Three new Decisions by SD Supreme Court Today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Employee prevails with testimony of treating physicians;

 

2. Attorney Fee denial reversed and remanded

 

3. Demolition of partially-completed new home ordered

 

Summaries follows:

 

NEWS AMERICA MARKETING v. SCHOON, 2022 S.D. 79: Employee  injured neck and shoulder while working on the job.  Work comp insurer accepted claim initially but subsequently denied request for surgery and additional benefits.  DOL approved request for additional benefits.  The Circuit affirmed.  The SD Supreme Court also affirmed in a unanimous (5-0) ruling with opinion authored by Justice Chief Justice Jensen.  The SD Supreme Court, ruling consistent with the rulings of the DOL and the lower court, rejected the Work Comp Insurer’s argument that its non-treating physician’s opinion was “more persuasive” that the opinions of the employee’s treating physicians. 

 

ENDRES v. ENDRES, 2022 S.D. 80: Terry, 1 of 7 seven children, filed a lawsuit contesting the handling of an irrevocable trust with assets valued in excess of $10 million.  “Several additional lawsuits” and claims were filed by Terry and the other children. All parties agreed to a consolidation of claims and subsequently reached a “global settlement” which resolved all claims except for Terry’s request for attorney fees.  Terry requested an award of attorney fees in the amount of $389,121.12 ($343,474.20 in attorney fees, expenses, and applicable sales tax, along with interest in the amount of $45,646.92.).  The trial court denied Terry’s request entirely.  The SD Supreme Court reversed and remanded, holding that Terry is entitled to an attorney fee award pursual to SDCL 55-3-13, in an amount to determined on remand.  Because of the Court’s ruling vis a vis SDCL 55-3-13, it did not address the possibility of an award under SDCL 15-17-38.  The concluding paragraph of the Court’s opinion states:

 

[¶55.] Terry is entitled to attorney fees under SDCL 55-3-13 for his actions as a co-trustee which were productive of actual benefit to the Trust. The circuit court shall determine on remand, in a manner consistent with this opinion, the amount of attorney fees Terry may recover.

 

This decision is unanimous (5-0) with opinion authored by Justice Kern. Circuit Judge Gering sat on this case, in lieu of Justice Myren who served as the trial judge. 

NOTE: The list of attorneys litigating this case on appeal reads like a “Who’s Who” in the SD State Bar: Senator Lee Schoenbeck, former U.S. Attorney Ron Parsons, former State Bar President Tom Welk, and other brilliant legal minds. 

 

CITY OF SIOUX FALLS V. STRIZHEUS, 2022 S.D 81:  Owners obtained permit to build single-family home in Sioux Falls in 2013.  Their intention was to build a multi-million dollar house.  Construction stalled in 2015 due to, inter alia, lack of finances.  City of Sioux Falls determined the structure was unsafe in 2016 and sought demolition, in accordance with City Ordinance.  Trial court ordered demolition.  The SD Supreme Court affirmed.  This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Circuit Judge Gering sat on this case, in lieu of Justice Salter.

          

These decisions may be accessed at

 

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

CAFO Permit upheld; Premarital Agreement voided

 

The SD Supreme Court handed down two decisions this morning:

 

1. CAFO conditional use permit upheld, with attorney fees denied;

 

2. Pre-marital agreement set aside because not signed voluntarily by W;

 

 

Summaries follows:

 

POWERS v. TURNER COUNTY BOARD OF ADJUSTMENT, 2022 S.D. 77:  This dispute evolves from an application for a large concentrated animal feed operation (CAFO) in Turner County.  The facts and history are set forth in the opening paragraph of the Court’s opinion:

 

[¶1.] The Turner County Board of Adjustment (Board) granted Steve and Ethan Schmeichel and Norway Pork Op, LLC (Intervenors) a conditional use permit (CUP) for a large concentrated animal feed operation (CAFO). Nearby landowners Jeffrey K. Powers and Vicky Urban-Reasonover (Petitioners) petitioned the circuit court pursuant to SDCL 11-2-61 for a writ of certiorari challenging the legality of the CUP. Over the objections of the Board and Intervenors, the circuit court determined Petitioners had standing to challenge the conditional use permit but denied the writ of certiorari. Petitioners appeal the circuit court’s denial of the writ of certiorari. By notice of review, the Board and Intervenors appeal the issues of standing and the circuit court’s refusal to impose attorney fees on Petitioners under SDCL 11-2-65.

 

The SD Supreme Court affirmed in a 5-0 decision, with opinion authored by Chief Justice Jensen.  As to the issue of attorney fees requested by the prevailing parties but denied by the circuit court, the Supreme Court --  while acknowledging that there is statutory authority for such an award -- states in surely-to-be-quoted language in ¶34, “[W]hen the Legislature uses the word ‘may,’ fee awards are discretionary.”  And, in furtherance of the example set by the trial court, the SD Supreme Court also declined to award appellate attorney fees.

 

ESTATE OF EICHSTADT, 2022 S.D. 78:  W signed a premarital agreement which became the subject of litigation when H died.  The resolution of this dispute is governed by the South Dakota’s 1989 adoption of the Uniform Premarital Agreement Act (UPAA), found in SDCL 25-2-16 thru -25.  The trial court held the agreement was not enforceable for two reasons: 1^st, because W did not voluntarily sign it and, 2^nd, because the agreement was unconscionable.   The SD Supreme Court affirmed the lower court’s holding that W did not voluntarily sign the agreement, thereby rendering it unenforceable.  As to the issue of unconscionability, the Court held that the lower court erred in finding the agreement was unconscionable.  The Court’s decision is a 3-1-1 ruling, with opinion authored by Justice DeVaney.  Both Justice Kern and Justice Salter filed separate opinions in which both express the view that the trial court’s decision was wrong altogether in holding that the agreement was unenforceable. 

 

 These decisions may be accessed at

 

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

 

 

Contractor loses dispute; Juvenile's tip about Mother's possible drunk driving upheld by 4-1 ruling

 

The SD Supreme Court handed down two decisions this morning:

 

1. Contractor loses dispute with Owners;

 

2. Juvenile’s tip about Mother’s possible drunk driving upheld as basis for DUI arrest, by 4-1 vote;

 

Summaries follows:

 

SUVADA v. MULLER, 2022 S.D. 75:  This is a dispute between a contractor and the owners of a cabin to be renovated.  The issues and resolution at the trial level are set forth in the opening paragraph of the opinion and in ¶17, as follows:

 

[¶1.] Ed Suvada commenced this action to foreclose a materialmen’s lien to recover for material and labor he expended in renovating a cabin for George (Jack) and Christine Muller. Suvada also sought damages for breach of contract. The Mullers counterclaimed for breach of contract and fraud. The jury found in favor of Suvada on his materialmen’s lien, awarding him damages. The jury also found in favor of the Mullers on both of their claims but only awarded damages on the breach of contract claim. Suvada appeals, raising multiple issues.

 

[¶17.] The jury awarded Suvada $8,049.99 for his claims. The jury also awarded the Mullers $28,505.22 for their breach of contract claim. Although the jury found Suvada committed fraud, the jury declined to award the Mullers any damages on the fraud claim. The circuit court denied both parties’ requests for attorney fees and costs. The circuit court also set off the verdicts resulting in a judgment for the Mullers for $20,455.23, prejudgment interest in the stipulated amount of $4,129.80, and post-judgment interest.

 

The SD Supreme Court affirmed the victory for the Owners in a unanimous ruling (5-0) with opinion authored by Justice Myren.  The Court also denied the appellant/contractor’s request for appellate attorney fees.

 

STATE v. ROSA, 2022 S.D. 76: Fourteen year old juvenile (in detention) phoned law enforcement authorities to report that she had been talking with her mother on the phone and that her mother “sounded drunk” and that she had a history of drinking and driving.  Mother was located and arrested for DUI and open container.  Trial court denied Mother’s Motion to Suppress and found her guilty of DUI and Open Container, giving Mother a Suspended Imposition of Sentence.  The SD Supreme Court affirmed in a split decision (4-1).  The Court’s opinion is authored by Chief Justice Jensen. 

Justice Myren filed a dissenting opinion in which he stated, in part:

 

[¶33.] I respectfully dissent. Law enforcement did not have reasonable suspicion of criminal activity to justify the stop of Rosa.

 

[¶34.] Both officers testified that they stopped Rosa solely based on A.R.’s report that her mother sounded intoxicated over the phone and had a history of drinking and disappearing. Neither officer testified that they saw any erratic driving, traffic violations, or indication of intoxication. “Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’” Navarette, 572 U.S. at 401, 134 S. Ct. at 1690 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)).

 

 These decisions may be accessed at

 

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

 

 

 

Two New Decisions by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

 

1. Administration of inmate’s Holographic Will upheld;

 

2. Military Retirement pay, including disability benefits, adjudicated in divorce proceeding – In opinion dated December 7, Pearl Harbor Day, substantial relief accorded to Green Beret Husband;

 

 

Summaries follows:

 

ESTATE OF HUBERT, 2022 S.D. 73:  Inmate at SD’s women’s penitentiary left holographic will which the SD Supreme Court previously examined in Estate of Hubert, 2016 S.D. 74 (Hubert I).  The dispute in this case is between the long-time friends and the inmate’s brother.  The inmate’s will gave the her long-time friends basically everything subject to 3 conditions and appointed the friends as personal representatives.  The will disinherits all of testator’s family except for a discretionary portion to be allocated to her brother.  Inmate’s will also provides for the care of the testator’s pet bird Cocky and purports to allocate money to the ACLU for the purpose of funding litigation “to correct injustices at SDWP [South Dakota Women’s Penitentiary] in Pierre.” On remand from Hubert I, the trial court ultimately approved the proposed disposition set forth by the inmate’s long-time friends and ruled against the inmate’s brother on his assertions.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice Jensen. Circuit Judge Klinger sat on this case, in lieu of Justice Myren.

          

COOK v. COOK, 2022 S.D. 74:  The trial court adjudicated a divorce proceeding between H & W, ages 79 & 78 at the time of trial.  This was “lengthy marriage,” with H having acquired military retirement pay which included disability payments -- as a result of his service as a Green Beret in the U.S. Army Special Forces.  H appeals the trial court’s ruling which ordered him to pay W $1,500 per month permanent alimony and which ordered him to pay W cash of $201,130 which payment was designed to equalize assets and which would compensate W for assets which H allegedly “had dissipated in violation of SDCL 25-4-33.1,” during the pendency of the proceeding.  The SD Supreme Court reversed and remanded, awarding H substantial relief on appeal.  A major part of this decision involves treatment of military retirement pay which includes a portion for disability benefits.  (NOTE: I recommend attorneys who are called upon to deal with military benefits in the future read this decision carefully before undertaking to make arguments.)  The Court holds that the trial court inappropriately treated $117,405 as marital property because this amount was clearly shown to be allocated to H as disability payments which are, as a matter of federal law, separate property.  The Court also holds that the trial court’s handling of the remaining portion of H’s military retirement pay was not in accordance with the principles established in SD law.  Additionally, the Court reverses and remands the issue of alimony because of the impact to be realized after “division of property” is accomplished.  As to the assertion that H dissipated assets, the Court finds that the lower court’s ruling is “clearly erroneous.”  Requests for appellate attorney fees, made by both H & W, were denied.  The Court’s ruling 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 .

 

 

Two Decisions the Day Before Thanksgiving (By the SD Supreme Court)

 

The SD Supreme Court handed down two decisions this morning:

 

1. Appeal (from grant of summary judgment) dismissed;

 

2. Attorney fees in regard to trust supervision litigation addressed.

 

Summaries follows:

 

GOENS v. FDT, LLC, 2022 S.D. 71: Plaintiffs sued two Defendants.  Defendant #1 filed Answer.  Defendant # 2 field an Answer and a Counterclaim. Trial court granted Summary Judgment for Defendant # 1.  Plaintiff appealed.  The SD Supreme Court dismissed the appeal, noting that there was no certification under SDCL 15-6-54(b) which is required for the rendering of an appealable final judgment, stating:

 

[¶5.] … [T]his interlocutory judgment “is not a final judgment under SDCL 15-6-54(b) and is not appealable.” Because active claims remained in this action at the time of appeal and no Rule 54(b) certification was made, we dismiss for lack of appellate jurisdiction under SDCL 15-26A-3.

 

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

 

MATTER OF PETERSEN TRUSTS, 2022 S.D. 72: This litigation involves two trusts. Daughter Sally filed suit seeking reformation of one of the trusts.  Daughter Mindy opposed Sally’s suit and also filed suit seeking clarification and other relief. The trial court ruled against Mindy, but ruled in favor of Sally and granted reformation.  Also, the trial court denied Sally and her husband’s request for attorney fees and expenses, “concluding the trust did not receive an economic benefit from the litigation, which, the court determined, was required to justify reimbursement from the trust.”  

 

Sally appeals.  The sole issue on the appeal relates to the trial court’s ruling on attorney fee and expenses.  Sally (& her husband) also request an award appellate attorney fees.   

 

The SD Supreme Court denied appellate attorney fees but otherwise reversed and remanded the issue of attorney fees as handled by the trial court.  The Court took provided a more liberal interpretation of the attorney fee statute than did the trial court, stating:

 

[¶42.] Attorney fees are authorized in trust supervision proceedings under SDCL 15-17-38 where the litigation has been beneficial to the trust estate. Though the benefit will often be expressed in terms of an economic benefit, the concept is broader than that and can include instances, such as this one, where a beneficiary’s litigation was necessary to uphold the settlor’s universally acknowledged intent. In those cases where the benefit asserted by an attorney fees applicant is economic, the applicant must show that the litigation produced a benefit beyond that which the trust estate would have otherwise realized.

 

[¶43.] Here, then, attorney fees are authorized for Sally’s efforts to vindicate her father’s intent. Short of litigation, there was no other means for her to do so. We reverse the circuit court’s denial of attorney fees for Sally’s litigation efforts to obtain the homestead. However, the circuit court correctly determined that attorney fees were not authorized for Mike and Sally’s efforts to resist Mindy’s attempt to reform the Land Trust and retire the mortgage debt sooner, and we affirm this determination.

 

[¶44.] Finally, the plain fact that fees are authorized does not make a fee award a fait accompli. See Ctr. of Life Church v. Nelson, 2018 S.D. 42, ¶ 34, 913 .W.2d 105, 114 (holding the fact that a court was authorized to exercise its discretion and award attorney fees did not obligate it to do so). Whether to exercise its discretion to award attorney fees and, if so, in what amount are beyond the issues presented here, and we remand the case for the court to consider these questions.

 

 The Court’s 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 .

Rape Convictions and multiple life sentences upheld on appeal today by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

 

1. 3^rd degree rape conviction upheld;

 

2. Multiple consecutive life sentences in 1^st degree rape convictions upheld.

 

 

Summaries follows:

 

STATE v. MCDERMOTT, 2022 S.D. 69:  Defendant drove to Vermillion from Sioux City and met the Victim at McDonalds, shortly after 2 AM, after visiting a local bar in Vermillion – a bar which the Victim had also visited that evening.  Subsequent consensual encounters with the Victim resulted in an overnight stay in Victim’s dorm room and this charge being filed as a result of non-consensual activity in dorm room.  Defendant was found guilty of 3^rd degree rape by jury.  Trial court sentenced Defendant to 10 years in prison, with 8 years suspended.  This appeal is summarized in the opening paragraph of the Court’s opinion:

 

[¶1.] Defendant appeals his jury conviction of third-degree rape. He contends that the evidence was insufficient to sustain the conviction because “[t]he DNA evidence raised significant doubt that penetration could have occurred.” He thus requests that this Court reverse the circuit court’s denial of his motion for judgment of acquittal. Because there is sufficient evidence in the record, including the testimony from the victim and the doctor that examined her after the rape, we affirm.

 

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

 

 

 

STATE v. GUZMAN, 2022 S.D. 70:  At the first trial on these rape and sexual contact charges, the jury was hung.  A mistrial was declared.  The 2^nd trial resulted in the Defendant being found guilty on 3 counts of 1^st degree rape and an additional charge of sexual contact.  The trial court sentenced Defendant to life imprisonment on each of the 3 counts and an additional 15 years in prison, with all sentences to run consecutively.  The trial court also ordered Defendant to pay costs of prosecution ($13,390.66) to Pennington County for the State’s expert witness fees.  Defendant’s testimony in the 1^st trial was utilized as evidence by the State in the 2^nd trial, with Defendant choosing not to testify in the 2^nd trial.  The gist of this appeal is summarized in the opening paragraph of the Court’s opinion:

 

[¶1.] Theodore Guzman appeals his convictions of first-degree rape and sexual contact stemming from incidents involving two of his children and one of his children’s friends. Guzman asserts that the circuit court erred by excluding witness testimony and evidence offered in his case-in-chief; by allowing the State to admit a trial transcript of his testimony from his first trial; by allowing the State to admit other act evidence and expert testimony; and by ordering him to pay certain costs of prosecution.

 

The SD Supreme Court rejected all of the Defendant’s arguments on appeal, affirming the lower court.  The Court’s opinion is authored by Justice DeVany and is unanimous in result on all issues.  The Court’s opinion is unanimous as to reasoning as to all issues, except the assessment of costs of $13,390.66 to Defendant.  Chief Justice Jensen, agreeing with the result, nonetheless filed concurring opinion as to the matter of costs. 

 

 These decisions may be accessed at

 

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

Today's Ruling by the SD Supreme Court: Defendant wins. Reversed and Remanded. Plaintiff wins. Affirmed.

 

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

 Defendant wins. Reversed and Remanded. Plaintiff wins.  Affirmed.

J. CLANCY, INC. v. KHAN COMFORT, LLC, 2022 S.D. 68: Plaintiff sued for money due on a contract for work done in renovating a Spearfish hotel.  Defendant counterclaimed for overpayment, arguing that Plaintiff failed to complete certain “implied-in-fact” contracts.  The trial court agreed with Defendant, awarding damages to Defendant.  This was appealed to the SD Supreme Court and reversed on the basis that the matter should be resolved on the basis of the express contract originally entered into between the parties. J. Clancy, Inc. v. Khan Comfort,LLC, 2021 S.D. 9, ¶ 45, 955 N.W.2d 382, 397. On remand, the trial court found for Plaintiff on the basis of the original record, awarding damages “for breach of contract and foreclosure of the mechanic’s liens in the amount of $105,135.33, plus prejudgment interest and attorney fees and costs.”  Defendant appealed.  Today, the SD Supreme Court affirmed the trial court.  The Court’s decision is unanimous with opinion authored by Chief Justice Jensen.  

 

This decision may be accessed at

 

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

Two New Decisions by the SD Supreme Court this morning

 The SD Supreme Court handed down two decisions this morning:

 

1. 100 year sentence upon guilty plea to 1 count of 1^st degree rape affirmed;

 

2. Criminal convictions and sentences for 1^st degree rape upheld;

 

 

Summaries follows:

 

STATE v. ALVAREZ, 2022 S.D. 66: Defendant, who is less than proficient in English, pled guilty to one count of 1^st degree rape of victim less than 13 years old.  Thereafter Defendant sought to withdraw his guilty plea and requested substitute counsel.  The trial court, after denying both requests, sentenced Defendant to 100 years in prison, with 15 years suspended.  On this direct appeal, Defendant asserts error in 1) the trial court’s denial of his request to withdraw his guilty plea and 2) ineffective assistance of counsel.  The SD Supreme Court affirmed the trial court, holding that the trial court acted within its discretion in refusing the request to withdraw the guilty plea. As to the assertion of ineffective assistance of counsel, the Court declined the opportunity to review its merits, holding that Defendant’s assertion of error would be more appropriately considered “within the context of a habeas corpus action where the parties may develop the factual record.”  This decision is unanimous (5-0), with opinion authored by Justice Salter. 

 

STATE v. HANKINS, 2022 S.D. 67:  This decision affirms the criminal convictions and sentences of 50 years on each of two counts, with 25 years suspended for each count, and with the sentences to run consecutively.  The facts and issues on appeal are set forth in the opening paragraph of the Court’s opinion:

 

[¶1.] A Lawrence County grand jury indicted Nathan Hankins on two counts of first-degree rape and two alternative counts of sexual contact with a minor under 16 with his half-sister, R.H. A jury convicted Hankins of two counts of first[1]degree rape. Hankins appeals, asserting that his due process rights were violated due to an insufficient arraignment, that the court abused its discretion in admitting testimony from certain witnesses, and that the State engaged in prosecutorial misconduct. We affirm.

 

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

 

 These decisions may be accessed at

 

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

 

Three Decisions Released by SD Supreme Court today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Drainage ditch cleanout upheld;

 

2. Direct action against liability insurer upheld;

 

3. Divorce issues resolved.

 

Summaries follows:

 

LITTLE v. HANSON COUNTY DRAINAGE BOARD, 2022 S.D. 63:  This litigation concerns an application for the clean out of a pre-existing drainage ditch located in a township road right-of-way.  The clean out “would return [the ditch] to its pre-existing, natural state.”  The opening paragraph of the opinion provides the following summary:

 

[¶1.] The Littles appealed to the circuit court a decision by the Hanson County Drainage Board (Board) granting a drainage permit to James F. Paulson.  The permit application sought to clean out a pre-existing ditch. The Littles claim the Board failed to follow the approval procedures outlined in its ordinances and South Dakota statutes. The circuit court affirmed the Board’s decision. The Littles now appeal to this Court, raising the additional issues that the circuit court failed to admit relevant testimony and failed to take judicial notice of a prior proceeding involving the parties. We affirm.

 

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

 

KAISER TRUCKING, INC. v. LIBERTY MUTUAL, 2022 S.D. 64: Plaintiffs brought suit against driver of motor vehicle for damages arising out of accident.  Driver defaulted.  Judgments were returned “unsatisfied.”  Plaintiffs next filed this direct action against the driver’s Liability Insurer.  The trial court dismissed the action because Plaintiffs did not provide notice to the Liability Insurer as required under the Liability Insurer’s policy.  The SD Supreme Court reversed, holding that Plaintiff was entitled to proceed in accordance with SDCL 58-23-1 when an effort to execute on the judgment is returned unsatisfied.  This “direct action” statute does not impose a pleading requirement that Plaintiffs must show compliance with “conditions precedent,” in this case meaning compliance with the policy’s notice provision.  This decision is unanimous, with the Court’s opinion authored by Justice Kern.

 

DUNHAM v. SABERS, 2022 S.D. 65: This divorce action required the trial court to resolve multiple issues, following a 5 day trial: custody/visitation, division of property, child support, grounds for divorce, attorney fees, etc.  Both sides appeal.  H asserted 13 issues on appeal.  W (attorney, now circuit judge) asserted 4 issues on appeal.  The matter was heard by a retired judge. 

 

The SD Supreme Court affirmed all aspects of the lower court’s ruling, except for in the following:

 

The trial court’s order that the parties are required “to exchange tax returns every year,” following the divorce was in error. On this issue, the Court stated:

 

Before sua sponte ordering the production of the parties’ tax returns post-divorce, the court should have sought input from the parties on the relevant considerations for a protective order under SDCL 15-6-26(c) and the need for a protective order for some or all of the information contained in the tax returns.            

 

The trial court abused its discretion in excluding “buy out” funds related to a law building and the law firm of W’s prior association.  On this issue, the Court stated:

 

Because the circuit court’s findings were insufficient to support           its conclusion that the buy-out funds should be excluded from the marital estate, the  court abused its discretion in setting aside the property as non-marital. On remand, we direct the circuit court to apply the appropriate factors.

 

There is a plethora of additional issues and sub-issues which are addressed in this 36 page opinion.  Some of the additional issues include:

 

trial court’s upward deviation in assessing child support against H affirmed;

 

refusal to require counseling for custody/visitation upheld;

 

minor child is permitted “to choose the time, location, and length of the visits” with non-custodial H;

 

trial court did not error by refusing to grant W a divorce on the ground of extreme cruelty;

 

trial court’s award of $50,000 in attorney fees to wife upheld notwithstanding objections by both H (as to the imposition of the award) and W (as to inadequacy of the award). 

 

The SD Supreme Court’s decision is unanimous (5-0) with opinion authored by Chief Justice Jensen.  Circuit Court Judges Day and Connolly sat on this case, in lieu of Justices Salter and DeVaney.

 

These decisions may be accessed at

 

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

Two New Decisions by the SD Supreme Court Today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Denial of habeas relief affirmed;

 

2)   Breakup of unmarried couple’s cohabitation litigated;

 

 

Summaries follows:

 

SPANIOL v. YOUNG, 2022 S.D. 61: This a post-conviction habeas proceeding by an inmate.  The lower court denied relief and the SD Supreme Court affirmed.  The case is summarized in the opening paragraph of the opinion:

 

[¶1.] Joshua Spaniol was convicted of raping and having sexual contact with his four-year-old autistic daughter. Spaniol appealed his conviction, which was affirmed. Thereafter, he filed a petition for habeas corpus alleging that his trial counsel was ineffective by failing to retain an expert witness, object to certain exhibits during trial, and investigate alleged third-party perpetrator information. After an evidentiary hearing, the circuit court denied the petition. Spaniol appeals. We affirm.

 

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

 

 

MURPHEY v. PEARSON, 2022 S.D. 62:

 

Unmarried couple split up after 10+ years cohabitation.  A child was born.  This action was filed by Mother to determine custody and child support.  Father counterclaimed, asserting an interest in the equity of the home which was titled Mother’s name only. Father asserted an implied contract and unjust enrichment, based upon his financial contributions during cohabitation.  Mother filed a Reply to the counterclaim by asserting that Father was paying rent.  Mother also claimed that Father owed her back rent.  Notably, Mother never actually filed a claim for back rent as part of her original complaint or in response to Father’s counterclaim.  (Mother’s failure to assert such a claim in a pleading is detrimental to her interest on appeal.)

The trial court resolved the issues and, in the process awarded Mother back rent of $17,069.59 plus 10%.  The trial court also made an award of back child support.

The SD Supreme Court reversed the award of back rent in favor of Mother, but affirmed the denial of Father’s claim based on implied contract and unjust enrichment.  The Court also partially reversed an award of back child support in favor of Mother by lowering it $1,064.   

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 .

 

abuse of vulnerable adult cause of action held NOT to survive death

 

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

 

1. abuse of vulnerable adult cause of action does not survive death

HERMANEK-PECK v. SPRY, 2022 S.D. 60: This decision addresses important issues relating to civil remedies available for the abuse of a vulnerable adult – more specifically in this case, the remedy (if any) available to the estate of a deceased vulnerable adult.  The underlying action was filed by the estate of the deceased vulnerable adult in SD state court. Defendants removed the case to federal court on the basis of diversity of citizenship.  Next, the federal district court, Honorable Lawrence L Piersol, certified three questions to the SD Supreme Court.  This decision answers those questions.  The opening paragraph of the opinion summarizes the three questions and the Court’s answers, as follows:

 

[¶1.] In this case, we consider three certified questions from the United States District Court for the District of South Dakota,1 all relating to rights and remedies available to the estate of a vulnerable adult for conduct alleged to have been committed during the vulnerable adult’s life. In essence, the questions ask whether SDCL chapter 21-65 creates a private right of action that survives a vulnerable adult’s death and whether a criminal conviction for theft by exploitation is required for a cause of action under SDCL 22-46-13. We answer the questions by holding that the right to commence an action under chapter 21-65 does not survive the death of the vulnerable adult, though the ability to seek relief in a separate action when there has been financial exploitation may still be available after death. We further conclude that a predicate theft conviction is not required to maintain an action authorized under SDCL 22-46-13.

 

The Court’s 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 .

Circuit Court of Hughes County Affirmed X 2

 

The SD Supreme Court handed down two decisions this morning. Both cases involve appeals from the Circuit Court of Hughes County, Honorable Bobbi J. Rank.  Judge Rank is affirmed in both decisions:

 

1. Criminal Conviction and Life Sentence Upheld

 

2. Tax litigation resolved against U.S. Bank

 

 

Summaries follows:

 

STATE v. LARSON, 2022 S.D. 58:  Jury convicted Defendant of 2^nd Degree Murder and aggravated battery of an infant, with the events having taken place in Pierre.  Trial court sentenced Defendant to life imprisonment and 55 years to run concurrently.  Defendant’s unsuccessful appeal was predicated upon alleged error relating to a Motion to Suppress Statements and Denial of his Motion for Judgment of Acquittal.  The SD Supreme Court affirmed (5-0), with the Court’s opinion authored by Justice Myren.  Justice Salter filed a brief concurring opinion.

 

 

U.S. BANK NATIONAL ASSOC. v. S.D. DEPT OF REVENUE, 2022 S.D. 59: This is a tax case which is nicely summarized in the opening ¶ of the Court’s opinion :

 

[¶1.] The South Dakota Department of Revenue (the Department) rejected U.S. Bank’s1 method of calculating its federal income tax deduction from net income subject to South Dakota’s bank franchise tax for tax years 2010, 2011, and 2012. As a result, the Department denied U.S. Bank’s request for a refund for 2010 and 2011 and disallowed the entire deduction for 2012. The Department issued a certificate of assessment for additional tax and interest for 2012. U.S. Bank appealed the administrative decision to the circuit court, which affirmed the Department’s decision. U.S. Bank now appeals to this Court. We affirm.

 

The Court’s affirmance is a unanimous (5-0) decision with opinion authored by Justice Salter.  Retired Judge Severson sat on this case, in lieu of Justice DeVaney.  This case was orally argued over 1 ½ years ago on February 16, 2021.

          

These decisions may be accessed at

 

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