Challenge to "abandeoned title" reinstated

 

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

 

1. Challenge to tow company’s “abandoned title” reinstated

 

 

Summary follows:

 

SCOTLYNN TRANSPORT, LLC v. PLAINS TOWING & RECOVERY, LLC, 2024 S.D. 24:  At the direction of a law enforcement officer, Defendant removed a semi-tractor and trailer from an accident site.  Thereafter, Defendant sought to invoke the procedure set forth in with  SDCL 32-36 (titled, “ABANDONED, DERELICT AND JUNK MOTOR VEHICLES AND SCRAP METALS”) to secure a new title for the semi-tractor from the SD Dept. of Revenue.  Original title owner brought this action against Defendant asserting “several claims” as to ownership. The trial court granted summary judgment for Defendant finding that Defendant “had complied with SDCL 32-36-8 and lawfully obtained title to the tractor.”  The SD Supreme Court reversed and remanded, stating:

 

[¶25] …the parties’ writings and conduct support the inference of an implied contract to store the tractor

 

And finding:

 

[¶38]  there are disputed material facts relating to [Plaintiff’s] implied contract theory

 

This decision is unanimous (5-0) with opinion authored by Justice Salter.

 

This decision may be accessed at

 

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

1st degree murder conviction aff'd; Res Judicata bars spouse's new claim

 

The SD Supreme Court handed down two decisions this morning:

 

1. 1^st degree murder conviction affirmed;

 

2. Res judicata bars spouse’s new claim.

 

Summaries follows:

 

STATE v. BOLDEN, 2024 S.D. 22: Defendant, after having been convicted by jury of 1^st degree Murder and possession of a firearm by a felon, was sentenced to life in prison and 35 years on the firearm conviction.  The facts of this offense took place outside of a nightclub in Sioux Falls.  Defendant claimed self-defense and testified at trial, along with several other witnesses called on his behalf.  Defendant’s appeal, asserted in regard to the 1^st degree murder conviction on the ground of insufficient evidence, is rejected by the SD Supreme Court which affirms the lower court.  This decision is unanimous (5-0), with opinion authored by Justice Kern.

 

ESTATE OF SMEENK, 2024 S.D. 23: This dispute was previously addressed in Estate of Smeenk (Smeenk I), 2022 S.D. 41, 978 N.W.2d 383, which resulted in a partial affirmance and a partial reversal.  Subsequent litigation in the trial court resulted in an adverse judgment to the Appellant (spouse of the deceased) in both appeals.  The opening paragraph of this opinion describes the dispute, its result on the 1^st appeal, the lower court’s more recent action, and the result on this appeal which is also adverse to Appellant, on the basis of res judicata.  Here is ¶1:

 

[¶1.] Following our decision in In re Estate of Smeenk (Smeenk I), 2022 S.D. 41, 978 N.W.2d 383, Denise Schipke-Smeenk filed a motion for partial summary judgment relating to her breach of contract claim against the estate of her deceased husband, Neil Smeenk. We considered the same breach of contract claim in Smeenk I and affirmed the circuit court’s decision to deny the claim after a court trial. In its current iteration, Denise has changed the type of relief she is requesting; she is now seeking money damages for the breach instead of the specific performance remedy she had pursued unsuccessfully in Smeenk I. Neil’s son opposed Denise’s partial summary judgment motion, arguing that our decision in Smeenk I resolved Denise’s claim against the estate and precluded any further effort to change or refine the claim under principles of res judicata. The circuit court agreed and concluded that Denise was barred from litigating her breach of contract claim against Neil’s estate. Denise appeals, and we affirm.

 

This decision is unanimous (5-0), with opinion authored by Justice Salter.  (NOTE: The Court’s previous opinion in Smeenk I  had been authored by Chief Justice Jensen.)

 

These decisions may be accessed at

 

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

 

 

 

two reversals, one affirmance

 

It should be noted that the first decision in today’s release is controlled by the landmark decision, Bracken v. South Dakota Department of Labor and Regulation, Reemployment Assistance Division, 2023 S.D. 22.  This is NOTEWORTHY to this reporter because the Court’s ruling in Bracken was the result of pro bono advocacy by attorney Eric Schulte who has recently been appointed as a new federal judge for the District of South Dakota.  Eric Schulte’s pro bono work in South Dakota State Court lives on…

 

The SD Supreme Court handed three decisions this morning:

 

1. Order requiring repayment for pandemic benefits reversed

 

2. Claim contesting Will reinstated

 

3. Consecutive Sentences for separate transactions upheld

 

Summaries follows:

 

REIDBURN v. DEP’T OF LABOR & REGULATION, 2024 S.D. 19: Claimant was ordered to “repay $24,690 in pandemic unemployment benefits,” by the ALJ and lower court.  His request for attorney fees was also denied.  The SD Supreme Court reversed on the repayment issue, finding that the ALJ and lower court applied the wrong standard (both “‘utilized the now-rejected direct/indirect standard.’” The lower court’s ruling on attorney fees is affirmed, but this opinion declines to rule on a seemingly-warranted request for appellate attorney fees because a motion for appellate attorney fees had not been filed. The Court’s decision is unanimous (5-0), with opinion authored by Justice DeVaney.  NOTE:  The lower court’s denial of attorney fees was justified because the matter was considered by the lower court prior to this Court’s ruling in Bracken v. South Dakota Department of Labor and Regulation, Reemployment Assistance Division, 2023 S.D. 22, ¶ 24, 991 N.W.2d 89 – a decision which rejected the “direct/indirect standard.”

. 

 

ESTATE OF SCHMELING, 2024 S.D. 20: This will contest was brought by 2 brothers and a nephew of the deceased.  The trial court granted summary judgment against the plaintiffs.  The SD Supreme Court reversed and remanded.  The lower court’s ruling and the SD Supreme Court’s decision is explained in the opening paragraph as follows:

 

[¶1.] Two brothers and one nephew of the decedent filed a petition contesting the provisions in the decedent’s will devising farmland to the decedent’s sister-in-law. The Estate moved for summary judgment, asserting that based on this Court’s decision in In re Estate of Tank, 2020 S.D. 2, 938 N.W.2d 449, the contestants could not show that the devise was the result of undue influence. The circuit court agreed, concluding that the record contained no evidence showing that the decedent had a testamentary disposition toward the contestants. The court also determined that summary judgment was appropriate because the contestants did not present evidence showing that the sister-in-law participated in the drafting of the disputed will or engaged in acts of undue influence. The contestants appeal, asserting the circuit court erred in granting summary judgment on grounds not briefed or argued to the court and erred in concluding that under Tank summary judgment was appropriate. We reverse and remand.

 

The Court’s decision is unanimous (5-0), with opinion authored by Justice DeVaney. 

 

STATE v. SIMONSEN, 2024 S.D. 21:  Defendant “ple[d] guilty to two counts of solicitation of a minor, one count of sexual contact with a minor under the age of sixteen, and one count of rape in the fourth degree.” The trial “court signed four separate judgments of conviction and ordered each conviction to be served consecutively.”  Because the determination of “separate transactions” was made in a separate hearing (with only the attorneys present), the Defendant’s appeal is premised on the argument that the trial court “improperly enhanced his sentence after it had already commenced.”  The SD Supreme Court rejected Defendant’s appeal and affirmed the trial court.  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen. 

 

These decisions may be accessed at

 

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

 

 

Three Criminal Cases, Two Reversals

 

The SD Supreme Court handed three decisions this morning:

 

1. Prison Sentence for Drug Possession Reversed

 

2. Defendant denied opportunity to withdraw guilty plea to 2^nd Degree Rape

 

3. Jury Conviction for 2^nd Degree Rape Reversed

 

Summaries follows:

 

STATE v. FEUCHT, 2024 S.D. 16:  Defendant’s prison sentence (possession of controlled substance) is vacated and remanded for failure of the trial court to comply with the presumptive probation statute, SDCL 22-6-11, by not finding and listing aggravating circumstances in the judgment of conviction. Defendant’s failure to preserve error by non-compliance with the statute did not bar relief in this appeal, but the Court makes clear that,

 

[¶25.] [G]oing forward, alleged procedural errors regarding the application of SDCL 22-6-11 that were not first brought to the attention of the sentencing court will be reviewed only for plain error.

 

This ruling is unanimous (5-0), with opinion authored by Justice Kern, on re-assignment.

 

STATE v. TRUEBLOOD, 2024 S.D. 17: After Defendant pled guilty to 2^nd Degree Rape, he sought a change of counsel and also to withdraw his guilty plea.

 

[¶8.] In his motion to withdraw his plea, Trueblood asserted his innocence.

 

The trial court denied both the request to change counsel and the motion to withdraw the guilty plea.  The SD Supreme Court affirmed in a unanimous ruling (5-0), with opinion authored by Justice Myren.

 

STATE v. VAN DER WEIDE, 2024 S.D. 18: Defendant was found guilty by jury of 2^nd Degree Rape and sentenced to prison for 20 years, with 10 suspended.  The Victim and Defendant had a prior relationship, described as follows:

  

[¶1.]  Despite having a daughter together, their relationship had been sporadic, with  multiple engagements and breakups.

 

The SD Supreme Court reversed and remanded, stating:

 

[¶2.] [Defendant] was found guilty and appeals, arguing that the court abused its discretion in excluding evidence of the sex toys and allowing the State to cross examine based on unadmitted text messages. We reverse.

 

* * *

 

[¶55.] The circuit court erred in excluding [Defendant’s] testimony regarding the sex toys, violating his constitutional right to testify in his defense. Because the error is not harmless beyond a reasonable doubt, [Defendant] is entitled to a new trial.

 

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

 

 

These decisions may be accessed at

 

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

"Show-up identification" by eye-witnesses tolerated

 

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

 

1. “Show-up identification” by eye-witnesses tolerated;

 

 

Summary follows:

 

STATE v. OSMAN, 2024 S.D. 15: Defendant was convicted of offenses related to a vehicle collision with a parked vehicle where the driver fled the scene on foot. Eye witnesses identified Defendant in a “show-up identification” procedure, 20 minutes after the incident, with respect to a suspect the police had apprehended nearby.  The trial court sentenced the Defendant to 5 years in prison.  This appeal is primarily focused on the the trial court’s refusal to suppress the “show-up identification” made by the eyewitnesses to the incident.  The SD Supreme Court affirmed, while recognizing that, “ ‘[s]how-up identifications are inherently suspect.’” This ruling is a 4-1 decision, with the Court’s opinion authored by Justice Kern.  Justice Myren dissented, stating that, “There [had been] a substantial likelihood of misidentification because of an impermissibly suggestive identification procedure.” 

 

This decision may be accessed at

 

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

 

 

Denial of Counsel's Request to Withdraw Warrants Reversal

 

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

 

1. Denial of Counsel’s Request to Withdraw warrants reversal;

 

 

Summary follows:

 

STATE v. ABRAHAM-MEDVED, 2024 S.D. 14: Following a guilty plea, defendant and her court-appointed counsel appeared for a sentencing hearing.  At the hearing, court-appointed counsel requested permission to be removed from the case

 

because of “a serious breakdown of communication between” him and [the client.]

 

Thereafter,

 

The circuit court did not inquire of either [client] or [counsel] as to the nature of the breakdown in communication. Rather, the court denied [counsel’s] request to withdraw, explaining, “I think that since the matter is set for sentencing I’m not sure what communication there is left to do.”

 

Defendant was sentenced to 5 years in prison, with 2 years suspended.

 

The SD Supreme Court reversed and remanded, holding that Defendant had been prejudiced by the breakdown in communications and the trial court’s refusal to allow withdrawal of counsel.  This ruling is unanimous (5-0), with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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

 

5 year prison sentence vacated; presumptive probation ordered

 

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

 

1. 5 year prison sentence vacated; presumptive probation ordered

 

 

Summary follows:

 

STATE v. KURTZ, 2024 S.D. 13:  Upon entry of guilty plea to possession of controlled substance, the Trial Court sentenced the Defendant to 5 years in prison, the maximum possible sentence.  Defendant claims entitlement to presumptive probation in accordance with SDCL 22-6-11.  The trial court did not order presumptive probation because of “aggravating circumstances” articulated in ¶8 as follows:

 

[The Trial Court] detailed several aggravating factors it found to exist, including prior failures to comply, prior probation and parole violations, previous failures to appear, and failures to pay court-ordered fines. The court emphasized [the Defendant’s] 15 prior felony convictions and noted that the current crime occurred while he was on parole. The court also referred to [the Defendant] being arrested for simple assault while on parole on September 27, 2022, a charge that, according to the court, was later reduced to disorderly conduct.

 

But the trial court also made the finding that the Defendant

 

           did not pose a significant risk to the public

 

The SD Supreme Court vacated the sentence and remanded directing the trial court to enter “a sentence of probation.”  The Court’s decision is a direct application of the language found in SDCL 22-6-11. 

 

This decision is unanimous, with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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