The
SD Supreme Court handed down three decisions this morning:
- Right of First Refusal in effective to defeat Wind Farm
lease;
- Another Drainage Permit dispute;
- Custody modification upheld,
NOTE:
The first two decisions were submitted to the Court this past Fall, in October
and November, 2021 and have been decided with opinions authored by Justice
DeVaney. The 3rd decision was
submitted to the Court only 17 days ago and is decided by opinion authored by
Justice Salter.
Summaries
follows:
POWERS
v. POWERS and PREVAILING WINDS, LLC, 2022 S.D. 25: Owner for a “right of first
refusal” on real estate claimed right of specific performance as a result of
lease for a wind farm on the property.
The trial court held the right was not triggered by the lease because it
applied only to a fee interest transfer and further held that the right was “void as
an unreasonable restraint on alienation.” The
SD Supreme Court affirmed. This is a
unanimous (5-0) ruling, with opinion authored by Justice DeVaney.
McLAEN
v. WHITE TOWNSHIP, 2022 S.D. 26: This is a dispute over an application for a
drainage permit. The issues and result
are described in the opening paragraph of the Court’s opinion:
[¶1.] Steven and Matthew McLaen
obtained a drainage permit from the Marshall County Drainage Board. Thereafter,
they sought approval of their project from the White Township Board of
Supervisors because their drainage project could impact roads or rights-of-way
in the Township. Ultimately, the Township denied the McLaens’ request, and the
McLaens filed an administrative appeal and a separate declaratory action, both
of which challenged the Township’s authority to regulate their drainage project
and the merits of the Township’s decision. The circuit court issued one
memorandum decision addressing both actions and upholding the Township’s
decision. The McLaens filed a separate appeal in each action, asserting
multiple issues related to the Township’s denial of their requested project. We
consolidate the appeals and affirm.
This
decision is unanimous (5-0), with opinion authored by Justice DeVaney.
FLINT
v. FLINT, 2022 S.D. 27: This is a
modification of a “shared physical custody [provision in a] parenting order entered as
part of [the parties’] 2018 Arizona divorce.”
After
divorce, Father moved to South Dakota and Mother moved to California. Father registered the decree in SD and sought
primary custody. The trial court granted
primary custody to Mother, ruling contrary to the recommendation of the custody
evaluator. The SD Supreme Court
affirmed, applying the principles found in Fuerstenberg v. Fuerstenberg,
1999 S.D. 35, 591 N.W.2d 798. This
ruling is unanimous (5-0), with opinion authored by Justice Salter. Appellate attorney fees were requested by
both parties and denied. (NOTE: This case was submitted on the briefs just 17
days ago, on April 25, 2022.)
These
decisions may be accessed at
