SD Supreme Court today: 3 reversals, 1 affirmance

The SD Supreme Court handed down four decisions this morning:

 

1)    Felonious possession of marijuana as basis for revocation of commercial driver’s license;

 

2)   Amputation of portion of leg as permanent total disability;

 

3)   Attorney fees denied against farm mutual on bad faith claim;

 

4)   Perils of Contract for Deed; reversal of equitable tolling doctrine.

 

Summaries follows:

 

IBRAHIM v. DEP’T OF PUBLIC SAFETY, 2021 S.D. 17:  The SD Dept. of Public Safety revoked Ibrahim’s commercial driver’s license for one year on the basis of his possession of a felonious amount of marijuana while use a motor vehicle, applying  SDCL 32-12A-36(4) (“using a . . . vehicle in the commission of any felony. . . .”).  The trial court disagreed, interpreting the statute to require the “vehicle was an ‘instrumentality’ of the felony.”  The SD Supreme Court reversed the trial court and affirmed the revocation.  This decision is unanimous (5-0) with opinion authored by Chief Justice Jensen. 

 

BILLMAN v. CLARKE MACHINE, INC., 2021 S.D. 18: This 62 year old employee suffered a work-related injury necessitating the amputation of a portion of his left leg.  The SD DOL and the trial court denied permanent total disability benefits, “finding him not obviously unemployable and that he failed to conduct a reasonable job search.”  The SD Supreme Court reversed, finding that DOL’s position was “clearly erroneous.”  This decision is unanimous (5-0) with opinion by Retired Chief Justice Gilbertson. 

 

SENTELL v. FARM MUTUAL INS., 2021 S.D. 19: Insureds brought suit against property insurer, arising out of damages inflicted by hail and wind storm and the conduct of insurer in handling their claim.  The jury awarded insureds $250,000 on breach of contract and $150,000 on bad faith claim.  Thereafter, Insureds sought to recovery attorney fees of $498,582.58 on the basis of SDCL 58-33-46.1 and SDCL 58-12-3.  The Insurer claimed exemption from an attorney fee award under the express language of SDCL 58-35-57(9) (language addressing the application of other provisions of the insurance code as relating to farm mutuals) in regard to SDCL 58-12-3 (vexatious or unreasonable refusal to pay).  Insurer further asserted that an award of attorney fees under SDCL 58-33-46.1 could not be used as “as a back door to collect” an award not permitted under SDCL 58-12-3.  The trial court’s ruling, as described in ¶11:

 

The [trial] court rejected Farm Mutual’s first argument that the exemption of farm mutual insurers from liability for attorney fees under SDCL 58-12-3 precluded an award of attorney fees under SDCL 58-33- 46.1, noting that the Legislature has specifically subjected farm mutual insurance companies to the Unfair Trade Practices Act (the Act). However, the court concluded that it could not award attorney fees under SDCL 58-33-46.1 because Sentell and Odland did not ask the jury to determine whether Farm Mutual violated the Act.

 

The SD Supreme Court Affirmed, stating:

 

[¶30.] [Insureds] were ultimately successful here in obtaining a damage award against Farm Mutual for its breach of contract and bad faith. If they had not been dealing with an insurer specifically excluded by statute from the provisions in SDCL 58-12-3, they may have also been able to recover attorney fees under the procedure outlined in SDCL 58-12-3.1. But the absence of a remedy under SDCL 58-12-3 does not afford [the insureds] an attorney fee remedy under SDCL 58-33-46.1. Moreover, even if the conduct they alleged could be construed to fall within the parameters of SDCL 58-33-46.1, [the insureds] failed to submit that factual issue to the jury. Thus, the circuit court properly declined to award their requested attorney fees.

 

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

 

ESTATE OF FRENCH, 2021 S.D. 20:  Individual sought enforcement of a contract for deed for 320 acres against Decedent's Estate.  The contract was entered into in 1982.  Payment of the entire purchase price was disputed.  It is clear that $65,138.01 was paid, with the Estate claiming a balance of $34,861.99. In regard to the lateness of the claim, the trial court utilized the "doctrine of equitable tolling" denying the Estate's request to discharge the contract on the basis of the 15 year limitations period.  The SD Supreme Court reversed and remanded, "with instructions to discharge the contract pursuant to SDCL 21-51-1.”  With respect to the equitable tolling concept, the Court stated:

 

[¶20.] At the outset, the availability of equitable tolling within our common law is not a forgone conclusion. We have not officially adopted the equitable tolling doctrine for civil cases, see Anson v. Star Brite Inn Motel, 2010 S.D. 73, ¶ 15 n.2, 788 N.W.2d 822, 825 n.2, and as Justice Konenkamp has noted, there are serious questions about whether it could be incorporated into our decisional law, see id. ¶¶ 36-40 (Konenkamp, J., concurring).

 

Footnote 8 of the opinion also explains:

 

8.  Our disposition here results only in the discharge of the contract for deed. There is no other question before us, and we express no opinion as to any other potential remedy concerning the circumstances of this case.

 

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 .

 

3 new decisions by SD Supreme Court

 

The SD Supreme Court handed down three decisions this morning:

 

1. Charge of DUI 3^rd warrants Preliminary Hearing;

 

2. Litigation over damage to airplane reversed & remanded;

 

3. Wife’s conviction of criminal offenses arising out of domestic disturbance AFF’D.

 

Summaries follows:

 

STATE v. RUS, 2021 S.D. 14: Defendant, faced with DUI charge, requested a “preliminary hearing” because a conviction would his 3^rd DUI in 10 years, thereby making him susceptible to a felony conviction.  The trial court resisted on the basis that the underlying offense is a misdemeanor, denying his request for a preliminary hearing.  The SD Supreme Court took the case, on an intermediate appeal, and agreed with the Defendant, holding,  “The plain language of SDCL 23A-4-3 entitles a defendant to a preliminary hearing if he or she is charged by complaint or information with an offense ‘punishable as a felony.’”  This ruling is unanimous (5-0) with opinion authored by Retired Chief Justice Gilbertson. 

 

WRIGHT v. TEMPLE, 2021 S.D. 15:  This action was filed by the owner of an airplane for property damage to the plane, asserting claims of breach of contract, negligence and deceit.  Jury verdict was rendered for the Plaintiff-Owner, with the trial court entering judgment in the amount of 102,434.52 plus interest and costs. The issues, as framed on appeal are set forth in ¶1:

 

[Defendant] appeals, asserting the circuit court erred in allowing service by publication, in instructing the jury on damages, and in entering a judgment with duplicative damages. [Defendant] further contends the evidence is insufficient to sustain the jury’s verdict in favor of [Plaintiff] on the breach of contract and negligence claims. By notice of review, [Plaintiff] asserts the circuit court erred in denying his motion to submit his punitive damages claim to the jury.

 

The facts are intricate, not capable of brief summarization.  The SD Supreme Court reversed and remanded.  This ruling is unanimous (5-0) with opinion authored by Justice DeVaney.

 

STATE v. SCHUMACHER, 2021 S.D. 16:  Criminal charges were filed against a wife, as a result of conduct which occurred when law enforcement officers responded to emergency calls related to a domestic disturbance in Fall River County.  Wife was convicted, by jury, of 3 offenses as described in ¶1:

 

[¶1.] A jury convicted Judy Schumacher of two counts of aggravated assault under the theory that she used a deadly weapon in an attempt to put another in fear of imminent serious bodily harm. The jury also found her guilty of one count of simple assault against a law enforcement officer. Judy appeals, arguing she cannot be guilty of aggravated assault because the gun she was holding at the time of the incident giving rise to the charges was inoperable. She also contends there was insufficient evidence to support the conviction of simple assault against a law enforcement officer. She further claims that the facts supporting the simple assault charge should have been suppressed because they occurred following what she considers an unlawful entry onto her property to arrest her.

 

The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Salter.  Justice Myren participated in this appeal which was submitted on the briefs on January 11, 2021.

 

These decisions may be accessed at

 

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