#24212, #24213-a-JKK 

2007 SD 66 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

#24212 

ASPEN STORAGE, INC., Plaintiff and Appellee, 

 v. 

LAWRENCE COUNTY and 

CRAIG R. HAYES, Defendants, 

 v. 

BRANDON FLANAGAN, Defendant, Third Party 

 Plaintiff and Appellant, 

 v. 

RAYMOND HERTEL and DELORES 

HERTEL aka ELOISE HERTEL, Third Party Defendants. 

---------------------------------------------------------------------------------------------------------------- 

#24213 

ASPEN STORAGE, INC., Plaintiff and Appellee, 

 v. 

BRANDON FLANAGAN, Defendant and Appellant, 

THE CITY OF DEADWOOD, 

a municipal corporation, and 

LAWRENCE COUNTY, Defendants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

JERRY C. RACHETTO Attorney for appellees 

Deadwood, South Dakota Aspen Storage, Inc. 

BRANDON FLANAGAN 

Spearfish, South Dakota Pro Se appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

ON FEBRUARY 13, 2007 

 OPINION FILED 07/03/07 
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#24212, #24213 

KONENKAMP, Justice 

[¶1.] In Aspen Storage, Inc. v. Flanagan (Aspen I), 2005 SD 107, ¶10, 705 

NW2d 863, 866, we affirmed the circuit court’s judgment voiding a tax deed because 

a county official obtained it in violation of SDCL 6-1-1. However, while the appeal 

was pending, the county official acquired a quit claim deed from the owner of the 

same property. In a second suit, the circuit court voided the quit claim deed as 

another violation of SDCL 6-1-1. We affirm. 

Background 

[¶2.] On August 9, 1989, Lawrence County quit claimed to Craig Hayes the 

following described real property located in Lawrence County: “Inside Deadwood, 

Pt Wilmington P.C. 848 (22 acres more or loss [sic]),” and referred to as Mineral 

Survey (MS) 848. In 1997, Hayes became delinquent on his property taxes. On 

December 21, 1998, Lawrence County issued itself a “Treasurer’s Certificate of Tax 

Sale” reflecting that MS 848 was “sold” to Lawrence County for delinquent taxes.1

[¶3.] On July 24, 2003, Lawrence County “assigned . . . all right, title and 

interest in [the] Certificate” to Brandon Flanagan. After the certificate was 

assigned to Flanagan, he issued a “Notice of Intent to Take Tax Deed” informing 

Hayes that he had sixty days from the last day of the publication to redeem his 

1. Our review of the record does not reveal whether before deeding the property 

to itself the county first attempted to sell it at a public sale in accordance 

with SDCL chapter 10-23. However, because SDCL 10-23-24 permits a 

county to “bid off . . . real property offered at such sale[,]” when “there are no 

other bidders offering the amount due,” we presume that Lawrence County 

first held a public sale drawing no bidders. 
#24212, #24213 

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interest in the property. Because Hayes did not redeem, on September 9, 2004, 

Lawrence County issued Flanagan a “Tax Deed” to the property. 

[¶4.] At the time the tax sale certificate was assigned to him, Flanagan was 

a Lawrence County Commissioner. When the county issued him the tax deed, he 

was the Lawrence County Planning and Zoning Administrator. Because Flanagan 

was a county official at the time of the transaction, Aspen Storage, Inc., who owned 

land just south of MS 848, brought an action requesting that the circuit court 

declare the tax deed void. The circuit court applied SDCL 6-1-1 and voided the 

deed. Flanagan appealed. On October 25, 2005, we affirmed the circuit court’s 

ruling, holding that SDCL 6-1-1 “prohibits any county officer from obtaining an 

interest in or purchasing real property which is sold for taxes.” Aspen I, 2005 SD 

107, ¶7, 705 NW2d at 865. 

[¶5.] While Aspen I was pending, on June 17, 2005, Flanagan obtained a 

quit claim deed from Hayes for MS 848. On August 10, 2005, Aspen Storage 

brought a second action against Flanagan, requesting that the circuit court void the 

quit claim deed and award damages. According to Aspen Storage, SDCL 6-1-1 still 

precluded Flanagan from obtaining an interest in MS 848 because he was a county 

official. Moreover, it asserted that MS 848 was not Hayes’s property to convey 

because it was being held by Lawrence County. Flanagan argued that the quit 

claim deed was a transaction between two private individuals and, thus, outside the 

scope of SDCL 6-1-1. He further asserted that Hayes, not Lawrence County, had 

the transferable interest in MS 848 after this Court’s decision in Aspen I and the 

circuit court’s amended order. Flanagan counterclaimed against Aspen Storage, 
#24212, #24213 

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requesting the court to make a boundary determination between MS 848 and Aspen 

Storage’s property and alleging Aspen Storage intentionally inflicted emotional 

distress. 

[¶6.] After multiple hearings, the circuit court issued an order granting 

Aspen Storage’s motion for summary judgment. The court cancelled the quit claim 

deed from Hayes to Flanagan as a violation of SDCL 6-1-1 because “at the time of 

the transaction Flanagan was a county official,” and it was “property which the 

county held for taxes.” In an amended order for summary judgment, the court 

declared that “Lawrence County is restored to its status as the holder of the tax sale 

certificate, as its interest existed on July 24, 2003, immediately prior to the sale to 

Flanagan.”2 Along with granting a judgment cancelling the quit claim deed, the 

court also dismissed Flanagan’s claims against Aspen Storage. 

[¶7.] Contemporaneous with the suit to void the quit claim deed, Flanagan 

brought a declaratory action against Aspen Storage to determine the parties’ rights 

with respect to an easement across Aspen Storage’s property. Because the circuit 

court found that the easement had been relinquished, it extinguished the easement. 

Flanagan appeals both cases. As our decision on the quit claim deed issue moots 

the easement appeal, we consolidate both appeals in this opinion. 

Analysis and Decision 

[¶8.] According to Flanagan, SDCL 6-1-1 does not preclude him from 

acquiring an interest in MS 848 by quit claim deed from a private citizen. He 

2. This amended order is included in the record for the pending appeal in 

#24213, of which we take judicial notice. 
#24212, #24213 

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asserts that our holding in Aspen I only prohibited him from obtaining an interest 

in property that the county held for taxes. MS 848, he argues, was not sold for 

taxes, but instead was sold by Hayes, an individual, to Flanagan, an individual. In 

Flanagan’s view, MS 848 “reverted back to the way it was the day Flanagan 

purchased the tax certificate” and, therefore, “ownership remained with Craig R. 

Hayes.” Aspen Storage, on the other hand, asserts that MS 848 is now, and was on 

June 17, 2005, being held by Lawrence County for taxes. Therefore, under SDCL 6-

1-1, Aspen Storage maintains that Flanagan could not acquire an interest in the 

property. 

[¶9.] Statutory interpretation is a question of law reviewed de novo. Town 

Square Ltd. P’ship v. Clay County Bd. of Equalization, 2005 SD 99, ¶9 n1, 704 

NW2d 896, 899 n1 (citing Fall River County v. S.D. Dep’t of Rev., 1999 SD 139, ¶15, 

601 NW2d 816, 821 (citations omitted)). It is undisputed that SDCL 6-1-1 prohibits 

Flanagan from having an interest in real property that “shall be sold for taxes. . . .” 

Therefore, we must determine if, at the time Flanagan acquired MS 848 by quit 

claim deed from Hayes, MS 848 was property that was sold for taxes. Because of 

our ruling in Aspen I, the tax deed issued to Flanagan was declared null and void 

from the beginning. See 2005 SD 107, ¶10, 705 NW2d at 866 (relying on SDCL 6-1-

1). In accordance with our ruling, the circuit court issued an amended order of 

summary judgment, restoring Lawrence County “to its status as the holder of the 

tax sale certificate, as its interest existed on July 24, 2003, immediately prior to the 

sale to Flanagan.” 
#24212, #24213 

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[¶10.] When Hayes quit claimed MS 848 to Flanagan on June 17, 2005, MS 

848 was property on which a tax deed had been issued. Following our remand in 

Aspen I, the property had not technically completed the sale process because 

Lawrence County was still the holder of the certificate of tax sale. However, 

Flanagan was a county official. Under SDCL 6-1-1, Flanagan could not obtain an 

interest in MS 848. Although Craig Hayes could quit claim whatever interest he 

had, Flanagan could not obtain such interest because the certificate had issued and 

the parcel remained property “which shall be sold for taxes. . . .” Id. (emphasis 

added). Furthermore, Flanagan, as a county official, could not obtain indirectly (by 

quit claim deed) what he could not do directly (by acquisition of tax deed). The 

court’s judgment canceling the quit claim deed is affirmed. Because of our 

resolution of this issue we need not address Flanagan’s easement appeal, as he has 

no interest in MS 848. 

[¶11.] Affirmed. 

[¶12.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur.