[¶ 1.] At the start of each beekeeping season, Ellingson's Inc. placed its honey bees on the real property of others, a common practice in the beekeeping industry. After Ellingson's Inc. determined it would no longer own bees, it sought to lease to other beekeepers the right to place bees on the property of some of the landowners with whom Ellingson's Inc. had been doing business. In the spring of 2011, Jim Ammann (Ammann), a competing beekeeper, sought permission to place his bees on the property of a number of the landowners who had previously given Ellingson's Inc. permission to place bees. At least six landowners subsequently revoked the permission they had given Ellingson's Inc. and granted Ammann permission to place his bees on their property. David Ellingson (David), a principal in Ellingson's Inc., then sued Ammann for interference with a business relationship and other related causes of action. The circuit court granted summary judgment in favor of Ammann on procedural and substantive grounds. We affirm because David had no business interference claim that he could assert in his individual capacity.
Facts and Procedural History
[¶ 2.] David was the president of Ellingson's Inc., a corporation involved in
[¶ 3.] In the fall of 2010, Ellingson's Inc. provided its landowners with a letter informing them that David would be retiring. The landowners were also informed that although some aspects of the business would continue, Ellingson's Inc. would no longer own bees. However, the letter assured the landowners that Ellingson's Inc. would arrange for other beekeepers to bring bees to the landowners' property. The record reflects that Ellingson's Inc. was planning to "lease" to other beekeepers the right to place bees on the landowners' property.
[¶ 4.] South Dakota law requires that beekeepers file a permission slip, signed by each landowner, confirming that the beekeeper is authorized to place bees on the landowner's property.
[¶ 5.] David subsequently filed suit against Ammann for interference with a business relationship, fraud and misrepresentation, and unfair competition. After discovery, Ammann moved for summary judgment. The circuit court issued a memorandum decision granting Ammann's motion. A final order was filed four days later. Although David contends there were issues of fact precluding summary judgment on the merits, it is only necessary to address two questions on appeal: (1) whether David was entitled to relief in his individual capacity, and (2) whether David is entitled to appellate attorney's fees.
[¶ 6.] The circuit court first granted Ammann summary judgment reasoning that David was not entitled to relief in his individual capacity.
[¶ 8.] On appeal, however, David argues that he "should have been given an opportunity to amend his complaint" and that the grant of summary judgment on this basis was "unduly harsh." We disagree because David failed to seek this relief below. A memorandum decision is not a binding decision ending the case. Poindexter v. Hand Cnty. Bd. of Equalization, 1997 S.D. 71, ¶ 18, 565 N.W.2d 86, 91. "As its name implies, a memorandum opinion is merely an expression of the trial court's opinion of facts and law." Jones v. Jones, 334 N.W.2d 492, 494 (S.D.1983). Therefore, "[i]t is the prerogative of the [circuit] court to re-think a decision from the bench or a memorandum decision." Id. David did not ask the circuit court to reconsider or move to amend his complaint to substitute parties before the judgment became final.
[¶ 9.] David also failed to seek relief from the final judgment. "On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding[.]" SDCL 15-6-60(b). A party may seek such relief on the basis of "[m]istake, inadvertence, surprise or excusable neglect[.]" SDCL 15-6-60(b)(1). But David did not seek relief from the judgment on the ground of surprise or excusable neglect.
[¶ 10.] David's first request to amend his complaint was made in his reply brief filed with this Court. "A party may not raise an issue for the first time on appeal, especially in a reply brief when the other party does not have the opportunity to answer." Agee v. Agee, 1996 S.D. 85, ¶ 21 n. 4, 551 N.W.2d 804, 807 n. 4; see also State v. Engesser, 2003 S.D. 47, ¶ 32, 661 N.W.2d 739, 750. Failing to raise an issue prior to appeal effectively serves as a waiver. Engesser, 2003 S.D. 47, ¶ 32, 661 N.W.2d at 750. Because David failed to move to amend his complaint before final judgment was entered, because he did not seek relief in the circuit court from the final judgment, and because he did not request to amend his complaint until his reply brief filed with this Court, David failed to preserve his appellate arguments that he should have been given the opportunity to amend his complaint and that summary judgment was unduly harsh.
[¶ 11.] Given that David has no individual claims against Ammann, the circuit court's summary judgment is affirmed. Because David was not the proper party plaintiff, we do not address the grant of summary judgment on the merits.
[¶ 12.] David seeks appellate attorney's fees under SDCL 15-26A-87.3. SDCL 15-26A-87.3 provides that appellate attorney's fees may be sought "in actions where such fees may be allowable...." "We have interpreted this to mean that appellate attorney fees may be granted `only where such fees are permissible at the trial level'" Grynberg Exploration Corp. v. Puckett, 2004 S.D. 77, ¶ 33, 682 N.W.2d 317, 324. The failure to cite authority that "appellate attorney fees are
[¶ 13.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.