City of Rapid City v. Big Sky , 2018 SD 45 ( 2018 )


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  • #28205, #28227-a-DG
    
    2018 S.D. 45
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    CITY OF RAPID CITY, a
    Municipal Corporation,                    Plaintiff and Appellant,
    v.
    BIG SKY, LLC and
    DOYLE ESTES, Individually,                Defendants and Appellees.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE SEVENTH JUDICIAL CIRCUIT
    PENNINGTON COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE WARREN G. JOHNSON
    Retired Judge
    ****
    JOHN K. NOONEY
    ROBERT J. GALBRAITH of
    Nooney & Solay LLP
    Rapid City, South Dakota                  Attorneys for plaintiff
    and appellant.
    DONALD A. PORTER
    JESS M. PEKARSKI
    CHRISTOPHER A. CHRISTIANSON of
    Costello, Porter, Hill, Heisterkamp,
    Bushnell & Carpenter LLP
    Rapid City, South Dakota                  Attorneys for defendants
    and appellees.
    ****
    ARGUED JANUARY 9, 2018
    OPINION FILED 06/13/18
    #28205, #28227
    GILBERTSON, Chief Justice
    [¶1.]        The City of Rapid City filed an action against real-estate developers
    Big Sky LLC and Doyle Estes (collectively, “Developers”), seeking to recover the
    prospective cost of repairing roads in the Big Sky development outside Rapid City.
    A jury returned a general verdict in favor of the Developers. The City appeals the
    general verdict, arguing the circuit court erred by: (1) denying the City’s motion for
    summary judgment on the issue of liability; (2) excluding evidence of the
    Developers’ litigation and settlement with their subcontractors; (3) granting Estes’s
    motion for judgment as a matter of law; (4) instructing the jury on period-of-
    limitation, waiver, and estoppel defenses; and (5) refusing to instruct the jury on
    nuisance. We affirm.
    Facts and Procedural History
    [¶2.]        This case involves the development of real property known as the Big
    Sky subdivision, which is located within the extraterritorial jurisdiction of Rapid
    City. The Developers acquired real property in this area and applied to the City for
    approval of 15 subdivision plats. Under the City’s municipal code, a plat will not be
    approved unless the subdivider completes the construction of certain public
    improvements or offers a bond guaranteeing such construction. The Developers
    either completed the improvements or provided bonds for each of the 15 plats, and
    the City approved these plats between 1998 and 2005.
    [¶3.]        Following approval of the plats, the City identified several deficiencies
    in the public improvements installed by the Developers’ contractor and
    subcontractors. In particular, some of the subdivision’s streets had settled
    significantly since their construction. The City indicated it would not assume
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    ownership of the public improvements until the deficiencies were corrected. The
    Developers did not correct the identified deficiencies, and the City did not conduct
    subsequent inspections. The bonds posted by the Developers expired without the
    City attempting to collect on them. Eventually, litigation ensued.
    [¶4.]        The procedural history of this case is complex and involves several
    parties. In May 2003, Big Sky filed a complaint against J. Scull Construction
    Service Inc., the subcontractor that worked on Phases 1 through 3 of the
    subdivision. And in March 2007, Big Sky filed a complaint against R.C.S.
    Construction Inc., the subcontractor that worked on Phase 4. Big Sky alleged that
    Scull and R.C.S. breached their contracts with Big Sky by failing to properly
    compact the soil underlying the streets in Phases 1 through 4. Big Sky and Scull
    settled shortly after Big Sky filed its complaint against R.C.S.
    [¶5.]        In January 2008, the City filed a separate complaint against the
    Developers, seeking specific performance and an injunction requiring the
    Developers to complete the repairs. The circuit court granted summary judgment to
    the Developers on the City’s complaint, reasoning that the expiration of the bonds
    absolved the Developers of their obligation to complete the public improvements.
    This Court reversed the grant of summary judgment and remanded in City of Rapid
    City v. Estes, 
    2011 S.D. 75
    , 
    805 N.W.2d 714
    . On remand, the Developers filed a
    third-party complaint against Rapid Construction LLC, the general contractor.
    Rapid Construction, in turn, filed a fourth-party complaint against Dream Design
    International Inc., the Developers’ engineering firm. And to bring things full circle,
    Dream Design International counterclaimed against the City. The court then
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    consolidated the Developers’ action against R.C.S. with the City’s suit against the
    Developers. In April 2016, the City amended its complaint to allege nuisance as an
    additional cause of action.
    [¶6.]         The various parties settled most of the foregoing litigation. As noted
    above, Big Sky settled with Scull in 2007. Big Sky also settled its complaints
    against R.C.S. and Rapid Construction. Rapid Construction settled with Dream
    Design International. And finally, the Developers and the City settled in regard to
    all disputed project phases other than Phases 1 through 4. So prior to trial, Scull,
    R.C.S., Rapid Construction, and Dream Design International were each removed as
    parties, and the issues were narrowed to the dispute between the City and the
    Developers regarding Phases 1 through 4 of the subdivision. 1 Citing this Court’s
    decision in Estes, the City moved for summary judgment on the issue of the
    Developers’ liability for these phases. The circuit court denied the motion.
    [¶7.]         A jury trial was held January 23 through 27, 2017. During the trial,
    the circuit court excluded evidence offered by the City regarding Big Sky’s litigation
    and settlement with Scull and R.C.S. Estes filed a motion for judgment as a matter
    of law, which the court granted because the City did not dispute that Big Sky was
    the sole owner of the properties at issue in Phases 1 through 4. And over the City’s
    objection, the court instructed the jury on the Developers’ period-of-limitation,
    waiver, and estoppel defenses. The court did not instruct the jury on the City’s
    1.      It is unclear how Dream Design’s counterclaim against the City was resolved.
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    nuisance theory. The jury returned a general verdict in favor of the Developers,
    denying any relief to the City.
    [¶8.]          The City appeals, raising the following issues 2:
    1.     Whether the City was entitled to summary judgment on
    the issue of the Developers’ liability.
    2.     Whether the circuit court erred by excluding evidence of
    Big Sky’s claims against, and settlements with, Scull and
    R.C.S.
    3.     Whether the circuit court erred by granting Estes’s
    motion for judgment as a matter of law.
    4.     Whether the circuit court erred by instructing the jury on
    the Developers’ period-of-limitation, waiver, and estoppel
    defenses.
    5.     Whether the circuit court erred by not instructing the jury
    on the City’s public-nuisance claim.
    Analysis and Decision
    [¶9.]          1.     Whether the City was entitled to summary judgment
    on the issue of the Developers’ liability.
    [¶10.]         The City first argues the circuit court erred by denying the City’s
    motion for summary judgment on the issue of the Developers’ liability. In the City’s
    view, the Developers’ liability was established as the law of the case in Estes. In
    Estes, this Court held that the expiration of bonds given in lieu of completing public
    improvements did not release the Developers from the obligation of making those
    2.       By notice of review, the Developers also raise a constitutional issue.
    According to the Developers, the “City’s claims were based on its Municipal
    Code section 16.16.010 that requires subdividers to ‘install or construct’
    public improvements, including streets, street lights, sanitary sewers and
    water mains.” But as Developers point out, the Legislature is prohibited
    from “delegat[ing] to any . . . private corporation . . . any power to make . . .
    any municipal improvement[.]” S.D. Const. art. III, § 26. Because we affirm
    on all other issues presented, it is not necessary to reach this constitutional
    question.
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    improvements. 
    2011 S.D. 75
    , ¶¶ 1, 11, 
    15, 805 N.W.2d at 715
    , 718-19. In the
    opinion’s concluding paragraph, this Court said: “Under the ordinances and
    specifications, Developers remain liable until the City accepts the improvements by
    a final acceptance letter.” 
    Id. ¶ 15,
    805 N.W.2d at 719. On remand, the City moved
    for summary judgment, reasoning that “[b]ecause the Developers remain liable to
    the City until the City accepts the improvements by a final acceptance letter and
    because it is undisputed that the City never issued any final acceptance letters, it
    must also be undisputed that the Developers are liable to the City in this litigation.”
    [¶11.]       The City’s argument fails. In Estes, the circuit court granted the
    Developers’ motion for summary judgment on the basis that “when the sureties
    expired, [the Developers] were no longer liable for the improvements under” the
    City’s municipal code. 
    Id. ¶ 9,
    805 N.W.2d at 717. This Court’s review of that
    decision was therefore confined to a question of law: interpreting the meaning of the
    controlling statutes and ordinances. See 
    id. ¶ 12,
    805 N.W.2d at 718. But on
    remand, as evidenced by the issues raised in this appeal, the Developers asserted
    several defenses that were not at issue in Estes. In particular, the circuit court
    determined there were genuine issues of material fact regarding the Developers’
    waiver defense. Because Estes had nothing to do with the defenses at issue in this
    appeal (i.e., period of limitation, waiver, and estoppel), the City was not entitled to
    summary judgment in regard to those defenses, and the court correctly denied the
    City’s motion for summary judgment on the issue of the Developers’ liability. See
    Nicolay v. Stukel, 
    2017 S.D. 45
    , ¶ 21, 
    900 N.W.2d 71
    , 79-80 (holding entitlement to
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    summary judgment on issue of liability requires entitlement to summary judgment
    on defendant’s affirmative defenses).
    [¶12.]         2.    Whether the circuit court erred by excluding
    evidence of Big Sky’s claims against, and
    settlements with, Scull and R.C.S.
    [¶13.]         Next, the City argues the circuit court erred by excluding evidence that
    Big Sky sued and settled with Scull and R.C.S. regarding their work on Phases 1
    through 4. In both complaints, Big Sky alleged that it would “be caused and
    required to incur additional costs for engineering and other consulting services in
    the future and will be caused and required to incur additional costs for remedial
    work in the future necessary to further correct the defective and unworkmanlike
    performance of [Scull and RCS.]” 3 According to the City, “Big Sky’s allegations in
    that litigation are direct admissions by Big Sky of continuing obligations to the
    City.” The Developers respond that “[t]he fact and terms of Big Sky’s settlement
    with [Scull and R.C.S.] were clearly inadmissible under SDCL 19-19-408.”
    [¶14.]         The admission of evidence relating to the settlement of a claim is
    governed by SDCL 19-19-408. With limited exception, evidence of “accepting . . . a
    valuable consideration in compromising . . . [a] claim”—i.e., a settlement—“is not
    admissible . . . either to prove or disprove the validity or amount of a disputed claim
    or to impeach by a prior inconsistent statement or a contradiction[.]” SDCL 19-19-
    408(a). “The court may admit this evidence for another purpose, such as proving a
    witness’s bias or prejudice, negating a contention of undue delay, or proving an
    3.       This language is taken from Big Sky’s complaint against Scull. The language
    used in Big Sky’s complaint against R.C.S. has minor, immaterial variations.
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    effort to obstruct a criminal investigation or prosecution.” SDCL 19-19-408(b)
    (emphasis added). But as the emphasized word indicates, admission of such
    evidence under Rule 408’s exception is not mandatory. Nothing in Rule 408
    suggests that the exclusion overrides other applicable rules of evidence. Thus, even
    if the City had offered the settlement evidence for some purpose that fit within
    Rule 408’s exception, the circuit court’s decision to admit or exclude that evidence is
    still a matter of discretion.
    [¶15.]         In light of the foregoing, the City’s argument is incomplete. Here, the
    circuit court permitted Estes to testify, over objection, that the contractors had
    failed to properly compact the soil and correct the deficiencies and that there would
    be additional costs to fix the roads. The only evidence disallowed by the court was
    the Developers’ lawsuit and settlement with the contractors. The circuit court
    determined that the evidence was inadmissible because it was cumulative with
    other evidence already presented and because it would invite the jury to speculate
    regarding the amount of settlement. Under SDCL 19-19-403, a circuit court is
    permitted to exclude such evidence. 4 In order to show error on this issue, then, the
    City must show that the court’s Rule 403 analysis was an abuse of discretion. See
    Donat v. Johnson, 
    2015 S.D. 16
    , ¶¶ 24, 26, 
    862 N.W.2d 122
    , 130-31. However, the
    City confines its argument to the question whether the purpose for which the City
    offered the settlement evidence fell within Rule 408’s exception; the City does not
    4.       SDCL 19-19-403 states: “The court may exclude relevant evidence if its
    probative value is substantially outweighed by a danger of one or more of the
    following: unfair prejudice, confusing the issues, misleading the jury, undue
    delay, wasting time, or needlessly presenting cumulative evidence.”
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    argue the court abused its discretion. Because the City has failed to show either an
    abuse of discretion or prejudice, there is no basis for reversing the court’s
    evidentiary decision.
    [¶16.]       3.     Whether the circuit court erred by granting Estes’s
    motion for judgment as a matter of law.
    [¶17.]       The City also argues the circuit court erred by granting Estes’s motion
    for judgment as a matter of law. Prior to trial, the parties settled all claims except
    those relating to project Phases 1 through 4. The circuit court granted the motion
    for the following reasons:
    Based upon the evidence presented, I find that Big Sky, LLC
    was a valid limited liability corporation; that Big Sky was the
    owner of the property involved in Phases 1 through 4 of the
    development; that Doyle Estes was the sole owner and manager
    of Big Sky, LLC. I find no evidence that Mr. Estes operated in a
    personal capacity during the development of Big Sky Phases 1
    through 4, but at all times acted as the manager/owner of Big
    Sky, LLC; that Big Sky, LLC was a valid, functioning
    corporation throughout the development of the project. I cannot
    find any legal basis to hold Mr. Estes as an individual
    defendant.
    Even so, the City asserts that Estes personally received compensation in exchange
    for releasing Big Sky’s claims against Scull in regard to Phases 1 through 4. In the
    City’s view, “Estes’[s] receipt of funds in litigation brought for the sole purpose of
    fixing the roads creates liability, or at the very least, a jury question for Estes.”
    [¶18.]       This argument also fails. “Except as otherwise provided in [SDCL 47-
    34A-303] subsection (c), the debts, obligations, and liabilities of a limited liability
    company, whether arising in contract, tort, or otherwise, are solely the debts,
    obligations, and liabilities of the company.” SDCL 47-34A-303(a). The City does
    not dispute that Big Sky was the sole owner of the plats involved in Phases 1
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    through 4; indeed, the City’s amended complaint indicates as much. And the City
    never pleaded, does not now assert, and in fact specifically disclaimed arguing that
    Estes acted in such a way that he should be stripped of the protections of a limited-
    liability company. Considering the court’s undisputed findings, the City has not
    advanced any theory that either directly attributes or imputes liability to Estes for
    Phases 1 through 4. Therefore, the court did not err by granting Estes’s motion for
    judgment as a matter of law.
    [¶19.]       4.     Whether the circuit court erred by instructing the
    jury on the Developers’ period-of-limitation, waiver,
    and estoppel defenses.
    [¶20.]       Next, the City challenges the circuit court’s jury instructions regarding
    the Developers’ period-of-limitation, waiver, and estoppel defenses. The City
    contends the court’s period-of-limitation and waiver instructions were incorrect as a
    matter of law. The City also contends there was insufficient evidence to instruct the
    jury on the Developers’ waiver and estoppel defenses. Because the jury returned a
    general verdict for the Developers, that verdict must be affirmed if the circuit court
    correctly instructed the jury on at least one of the Developers’ affirmative defenses.
    See Lenards v. DeBoer, 
    2015 S.D. 49
    , ¶ 14, 
    865 N.W.2d 867
    , 871 (“In a civil case, if a
    general verdict is handed down and the jury could have decided the case on two
    theories, one proper and one improper, the reviewing court will assume that it was
    decided on the proper theory.” (quoting Thomas v. Sully County, 
    2001 S.D. 73
    , ¶ 7,
    
    629 N.W.2d 590
    , 592)).
    [¶21.]       The City contends there was insufficient evidence to warrant the
    estoppel instruction. A circuit court should instruct the jury on issues that are
    “supported by competent evidence in the record[.]” Johnson v. Armfield, 2003 S.D.
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    134, ¶ 7, 
    672 N.W.2d 478
    , 481 (quoting Artz v. Meyers, 
    1999 S.D. 156
    , ¶ 8,
    
    603 N.W.2d 532
    , 534). This Court reviews “the circuit court’s decision to grant or
    deny a specific jury instruction for an abuse of discretion.” Montana–Dakota Utils.
    Co. v. Parkshill Farms, LLC, 
    2017 S.D. 88
    , ¶ 25, 
    905 N.W.2d 334
    , 343. “A claim
    that the evidence was insufficient to [warrant an instruction must be] viewed ‘in the
    light most favorable to upholding the verdict.’” Armfield, 
    2003 S.D. 134
    , ¶ 
    7, 672 N.W.2d at 481
    (quoting Parker v. Casa Del Rey, 
    2002 S.D. 29
    , ¶ 5, 
    641 N.W.2d 112
    , 115).
    [¶22.]       The doctrine of equitable estoppel is “[a] defensive doctrine preventing
    one party from taking unfair advantage of another when, through false language or
    conduct, the person to be estopped has induced another person to act in a certain
    way, with the result that the other person has been injured in some way.” Estoppel,
    Black’s Law Dictionary (10th ed. 2014). “[T]he doctrine of estoppel is available
    against a municipal corporation.” City of Rapid City v. Hoogterp, 
    85 S.D. 176
    , 179,
    
    179 N.W.2d 15
    , 16-17 (1970). When the doctrine is asserted against a municipal
    corporation, the party asserting the defense must show that “municipal officers
    have taken some affirmative action influencing another which renders it
    inequitable for the municipality to assert a different set of facts.” Even v. City of
    Parker, 
    1999 S.D. 72
    , ¶ 12, 
    597 N.W.2d 670
    , 674 (quoting 
    Hoogterp, 85 S.D. at 180
    ,
    179 N.W.2d at 17). According to the City, “[t]here was no evidence presented at
    trial that Big Sky in any manner altered its position or did something it would not
    have otherwise done to its prejudice.”
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    [¶23.]          The Developers respond that an estoppel instruction was warranted
    because they commenced paving the streets and installing curbs only after one of
    the City’s inspectors concluded the underlying dirt had been compacted to the City’s
    specifications. According to the Developers, the cost of correcting compaction errors
    significantly increases after paving. This argument is supported by the testimony
    of Lawrence Kostaneski, the former manager of the City’s engineering division, and
    Ron Eikenberry, the City’s inspector on all four phases at issue in this case.
    Kostaneski testified that typically, a City engineer is assigned to each phase of a
    subdivision and that each engineer is assigned one or more inspectors to assist in
    daily oversight. Eikenberry testified that as an inspector, his “primary
    responsibility was to be a construction observer[,]” which involved “mak[ing] sure
    that [the contractors] are, in general, following the specifications of the City of
    Rapid City[.]” He testified that on nearly a daily basis, he would visit the job site,
    speak with the foreman, inspect the actual work, and fill out a “daily construction
    diary” documenting “the events of the day[.]” Eikenberry’s daily notes were
    admitted into evidence at trial and indicate that Phases 1 through 3 each passed
    compaction testing. Other City documentation—a “construction close-out
    checklist”—was also introduced into evidence and similarly indicates that Phase 4
    passed compaction testing. And when asked if the City would have had notice of—
    and the opportunity to respond to—a compaction-test failure, Kostaneski answered
    affirmatively, indicating that “[c]ompaction test failures [would be] readily apparent
    to everyone.”
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    [¶24.]       In light of the foregoing, the circuit court did not err by instructing the
    jury on estoppel. The testimony of Kostaneski and Eikenberry, as well as
    documentary evidence, is competent evidence to support the Developers’ argument
    that they would not have proceeded to paving roads and installing gutters in
    Phases 1 through 4 had the City not affirmatively indicated that the soil compaction
    was satisfactory. See 
    id. ¶ 14,
    597 N.W.2d at 675 (“[T]he City may not, through its
    agents, affirmatively create an objectively reasonable impression in an applicant
    that he has fully complied with all zoning requirements and then proceed to
    withdraw permission after the applicant has taken steps towards construction
    which result in a substantial detriment to the applicant.”). Because the jury’s
    general verdict could properly rest on the Developers’ estoppel defense, the
    questions whether the court erred by instructing the jury on the Developers’ period-
    of-limitation and waiver defenses are moot. See Lenards, 
    2015 S.D. 49
    , ¶ 
    14, 865 N.W.2d at 871
    .
    [¶25.]       5.      Whether the circuit court erred by not instructing
    the jury on the City’s public-nuisance claim.
    [¶26.]       Finally, the City argues the circuit court erred by refusing to instruct
    the jury on the City’s nuisance claim.
    On issues supported by competent evidence in the record, the
    trial court should instruct the jury. The trial court is not
    required to instruct on issues lacking support in the record.
    Failure to give a requested instruction that correctly sets forth
    the law is prejudicial error. Jury instructions are reviewed as a
    whole and are sufficient if they correctly state the law and
    inform the jury. Error is not reversible unless it is prejudicial.
    The burden of demonstrating prejudice in failure to give a
    proposed instruction is on the party contending error.
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    Sundt Corp. v. State ex rel. S.D. Dep’t of Transp., 
    1997 S.D. 91
    , ¶ 19, 
    566 N.W.2d 476
    , 480 (quoting Kuper v. Lincoln-Union Elec. Co., 
    1996 S.D. 145
    , ¶ 32, 
    557 N.W.2d 748
    , 758). Among other occurrences, “[a] nuisance consists in unlawfully doing an
    act, or omitting to perform a duty, which act or omission . . . renders dangerous for
    passage . . . any public park, square, street, or highway[.]” SDCL 21-10-1(3).
    Because the Developers’ engineer testified that there were areas in the development
    that were “unsafe to travel,” the City contends there was evidence to support giving
    a nuisance instruction. The Developers argue that ownership is an element of
    nuisance under SDCL 21-10-6, that the Developers do not own the properties at
    issue, and that therefore, a nuisance instruction was not warranted.
    [¶27.]       The City’s view of nuisance is incomplete. SDCL 21-10-1 does not state
    a complete cause of action—it is simply one of four statutes in SDCL chapter 21-10
    that define what constitutes a nuisance. And even when a nuisance exists, the
    available remedies are enumerated in chapter 21-10. If a nuisance occurs, the
    remedies are: “(1) [a] civil action; (2) [a]batement; and (3) [i]n cases of public
    nuisance only, the additional remedy of indictment or information as prescribed by
    statute and rules relating thereto.” SDCL 21-10-5. In a civil action, “the nuisance
    may be enjoined, or ordered abated, and damages recovered in addition.” SDCL 21-
    10-9. A municipality may also bring a civil action after abating a public nuisance to
    recover the cost of abatement. SDCL 21-10-6. Thus, the relief available to the City
    in this civil action is limited to: (1) an injunction requiring the Developers to abate
    the alleged nuisance; (2) reimbursement for costs already incurred by the City in
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    abating the alleged nuisance; and (3) damages for legal injuries caused by the
    alleged nuisance.
    [¶28.]           In light of the foregoing, the City was not entitled to a jury instruction
    on nuisance. The City’s amended complaint alleges the City had “been damaged in
    an amount to be determined at the time of trial.” But from a review of the record
    and the parties’ briefs, it is apparent that the basis for the City’s “damages” claim is
    simply the anticipated cost of abatement and not some additional legal injury
    caused by the alleged nuisance. It is undisputed that at the time of trial, the City
    had not undertaken any abatement efforts in Phases 1 through 4. And neither
    chapter 21-10 nor any other authority identified by the City entitles a municipality
    to “recover” the cost of abatement prior to undertaking such abatement. Because
    the City simply has not incurred any abatement costs to defray, and because the
    City does not allege any other damages, the City was not entitled to a nuisance
    instruction. 5
    5.       Even if chapter 21-10 authorized a civil action to recover the anticipated cost
    of abatement that had not yet occurred, SDCL 21-10-6 suggests such an
    action could only be maintained against the owner of the property on which
    the nuisance exists. Under SDCL 21-10-6, a municipality’s primary method
    of defraying the cost of abatement is to “tax[] the cost thereof by special
    assessment against the real property on which the nuisance occurred.”
    (Emphasis added.) A municipality may “commence a civil action against the
    owner of the real property for its costs of abatement in lieu of taxing the cost
    by special assessment” only when “the nuisance abated is an unsafe or
    dilapidated building, junk, trash, debris, or similar nuisance arising from the
    condition of the property[.]” 
    Id. (emphasis added).
    Thus, commencing a civil
    action to recover the cost of abatement is meant to be a limited alternative to
    taxing the property by special assessment. And if a municipality that has
    actually undertaken abatement can only recover the cost of abatement by
    taxing the property or bringing an action against the property’s owner, a
    municipality that has not undertaken abatement must be similarly limited.
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    Conclusion
    [¶29.]        This Court’s decision in Estes did not address the Developers’ period-
    of-limitation, waiver, and estoppel defenses; therefore, the circuit court did not err
    by denying the City’s motion for summary judgment. The court did not abuse its
    discretion in excluding the evidence of Big Sky’s litigation and settlement with Scull
    and R.C.S. The City does not dispute that Big Sky was the sole owner of Phases 1
    through 4, and the City failed to identify any legal theory for imputing liability to
    Estes; therefore, the court did not err by granting Estes’s motion for judgment as a
    matter of law. Finally, there is no reversible error in the court’s instructions to the
    jury. Because the jury’s general verdict can be explained by the Developers’
    estoppel defense, the questions whether the court erred by instructing the jury on
    the Developers’ period-of-limitation and waiver defenses are moot. And a nuisance
    instruction was not necessary because SDCL chapter 21-10 does not permit a
    municipality to recover the prospective cost of abatement not yet undertaken.
    [¶30.]       We affirm.
    [¶31.]       JENSEN, Justice, and COMER, DAMGAARD, and BERN, Circuit
    Court Judges, concur.
    [¶32.]       COMER, DAMGAARD, and BERN, Circuit Court Judges, sitting for
    ZINTER, SEVERSON, and KERN, Justices, disqualified.
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