#26831-a-DG

2014 S.D. 97

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                     ****
THE MORRIS FAMILY LLC,
through its members; Carol Morris,
Alan Morris, Kathleen Morrison
and Ginny Yadegar,                          Plaintiffs and Appellants,

      v.

SOUTH DAKOTA DEPARTMENT
OF TRANSPORTATION, THE
STATE OF SOUTH DAKOTA,                      Defendant and Appellee,

                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                   CODINGTON COUNTY, SOUTH DAKOTA

                                     ****

                     THE HONORABLE ROBERT L. TIMM
                                Judge

                                     ****
MARK V. MEIERHENRY
CLINT SARGENT
CHRISTOPHER HEALY of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota                   Attorneys for plaintiffs
                                            and appellants.

RANDY S. BINGNER
KARLA ENGEL
Special Assistant Attorneys General
South Dakota Department of Transportation
Pierre, South Dakota                        Attorneys for defendant
                                            and appellee.

                                     ****
                                            CONSIDERED ON BRIEFS ON
                                            AUGUST 25, 2014
                                            OPINION FILED 12/23/14
#26831

GILBERTSON, Chief Justice

[¶1.]        The Morris Family LLC (Morris Family) initiated an action against the

State of South Dakota and the City of Watertown, claiming unconstitutional taking

or damaging of property for loss of access from their property to Highway 212, and

violation of due process stemming from the State’s and City’s actions denying

access. The State moved for summary judgment, asserting that the State was

granted complete control of access for the land in question in a 1970 judgment. The

circuit court granted summary judgment and dismissed the complaint. Morris

Family appeals, claiming that it was not given proper notice that summary

judgment on the due process issue was before the court and that the court erred in

granting summary judgment. Specifically, Morris Family asserts there were

genuine questions of material fact regarding whether the State was granted control

of access as part of the 1970 condemnation action. We affirm.

                          Facts and Procedural History

[¶2.]        Morris Family owns certain property abutting U.S. Highway 212 in

Watertown, South Dakota. In 1969, a state highway project sought to turn

Highway 212 into a four-lane, controlled-access highway to serve as the primary

entrance to the City of Watertown from Interstate 29. To carry out the plan of

establishing this controlled-access highway, the State commenced a condemnation

action against the plaintiff’s predecessor in title. Through this condemnation

action, the State sought to acquire the necessary “right of way and rights of access”

in accordance with the project plans and specifications.




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[¶3.]         Prior to the condemnation action, the driveway to the residence and

farm buildings on Morris Family’s property provided direct access to Highway 212.

As part of the condemnation action, the driveway was moved to connect with a

break in the control of access along the western edge of the property. This break in

control of access was 24-feet wide and shared with the neighboring Endres property.

The record reflects that the defendants to the condemnation action admitted that

the State had the right to take the property under its right of eminent domain but

contested the compensation to be paid, alleging “[t]hat the Plaintiff has failed to

offer just compensation for that property taken from these Defendants and for

deprivation of access to and from said property and the adjacent highway.”

[¶4.]         The parties to the 1970 condemnation action eventually signed a

Stipulation for Settlement and for Entry of Judgment compromising and settling

the condemnation action for $6,000 and further agreeing “that of the $6,000, $1,440

is for the land and $4,560 is for severance damages.” A judgment in the

condemnation action in March 1970 granted the State “the right to control access to

the right of way in accordance with Chapter 31-8 of the 1967 South Dakota

Compiled Laws and amendments thereto” on the Morris Family land at issue in this

case. The judgment delineated $6,000 in damages, stating that “$1,440 is

designated as payment for the land taken and $4,560 is designated as damages to

the remainder.” 1 The judgment was never appealed.




1.      A special assistant attorney general for the State of South Dakota
        recommended this amount—an increase from the State’s original estimate—
        in a letter addressed to the Chief Right of Way Agent. That letter stated, in
                                                              (continued . . .)
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[¶5.]        In December 2010, Morris Family filed a three-count complaint against

the City of Watertown and the State. Count One alleged “Error in Judgment,”

asserting that Morris Family retained “full access rights to State Highway 212”

because the condemnation action never eliminated those rights. Count One also

alleged that the words “in accordance with Chapter 31-8” in the judgment were an

error that should be amended to read “in accordance with Chapter 31-19.” Count

Two of the Complaint was for “Constitutional Taking or Damage.” It alleged that

Morris Family was not compensated for the loss of total access to State Highway

212, and that “Plaintiffs [sic] highest and best use of their property has been

destroyed by the failure of either the City or the State to grant it access to State

Highway 212 upon a change in use of the property.” Count Three alleged “Failure

to Provide Due Process.” It alleged that the State had taken all access without

granting a hearing or any other method to contest the exercise of the State’s alleged

police power in denying all commercial access to the highway. It also alleged that

the failure to have a procedure “whereby a landowner can petition to alter the

declarations of the engineers and the Department of Transportation is a violation of

the rights of due process under both the State and Federal constitution.”

[¶6.]        In July 2011, Morris Family filed a “Motion to Correct Judgment under

SDCL 15-6-16(a),” alleging that the State intended only to gain an ordinary right-of-

way in the 1970 condemnation action and never bargained for complete control of


________________________
(. . . continued)
         part, “Although the taking was quite small, it was frontage on Highway 212
         which offered attractive commercial or subdivision possibilities.”


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access under SDCL chapter 31-8. The circuit court denied the motion 2 and, in a

September 2011 letter decision, stated:

             There is little support to the Plaintiff’s theory that a clerical
             error was made by Judge H.O. Lund when entering the
             Judgment on March 26, 1970, vesting the State of South Dakota
             with “. . . all right to control access to the right-of-way . . .” of the
             Morris land described therein. Documents from the broader
             project file unequivocally evidence the State’s intent to acquire
             the right to control access along Highway 212 as it reached
             eastward from Watertown to connect with the interstate.

[¶7.]        In May 2012, Morris Family filed an Application for Highway Access

Permit with the Watertown Area Engineer. The application sought a 40-foot wide

access in a different location than the existing break in control of access. The stated

purpose of the request was to “[r]elocate existing access and change in use” to

commercial access. In response, the Engineer sent Morris Family an Application for

Relinquishment of Access Control. He explained, “This is an area where the state

has control of access. Because of this we need you to fill out an application for

relinquishment of access control form. The access application is put on ‘hold’ until

the relinquishment is addressed.” In exchange for the Endres giving up their right

to use the Endres/Morris Family shared access, the Endres property was

subsequently granted a relinquishment of access control at another location along

Highway 212.

[¶8.]        In December 2012, an attorney representing Morris Family filed an

Application for Relinquishment of Access Control. This application requested a new

60-foot wide break in access, located 238 feet from the west property line.



2.      The denial of this motion has not been appealed to this Court.

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Alternatively, it requested expanding the current 12-foot break at the west edge of

the Morris Family property to create a 60-foot wide break in access control. The

State denied the request by mail on February 26, 2013.

[¶9.]        In August 2013, the State filed a motion for summary judgment “on

the grounds there are no genuine issues of material fact and the State is entitled to

judgment as a matter of law.” The State asserted that its basis for summary

judgment was that the State owned the right to control of access under SDCL

chapter 31-8 across the property, except for the designated break at the west

property line, where Morris Family had been using the 24-foot shared access. The

State asserted that the 24-foot access was the same as what existed immediately

following the 1970 condemnation action and that the only locations where Morris

Family applied for a break in the control of access were locations where the State

owned control of access pursuant to the judgment in the 1970 action. The State also

asserted that Morris Family had therefore suffered no loss of any property right and

“suffered no damage by the State’s denial of a break in control of access, or

otherwise.” After a hearing on the motion, the circuit court granted the State’s

motion for summary judgment and dismissed the complaint.

[¶10.]       Morris Family appeals, alleging that the circuit court should not have

granted summary judgment on the due process claim because it was not properly

before the court. Additionally, it argues that summary judgment was not

appropriate because genuine issues of material fact existed as to whether the State

owned control of access to the land in question.




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                             STANDARD OF REVIEW

[¶11.]       Summary judgment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Quinn v. Farmers Ins. Exch.,

2014 S.D. 14, ¶ 13, 844 N.W.2d 619, 623 (quoting SDCL 15-6-56(c)) (internal

quotation marks omitted). “Accordingly, this Court affirms a grant of summary

judgment only if ‘there are no genuine issues of material fact and the legal

questions have been correctly decided.’” Id. (quoting Fix v. First State Bank of

Roscoe, 2011 S.D. 80, ¶ 18, 807 N.W.2d 612, 618). “A disputed fact is not ‘material’

unless it would affect the outcome of the suit under the governing substantive

law . . . .” Gul v. Ctr. for Family Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629, 633

(quoting Weitzel v. Sioux Valley Heart Partners, 2006 S.D. 45, ¶ 17, 714 N.W.2d 884,

891) (internal quotation mark omitted). “When a motion for summary judgment is

made and supported as provided in § 15-6-56, an adverse party may not rest upon

the mere allegations or denials of his pleading, but his response, by affidavits or as

otherwise provided in § 15-6-56, must set forth specific facts showing that there is a

genuine issue for trial. If he does not so respond, summary judgment, if

appropriate, shall be entered against him.” SDCL 15-6-56(e).

                           ANALYSIS AND DECISION

[¶12.]       Morris Family first argues that the circuit court erred by granting

summary judgment on all issues because Morris Family’s claim of a due process

violation was not presented to the court for summary judgment, and it was


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therefore deprived a reasonable opportunity to respond. See Schroeder v. City of

New York, 371 U.S. 208, 211, 83 S. Ct. 279, 282, 9 L. Ed. 2d 255 (1962) (“An

elementary and fundamental requirement of due process in any proceeding which is

to be accorded finality is notice reasonably calculated, under all the circumstances,

to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.”). Morris Family asserts that it alleged two

distinct causes of action—one claiming it was the victim of inverse condemnation

and the other claiming that the State and the City of Watertown conspired to

deprive Morris Family of its property rights by denying it due process. It contends

that the State’s motion for summary judgment only addressed the first cause of

action. Accordingly, Morris Family asserts that the court improperly acted on its

own accord when it granted summary judgment on the other issues. This argument

is unpersuasive for several reasons.

[¶13.]       First, the State’s motion for summary judgment was not a motion for

partial summary judgment addressing only the inverse condemnation claim. The

motion clearly asserted that there were “no genuine issues of material fact[,]” not

that there were no genuine issues of material fact on the inverse condemnation

claim. Thus, the State’s motion gave Morris Family notice that the State was

challenging any assertion of a genuine issue of material fact.

[¶14.]       Moreover, overlapping issues addressed in the motion for summary

judgment eliminated necessary elements of the State’s case for both claims. The

State’s ownership of control of access—the central focus of the motion for summary

judgment and the arguments concerning the motion at the hearing—is fatal to both


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claims. As discussed further below, this eliminated an element of the takings claim

because the State owned control of access, and therefore Morris Family could not

prove that it was deprived of a property interest without compensation.

Additionally, the State’s ownership of control of access eliminated an element of the

due process claim. “To establish a procedural due process violation, a plaintiff must

demonstrate that he has a protected property or liberty interest at stake and that

he was deprived of that interest without due process of law.” Osloond v. Farrier,

2003 S.D. 28, ¶ 16, 659 N.W.2d 20, 24 (quoting Hopkins v. Saunders, 199 F.3d 968,

975 (8th Cir. 1999)) (internal quotation marks omitted). The only claimed property

interest was a denial of a right to access. By asserting that the 1970 judgment

granted the State the “right to control access” to the property in question, the State

removed the element of a property interest necessary for Morris Family to establish

a due process claim.

[¶15.]       The record reflects that the State’s motion for summary judgment was

properly served. A hearing was held on the motion, where the parties were given an

opportunity to address the property interests at stake, as well as the actions taken

by the State to allegedly trigger due process and takings claims. In light of the

motion before the court and the hearing in which Morris Family actively

participated, we reject Morris Family’s contention that it was unfairly surprised by

the court granting summary judgment on all claims. We conclude that the motion

for summary judgment was properly before the circuit court to rule on all of Morris

Family’s claims.




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[¶16.]       Morris Family also argues that the circuit court erred by granting

summary judgment because there were genuine issues of material fact regarding

whether the State adequately condemned and compensated access to Highway 212

in 1970. Morris Family contends there is no definitive evidence to prove that the

right to commercial access was condemned. The South Dakota Constitution

provides that “[p]rivate property shall not be taken for public use, or damaged,

without just compensation . . . .” S.D. Const. art. VI, § 13. “This Court has

previously determined that South Dakota’s Constitution provides greater protection

for its citizens than the United States Constitution because our Constitution

requires that the government compensate a property owner not only when a taking

has occurred, but also when private property has been damaged.” Rupert v. City of

Rapid City, 2013 S.D. 13, ¶ 9, 827 N.W.2d 55, 60 (quoting Krier v. Dell Rapids Twp.,

2006 S.D. 10, ¶ 21, 709 N.W.2d 841, 846) (internal quotation marks omitted). “As

we have explained, an owner of land abutting on a conventional street or highway

has certain private rights in the street or highway distinct from that of the general

public.” Hall v. State ex rel. S.D. Dep’t of Transp., 2006 S.D. 24, ¶ 14, 712 N.W.2d

22, 27-28 (quoting Hurley v. State, 82 S.D. 156, 160, 143 N.W.2d 722, 724 (1966))

(internal quotation marks omitted). “The right of access is one of those private

property rights and, therefore, cannot be taken for public use or materially impaired

without compensation.” Id., 712 N.W.2d at 28.

[¶17.]       “We require those resisting summary judgment [to] 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.” Bordeaux v. Shannon Cnty.


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Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127 (alteration in original) (quoting

Chem–Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765)

(internal quotation marks omitted). “SDCL 15-6-56(e) requires the opposing party

to be diligent in resisting a motion for summary judgment, and mere general

allegations and denials which do not set forth specific facts will not prevent the

issuance of a judgment.” Id. (quoting Hughes–Johnson Co. v. Dakota Midland

Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972)) (internal quotation marks

omitted). We thus examine whether Morris Family showed it would be able to place

sufficient evidence into the record to prove that its right of access was taken without

just compensation in 1970.

[¶18.]       Morris Family’s main contention is that there is a genuine issue of

material fact as to whether the State properly gained control over commercial

access to the property. However, the 1970 condemnation judgment is dispositive on

this issue. It stated that the State was granted “the right to control access to the

right of way in accordance with Chapter 31-8 of the 1967 South Dakota Compiled

Laws.”

[¶19.]       The judgment directly describes the extent to which the State was

empowered to control access. The State was granted the power to “control access”

with no qualifiers, except that the control had to be “in accordance with Chapter 31-

8[.]” At the time of the judgment, SDCL chapter 31-8 gave broad discretion to

“regulate, restrict, or prohibit access as to best serve the traffic[.]” SDCL 31-8-5

(1967). This contemplates control over all types of access. At the time, it included

nearly absolute power to permit or restrict ingress and egress, as well as the power


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to place conditions on access once the right to control had been established. See

SDCL 31-8-6 (1967) (“No person shall have any rights of ingress or egress to, from

or across controlled-access facilities to or from abutting lands, except at such

designated points at which access may be permitted, upon such terms and

conditions as may be specified from time to time.” 3). The statutes also allow the

state to work with local governments to develop and implement access control

plans, including agreements concerning the use and vacation of controlled access.

See SDCL 31-8-13.

[¶20.]         Morris Family attempted to change the substance of this judgment by

moving to “correct” the judgment. As part of this proposed “correction,” Morris

Family would have changed “Chapter 31-8” to read “Chapter 31-19”—the general

highway condemnation chapter. This portion of statute does not describe the type

of complete control over access described in Chapter 31-8. The court denied this

attempt. Because the judgment is undisturbed, it carries great weight in this

controversy. The State was granted “control of access” and cannot now be decried

for exercising that control, especially by preventing new access along portions of the

right-of-way which have never been used to access the property since the judgment.

[¶21.]         Morris Family has enjoyed use of the 24-foot shared access since 1970

to reach the Morris’ residence, despite the 1970 judgment granting the State



3.       The phrase “upon such terms and conditions as may be specified from time to
         time[,]” coupled with the judgment granting the State power to control access
         to the entirety of the right-of-way, may have empowered the State to further
         restrict use of the 24-foot shared access. However, that issue is not before us
         because the State has taken no action to change Morris Family’s use of the
         24-foot access.

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ownership of all control of access. It thus may appear that Morris Family has some

property interest in its continued use of that access. Morris Family attempted to

argue that the access was destroyed because the neighbors gave up the right to use

the neighbor’s half of the access. However, Morris Family has never contended that

it has been deprived of continued use of the access for this purpose.

[¶22.]       Morris Family also asserts there is a question “not if access remains

but to what extent.” This is not an element of a takings claim. Instead, Morris

Family must prove that its property was damaged or taken in some way. Yet,

Morris Family has not pointed to any evidence that the State has altered or

impaired Morris Family’s continued use of the 24-foot access—the only access in

which it even arguably has a property interest.

[¶23.]       The only alleged impairment of access rights in this case is the State’s

denial of Morris Family’s requests to expand the 24-ft access point—which would

give Morris Family some 48 additional feet of access—or alternatively, the request

for a wider access in a completely separate location. Both of these requests would

require the State to relinquish control of its property right. Namely, the State

would have to relinquish access on land that the State already compensated Morris

Family for, as determined by the 1970 judgment. The State addressed this fact in

its statement of undisputed material facts, asserting that Morris family had “only

applied for an access and a break in control of access at locations where the State

owns control of access.” Morris family refuted this fact with only a bare assertion

that “Plaintiffs have worked for years to work out a resolution with the State of




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South Dakota regarding access.” Again, Morris Family was unable to show that its

right to continued use of the 24-foot access was impaired. 4

[¶24.]         Morris Family’s actual argument in this case appears to be more

directly stated in its reply brief: “The Morris’s [sic] were deprived of any meaningful

opportunity to apply for access to highway 212.” It claims that this deprivation of

access, or the right to apply for access, both peculiarly damaged its property rights

and amounted to a violation of due process. This action damaged the rest of Morris

Family’s property, it asserts, because the action deprived the property of its highest

and best use as commercially zoned property. As discussed above, the landowners

were compensated for damage arising from loss of access along the entirety of the

property; therefore, the takings claim fails with regard to this claimed deprivation.

[¶25.]         Morris Family’s due process claim also fails because Morris Family is

unable to prove it has a protected property interest at stake that would trigger a

right to due process. “To have a protected right under due process, persons must

possess more than a one-sided expectance. They must have a legal ‘entitlement.’”

Bergee v. S.D. Bd. of Pardons & Paroles, 2000 S.D. 35, ¶ 8, 608 N.W.2d 636, 640.

Morris Family claims that process was due—and denied—when Morris Family

sought access to Highway 212. It claims a conspiracy between the City and the

State denied it a fair opportunity to be heard and prevented appeal of the decision.



4.       Although Morris Family asserted that the access was destroyed when the
         Endres property owners abandoned the right to use the access, this
         contention is not supported in the record. Rather, the record supports the
         assertion that the Endres property lost its own use of the shared access, not
         that Morris Family’s use of the access was changed or impaired in any way.


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To support its argument that this warrants relief, Morris Family asserts that

“[f]ederal constitutional law teaches that such a deprivation violates the Federal

Due Process Clause, which was incorporated to the states under the 14th

Amendment.”

[¶26.]         Unlike the cases cited by Morris Family to support this argument, 5

Morris Family does not have a “legitimate claim of entitlement” to highway access

in this case. As noted above, Morris Family must show that it was deprived of a

protected property or liberty interest without due process. Daily v. City of Sioux

Falls, 2011 S.D. 48, ¶ 14, 802 N.W.2d 905, 911. However, the United States

Supreme Court has “never held that applicants for benefits, as distinct from those

already receiving them, have a legitimate claim of entitlement protected by the Due

Process Clause of the Fifth or Fourteenth Amendment.” Lyng v. Payne, 476 U.S.

926, 942, 106 S. Ct. 2333, 2343, 90 L. Ed. 2d 921 (1986). Here, Morris Family seeks

to gain back highway access, not as a matter of legitimate entitlement, but as a free

benefit to its property. In essence, Morris Family would gain back for free what the

State paid for in 1970.

[¶27.]         The United States Supreme Court has recognized “that a benefit is not

a protected entitlement if government officials may grant or deny it in their

discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S. Ct.


5.       Morris Family cites to Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
         98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). In Memphis, Light, Gas & Water, the
         United States Supreme Court specifically noted that electric customers had a
         “‘legitimate claim of entitlement’ [to continued utility service] within the
         protection of the Due Process Clause.” 436 U.S. at 12, 98 S. Ct. at 1561.
         Therefore process was due when the utilities were terminated. Id.


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2796, 2803, 162 L. Ed. 2d 658 (2005). In this case, the State officials have full

discretion to grant or deny requests for relinquishment of access control. Morris

Family has not directed our attention to any statute or other independent source

giving it legitimate claim to entitlement to the access, therefore no process is due

when its request for access is denied. See Bd. of Regents v. Roth, 408 U.S. 564, 577,

92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972) (“Property interests, of course, are not

created by the Constitution. Rather they are created and their dimensions are

defined by existing rules or understandings that stem from an independent source

such as state law—rules or understandings that secure certain benefits and that

support claims of entitlement to those benefits.”).

[¶28.]       The record reveals that Morris Family failed to identify a property

interest damaged or taken to support its takings claim. It was likewise unable to

identify a property or liberty interest needed to support a procedural due process

claim. Accordingly, Morris Family has failed to meet its burden of showing “that

[it] will be able to place sufficient evidence in the record at trial to support findings

on all the elements on which [it has] the burden of proof.” Bordeaux, 2005 S.D. 117,

¶ 14, 707 N.W.2d at 127 (quoting Chem–Age Indus., Inc., 2002 S.D. 122, ¶ 18, 652

N.W.2d at 765) (internal quotation marks omitted). We therefore conclude that the

circuit court did not err when it granted summary judgment on all claims and

dismissed the case.




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                                 CONCLUSION

[¶29.]      For the above stated reasons, we conclude that the motion for

summary judgment was properly before the circuit court, and the circuit court did

not err when it granted summary judgment on all issues. We affirm.

[¶30.]      KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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