Tort Claims Denied Against Mother of Adult Son

 

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

 

1. Tort claims denied against Mother of adult Son

 

Summary follows:

 

KOENIG v. LONDON, 2021 S.D. 69:  At the conclusion of the underlying criminal proceeding for aggravated assault against a law enforcement officer, this civil action was filed by the injured Highway Patrolman and his wife for damages against the 42 year old shooter (Son) and his Mother.  The claims against the Mother included negligence, negligent supervision, negligent entrustment of firearms, and breach of an assumed legal duty in regard to the Son’s conduct in connection with the firearms.  The trial court granted summary judgment for Mother and the SD Supreme Court affirmed, holding:

 

           [¶50.] The circuit court did not err when it found [Mother] owed no duty to Sergeant Koenig under a general negligence theory because she was not in a special relationship with [Son]. Nor is [Mother]  subject to a legal duty based upon her own conduct because it did not create a foreseeable high risk of harm. The court also did not err when it determined that [Mother]  did not gratuitously assume a duty to supervise [Son].

 

This decision is unanimous (5-0) with opinion authored by Justice Salter.  Former Chief Justice Gilbertson participate in this decision which was orally argued some 14 months ago on Oct. 5, 2020. 

 

This decision may be accessed at

 

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

 

 

two decisions handed down today by SD Supreme Court, both include Dissenting opinions

 

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

 

1. Child sex abuse claim revived on appeal in 3-2 ruling

 

2. Prison sentence upheld by 4-1 ruling

 

Summaries follow:

 

SYRSTAD v. SYRSTAD, 2021 S.D. 67:  The issues in this case, the lower court’s holding and the result on appeal are summarized in the opening paragraph:

 

[¶1.] Marty Syrstad brought suit against her father-in-law, Michael Syrstad, alleging claims of alienation of affection and child sex abuse. This appeal concerns Marty’s claim of child sex abuse, which the circuit court dismissed on summary judgment after concluding that Marty failed to timely bring suit.  Marty appeals, asserting that the circuit court erred in granting summary judgment. We reverse and remand.

 

The Court’s decision is a 3-2 ruling, with the majority opinion authored by Justice DeVaney (writing on re-assignment), with Chief Justice Jensen and Justice Salter concurring. Justice Kern authored a dissent, in which Justice Myren concurs. 

 

This case involves the 3 year statute of limitations found in SDCL 26-10-25 (damages for injury due to childhood sexual abuse).  The differences between the majority and dissent evolve from the determination, as presented in the context of a summary judgment proceeding, as to:

 

[W]hen a claimant ‘discovered or reasonably should have discovered’ the causation of an alleged injury or condition.

 

 

STATE v. GUZIAK, 2021 S.D. 68:  Defendant was arrested because of injuries inflicted on her infant son and related drug possession.  Pursuant to a plea agreement, Defendant pled guilty to 2 felonies with the understanding that the State would recommend a suspended execution of sentence and a cap of 180 days in jail.  Trial court imposed a 12 year prison sentence, with 8 years suspended.  Defendant appeals,

 

arguing that the State’s comments at sentencing breached its implied obligation of good faith under the terms of the plea agreement.

 

The SD Supreme Court affirmed in a 4-1 ruling, with the Court’s opinion authored by Chief Justice Jensen.  Justice Myren dissented.

 

These decisions may be accessed at

 

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

Termination of Parental Rights for 3 Indian Children Affirmed

The SD Supreme Court handed down one decision this morning:

 

1. Termination of Parental Rights of 3 Indian Children Affirmed

 

Summary follows:

 

INTEREST OF A.A., A.T., AND A.A., 2021 S.D. 66: The trial court processed an A & N proceeding, eventually terminating the parental rights of both parents for three “Indian children.”  The trial court acknowledged the application of ICWA and made findings consistent with ICWA requirements. Only the Father appeals.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Salter.  The concluding paragraph of the Court’s opinion, ¶ 51, summarizes the Court’s resolution of the issues on appeal:

 

Although the circuit court erred when it signed its findings and conclusions prior to the expiration of the required five-day period, the error did not prejudice Father. He was able to raise the issues presented in his objections and alternative proposals in this appeal. The circuit court did not err in determining beyond a reasonable doubt that DSS provided active efforts to prevent the breakup of the Indian family and in finding that Father’s custody of the Children would result in serious emotional or physical harm. Finally, the circuit court did not clearly err when it found that the termination of Father’s parental rights was the least restrictive alternative.

 

Former Chief Justice Gilbertson sat on this case which was submitted on the briefs on 2/16/21, before Justice Myren was appointed to the Court. 

 

This decision may be accessed at

 

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

SD Supreme Court Holds Amendment A Invalid

 

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

1)    Amendment A invalid

 

Summary follows:

 

THOM & MILLER v. BARNETT et al./ELECTION CONTEST AS TO AMENDMENT A, 2021 S.D. 65:  Today the SD Supreme Court announced its ruling on Amendment A.  The Court holds, by a vote of 4-1, that Amendment is invalid because it violated the single subject requirement in the South Dakota Constitution. 

This decision may be accessed at

 

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

Evidentiary foundation for video from automatic surveillance system

 

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

 

1)    Assault conviction affirmed, with Court establishing foundational evidentiary requirements for video from automatic surveillance system

 

Summary follows:

 

STATE v. REEVES, 2021 S.D. 64:  Defendant “was convicted and sentenced for assault by a jail inmate – contact with bodily fluids, simple assault against an inmate, and threatening a law enforcement officer,” for behavior exhibited at the Minnehaha County Jail.  Over Defendant’s objection as to a lack of proper evidentiary foundation, the trial court admitted into evidence video collected from video surveillance system utilized in the jail, a system which runs continuously.  The SD Supreme Court affirmed and, in so doing, addressed an issue not previously decided by the Court, to wit:

 

… the foundational requirements for admitting video footage under SDCL 19-19-901(a) when a human operator is not available to testify to the accuracy of the scene depicted in the video.

 

This decision reviews approaches utilized by other jurisdictions and ultimately adopts a “flexible fact-based rule” described as follows:

 

[¶19.] The flexible, fact-based rule we adopt today permits the party offering the evidence, and the party against whom it is offered, a fair opportunity to address with the circuit court whether sufficient foundational evidence has been presented to authenticate a particular photograph or video. If a circuit court determines that there is adequate foundation for the admissibility of the video, any further “concerns that the defendant ha[s] regarding the surveillance procedures, and the method of storing and reproducing the video material, [are] properly the subject of cross-examination and affect[ ] the weight, not the admissibility, of the video.” Stangle, 97 A.3d at 639 (quotation marks omitted) (citation omitted).

 

The Court’s 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 .

 

SD Supreme Court announces two reversals today

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

 

1)    Reversal of division of property issues

 

2)   Reversal of juvenile placement with DOC

 

Summaries follows:

 

CONTI v. CONTI, 2021 S.D. 62: In this divorce proceeding Wife appeals, asserting error relating to the valuation of and division of property, as well as the determination of an equalizing payment.  The SD Supreme Court reversed and remanded.  The Court found that the valuation of the marital home was clearly erroneous and that there was a lack of specific findings in regard to the inclusion of alleged non-marital property as marital.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney. 

 

INTEREST OF D.S., 2021 S.D. 63: This is an appeal from the trial court’s adjudication of a 17 year old of 1^st degree rape and subsequent custodial order of commitment with the Department of Corrections.  The SD Supreme Court reversed and remanded.  The situation is summarized in the initial paragraph of the Court’s opinion:

 

[¶1.] Seventeen-year-old D.S. was adjudicated of first-degree rape. Prior to the dispositional hearing, a psychologist conducted a psychosexual evaluation of D.S., after which he concluded D.S. had a low risk of recidivism and recommended community-based outpatient treatment. The circuit court committed D.S. to the custody of the Department of Corrections (DOC) pursuant to SDCL 26-8C-7. D.S. appeals, arguing the circuit court erred by failing to apply the statutory requirements for DOC placement under SDCL 26-8C-7(10).

 

The reversal and remand is described in the final paragraph of the opinion: 

 

[¶35.] We reverse and remand for the circuit court to make findings on the viability of a community-based supervision and treatment alternative and to reimpose a disposition consistent with the requirements of SDCL 26-8C-7.

 

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 .

 

 

SD Supreme Court Upholds Public Access to Search Warrants and Related documents

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

 

1. Public Access to Search Warrants and related documents upheld

 

Summary follows:

 

MATTER OF IMPLICATED INDIVIDUAL, 2021 S.D. 61:  This appeal concerns public access to search warrants and related material.  The SD Supreme Court affirmed the lower court, ruling against the Implicated Individual.  The basic facts and result at the trial level are summarized in ¶1. as follows:

 

[¶1.] A special agent of the South Dakota Division of Criminal Investigation (DCI) sought several search warrants involving the Implicated Individual. The circuit court approved the warrants, which, along with the supporting affidavits and inventories, were filed with the clerk of courts. The circuit court sealed the search warrant files at the agent’s request, but later reconsidered its authority to do so after members of the press sought access to the files. The court ultimately ordered the search warrants and corresponding inventories to be unsealed.

 

The SD Supreme Court affirmed the lower court, stating the following in the final paragraph of the opinion:

 

[¶35.] Notwithstanding the skilled advocacy on behalf of the parties, the question we confront here is not a close one. The express provisions of SDCL 23A-35-4.1 control the access to information issue presented in this case, as specifically contemplated by our rules concerning access to court records. There is nothing new or novel about our statutory analysis and conclusion, and there is no justification for restricting the application of our decision to prospective, future cases. We affirm the circuit court’s amended orders. With the exception of the affidavits in support of the five search warrants, our current order sealing the Supreme Court clerk’s appellate file will be dissolved following the expiration of the time for petitioning forrehearing or the resolution of a petition seeking rehearing, provided we do not grant the petition.

 

The 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 .

Protection Order Unsupported by Findings Reversed

 

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

 

1. Protection Order Unsupported by Findings Reversed

 

Summary follows:

 

BATCHELDER v. BATCHELDER, 2021 S.D. 60: The trial court entered both a temporary protection order and a permanent protection order against former husband.  The trial court’s order was supported only by checking “a box on the preprinted protection order form indicating it had found the existence of domestic abuse” without issuing “any oral or written findings.”  The SD Supreme Court reversed, recognizing that the trial court was clearly attempting to “to use the permanent protection order remedy to stabilize the high-conflict relationship between the parties,” but it was doing so without regard to whether the wife actually needed protection. The Court stated in ¶25:

 

While we can appreciate the court’s weariness with the parties’ quarreling and its stated goal of addressing [the minor child’s] best interests, the court cannot seek to further this end under a utilitarian view that overlooks the basic principles associated with the protection order remedy.

 

The Court’s 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 .

SD Supreme Court today: LWOP affirmed but related restitution order reversed and remanded

 

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

 

1)    LWOP on 2^nd degree murder conviction upheld, but related restitution order reversed and remanded

 

Summary follows:

 

 STATE v. FALKENBERG, 2021 S.D. 59: Defendant was found guilty of 2^nd degree murder, by jury trial, and sentenced to Life without the possibility of parole (LWOP).  The trial court also entered an extensive order regarding restitution.  On appeal, the SD Supreme Court affirmed the conviction, but reversed and remanded the restitution order.  A substantial portion of this opinion is devoted to a discussion of, “[w]hether the circuit court’s restitution order violated [Defendant’s] due process rights and the separation of powers doctrine.”  Portions of the Court’s discussion on restitution are set forth here:

 

[¶54.] On appeal, Falkenberg argues that the circuit court’s restitution award to the Fund and the family was open-ended, speculative, and in contravention of SDCL 23A-28-3 and his due process rights.

* * *

[¶63.] For the reasons explained above, we reverse the portion of the circuit court’s restitution order requiring Falkenberg to pay up to $15,000 to the Fund and up to $40,000 to the victims for future counseling expenses and remand for an evidentiary hearing to address Falkenberg’s objections to the State’s requests. If the State submits adequate foundational evidence, the court may order Falkenberg to pay restitution for expenses that had already been incurred at the time of sentencing as well as the cost of ascertainable counseling expenses which, although not yet incurred, had been requested by the State at the time of sentencing.

 

The ruling is unanimous (5-0) with the Court’s opinion authored by Justice Kern. 

 

This decision may be accessed at

 

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

 

 

two decisions by SD Supreme Court today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Adjudication of Delinquency Reversed;

 

2)   Out-of-wedlock son permitted to challenge intestate distribution;

 

Summaries follows:

 

INTEREST OF N.A., 2021 S.D. 57:  Minor child was adjudicated as a delinquent based upon allegation that she assaulted a police officer.  The SD Supreme Court reversed and remanded, finding that the police officer used excessive force in the events which prompted the juvenile to react.  The Court stated:

 

[¶22.] Based upon our de novo review of this constitutional issue, and after considering the totality of the circumstances, we conclude Officer Bassett used excessive force to detain N.A. when he grabbed and pulled a non-threatening, non-fleeing, and non-resisting female teenager to the ground in a dark room, without warning.

 

The Court further held that the trial court did not properly analyze and consider the juvenile’s claim of self-defense.  This decision is unanimous (5-0), with opinion authored by Justice Myren. 

 

OLSON v. BERGGREN, 2021 S.D. 58:  Deceased’s $ 2 million estate was distributed as an intestate estate, pursuant to filings on behalf of 3 children born of two different marriages.  This intestate distribution was made in 2014.  Deceased also fathered 1 son out-of-wedlock who eventually learned of the intestate distribution and who filed suit in 2019 challenging the distribution and seeking redress. The trial court ruled against the out-of-wedlock son on the basis of summary judgment, holding his claims were untimely.  The SD Supreme Court reversed and remanded.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney.  

(NOTE: this case is fact intensive and this summary is truly a simple summary.  The interested reader should not hesitate to examine the full opinion for all the details related to the facts and claims asserted by the out-of-wedlock son.)    

 

These decisions may be accessed at

 

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

SD Supreme Court Hands Down 3 New Decisions Today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Guardianship dispute;

2)   Dismissal of Wrongful Death action reversed;

3)   City and Volunteer Fire Department immunized as to tort claim

 

 

Summaries follows:

 

MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF ADAM, 2021 S.D. 54:  The underlying dispute in this matter is detailed; however the issue as presented and resolved on appeal is relatively straight forward, as set forth in opening paragraph of the Opinion:

 

[¶1.] In this guardianship and conservatorship action, the conservator filed a motion for approval of a settlement agreement reached in a separate civil action  brought by the conservator against the protected person’s son and daughter-in-law.  Three of the protected person’s other children objected to the motion and requested  that they be allowed to present live testimony at the hearing on the conservator’s  motion. The circuit court denied the request but continued the hearing to allow the  children to submit affidavits and briefs. After the hearing, the court granted the  conservator’s motion for approval of the settlement. The objecting children appeal,  asserting the circuit court erred in denying an evidentiary hearing and in approving  the settlement agreement. We affirm. 

 

This decision also rejects a request for appellate attorney fees by the son and daughter-in-law in the amount of $10,933.29 because “the [underlying dispute and] settlement agreement exists solely because of their alleged improper conduct in  their relationship with [the protected person]” and “their participation in this appeal was not necessary to defend the settlement.”

 

This decision is unanimous (5-0), with opinion by Justice DeVaney. Circuit Judge Sogn sat on this case in lieu of Chief Justice Jensen. 

 

SHEARD v. HATTUM, 2021 S.D. 55:  As explained in ¶1. of the Court’s opinion, “Chalan Hedman and Troy Hattum lost their lives after an explosion and fire at the Hattum Family Farms. Chalan’s estate (the Estate) brought a wrongful death suit against the Hattum Family Farms and individual members of the Hattum family, seeking damages on strict liability and negligence theories.”  The trial court sustained the Defendants’ Motion for Summary Judgment, dismissing all claims.  The SD Supreme Court reversed and remanded, holding:

 

[¶44.] We affirm the circuit court’s dismissal of the negligence claim against the Hattums. We reverse and remand the circuit court’s dismissal of the strict liability claim, concluding that genuine issues of material fact exist as to whether Troy was acting in the scope of his employment when he welded the tank and whether Chalan assumed the risk. We also leave open the legal question of whether welding a diesel fuel tank is an abnormally dangerous activity.

 

This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Circuit Judge Magera sat on this case, in lieu of Justice DeVaney.

 

TAMMEN AND JURGENS v. TRONVOLD, 2021 S.D. 56: This is an action for damages by a motorcyclist and passenger who were injured as a result of a collision with a volunteer member of the Pierre Volunteer Fire Department (PVFD), at which time the member was traveling “to a routine PVFD meeting.”  Both plaintiffs suffered life-threatening injuries and were required to have their left legs amputated above their knees.  The trial court granted summary judgment to both the City of Pierre and the PVFD on the basis that the tortfeasor was not “acting with the scope of his employment when he collided with Plaintiff’s motorcycle.”  The SD Supreme Court affirmed, stating:

 

[¶36.] Based on our review of the facts in the light most favorable to Plaintiffs, we affirm the circuit court’s determination that Plaintiffs failed to raise genuine issues of material fact regarding whether Tronvold was acting within the scope of his employment or agency. This is because, even if Tronvold is an agent or employee, his ordinary commute to the PVFD meeting placed him squarely within the going and coming rule, precluding liability under the doctrine of respondeat superior.

 

This ruling is unanimous.  This case was argued on October 5, 2020, at which time Retired Chief Justice Gilbertson was on the Court and accordingly his vote, not Justice Myren’s, is included in the 5-0 endorsement of the Court’s opinion which is authored by Justice Kern. 

 

These decisions may be accessed at

 

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

 

 

Parents prevail in dispute with son-in-law’s bank over security interest in cattle

 

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

 

1)    Parents prevail in dispute with son-in-law’s bank over security interest in cattle

 

Summary follows:

 

 FIRST DAKOTA NATIONAL BANK v. GREGG, 2021 S.D. 53: This dispute is nicely summarized in the opening paragraph of the Court’s opinion:

 

[¶1.] Arthur and Jerilyn Gregg entered into an oral agreement with their son-in-law, Tyler McGregor, whereby Tyler would feed the Greggs’ cattle to finish in return for payment based on the weight gained by the cattle while in Tyler’s care. Tyler did not inform his lender, First Dakota National Bank (First Dakota), that the Gregg cattle were in his possession. Instead, Tyler represented to the bank that the cattle were his. When Tyler’s fraudulent conduct was uncovered, a dispute arose over whether First Dakota’s security interest in Tyler’s collateral attached to the Greggs’ cattle. After a court trial, the circuit court determined that the Greggs were not estopped from asserting that Tyler had no rights in their cattle, and therefore, First Dakota did not have a security interest in the Greggs’ cattle. We affirm.

 

The Court’s decision is unanimous with opinion authored by Justice DeVaney. 

 

This decision may be accessed at

 

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

 

 

 

 

2 decisions by SD Supreme Court today

 The SD Supreme Court handed down two decisions this morning:

1)    CDL license suspended more than 3 years after DUI and Suspended Imposition of Sentence;

2)   Protracted litigation over Farming Partnership’s dissolution

 

Summaries follows:

 

JANS v. DEPARTMENT OF PUBLIC SAFETY, 2021 S.D. 51:  Driver with Commercial Driver’s License (CDL) pled guilty to DUI and received a Suspended Imposition of Sentence in 2016.  As a result of a “staff oversight,” the Department of Public Safety (DPS) failed to act.  Three years later in 2019, Driver successfully completed probation, was formally discharged and the DUI record was sealed.  Thereafter DPS served notice of 1 year’s disqualification of Driver’s CDL.  The Administrative Law Judge and Circuit Court upheld the 1 year disqualification on the basis of SDCL 32-12A-32 which permits disqualification on the basis of “any offense” which is not more than 4 years old.  The SD Supreme Court affirmed, rejecting arguments based upon “separation of powers” related to the Suspended Imposition of Sentence and a failure of statutory authority as a result of Driver’s discharge from probation and sealing of the DUI record.  The Court’s decision is unanimous (5-0) with opinion authored by Chief Justice Jensen.  

PAWELTZKI v. PAWELTZKI, 2021 S.D. 52:  This case involves a dispute arising in connection with the dissolution of a farming partnership for 3 brothers.  As stated in ¶1 of the Court’s opinion, “The procedural history of this case is complex and lengthy, spanning approximately eight years.”  The remainder of ¶1 explains the nature of this appeal and its resolution:

[¶1.] After farming with his brothers for over three decades, Gerald Paweltzki brought suit in 2012 to dissolve their farming partnership. He also sserted claims against his brothers for breach of contract and breach of fiduciary uty. Lawrence Paweltzki and Roger Paweltzki agreed that dissolution was arranted; however, they denied that Gerald was entitled to any other relief and asserted multiple counterclaims based on Gerald’s alleged misappropriation of partnership assets. The procedural history of this case is complex and lengthy, spanning approximately eight years. However, this appeal concerns only whether the circuit court erred in denying Lawrence and Roger’s 2013 motion to enforce a purported settlement agreement and to compel arbitration, and whether the circuit court erred in dismissing Lawrence and Roger’s claim for unjust enrichment after a January 2020 trial. We affirm.

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

These decisions may be accessed at

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

 

SD permitted to entertain work comp claim for injury in Wyoming

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

 

1. SD is authorized to entertain work comp claim for accident occurring in Wyoming notwithstanding previous claim in Wyoming

 

Summary follows:

 

ANDERSON v. TRI STATE CONSTRUCTION, 2021 S.D. 50:  This is an attempt to file a work comp claim in South Dakota in connection with an injury that occurred in Wyoming.  Employer is a corporation formed and headquartered in SD.  After initially filing a claim in Wyoming and receiving benefits there, employee realized that SD’s law were more favorable than Wyoming’s law.  (Employee “discovered that Wyoming law limited her eligibility to collect total disability benefits to 80 months, whereas in South Dakota, she could be eligible to receive permanent total disability benefits.”)  The DOL dismissed the claim for lack of jurisdiction and the Circuit Court affirmed.  The SD Supreme Court reversed and remanded, stating:

 

[W]e hold that South Dakota has a substantial connection to Anderson and Tri State’s employment relationship sufficient to  provide the Department with authority to adjudicate Anderson’s claim.  Accordingly, Anderson’s claim for workers’ compensation benefits does not offend principles of due process. Martin, 2011 S.D. 57, ¶ 9, 804 N.W.2d at 67.

 

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 .

 

Two new decisions today by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

1. Letter to Work Comp Insurer did not constitute Petition for Review; and
2. Termination of Joint Tenancy without notice and hearing reversed

 

Summaries follows:

 MAY v. SPEARFISH PELLETT CO., LLC, 2021 S.D. 48:  Injured employee sent a letter to work comp insurer seeking a review of its determination as to the extent of compensation benefits it was paying.  Employee also sent copy of this letter to SD Dept. of Labor.  DOL did not treat the letter as a Petition for Hearing.  Some 4 years later employee requested the DOL to treat the letter as a Petition for Hearing.  The DOL denied the request. The lower court affirmed.  And, the SD Supreme Court affirmed, holding:

 

[¶13.] Due to the stated inadequacies, the Department and the circuit court did not err by determining that the February 2014 letter was not a petition for hearing under ARSD 47:03:01:02. We affirm the circuit court’s decision.

 

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

 

ESTATE OF PETRIK, 2021 S.D. 49:  This a dispute following the death of Mother who had 5 children.  Mother owned substantial amount of real estate in Charles Mix County.  Part of her real estate was held in joint tenancy with a son who died subsequent to Mother’s death.  The trial court terminated the “joint tenancy” on this property without notice and hearing to affected parties.  The SD Supreme Court reversed and remanded.  This ruling is unanimous (4-0) with opinion authored by Justice Salter.  Justice Kern did not participate in this case. 

 

These decisions may be accessed at

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

 

 

Appeal from partial summary judgment dismissed

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

 

1. Appeal from partial summary judgment dismissed

 

Summary follows:

 

NELSON v. CAMPBELL, 2021 S.D. 47:  The Court dismisses an appeal which was taken from a summary judgment which only partially resolved the issues in the underlying dispute.  The opening paragraph of the opinion describes the dispute, the trial court’s ruling and basic information relating to today’s ruling:

 

[¶1.] After one of three founding members of a cooperative grazing  association passed away, his estate invoked a provision of the association’s bylaws  to withdraw previously-contributed real estate and sell it to a third party. Another  member objected, asserting: 1) the estate was contractually obligated to sell the real  estate to him because he submitted the high bid; and 2) the estate was obligated  under the grazing association’s bylaws to allow him a right of first refusal to  purchase the real estate. The circuit court granted the estate’s motion for summary  judgment on these claims, but its decision did not resolve all of the claims among  the parties. The court certified only the summary judgment order directing the  association to allow the estate’s withdrawal as final under the provisions of SDCL  15-6-54(b). For the reasons explained below, however, we dismiss the appeal.

 

The 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 .

124 year sentence reversed, concept of "imperfect self-defense" addressed

 

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

 

1. Sentence of 124 years to Manslaughter 1^st Degree reversed; “imperfect self-defense” concept addressed

 

Summary follows:

 

STATE v. MITCHELL, 2021 S.D. 46:   Defendant, originally charged with 1^st Degree Murder, pled guilty to reduced charge of 1^st Degree Manslaughter.  State recommended sentence of 60 years. Victim’s family requested sentence of life imprisonment.  Trial Court sentenced Defendant to 124 years.  The SD Supreme Court reversed and remanded, stating that, “in order to accurately assess the nature of [Defendant’s] conduct, the [trial] court must consider the fact that he was reacting to a threat posed by [the Victim’s] own assaultive conduct.”  This opinion discusses, for the first time in South Dakota jurisprudence, the notion of an “imperfect self-defense” which is described in ¶36 as follows:

 

Contrasted from a “perfect” self-defense claim where the defendant is “free from  fault in bringing about difficulty with his adversary” and “reasonably believe[d]” he  needed to respond to an adversary’s threat with deadly force, an imperfect self-defense presents manslaughter as a different option for criminal liability, short of  murder and without the potential of an outright acquittal. Wayne R. LaFave,  Substantive Criminal Law, § 15.3(a) (2020). The reason for the “imperfection” can  either be “the defendant’s own fault in bringing on the difficulty or the unreasonableness of [his] honest but erroneous belief[]” that he is in danger of  serious or fatal injury which he can prevent only by killing the victim. Id. 

 

The Court states, also in ¶36,  that the imperfect self-defense concept is fostered in SDCL 22-16-15(4) which is the operative statutory provision to which Defendant pled guilty. 

 

The incident resulting in the shooting death of the victim was capture by video recording which was reviewed by the trial court and the SD Supreme Court.  The basic facts, as described in the opening paragraph of the Court’s opinion are as follows:

 

[¶1.] After a brief confrontation with Lucas Smith at a local bar, Jameson  Mitchell armed himself with a handgun and encountered Smith in a nearby alley.  Smith ran toward Mitchell, shouting for Mitchell to shoot him. After taking a few steps back, Mitchell fired at the charging Smith, fatally wounding him.

 

The Court’s opinion is authored by Justice Salter, with all 5 justices participating.  (Note: Retired Chief Justice Gilbertson participated, not Justice Myren who was not on the bench at the time case was submitted.)

 

Justice DeVaney filed a concurring opinion in order to “further expound on why such a harsh sentence constitutes an abuse of discretion.”  Justice DeVaney further states:

 

[¶48.] There is also no question that a sentencing court is free to disregard  the recommendations of the parties, as well as those of the PSI author if, in the #29194 -19- court’s judgment, a much higher sentence is warranted. But in this case, after  watching the video and reviewing the PSI, it is apparent that a 124-year sentence— more than twice that recommended by those most familiar with the parties and the  facts of the case—was not a choice within “the range of permissible choices[.]” See  MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d at 622 (citation omitted) (explaining what  constitutes an abuse of discretion).

 

This decision may be accessed at

 

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