#28064-r-GAS

2017 S.D. 46 

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

SUZANNE BRUDE, Plaintiff and Appellant,

v.

SHANE BREEN d/b/a YELLOW JACKET

IRRIGATION AND LANDSCAPING, Defendant, Third-Party 

Plaintiff, and Appellee,

v.

GREGORY AND ELIZABETH JAMISON, Third-Party Defendants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN R. PEKAS

Judge

* * * *

RONALD A. PARSONS, JR.

STEVEN M. JOHNSON

KIMBERLY L. JOHNSON of

Johnson Janklow Abdallah

 Reiter & Parsons LLP

Sioux Falls, South Dakota Attorneys for appellant. 

MELANIE L. CARPENTER

JORDAN J. FEIST of

Woods, Fuller, Shultz 

 and Smith, PC

Sioux Falls, South Dakota Attorneys for appellee.

* * * *

ARGUED MAY 30, 2017

OPINION FILED 08/02/17
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SEVERSON, Justice 

[¶1.] Suzanne Brude brought suit against Shane Breen, doing business as 

Yellow Jacket Irrigation and Landscaping (Yellow Jacket), for negligence in 

constructing a retaining wall from which Brude suffered an injury. Yellow Jacket 

moved for summary judgment, asserting that the claim was barred by the statute of 

repose. The circuit court granted summary judgment in favor of Yellow Jacket. 

Brude appeals, asserting that the court erred because the ten-year limitation in the 

statute of repose had not expired. We reverse and remand.

Background 

[¶2.] In 2005, Yellow Jacket Irrigation and Landscaping contracted for and 

completed a landscaping project at the residence of Greg and Elizabeth Jamison. At 

issue in this case is landscaping that Yellow Jacket originally completed in 

September 2005. The area of landscaping at issue includes a patio with retaining 

walls on its sides and a fire pit above a section of the retaining wall. The retaining 

walls were repaired in 2007. At that time, Yellow Jacket fixed some stone pavers 

that had settled and shifted. The Jamisons and Breen have different recollections 

of the next time that Yellow Jacket worked on the retaining wall; it was either 2011 

or 2013. The Jamisons asked Yellow Jacket to fix their patio area because some of 

the landscaping stones settled and leaned. Greg Jamison testified in his deposition 

that because the fix was fairly extensive and would require the retaining walls to be 

torn down and rebuilt, the Jamisons asked Yellow Jacket to make the fire pit area a 

little larger at the same time. 
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[¶3.] Suzanne Brude was at the Jamison residence on October 7, 2014. In 

order to retrieve some branches from the fire pit area, she stepped onto the portion

of the retaining wall in front of the Jamison’s fire pit. One of the capstones she 

stepped on gave way, and she fell onto the patio below. She suffered an injury that 

required surgery the next day. On November 6, 2015, Brude commenced this action 

against Shane Breen, the sole proprietor operating Yellow Jacket Irrigation and 

Landscaping. Yellow Jacket filed a third-party complaint against the Jamisons, 

contending that the Jamisons were responsible for any damages awarded to Brude. 

The Jamisons have since settled this matter and take no position in this appeal. 

[¶4.] On July 29, 2016, Yellow Jacket moved for summary judgment 

asserting that the statutory time period to bring a claim had expired because the 

retaining wall and fire pit had been substantially completed more than ten years 

prior to the commencement of this action. See SDCL 15-2A-3. After submissions by 

the parties and a hearing on the motion, the circuit court granted summary 

judgment for Yellow Jacket. Brude appeals raising one issue for our review. She 

asserts that the changes to the landscaping that occurred in either 2011 or 2013 

constituted “an improvement to real property” under SDCL 15-2A-3 and therefore 

restarted the ten-year period to bring a claim. Thus, she claims that the court erred 

when it granted summary judgment.

Standard of Review 

[¶5.] “In reviewing a grant or denial of summary judgment we must 

determine whether the moving party demonstrated the absence of any genuine 

issue of material fact and established entitlement to judgment on the merits as a 
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matter of law.” Clark Cty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 8, 753 N.W.2d 406, 

409 (quoting Behrens v. Wedmore, 2005 S.D. 79, ¶ 18, 698 N.W.2d 555, 565). 

“Those resisting summary judgment must show that they will be able to place 

sufficient evidence in the record at trial to support findings on all the elements on 

which they have the burden of proof.” Id. (quoting Bordeaux v. Shannon Cty. Sch., 

2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127). We must determine the applicability of 

the statute of repose to Yellow Jacket’s latest work on the retaining wall. “Because 

the application of a legal test to the historical facts of this case requires us to 

consider legal concepts and ‘exercise judgment about the values that animate legal 

principles,’ we review the . . . determination de novo.” Id. ¶ 10, 753 N.W.2d at 410

(quoting In re Dorsey & Whitney Tr. Co., 2001 S.D. 35, ¶ 6, 623 N.W.2d 468, 471).

Analysis 

[¶6.] A statute of repose is an affirmative defense, and Yellow Jacket had 

the initial burden of proving entitlement to it. See id. ¶ 17, 753 N.W.2d at 412. 

“[W]here a defendant, by motion for summary judgment, asserts this type of 

affirmative defense that bars an action ‘and presumptively establishes the defense 

by showing the case was instituted beyond the statutory period, the burden then 

shifts to the plaintiff to establish the existence of material facts in avoidance of the 

statute.’” Id. (quoting Conway v. Conway, 487 N.W.2d 21, 23 (S.D. 1992)). The 

statute of repose at issue, SDCL 15-2A-3, provides:

No action to recover damages for any injury to real or personal 

property, for personal injury or death arising out of any 

deficiency in the design, planning, supervision, inspection, and 

observation of construction, or construction, of an improvement 

to real property, nor any action for contribution or indemnity for 

damages sustained on account of such injury or death, may be 
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brought against any person performing or furnishing the design, 

planning, supervision, inspection, and observation of 

construction, or construction, of such an improvement more than 

ten years after substantial completion of such construction. The 

date of substantial completion shall be determined by the date 

when construction is sufficiently completed so that the owner or 

his representative can occupy or use the improvement for the 

use it was intended.

The parties agree that the initial construction of the landscaping was completed in 

September 2005 and that it constituted an improvement to real property at that 

time. Brude was injured in October 2014, and the claim was brought in November 

2015. Therefore, Yellow Jacket met its initial burden of presumptively showing 

that the action was brought beyond the statutory period in SDCL15-2A-3. See also 

SDCL 15-2A-5 (providing that an injury occurring in the tenth year after 

substantial completion may be brought within one year after the date on which the 

injury occurred but may not be brought more than eleven years after the 

substantial completion of construction).

[¶7.] The next question before this Court is whether Brude met her burden 

to establish the existence of material facts in avoidance of the statute. In response 

to Yellow Jacket’s motion for summary judgment and its statement of undisputed 

material facts, Brude maintained that Yellow Jacket’s work in 2011/2013 restarted 

the statute of repose because it constituted construction of an improvement to real 

property. She provided a report indicating that the latest work in 2011/2013 was 

not done in accordance with industry standards.∗ She also provided her own 

statement of undisputed material facts, which set forth that the rebuild was not 

 

∗ The Court was unable to find any other report in the record indicating that 

the original construction was performed negligently.
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performed correctly and caused the capstones to dislodge. And Brude set forth facts 

indicating that her injuries arose from a portion of the retaining wall where Yellow 

Jacket performed work in 2011/2013. 

[¶8.] Before we can determine whether Brude met her burden to set forth 

material facts in avoidance of the statute, we must clarify how the ten-year time 

frame under SDCL 15-2A-3 is calculated. Citing to this Court’s decision in PittHart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 18, 878 N.W.2d 406, 413, Brude 

asserts that her time in which to bring an action is measured from the latest 

construction that led to her injury and that the ten-year period started in 

2011/2013. In Pitt-Hart, we addressed SDCL 15-2-14.1, which provides that “[an] 

action . . . can be commenced only within two years after the alleged malpractice, 

error, mistake, or failure to cure shall have occurred[.]” (Emphasis added.); Pitt 

Hart, 2016 S.D. 33, ¶ 18, 878 N.W.2d at 413. We noted that “[a] statute of 

repose . . . is measured not from the date on which the claim accrues but instead 

from the date of the last culpable act or omission of the defendant.” Pitt Hart, 2016 

S.D. 33, ¶ 18, 878 N.W.2d at 413 (quoting CTS Corp. v. Waldburger, ___ U.S. ___, 

___, 134 S. Ct. 2175, 2182, 189 L. Ed. 2d 62 (2014)). 

[¶9.] In this case, the statute of repose explicitly provides for a different date 

from which to measure. It states, in pertinent part, 

No action to recover damages . . . for personal injury or death 

arising out of any deficiency in the design, planning, 

supervision, inspection, and observation of construction, or 

construction, of an improvement to real property . . . may be 

brought . . . more than ten years after substantial completion of 

such construction. The date of substantial completion shall be 

determined by the date when construction is sufficiently
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completed so that the owner or his representative can occupy or 

use the improvement for the use it was intended. 

SDCL 15-2A-3 (emphasis added). The time to bring a claim did not begin to run 

upon the last culpable act of Yellow Jacket but instead upon the date of substantial 

completion of the improvement to real property. Thus, if the latest construction of 

the retaining wall and fire pit was not an improvement to real property, then

substantial completion of construction occurred in September 2005, making Brude’s 

claim untimely. If, however, construction in 2011/2013 constituted an improvement 

to real property, then the statute of repose started that year upon substantial 

completion of the construction, and the time period in SDCL 15-2A-3 had not run in 

November of 2015 when Brude commenced suit.

[¶10.] Yellow Jacket asserts that Brude’s claim is untimely because the work 

in 2011/2013 was not an improvement and only amounted to repairs. Even if the 

work in 2011/2013 amount to a repair, Brude’s claim may still be timely if the 

injury arose out of the work done in 2011/2013 and the repair was not within the 

scope of SDCL 15-2A-3. However, Brude’s claim may still be timely if the work in 

2011/2013 amounted to a repair, the injury arose out of the 2011/2013 work, and a

repair is not within the scope of SDCL 15-2A-3. Brude set forth facts indicating 

that she fell from a portion of the wall that was negligently repaired by Yellow 

Jacket in either 2011 or 2013 and that, therefore, her injury did not arise from the 

original construction of an improvement to real property. Accordingly, we must 

determine whether a repair to an improvement to real property falls within the 

scope of SDCL 15-2A-3.
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[¶11.] South Dakota does not have an explicit statute providing that repairs 

to an improvement to real property fall outside the scope of the statute of repose. 

But the plain language of SDCL 15-2A-3 clearly provides that it will only apply to 

this case if the injury arose out of the construction of an improvement to real 

property. This Court distinguished improvements to real property from repairs in

Clark Cty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 11-12, 753 N.W.2d 406, 410-11. In 

that case, Clark County sued Sioux Equipment in 2006 for negligence, breach of 

implied and express warranties, and breach of implied warranty of fitness for a 

particular purpose in regard to a fuel storage and dispensing system that was 

installed in 1991. A fuel leak occurred in 2003 for which the County incurred 

remediation expenses. Sioux Equipment argued that the 1991 installation was an 

improvement to real property and that, therefore, the claim was barred under 

SDCL 15-2A-3. The county argued that the installation was a replacement or 

repair of a previous system, not an improvement, so SDCL 15-2A-3 did not apply. 

We applied a common-sense test to determine whether there was an “improvement 

to real property.” Under the test, we determine whether there is “[a] permanent 

addition to or betterment of real property that enhances its capital value and that 

involves the expenditure of labor or money and is designed to make the property 

more useful or valuable as distinguished from ordinary repairs.” Clark Cty., 2008 

S.D. 60, ¶ 11, 753 N.W.2d at 410 (emphasis added). Thus, if an ordinary repair is 

not an improvement and SDCL 15-2A-3 applies only to improvements, it is inherent 

that SDCL 15-2A-3 does not apply to claims for injuries arising from ordinary 

repairs. 
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[¶12.] We find helpful the Wisconsin Court of Appeals’ explanation of 

Wisconsin’s statute of repose as follows:

The purpose of the statute of repose is to protect contractors who 

are involved in permanent improvements to real property. Daily 

repairs are not improvements to real property as that phrase is 

used in the statute of repose. The legislature has chosen to

protect persons or entities which make permanent 

improvements to real property, not to absolve those who make 

regular repairs or do maintenance work. This distinction is 

reasonable because improvements to real property have a 

completion date whereas regular repairs and maintenance can 

continue ad infinitum. 

Peter v. Sprinkmann Sons Corp., 860 N.W.2d 308, 315 (Wis. Ct. App. 2015). 

Despite the absence of an explicit provision in our statutes, the purpose of a statute 

of repose as stated by the Wisconsin Court of Appeals is similar to the findings set 

forth by South Dakota’s Legislature. SDCL 15-2A-1 provides in part:

The Legislature finds that subsequent to the completion of 

construction, persons involved in the planning, design, and 

construction of improvements to real estate lack control over the 

determination of the need for, the undertaking of and the 

responsibility for maintenance, and lack control over other 

forces, uses and intervening causes which cause stress, strain, 

wear, and tear to the improvements and, in most cases, have no 

right or opportunity to be made aware of or to evaluate the effect 

of these forces on a particular improvement or to take action to 

overcome the effect of these forces. Therefore, it is in the public 

interest to set a point in time following the substantial 

completion of the project after which no action may be brought 

for errors and omissions . . . .

Therefore, the Legislature also recognized the difference between the initial 

“planning, design, and construction of improvements to real estate” and the 

“maintenance” or repairs of said improvements. Here, Yellow Jacket did have 

control over the repair work because it performed the work. See Hartford Fire Ins. 

Co. v. Westinghouse Elec. Corp., 450 N.W.2d 183, 186 (Minn. Ct. App. 1990)
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(holding that replacement of generator seal constituted ordinary repair and 

therefore was not subject to the statute of repose). 

[¶13.] Having determined that repairs do not fall under the statute of repose, 

Brude has met her burden to set forth material facts to avoid application of the 

statute. She set forth facts indicating that the work in 2011/2013 could be 

considered an improvement to real property (restarting the period of repose) 

because it involved, among other things, enlarging the landscaping area and the 

expenditure of labor. Furthermore, even if it was not an improvement, she set forth 

sufficient facts that her injury did not arise out of the 2005 construction of an 

improvement to real property; it allegedly arose out of Yellow Jacket’s latest 

2011/2013 work on the landscaping. Therefore, we need not determine whether the 

work in 2011/2013 was a repair or an improvement. In either case, SDCL 15-2A-3

does not bar Brude’s claim. The circuit court erred by granting summary judgment

to Yellow Jacket on the basis of SDCL 15-2A-3.

[¶14.] Our decision is consistent with the Illinois case regarding a retaining 

wall that the parties have discussed. See Schott v. Halloran Constr. Co., 982 

N.E.2d 965 (Ill. App. Ct. 2013). In Schott, plaintiff brought a suit in 2010 after she 

fell off an unguarded retaining wall in 2001. The plaintiff alleged that defendant 

negligently failed to build a barrier to prevent people from falling off the wall. The 

retaining wall was built in 1990 and portions were rebuilt in 1994 after a heavy 

rain caused portions to fall over. Plaintiff fell from a portion of the wall that was 

not repaired in 1994. The Illinois Appellate Court determined that the retaining 

wall was an improvement to real property at the time when it was built in 1990. Id. 
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at 969-70. It also concluded that the work done in 1994 was a mere repair of an 

existing structure and did not constitute the “‘construction of an improvement to 

real property’ within the meaning of the statute of repose.” Id. at 970. Therefore, 

plaintiff’s claim was barred by the statute of repose. The court also noted that the 

second reason it rejected plaintiff’s claims was because “the portion of the retaining 

wall from which [plaintiff] stepped or fell was not damaged by rain and was not 

repaired or rebuilt in 1994. The portion of the wall from which [plaintiff] stepped or 

fell was the original retaining wall built . . . in 1990, more than 10 years prior to the 

accident.” Id. Thus, the court saw “no reason why an improvement to some portion 

of the property other than that on which the plaintiffs were injured should extend 

or renew the statute of repose with respect to their injuries.” Such a determination 

indicates that a claim with respect to repairs is distinguished from those that arise 

from the construction of an improvement to real property.

Conclusion

[¶15.] The circuit court erred when it granted summary judgment in favor of 

Yellow Jacket on the basis of SDCL 15-2A-3. Regardless of whether the work in 

2011/2013 constituted a repair or an improvement to real property, SDCL 15-2A-3 

does not bar the claim at issue. We reverse and remand.

[¶16.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and 

RANK, Circuit Court Judge, concur.

[¶17.] RANK, Circuit Court Judge, sitting for WILBUR, Retired Justice, 

disqualified.