s remaining claims to 

assist the parties and the court on remand and provide guidance in the event that 

Plains Towing prevails against Scotlynn following trial on the implied contract 

claim.

Statutory compliance

[¶28.] Scotlynn claims Plains Towing did not properly invoke the statutory 

procedure set out above for obtaining a title from the DOR. Specifically, Scotlynn 

argues that Plains Towing’s Notice under SDCL 32-36-8 did not comply with certain 

statutory requirements and that the tractor did not fit within the class of vehicles 

under SDCL 32-36-9 for which the DOR could issue a title.

[¶29.] The technical notice portion of SDCL 32-36-8 reads as follows:

The notice shall set forth the date and place of the taking, the 

year, the make, model and serial number of the abandoned or 

wrecked motor vehicle and the place where the vehicle is being 

held, and shall inform the owner and any lien holders of their 

right to reclaim the vehicle under § 32-36-9. The notice shall be 

on a form provided by the Department of Revenue.

[¶30.] Scotlynn identifies what it describes as three “key drafting errors” in 

the Notice: (1) the Notice erroneously stated that the tractor had been abandoned; 

arguing that Plains Towing fraudulently represented to Scotlynn that it 

would store the tractor for a fee. This new iteration of the fraud argument is 

likely not properly before us, but even if it was, Scotlynn has not identified a 

specific false statement made on behalf of Plains Towing—a necessity for 

successfully opposing summary judgment in fraud cases. See Johnson v. 

Markve, 2022 S.D. 57, ¶ 57, 980 N.W.2d 662, 678 (affirming summary 

judgment against fraud claimant because, among other things, the claimant 

did “not identify a false statement”); see also SDCL 15-6-9(b) (requiring 

allegations of fraud to be pled with particularity).
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(2) the Notice inaccurately stated the fees Scotlynn owed; and (3) the DOR form 

prescribed for notice stated that Scotlynn had a right to reclaim the tractor within 

30 days of receipt, though the statute contains no such receipt requirement.

[¶31.] Initially, we note that the DOR form does not provide removal agencies 

with a choice of vehicle descriptions; it lists only abandoned vehicles. Beyond this, 

we fail to understand the significance of the Notice’s reference to the tractor as 

abandoned. Notice is required for either abandoned, impounded, or wrecked 

vehicles, all of which are defined by statute. An abandoned vehicle is one which is 

“left on a public street or highway or left on private property without the permission 

of the landowner or tenant[.]” SDCL 32-36-2(1). Under SDCL 32-36-2(2), an 

impounded vehicle is one “removed or caused to be removed from a public highway 

pursuant to § 32-30-19[.]” And the definition of a wrecked vehicle applicable to this 

case is a “vehicle which appears to have sustained reportable accident damage[.]” 

SDCL 32-30-14.

[¶32.] Even if the undisputed facts do not establish that the tractor was an 

abandoned vehicle, they do establish that it was an impounded vehicle and a 

wrecked vehicle, both of which are listed among the class of vehicles for which 

notice is required under SDCL 32-36-8. The tractor had to be removed from the 

accident site, and it had sustained significant damage. The owner of Plains Towing 

testified during his deposition that he did not believe the tractor was operable, and 

an affidavit from a Scotlynn employee stated that the tractor needed approximately 

$43,000 in repairs as a result of damage caused in the Meade County accident. 
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Under the circumstances, any inaccuracy in designating the tractor as abandoned 

did not constitute material noncompliance with the notice provision.

[¶33.] Next, the Notice listed an amount owed by Scotlynn of $852, which 

Scotlynn claims failed to account for money it paid for removing and storing the 

tractor when it picked up the trailer. However, Scotlynn fails to support this claim 

factually. Plains Towing, by contrast, lists the exact calculation justifying the 

amount listed in the Notice as the fees owed as of the date of the notice—storage for 

eight days (June 9-16) at the rate of $100 per day, or $800, plus sales tax of 6.5%, 

for a total of $852. Scotlynn does not respond to this calculation in its reply brief, 

and we think its claim in this regard lacks merit.

[¶34.] Scotlynn’s third claim regarding the Notice is actually not a claim of 

statutory noncompliance, but rather, a claim that the notice form provided by the 

DOR created a receipt requirement for the notice not present in SDCL 32-36-8. In 

fact, the receipt-requirement issue was litigated in Plains Towing’s first summary 

judgment motion and was decided adversely to Scotlynn. The circuit court relied 

upon the statute’s text which states only that a “removal agency shall send written 

notice by certified mail to the registered owner” and concluded that SDCL 32-36-8 

did not require proof of receipt. Significantly, however, as we noted above, Scotlynn 

has not challenged this ruling which, logically, would seem a necessary predicate to 

its argument about the impact of the DOR form. Therefore, it is enough to say 
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simply that the form itself does not create a receipt requirement for notice under 

SDCL 32-36-8.6

[¶35.] Finally, Scotlynn makes an additional claim that the tractor was not 

among the list of vehicles for which the DOR can issue a title under SDCL 32-36-9, 

which provides, in part: “Notwithstanding any statutes to the contrary, title to any 

abandoned or junk motor vehicle, any impounded vehicle . . . shall vest in the 

removal agency after a period of thirty days from the date on which notice was sent 

under § 32-36-8.” We think this challenge to the impounded status of the tractor is 

essentially a legal question, not a factual one as Scotlynn asserts.7

[¶36.] Scotlynn admits that the tractor was an impounded vehicle after it was 

initially removed on June 6. However, it contends that the tractor “stopped being 

an ‘impounded vehicle’ when Scotlynn paid for towing services in the entirety on 

June 9, 2020, and the vehicle was kept at Plains Towing yard with permission from 

Plains Towing pursuant to a contract for storage of the Tractor.”

[¶37.] Scotlynn’s changed-status argument is largely premised upon 

ultimately prevailing on its implied contract theory at trial. If it does, then Plains 

Towing should not have sought a title from the DOR. However, if Scotlynn does not 

6. Plains Towing cites Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894 (S.D. 

1994) as indirect support for its claim that no receipt requirement is included 

in SDCL 32-36-8. In Mahoney, we observed that the circuit court had not 

made any findings that a removal agency “sent written notice by certified 

mail[.]” 520 N.W.2d at 897. However, we did not address a receipt 

requirement, as Plains Towing acknowledges, and we do not view our 

Mahoney decision as providing any type of holding in this regard.

7. This argument also seems to challenge the authority of the DOR to issue the 

title to Plains Towing. But the DOR is not a party, and it does not appear 

that Scotlynn sought administrative relief from the DOR.
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win on its implied contract claims, the tractor would seemingly fit the definition of 

an impounded vehicle in SDCL 32-36-2(2).

Conclusion

[¶38.] The circuit court erred when it granted summary judgment because 

there are disputed material facts relating to Scotlynn’s implied contract theory. 

However, we agree with the court that the “drafting errors” Scotlynn alleges were 

contained in the Notice would not, themselves, preclude obtaining the title under 

SDCL 32-36-9. We reverse the circuit court’s grant of summary judgment and 

remand for further proceedings consistent with our holdings in this opinion.

[¶39.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, 

Justices, concur.