Thompson lawyer requests mistrial in damages suit

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YANKTON — Day two in the trial to determine damages owed from Aurora County to Thompson Farms began Friday with a motion for a mistrial from Thompson Farms attorney Mark Meierhenry.

The Thompsons are seeking $2.6 million in damages from the county for driving them out of business with a restrictive 1998 zoning law and diminishing the value of their dairy farm. Whatever amount is awarded, the county’s insurer won’t pay because the county didn’t provided timely notice of the lawsuit to the insurer. The trial was moved to Yankton County to seek jurors less influenced by media coverage of the case.

On day one, Dick Tieszen, attorney for the county, argued that poor management by the Thompsons diminished the value of the property, and not Aurora’s zoning cap on animal numbers. He said the operation was in debt, in danger of imminent failure and adding more animals would not have changed anything.

Meierhenry, in his motion for a mistrial, said this new trial is supposed to determine what damages should be awarded, not re-air arguments from an earlier trial at which a judge determined the county’s zoning law had infringed on the Thompsons’ rights.

Judge Bruce Anderson said he will consider Meierhenry’s motion over the weekend and deliver a decision Monday. He asked Tieszen to email him a brief presenting his position. He then allowed Meierhenry to continue calling witnesses in the case.

Aurora County, as defendant in the case, is expected to call its witnesses by Tuesday afternoon —- if Anderson does not uphold Meierhenry’s motional for a mistrial.

“The argument is whether we’re retrying the liability case or whether these issues go to the damages case,” said Tieszen after Friday’s session. “We’ll have to wait and see what the ruling is.”

Tieszen, in court, was more combative in his response to Meierhenry’s motion.

“This is not a condemnation. The county did not come in and take the dairy. They’re playing a shell game as to what kind of case this is,” he said. “They’ve known for a long time that our case is about showing that they had no possible way of succeeding with 2,000 head.”

Also Friday, Tieszen cross-examined property owner Paul Thompson. Referring to Meirhenry’s description of the Thompson brothers as “successful millionaires” prior to their investment in an expanded dairy operation, Tieszen asked the elder brother if he considered himself such at that time, and Paul Thompson answered affirmatively.

A follow-up question on Thompson earnings drew swift and sustained objections from the Meierhenry-Clint Sargent team. Questions on tax returns were equally defended.

Paul Thompson testified on both days that he handled day-to-day management of farm operations and had little knowledge of actual money management, which was largely the province of Keith Thompson. “I didn’t handle the books,” he said.

Paul Thompson said he did recall that the farm was in trouble with AgStar, the farm’s Mankato, Minn.-based lender and more money was needed to purchase replacement cattle. “We were thinking we could get more cattle and bring it around,” he said. The operation was eventually sold for $3.6 million.

Other witnesses included Former South Dakota Secretary of Agriculture Larry Gabriel; Greg Thompson, son of Keith and Gloria Thompson; dairy farm expert Joe Bradley; and Keith Thompson, whose testimony will resume Monday afternoon.

Gabriel said he was concerned about rapidly falling numbers of dairy cows and operations when he took office, and that at one point the number of dairy cows had fallen to about 80,000 statewide. The national trend around 2000 was toward increasing the size of dairy operations to make them more profitable.

Gabriel said he worked generally toward that goal but did not act in a consulting role with individual herd owners.

“My job was to grow and save an industry," he said, “but I attended many planning and zoning meetings in support of dairies.”

He recalled that one such meeting in Aurora County about allowing higher animal numbers “was not a very friendly meeting.”

Gabriel said expandability was important for most dairy owners interested in moving operations to South Dakota.

“They knew they couldn’t survive with 400 cows, they needed to grow.”

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