One allegation in a Yankton businessman’s lawsuit against Yankton County can go forward, according to an opinion issued by the South Dakota Supreme Court.
Luke McAllister alleges the county engaged in persistent litigation against him to drive him out of business. The county argued unsuccessfully that McAllister didn’t file notice of the claim within the timeline required by statute.
Luke McAllister and his brother Cam operate two businesses in Yankton. One of them, Fire & Ice, is an open-air vendor of alcohol and camping supplies, and the other is an internet provider.
The county zoning administrator informed McAllisters that they needed a conditional use permit for their startup internet service. That was in March 2018.
What followed was a flurry of litigation that has not yet ended.
McAllisters’ attorney, Jonathan Heber, put it this way at oral arguments in February: “The factual background in this case is extensive, voluminous, egregious, tortured.”
Heber told justices that he couldn’t begin to explain the history in the time allotted for arguments, but the briefs give the details.
In June 2018, the county served McAllisters with a summons and complaint for operating the internet service without a permit.
In April 2019, the Yankton County Planning Commission found unanimously that the internet service was not required to apply for a permit and was never in violation of the ordinance.
The following month, a county commissioner made comments suggesting to Cam McAllister that the issue wasn’t really about the internet service, but about putting Fire & Ice out of business.
On July 3, 2019, McAllisters sent a letter to the county attorney giving notice that they planned to pursue claims of abuse of process and barratry, a term for making malicious or frivolous legal assertions.
Almost two years later, on March 12, 2021, the county dropped the case against the McAllisters after the First Circuit judge set a trial date.
State law requires notice of a pending lawsuit against a public entity within 180 days after the injury. The sticking point in this case is when the injury occurred: when the county’s action against McAllisters started in 2018, or when it ended in 2021.
The Supreme Court sided with McAllisters on the barratry challenge, finding that the letter of July 3, 2019, satisfied the intent of the law.
