3 new decisions by SD Supreme Court

 The SD Supreme Court handed three decisions this morning:

 

1)    Goff divorce decision, remix;

 

2)   Employee prevails in Work Comp appeal;

 

3)   Search of passenger’s purse scrutinized.

 

Summaries follows:

 

GOFF v. GOFF, 2024 S.D. 60:  This appears to be a “new” decision which is perhaps intended to replace the decision handed down by the Court a month ago, on September 11.  The previous decision was rendered on the basis that Appellant’s brief had not been timely filed, with the Court stating:

[¶11.] We note at the outset that this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024. Regardless, “failure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneous or that the conclusions of law are incorrect.” Wichman v. Shabino, 2014 S.D. 45, ¶ 5 n.3, 851 N.W.2d 202, 203 n.3 (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92 (S.D. 1991)). We must therefore still analyze the assignments of error urged by Terry.

Today’s decision has substituted ¶11 so as to read as follows:

[¶11.] Because this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024, we permitted Fawna to file a responsive brief on or before June 17, 2024. The brief was timely received and considered by the Court.

Otherwise the result on appeal appears to be the same result as that set forth in the earlier decision.  NOTE: Nothing in today’s opinion states that the prior ruling has been withdrawn.

My previous Summary of the former decision, which appears to remain intact, is set forth here:

GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce petition evolved into a trial on the merits when Defendant (H) appeared telephonically and indicated that he wished to proceed.  Both parties were placed under oath and testified.  The trial court granted W a divorce on the ground of adultery and made determinations of child custody, child support, division of property and also made a partial award of attorney fees in favor of W.  The SD Supreme Court held that the trial court did not err by proceeding to a trial on the merits.  As to the merits, the SD Supreme Court reversed and remanded as to the following: 1) determination of child support arrearage; 2) visitation restriction on H mandating that visitation be exercised only in SD (restriction unsupported by proper findings); 3) attorney fee award to W.  This is a unanimous decision (5-0) with opinion authored by Justice Kern. 

 

 ARNESON v. GR MANAGEMENT, LLC, 2024 S.D. 61: This is a work comp case which generated 3 opinions by the Justices of the SD Supreme Court.  The DOL found the employee, having been injured by an electric shock, was “permanently and totally disabled under the odd-lot category” in regard to two injuries:  heart condition (A-fib) and numbness in his right hand.  On appeal to the Circuit Court, the employer/insurer prevailed with the trial court finding the employee “was not permanently and totally disabled.”  The SD Supreme Court reversed stating, “we affirm the Department’s determination that [employee] was permanently and totally disabled under the odd-lot category.”  The Court’s opinion is authored by Justice Myren (with CJ Jensen wholly agreeing).  Justice Salter filed a concurring opinion.  Justice DeVaney filed an opinion which concurs in part and dissents in part: dissenting as to how the Majority handles the “availability of suitable employment in the community” issue, suggesting that remand on this issue would be more appropriate. Justice Kern agrees with Justice DeVaney.

 STATE v. EDWARDS, 2024 S.D. 62: Driver of vehicle was lawfully pulled over and lawfully charged with possession of Meth.  Female passenger was asked to exit vehicle during search and she did so with her purse – with the purse in her close possesson (on her lap in the vehicle and then over her shoulder upon exiting vehicle).  After female passenger denied request by law enforcement to surrender her purse for inspection, it was forcibly taken from her.  Thereafter she was “indicted for possession of a controlled substance; possession of marijuana, two ounces or less; obstructing a law enforcement officer; and possession of drug paraphernalia… [and] The State also filed a part II habitual offender information alleging that [passenger] had been convicted of a prior felony.” The issue, as presented in a Motion to Suppress, was whether the seizure of the purse was lawful.  The trial court denied Defendant’s Motion to Suppress. The SD Supreme Court Affirmed the Denial in a 4-1 ruling, holding that the seizure of the purse was permitted as part of a search incident to the driver’s arrest. The Court’s opinion is authored by Chief Justice Jensen. Justice Myren dissented, expressing the view that passenger’s continuous exertion of close possession of her purse did not warrant its seizure.   

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

Former AG's law license suspended 6 months; Adverse Possession determines title to mobile home lot

 The SD Supreme Court handed down two decisions this morning: 

1)    Former AG’s law license suspended for 6 months;

 

2)   Title to Mobile Home Lot acquired by Adverse Possession.

 

Summaries follows:

 

DISCIPLINE OF RAVNSBORG, 2024 S.D. 58: Disciplinary proceeding against the former Attorney General resulted in the Referee’s recommendation of public censure, “finding that Ravnsborg improperly used his title as attorney general to receive favorable treatment.”  The SD Supreme Court ordered additional briefing and conducted de novo review, “[b]ecause the Referee was in no better position than this Court is to weigh and consider documentary evidence.” Following oral argument, the Court handed down this ruling which orders a 6 month suspension of the former AG’s law license.  The concluding paragraph of the opinion provides:

[¶53.] After reviewing the facts and weighing the relevant mitigating and aggravating factors, the Court hereby suspends Ravnsborg’s license to practice law in South Dakota for a period of six months. While Ravnsborg is unlikely to continue practicing law in South Dakota, we conclude suspension is necessary to preserve theintegrity of the profession and deter like conduct by other attorneys. The six-month suspension shall commence on the date of entry of the order of suspension. Pursuant to SDCL 16-19-70.4, Ravnsborg shall also be responsible for reimbursing the State Bar of South Dakota for all costs and expenses related to these proceedings. These costs and expenses shall be reimbursed prior to his reinstatement to practice law in South Dakota.

This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.

HOFFMAN v. HOLLOW HORN, 2024 S.D. 59: This case involves litigation over title to a mobile home lot in Eagle Butte.  Administrator of the Estate of “Mother Theresa Hoffmann” filed this action claiming legal title.  The trial court ruled in favor of subsequent possessors based upon two theories adverse possession.  The SD Supreme Court affirmed, based upon on just one of the theories – the basis that title was acquired through adverse possession in the name of the grantor of a subsequent quit claim deed. This ruling is unanimous (5-0), with opinion by Chief Justice Jensen. 

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

SD Hands down 2 new decisions

 

The SD Supreme Court handed down two decisions this morning:

 

1)    3^rd trial does not offend double jeopardy;

 

2)   Conversion of Default hearing to “merits” permitted; problematic issue with filing of appellate brief.

 

Summaries follows:

 

STATE v. ROSE, 2024 S.D. 56:  Defendant was prosecuted for assault in Magistrate Court.  After two mistrials, Defendant was convicted by Jury.  Defendant asserted (and now asserts again) that the 3^rd jury trial was barred by double jeopardy.  Defendant also asserted that mistrial # 2, granted at the request of the State’s Attorney, was wrongly granted.   The Circuit Court rejected the Defendant’s double jeopardy claim.  And, so does the SD Supreme Court.  This is a unanimous decision (5-0), with opinion authored by Justice DeVaney.  

Of interest is the SD Supreme Court’s recognition that the Circuit Court in this matter was acting an intermediate appellate court and not entitled to deference:

[¶22.] Although this is an appeal from a circuit court’s order, the circuit court was functioning here as an intermediate court of appeals. See State v. Delfs, 396 N.W.2d 749, 752 (S.D. 1986). As in Delfs, the circuit court did not hear the evidence or testimony. See id. Therefore, “the circuit court decision is not entitled to any deference.” Id.

 

GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce petition evolved into a trial on the merits when Defendant (H) appeared telephonically and indicated that he wished to proceed.  Both parties were placed under oath and testified.  The trial court granted W a divorce on the ground of adultery and made determinations of child custody, child support, division of property and also made a partial award of attorney fees in favor of W.  The SD Supreme Court held that the trial court did not err by proceeding to a trial on the merits.  As to the merits, the SD Supreme Court reversed and remanded as to the following: 1) determination of child support arrearage; 2) visitation restriction on H mandating that visitation be exercised only in SD (restriction unsupported by proper findings); 3) attorney fee award to W.  This is a unanimous decision (5-0) with opinion authored by Justice Kern. 

There is an interesting issue here with the attempted filing of an appellate brief by W.  W missed the deadline to file an Appellee brief and thereafter filed a motion for extension of time which was granted.  W submitted her Brief, but it was filed with the Court and served on opposing counsel 1 day late.  The SD Supreme Court Clerk rejected it.  Thereafter W filed a Motion for Waiver of this Default and the Waiver was granted with directions that W file the Brief by a subsequent date.  W did not file (or refile) the Appellee Brief.  As a result the Court admonishingly stated that W had not presented any arguments on appeal:

[¶11.] The Court granted this motion, ordering that “appellant shall file the appellee’s brief on or before April 8, 2024.” No such brief was filed and, as a result, this Court has been presented with no arguments from [W].

Nonetheless, the Court relented restating the established rule in SD that, “failure of the appellee to file a brief does not automatically translate to victory for the appellant.”

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

 

4 new SD Supreme Court decisions this morning

 

The SD Supreme Court handed down four decisions this morning, holding, inter alia: 

1)    Rape convictions affirmed;

 

2)   insurance coverage for fire loss excluded;

 

3)  “standby counsel” did not violate Defendant’s right to proceed pro se;

 

4)   order denying confirmation of specific devise not appealable;

 

Summaries follows:

 

STATE v. O’BRIEN, 2024 S.D. 52:  Defendant was convicted, by jury, of multiple charges of “rape, sexual contact with a child under the age of sixteen, and sexual exploitation of a minor.”  The trial court imposed multiple prison sentences.  The SD Supreme Court affirmed, rejecting Defendant’s allegations of: a) insufficiency of evidence; b)duplicity of charges: and (c)  "plain error" in regard to the jury instructions.  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.  (NOTE:  This case was orally argued less than 3 months ago.)

 

ACUITY INSURANCE v. A MAXON and WEATHERSPOON, 2024 S.D. 53: Buyers and Sellers of business sought coverage under fire insurance policy, following fire to premises.  The transaction was arranged as a “contract for deed,” buyers to receive title through their LLC.  Jury found that one of the Buyers, a “principal” of the LLC had “had intentionally started the fire.”  As a result the trial court entered “judgment as a matter of law” in favor of insurer (and against both Buyers and Sellers), holding that Buyer’s conduct also excluded coverage for Sellers. The SD Supreme Court affirmed.  The decision is unanimous (5-0), with opinion authored by Justice Salter.

STATE v. HEER, 2024 S.D. 54: Facing multiple drug charges, Defendant filed a “motion to represent himself.” The Trial Court responded by granting the motion, “but [also ] ordering his former court-appointed attorney to serve as standby counsel.”  Jury found Defendant guilty on all counts.  Defendant presents this appeal, "[w]ith the assistance of different appointed counsel," Defendant asserts “improper vouching” by the Prosecutor in closing argument and also that his “Sixth Amendment right to self-representation was violated by the appointment of standby counsel and by standby counsel’s presence at trial.” The SD Supreme Court rejected Defendant’s arguments and affirmed.  This decision is unanimous (5-0), with opinion authored by Justice Salter.

 

ESTATE OF AGER, 2024 S.D. 55: Personal Representative (PR), daughter of deceased from earlier marriage, began unsupervised administration of Decedent’s estate.  Decedent’s Widow filed petition for supervised administration.  PR then filed “motion for confirmation of a specific devise.” The Trial Court granted Widow’s petition for supervised administration and thereafter denied PR’s “motion for confirmation of a specific devise.”  Trial Court also denied Widow’s motion to have PR removed as PR.  PR filed Notice of Appeal.  Widow filed Notice of Appeal.  Both Notices of Appeal are dismissed.  With respect to PR’s effort to appeal, the last paragraph of the Court’s opinion is instructive:

[¶15.] Here, the undisputed procedural sequence of events demonstrates that the order for supervised administration was signed before the circuit court’s order denying [PR’s] motion for confirmation of a specific devise. See SDCL 15-6-58 (“A judgment or order becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in the clerk’s office.”). Under the circumstances, the action had become a supervised administration and a single in rem proceeding not subject to Geier’s [In re Estate of Geier, 2012 S.D. 2, ¶ 15, 809 N.W.2d 355, 359] individual-proceeding rule of finality. We therefore dismiss [PR’s] appeal and, likewise, [Widow’s] notice of review.

Further explanation for the dismissal for the Widow’s attempted appeal is set forth in note 2, at the end of the Opinion.  This decision is unanimous (5-0), with opinion authored by Justice Salter.  

These decisions may be accessed at

 http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

SD Supreme Court rejects H's appeal from Divorce Decree

 

The SD Supreme Court handed down one decision this morning, holding, inter alia:

 

1)    H loses appeal from Divorce Decree

 

 

Summary follows:

 

GOEDEN v. GOEDEN, 2024 S.D. 51: In this divorce proceeding the trial court found that the parties’ “pre-marital agreement” was unconscionable and therefore unenforceable.  Thereafter, the trial court divided the parties’ property in a manner which Husband considered inappropriate.  Among other issues, the Husband argued that the trial court’s treatment of his disability pay was erroneous because disability pay is considered non-marital property.  The trial court recognized the general rule that disability pay is non-marital but also held that once commingled with marital funds and used for marital purposes, the “non-marital” status transforms into marital status.  Husband also complains of the consideration of pre-marital assets as marital, once commingled.  Husband also asserts error in the finding of “extreme cruelty” in his behavior, warranting the granting of a divorce to W.  The SD Supreme Court rejected all of H’s arguments and affirmed. The Court also awarded W appellate attorney fees of $4,398, which is 50% of the amount W requested.  This decision is unanimous (5-0), with opinion authored by Justice DeVaney. 

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

4 new decisions this morning

 

The SD Supreme Court handed down four decisions this morning, holding, inter alia: 

1)    Split decision (3/2) adverse to surviving Wife;

 

2)   Landowners secure reversal in pipeline dispute;

 

3)   UIM coverage found for employee;

 

4)   Full faith and Credit does not warrant dismissal of simultaneous divorce action filed in state court;

 

Summaries follows:

 

ESTATE OF SIMON, 2024 S.D. 47: Omitted spouse (Wife) filed this action seeking, “intestate share of [Husband’s] estate pursuant to SDCL 29A-2-301.”  The trial court denied relief, holding that Wife’s claim was barred by the “exception found in SDCL 29A-2-301(a)(3) [concluding] that [Husband] provided for [Wife] outside of the will with the intent that those transfers would be in lieu of any testamentary provision.”  In a split decision the SD Supreme Court affirmed.  The majority opinion, agreeing with the trial court, is authored by Chief Justice Jensen. 

Justice Kern filed a dissenting opinion, in which Justice Myren concurs.  The dissenting opinion states,

[¶59.] Because the record lacks any statements by [Husband] regarding the intent of his transfers to [Wife] and because his intent cannot be reasonably inferred from the amount of the transfers or other evidence, the Estate, as the proponent of the will, has failed to establish that it falls within the exception set forth in SDCL 29A-2-301(a)(3), and the circuit court erred as a matter of law in determining otherwise.

This case was orally argued on March 23, 2023 and decided some 17 months later, after “reassignment” to CJ Jensen.

 

STROM TRUST, et al. v. SCS CARBON TRANSPORT, LLC, 2024 S.D. 48: This case involves a consolidated appeal by aggrieved landowners, in regard to pipeline dispue.  The landowners are successful in securing a reversal. Details of the dispute, the holding in the lower courts and the ruling on appeal are set forth in the first 5 paragraphs of the decision, as follows: 

[¶1.] SCS Carbon Transport, LLC (SCS) is planning to develop a pipeline network to transport carbon dioxide (CO2) through South Dakota. Several landowners (Landowners) along the proposed route refused to allow SCS pre[1]condemnation survey access, which SCS claims is authorized by SDCL 21-35-31. Landowners sued in both the Third and Fifth Judicial Circuits, seeking declaratory and injunctive relief to prevent the surveys. These proceedings resulted in a consolidated appeal from six lawsuits filed by Landowners and one by SCS. Two cases were filed in the Third Circuit: CIV 22-64 (Strom) and CIV 22-129 (Deeg). Five cases were filed in the Fifth Circuit namely: CIV 22-14 (Helfenstein), CIV 22-47 (Braun), CIV 22-253 (Bossly), CIV 22-20 (Schumacher), and CIV 22-18 (Jordre). 

[¶2.] All cases except for Jordre—where SCS was the plaintiff and sought declaratory relief permitting survey access—involved similar claims challenging the constitutionality of SDCL 21-35-31 under the takings and due process clauses of the state and federal constitutions. Landowners also challenged SCS’s status as a common carrier and, by extension, its right to exercise eminent domain power. After limited discovery, SCS moved for and was granted summary judgment on all issues in the cases filed in both circuits. Landowners appeal. 

[¶3.] We reverse the circuit courts’ grants of summary judgment on the common carrier issues. SCS’s ability to conduct pre-condemnation surveys depends on whether it is a common carrier vested with the power of eminent domain. However, in this early phase of the litigation, the record does not demonstrate that SCS is holding itself out to the general public as transporting a commodity for hire. It is thus premature to conclude that SCS is a common carrier, especially where the record before us suggests that CO2 is being shipped and sequestered underground with no apparent productive use. In addition, the circuit courts abused their discretion in denying Landowners’ request for further discovery. The record demonstrates that SCS resisted Landowners’ efforts to obtain depositions and documents that are of fundamental importance to the issues in this case. Within the scope of SDCL 15-6-26, Landowners are entitled to conduct depositions and have access to documents relevant to SCS’s pricing terms and business model under conditions prescribed by the courts to preserve the confidentiality of the information. 

[¶4.] On remand, in the event SCS is determined to be a common carrier, we also analyze the scope and constitutionality of SDCL 21-35-31. Mindful of our mandate to interpret the statute according to its plain meaning, and to do so in a fashion that preserves its constitutionality where possible, we conclude that the circuit courts partially erred in their analyses of the types of surveys authorized by SDCL 21-35-31. We hold that—absent landowner consent—the statute, to be interpreted as constitutionally valid, authorizes only minimally invasive superficial inspections that, at most, cause minor soil disturbances. In addition, we interpret SDCL 21-35-31 as incorporating our state constitutional guarantee of a jury determination of damages that are caused by pre-condemnation surveys. Based on this interpretation, we conclude that the limited pre-condemnation surveys authorized by SDCL 21-35-31, as strictly interpreted herein, do not violate the federal or state constitutions. 

[¶5.] We reverse and remand for further proceedings consistent with this opinion.

This decision is unanimous (5-0), with opinion authored by Justice Kern.  Retired Circuit Judge Wipf Pfeifle sat on this case, in lieu of Justice DeVaney. 

 

ACUITY v. TERRA-TEK, LLC & WABA, 2024 S.D. 49: UIM insurer denied coverage for claim, asserting that employees were not occupying a “covered auto” at the time of the accident. The trial court found coverage existed, looking at the Declarations Page and Endorsement which identified employee as an additional insured, without regard to whether employee was in a “covered auto” at the time of the accident.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney. 

TORGERSON v. TORGERSON, 2024 S.D. 50: Wife, an enrolled member of the Sisseton Wahpeton Oyate Tribe, filed for divorce against Husband in tribal court.  Thereafter, Husband filed suit for divorce in state court.  State trial court found that both tribal court and state court had jurisdiction, but that the tribal court was first in time and that Full Faith and Credit required dismissal of the state court action. The SD Supreme Court reversed and remanded, applying SD’s “comity” statute, SDCL 1-1-25.  The Court’s opinion is authored by Justice Kern.  Justices Salter and Myren filed separate opinions, dissenting in part.  Justice DeVaney concurs in the views expressed by Justice Salter. 

These decisions may be accessed at

 http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

Lawsuit against pesticide applicator reinstated

 

The SD Supreme Court handed down one decision this morning, holding, inter alia:

 

1)    Lawsuit against Pesticide Applicator reinstated

 

 

Summary follows:

 

JUCHT v. SCHULZ, 2024 S.D. 46: Soybean farmed sued neighbor for crop damage arising out of neighbor’s spraying of pesticide which drifted.  The trial court dismissed the lawsuit on the basis of “failure to state a claim” because the Complaint did not allege compliance with SDCL 38-21-46’s thirty (30) day notice requirement for actions against a “pesticide applicator.”  The SD Supreme Court reversed, acknowledging that farmer’s Complaint’s alleged, “actual notice of DANR’s investigation of [farmer’s] complaint” filed by farmer with the South Dakota Department of Agriculture and Natural Resources (DANR).  And, by further holding:

 

[¶9.] … While SDCL 38-21-46 requires that the person claiming damage give notice of the alleged damage to the pesticide applicator, failure to provide such notice does not bar the claimant from bringing their claim.∗ Instead, a claimant is barred from seeking recovery under SDCL 38-21-47 when the claimant “fails to allow entry” to the pesticide applicator to observe and inspect the alleged damage.

 

In the footnote corresponding to the “*” in the language above, the Court distinguishes the language of  this pesticide applicator statute (SDCL 38-21-46) from the language of SDCL 3-21-2 which imposes a 180 notice requirement for suits against a public entity.

This ruling is unanimous (5-0) with opinion authored by Justice Myren.

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .