75 year prison sentence upheld; types of challenge to sentencing explained

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

 

1)    75 year prison sentence upheld; types of challenge to sentencing explained

 

Summary follows:

 

STATE v. SEIDEL, 2020 S.D. 73:  Defendant was convicted by jury of several offenses (1^st degree kidnapping, rape, aggravated assault, and commission of a felony with a firearm) in connection with a brutal encounter with his estranged wife.   The trial court imposed a combination of consecutive and concurrent sentences which resulted in a total of 75 years in prison – the length of which Defendant asserted was tantamount to a life sentence.  The SD Supreme Court affirmed, rejecting arguments related to the length of sentence and to closing arguments (restrictions on Defendant’s counsel and alleged prosecutorial misconduct in the state’s argument).  Of significance for future reference, this opinion discusses how one may challenge the length of a sentence in South Dakota.  The opinion points out that both the Defendant and the State blurred the lines in regard to the applicable law.  In that regard, ¶43 of the opinion is instructional:

 

[¶43.]  There are generally two types of sentence challenges—an Eighth Amendment violation and an abuse of discretion. Although Richard characterizes his challenge to the circuit court’s sentence as an Eighth Amendment claim and quotes our law governing proportionately review, his arguments only dispute the appropriateness of the court’s particular sentence based on the facts of this case and Richard’s unique characteristics. The State’s brief likewise seems to conflate the two types of sentence challenges.  The State first identifies our law governing proportionality review, but then—within that constitutional analysis—quotes language from State v. Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d 575, 580, setting forth what a court is to consider in exercising its discretion when imposing a sentence. Because Richard characterized his sentencing challenge as an Eighth Amendment claim, we address that claim first, although we also review the sentence for an abuse of discretion.  

 

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 .

 

Day County permitted to tax non-Indians on Indian Trust land

 

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

 

1)    Day County permitted to tax non-Indians on Indian Trust land

 

Summary follows:

 

PICKEREL LAKE et. al. v. DAY COUNTY, SOUTH DAKOTA, 2020 S.D. 72:  This dispute involves a challenge to taxes assessed by Day County, involving the issue of whether federal law concerning Indian land preempts the ability of the County to tax.  The dispute and the results in the lower court and in the SD Supreme Court are described in the 1^st paragraph of the Court’s opinion:

 

[¶1.] The Pickerel Lake Outlet Association, a South Dakota domestic nonprofit corporation, and forty non-Indian owners of permanent improvements around Pickerel Lake (the Plaintiffs) filed a declaratory judgment action in circuit court challenging ad valorem property taxes that Day County assessed against them. They claimed that federal law preempted taxation because their structures are on land held in trust for the Sisseton–Wahpeton Oyate. The State defended the taxes and challenged the Plaintiffs’ standing to sue. The circuit court concluded the Plaintiffs had standing and upheld the disputed taxes. The Plaintiffs appeal. We affirm.

 

This opinion runs 21 pages, with the Court ultimately concluding in ¶36:

 

The Plaintiffs have satisfied all the prerequisites for standing.  Further, the County is neither explicitly nor implicitly preempted by the provisions of [25 U.S.C.] § 5108 from assessing ad valorem taxes against the Plaintiffs. 

 

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

 

This decision may be accessed at

 

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

 

Multiple Assault Convictions Affirmed

 

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

 

1. Multiple Assault Convictions Affirmed

 

Summary follows:

 

STATE v. BABCOCK, 2020 S.D. 71:  This criminal case, venued in Butte County, is summarized in the 1^st paragraph of the Court’s opinion:

 

[¶1.] A jury convicted Kevin Babcock of two counts of aggravated assault and two counts of simple assault for attacking his former significant other, Rosa Sosa, during a fight. Babcock appeals, alleging the circuit court erred by granting the State’s motion to exclude evidence of Sosa’s drug use. He also argues that his convictions for multiple counts of assault placed him in double jeopardy in violation of his constitutional rights.

 

The trial court sentenced the Defendant to 10 years (with 3 suspended) on each felony count, with sentences to run consecutively and 250 days in jail (with credit for time served) on the assault convictions, with the jail sentences to run concurrently with each other and with the felony sentences.  

 

The SD Supreme Court affirmed (5-0).  The decision is unanimous with opinion authored by Justice Kern.  This case was submitted on the briefs over a year ago, on November 4, 2019.

   

This decision may be accessed at

 

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

 

 

Three decisions Today by SD Supreme Court

 

The SD Supreme Court handed down three decisions this morning:

 

1. 1^st degree murder conviction in court-tried case affirmed;
2. Med mal discovery as to “other patient records” reversed in, in 4-1 ruling;
3. Resolution of issues regarding work comp insurer’s ability to enforce subrogation lien against itself and for “like damages.” (3-1-1 ruling)

 

Summaries follows:

 

STATE v. QUINONES RODRIGUEZ, 2020 S.D. 68:  Waiving a right to jury trial, this Defendant was convicted by the trial court in Day County and sentenced as follows:

 

The court found Rodriguez guilty of first-degree murder, second-degree murder, arson, commission of a felony while armed with a firearm, and aggravated assault. It sentenced him to life in prison for first-degree murder, twenty-five years for arson, twenty-five years for commission of a felony while armed with a firearm, and fifteen years for aggravated assault, with all sentences to be served concurrently. The court did not impose a sentence for the second-degree murder conviction.

 

The SD Supreme Court affirmed in a unanimous (5-0) decision, with opinion authored by Justice Kern. 

 

FERGUSON v. THAEMERT, 2020 S.D. 69:  In this medical malpractice case, the trial court ordered production of redacted documents related to other patients.  Here, the SD Supreme Court permitted an intermediate appeal and reversed the trial court, holding that the documents were not discoverable because the basis of the Plaintiff’s theory is one of a failure of informed consent.  The Court’s decision is a 4-1 ruling, with opinion by Chief Justice Gilbertson.  Justice Kern dissented, stating her belief that the “information [sought] was—at a minimum—reasonably calculated to lead to the discovery of admissible evidence.”  

 

Retired Justice Severson sat on this case, in lieu of Justice Salter.

 

LUZE v. NEW FB CO., 2020 S.D. 70:  This is a work comp case involving the death of an employee.  The dispute presented here relates to the ability of the work comp insurer to satisfy a subrogation lien against the proceeds recovered on a wrongful death claim and proceeds paid by the deceased’s UIM insurer to the estate of the deceased.  It must be noted that the UIM insurer (Zurich) in this case is also the UIM insurer.  The issues presented in this appeal are summarized in ¶ 1 of the opinion summarizes the issues presented in this appeal:

 

[¶1.] Charles Luze was killed in a motor vehicle accident at work, after which his employer paid his wife, Jeanette Luze, workers’ compensation benefits. Jeanette, as the personal representative of Charles’s estate, brought suit against the negligent driver and ultimately settled the claim. The estate also settled a claim against Zurich American Insurance Company (Zurich), the employer’s insurer providing underinsured motorist coverage. Zurich is also the employer’s workers’ compensation insurance carrier. This appeal concerns the circuit court’s determination that Zurich is entitled to a statutory workers’ compensation lien on 50% of the settlement proceeds received by the estate and that Zurich is able to subrogate against its own settlement payment of underinsured motorist benefits. We remand on issue one and affirm on issue two.

 

The Court’s decision is a 3-1-1 ruling, with opinion authored by Justice DeVaney.  Justices Jensen and Salter both dissent on issue # 1 (the “like damages” determination), with each filing separate opinions.  Justice Salter concurs in Justice Jensen’s views concerning issue #1, but also addresses his separate view as to why issue # 2 should be affirmed. 

 

These decisions may be accessed at

 

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

 

Exigent Circumstances Justify Warrantless Blood Draw

 

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

 

1)    Warrantless Blood Draw Upheld on basis of Exigent Circumstances

 

Summary follows:

 

STATE v. VORTHERMS, 2020 S.D. 67:  Defendant was convicted by jury of vehicular homicide (2 counts), vehicular battery and DUI.  The trial court sentenced Defendant to 30 years in prison (with 5 suspended) for manslaughter, 10 years suspended for battery and a suspended jail sentence for DUI.  Two issues are presented in this appeal: 1) the admissibility of blood alcohol results from a “warrantless” blood draw; and 2) ineffective assistance of counsel.  The SD Supreme Court rejected both issues, holding that exigent circumstances justified the warrantless blood draw and that Defendant’s ineffective assistance of counsel claim is not reviewable on direct appeal.   This decision is unanimous, with opinion authored by Justice Jensen. 

 

This decision may be accessed at

 

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

 

 

 

assault by cell phone; multiple rape convictions affirmed

The SD Supreme Court handed down two decisions this morning:

 

1)    Assault by cell phone;

 

2)   Multiple rape convictions upheld.

 

Summaries follows:

 

STATE v. MCREYNOLDS, 2020 S.D. 65:  This case is summarized in the 1^st paragraph of the opinion:

 

[¶1.] A jury convicted Josephine Rae McReynolds of simple assault on a law enforcement officer. McReynolds appeals, arguing that the circuit court erred by denying her motion for judgment of acquittal and instructing the jury on the legality of the initial encounter between McReynolds and law enforcement. McReynolds also argues that the circuit court violated her confrontation rights under the Sixth Amendment during the subsequent habitual offender trial by admitting evidence of McReynolds’s prior felony conviction without providing her an opportunity to cross-examine the custodian of the record. We affirm.

 

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

 

Interestingly, the Defendant recorded her encounter with the arresting officers with her cell phone and one of the multiple counts of assault included striking a police officer in the head with her cell phone. 

 

STATE v. SNODGRASS, 2020 S.D. 66:  The Defendant was convicted, by jury trial, of

 

eight counts of first-degree child rape in violation of SDCL 22-22-1(1) and four counts of sexual contact with a child in violation of SDCL 22-22-7.

 

Afterward,

 

The [trial] court imposed a twenty-year penitentiary sentence for the rape conviction in Count 1, ten year consecutive sentences on each of the rape convictions in Counts 2 through 8, and four fifteen-year sentences, with five years suspended, on each sexual contact conviction. The sentences for sexual contact were imposed consecutive to the rape convictions, but concurrent to one another. 

 

This appeal addresses Defendant’s assertions:

 

Snodgrass appeals, arguing the indictment failed to sufficiently allege the dates, times, and locations of the crimes charged so that he could prepare an adequate defense. Snodgrass also claims that the circuit court abused its discretion in admitting certain other act evidence, admitting the child victim’s hearsay statements, and overruling his objections that the State’s expert opinions improperly vouched for the testimony of the child witness. Finally, Snodgrass argues that the court erred in denying his motion for a judgment of acquittal and by imposing sentences that violated the Eighth Amendment.

 

The SD Supreme Court rejected these assertions and affirmed in a unanimous decision (5-0), with opinion authored by Justice Jensen.  Material quoted above is taken from ¶¶ 1 & 19.

 

These decisions may be accessed at

 

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

 

 

 

) Yankton County prevails in dispute with Avera Hospital relating to medical care costs for patients at HSC.

 

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

 

1)    Yankton County prevails in dispute with Avera Hospital relating to medical care costs for patients at HSC. 

 

Summary follows:

 

SACRED HEART HEALTH SERVICES v. YANKTON COUNTY, 2020 S.D. 64:  This history and result on appeal in this dispute is summarized in ¶1 of the opinion:

 

[¶1.] Sacred Heart Health Services, Inc., d/b/a Avera Sacred Heart Hospital (Hospital), filed a declaratory judgment action against Yankton County (County) seeking a declaration of the County’s liability and reimbursement for charges for the medical care and treatment of patients subject to an emergency hold, under SDCL chapter 27A-10. The parties filed cross-motions for summary judgment. The circuit court entered a memorandum decision in favor of the Hospital. The County objected and filed a motion to reconsider. After a second hearing on the motions for summary judgment, the circuit court issued a second memorandum decision in favor of the County and entered a corresponding order and judgment. The Hospital appeals. We affirm.

 

The hospital’s choice of declaratory judgment and theory of quantum meruit failed.  The concluding paragraph of the opinion provides the legal basis for this result:

 

The circuit court did not err in holding SDCL chapter 28-13 is the proper mechanism for the Hospital to obtain reimbursement from the County for medical costs associated with the twenty-three patients in the involuntary commitment process.

 

This decision is unanimous, 5-0, with opinion authored by Chief Justice Gilbertson.  Circuit Judge Myren sat on this case, in lieu of Justice Salter.

 

This decision may be accessed at

 

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

 

 

 

Dissolution of Buffalo Chip as SD Municipality Affirmed

 

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

 

1. Dissolution of Buffalo Chip as a SD Municipality affirmed

 

Summary follows:

 

STATE v. BUFFALO CHIP, 2020 S.D. 63:

 

At the request of the State, acting through the Attorney General, the lower court dissolved the municipal incorporation of Buffalo Chip.   In making this holding, the lower court found that the State was authorized to seek dissolution and the lower court also held that Buffalo Chip failed to satisfy the residency requirements of SDCL 9-3-1 which, at the relevant time, provided, “No municipality shall be incorporated which contains less than 100 legal residents or less than 30 voters.” 

 

Buffalo Chip appealed.  The SD Supreme Court affirmed the lower court in today’s decision. 

 

As to the 1^st issue (authority of the state to challenge), the Court’s decision is unanimous with opinion authored by Justice Kern.  The Court holds, “We conclude that the circuit court properly allowed the State to institute this action against Buffalo Chip under SDCL 21-28-2(3) and SDCL 9-3-20.”

 

As to the 2^nd issue (residency requirements), the Court’s decision came down to a 3-1-1 ruling, with Chief Justice Gilbertson being the lone dissenter.   The opinion of the Court is authored by Justice DeVaney, with Justices Salter and Jensen in full agreement. Justice Kern filed a special concurring opinion.  Chief Justice Gilbertson would reverse in favor of Buffalo Chip on the basis that incorporation as a municipality could be achieved under the statute because there were 30 or more voters, even though Buffalo Chip lacked 100 residents.

 

NOTE:  The statute has subsequently been amended to more restrictive requirements which currently include, “A municipality may not be incorporated unless it contains as least one hundred legal residents and at least forty-five registered voters.”

 

This decision may be accessed at

 

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

feed lot litigation, motions to suppress, divorce decree

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

1)    Feed lot litigation reversed and remanded;

 

2)   State prevails on intermediate appeal (motions to suppress);

 

3)   Divorce decree and contempt proceeding affirmed, with appellate attorney fees assessed against pro se Wife

 

Summaries follow:

POWERS v. TURNER CNTY., 2020 S.D. 60:  This litigation arises out of a proposed feed lot in Turner County.  This 1^st paragraph describes the posture of this litigation and appeal, as follows:

[¶1.] After the Turner County Board of Adjustment approved an application for the construction and operation of a concentrated animal feeding operation, two landowners appealed the decision by petitioning the circuit court for a writ of certiorari under SDCL 11-2-61. On cross-motions for summary judgment, the circuit court dismissed the petitioners’ appeal, concluding that they failed to show they were persons aggrieved and, thus, lacked standing to appeal under SDCL 11-2-61. We reverse and remand.

Paragraph 23 provides the SD Supreme Court’s analysis which resulted in reversal, as follows:

[¶23.] From our review of the evidence viewed in a light most favorable to the Petitioners, we conclude that the Petitioners have set forth sufficient specific facts to show “a personal and pecuniary loss not suffered by taxpayers in general, falling upon [a petitioner] in [an] individual capacity, and not merely in [the] capacity as a taxpayer and member of the body politic of the county[.]” See Cable, 2009 S.D. 59, ¶ 26, 769 N.W.2d at 827 (quoting Barnum, 53 S.D. 47, 220 N.W. at 137–38). First, unlike the plaintiff in Cable, the Petitioners did not rest upon mere allegations and legal argument. See, e.g., id. ¶¶ 34, 39. They substantiated their allegations with expert opinions rather than relying on mere speculation, conjecture, or fantasy. Second, although the Schmeichels argue that the Right to Farm Covenant establishes that the Petitioners’ alleged inconveniences and discomforts are not personal or unique, namely because they are similarly suffered by other residents of the county, the Petitioners offered evidence in support of their allegation that the proposed CAFO will injure them beyond the inconveniences and discomforts related in the Covenant.

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

STATE v. OSTBY & OLMSTED, 2020 S.D. 61: Felony drug charges were filed against co-habitants in Deadwood.  The trial court sustained Motions to Suppress relating to evidence seized pursuant to a search warrant, on the basis of alleged defects in the affidavit filed in support of the application for the warrant.   The State perfected intermediate appeals which were consolidated on appeal.  The SD Supreme Court reversed and remanded, upholding the affidavit and search warrant.  This decision is unanimous with opinion authored by Justice Jensen. 

EVENS v. EVENS, 2020 S.D. 62:  Acting pro se, Wife appeals adverse divorce decree and the trial court’s finding Wife in contempt.  The nature of the lower court’s decision and appeal is described in the 1^st paragraph of the opinion as follows:

[¶1.] Rachel Evens appeals the circuit court’s judgment and decree of     divorce entered on the grounds of extreme cruelty as well as its determinations regarding child custody, property division, child support, and attorney fees and costs. Rachel also appeals the court’s subsequent contempt order against her. We affirm.

The post decree contempt proceeding related to Wife’s refusal to sign and deliver deeds, stock certificates and vehicle titles over to Husband.

In regard to Wife’s efforts to be represented by counsel, Paragraph 10 of the Court’s opinion reports:

[¶10.] During this pretrial period, Rachel was represented by four different attorneys, each of whom subsequently moved to withdraw shortly after noting their appearances. Rachel represented herself at trial and on appeal.

The SD Supreme Court affirmed.  This decision is unanimous, with opinion authored by Justice Salter.  Additionally, the Court awarded Husband appellate attorney fees in the amount of $30,000.

These decisions may be accessed at

 

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

 

Dispute over Medical Practice Management Service

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

1)    Dispute over sale of medical practice management service

Summary follows:

AQREVA, LLC v. EIDE BAILLY, LLP, 2020 S.D. 59:  This decision affirms the lower court’s ruling and also awards the Defendants/Respondents (Defendants in the action and Respondents in the appeal) appellate attorney fees of  $25,300.92, the amount requested.  This opinion is unanimous and lengthy.  Below are the first and last paragraphs of the opinion.   1  summarizes the dispute on appeal in regard to the lower court’s ruling and  61 discusses the appellate attorney fee award.  Note:  the lower court’s ruling (which is affirmed) resolved most, but not all, of the claims. 

 

[¶1.]      After Aqreva, LLC (Aqreva) purchased a medical practice management service from Eide Bailly, LLP (Eide Bailly), Aqreva sued Eide Bailly, Lee Brandt, Shelly Kampmann, and LJB, Inc. (LJB) for breach of contract, alleging they violated non-compete, non-solicitation, and confidentiality clauses in several contracts. Aqreva also alleged that they committed various torts, including tortious interference with a contract, misappropriation of a trade name, misappropriation of trade secrets, civil conspiracy, and fraud. The circuit court granted summary judgment in favor of Eide Bailly, Brandt, Kampmann, and LJB with respect to all claims except for those concerning: (1) Kampmann’s employment agreement; and (2) Brandt’s and LJB’s alleged tortious interference with a contract. Aqreva appeals. We affirm.

 

… … …

 

[¶61.]      As a final matter, we address Eide Bailly’s motion for appellate attorney fees in the sum of $25,300.92. “Attorney fees are allowed when there is a contractual agreement that the prevailing party is entitled to attorney fees . . . .” Fuller v. Coston, 2006 S.D. 110, ¶ 41, 725 N.W.2d 600, 612. The APA provides recovery of reasonable attorney fees. Based on our consideration of the entire record and the extensive issues presented, we award the attorney fees requested. We affirm.

 

This opinion is authored by Justice Kern.  Circuit Judge Comer sat on this case, in lieu of Justice Salter.

 

   

This decision may be accessed at

 

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

 

 

  

1st degree murder conviction affirmed; denial of requested change of venue upheld

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

 

1)    1^st degree murder conviction affirmed, upholding denial of requested change of venue

 

Summary follows:

 

STATE v. KRUEGER, 2020 S.D. 57: 

 

Defendant was convicted of 1^st degree murder by a Beadle County Jury and given a mandatory life sentence.  Although the State initially designated this prosecution as a capital case, it subsequently, “withdrew its notice to seek the death penalty.”  In this direct appeal, Defendant raises five issues: 1. Denial of  motion for judgment of acquittal;  2. Denial of motion to change venue; 3. Refusal to strike expert testimony regarding DNA recovered from the black Velcro shoes;  4. Failure to strike the State’s comments during closing argument or issue a curative instruction; and 5. Cumulative errors deprived Krueger of a fair trial.

 

Defendant’s 2^nd issue which relates to the denial of his motion for change of venue, premised initially upon 7 newspaper articles from the Huron newspaper.  The opinion notes, “In connection with the motion to change venue, Krueger also sought, among other things, to exclude the press from the courthouse until the jury was empaneled and to prohibit news coverage of pretrial and voir dire proceedings.” 

 

On the change of venue issue, the Court recognized the important role of voir dire examination holding in ¶35:

 

Nevertheless, voir dire examination is the best means to determine whether potential jurors have preconceptions they would be unable to set aside to render an impartial verdict. See Garza, 1997 S.D. 54, ¶ 21, 563 N.W.2d at 410. Here, the circuit court allowed a careful voir dire process over the course of two days. The court also utilized a comprehensive and specific juror questionnaire that asked prospective jurors a number of questions, including whether they had “heard or read anything about this case . . . .”

 

The SD Supreme Court rejected all of the issues raised by Defendant and affirmed the conviction. This decision is unanimous with opinion authored by Justice Salter. 

 

This decision may be accessed at

 

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

 

 

 

Claim for "easement implied by prior use" requires trial

 

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

 

1)    Summary Judgment Reversed and Remanded for trial on claim to establish easement implied by prior use

 

Summary follows:

 

HEUMILLER v. HANSEN, 2020 S.D. 56: This case involves a dispute over an alleged easement crossing rural farmland in McCook County.  The litigation is among family members, arising after the parents began divesting themselves of title to the land.  Eventually, there was an attempt to block utilization of an access road across the property.  The trial court initially granted a preliminary injunction against the blockage.  As the case progressed, three theories in support of the easement were set forth at the trial level:  1) easement by prescription; 2) easement by necessity; and 3) and easement implied by prior use. The trial court eventually granted summary judgment against the Plaintiffs, denying recognition of an easement.  Plaintiffs present this appeal solely on the basis of an easement implied by prior use. The SD Supreme Court agreed with Plaintiffs, reversing and remanding for trial.  This opinion reviews the four common law elements necessary for the establishment of an easement implied by prior use, finding the trial court erred in its analysis regarding elements # 3 and # 4.  This decision is unanimous, with opinion authored by Justice Salter.

 

For those who desiring information about the establishment of easement implied by prior use, ¶16 of the opinion is set forth below:

 

[¶16.] To establish an easement implied by prior use, a plaintiff must prove the following elements:

 

(1)           the relevant parcels of land had been in unitary ownership;

 

(2)           the use giving rise to the easement was in existence at the time of the conveyance dividing ownership of the property;

 

(3)           the use had been so long continued and so obvious as to show that it was meant to be permanent; and

 

(4) at the time of the severance, the easement was necessary

for the proper and reasonable enjoyment of the dominant tract.

 

Springer v. Cahoy, 2012 S.D. 32, ¶ 7, 814 N.W.2d 131, 133 (quoting Thompson, 2003 S.D. 12, ¶ 14, 657 N.W.2d at 305-06).

 

This decision may be accessed at

 

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

 

 

 

Legal Malpractice Claim defeated by Statute of Limitations

 

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

 

1)    Attorney malpractice claim, coupled with claims for fraud and deceit, defeated by statute of limitations

 

Summary follows:

 

SLOTA v. IMHOFF, 2020 S.D. 55:  This is a legal malpractice claim, coupled with claims of fraud and deceit, brought against attorneys who served as defense counsel for plaintiff who was prosecuted for 1st degree rape.  Plaintiff was indicted in 2013 and convicted by jury in 2014.  Plaintiff was sentenced to 30 years in prison, with the conviction being affirmed in 2015.  While in prison, Plaintiff brought a habeas corpus action (in SD state court) which was successful in 2017 resulting in Plaintiff being released from custody. This action was commenced more than 3 years after the attorney client relationship ended.  The trial court dismissed all claims on the basis of South Dakota's 3 year statute of limitations for legal malpractice. SDCL 15-2-14.2.  Plaintiff appeals the dismissal of the fraud and deceit claims.  The SD Supreme Court affirmed, holding that Plaintiff, “has no independent cause of action for fraud that has not been extinguished by the repose statute,” and that his fraud and deceit claims, “cannot be untethered from the malpractice claims.”  This decision is unanimous (5-0) with opinion authored by Justice Jensen. 

 

The facts surrounding the hiring of counsel by Plaintiff in 2013, when Defendant was indicted, bear some significance.  Accordingly, ¶ 3 and part of ¶ 4 from the opinion are set forth below:

 

[¶3.]  Slota and his wife began a search to retain private counsel to defend Slota on the charges. They located Imhoff, a California law firm. Imhoff’s website displayed phrases such as “We have well-versed knowledge regarding laws in each state . . . . You can rest assured in knowing we will do everything in our power to secure the most favorable outcome possible . . . . We provide high-quality legal representation in 48 states . . . . Our firm can vigorously defend your rights, liberties, and reputation against child molestation charges.”   

 

[¶4.]  Slota retained Imhoff to defend him. Imhoff hired South Dakota attorneys ... to assist in his defense.

 

This decision may be accessed at

 

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

 

 

 

1 new decision, SD Supreme Court

 

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

 

1. “State’s Duty To Preserve Evidence” analyzed;

 

 

Summary follows:

 

STATE v. ZEPHIER, 2020 S.D. 54: This case is summarized in ¶ 1 of the opinion as follows:

 

Trevor Zephier appeals his conviction for first-degree burglary and grand theft, arguing the circuit court erred when it denied his motion to suppress evidence that was returned to the owner before trial. Zephier also alleges the court abused its discretion when it denied his motion for expert fingerprint testing. We affirm.

 

This opinion contains a lengthy discussion concerning constitutional issues related to the State’s Duty to Preserve Evidence, in addition to a discussion the statutory requirement (SDCL 23A-37-15) imposed upon the State that the Defendant first be given notice of the State’s intention to return property to the owner.  The Court ultimately concluded, inter alia, that the evidence failed to possess exculpatory value. 

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

This decision may be accessed at

 

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