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 .