adverse ruling for lessee on right of 1st refusal

 

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

 

1. Adverse ruling for lessee attempting to enforce right of 1^st refusal

 

MCCOY v. MCCALLUM, 2022 S.D. 42:  This dispute concerns a right of first refusal extended by lessor to lessee for leased property, “the Gold Nugget Trading Post (Gold Nugget), a retail store for gift and tourist items” in Deadwood.  Lessor sold the leased property to a party other than lessee.  Lessee filed suit.  The trial court ruled favorably for the lessor, holding that the. “offer was bona fide, [that lessee] had been offered the right of first refusal,  and [lessee] did not exercise that right.”  Lessee appealed, asserting that the 1) offer was conditional upon circumstances beyond the control of lessee (financing for offeror) and, as such, was not bona fide, and 2) that lessee’s two offers made to lessor constituted an appropriate exercise of the right of refusal. The SD Supreme Court affirmed, stating:

 

[¶26.] We affirm the circuit court’s entry of summary judgment in favor of  [lessor] on Count III of [lessee’s] complaint, determining that [lessor] received  a bona fide offer to purchase from [offeror] and that [lessee] was given the same  opportunity to purchase the Leased Premises at the same price and on the same  terms as [offeror] and failed to exercise the option to purchase. We remand the case to the circuit court for further proceedings on the remaining claims in the complaint  and counterclaim.

 

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

 

This decision may be accessed at

 

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

 

 

8th Circuit Upholds Denial of Fireworks Permit @ Mount Rushmore

 

Today the 8^th Circuit handed down many decisions, one of which is from the D.S.D. 

 

This decision addresses the appeal by the State of South Dakota, supported by amici briefing filed by 16 additional states (Kansas, Alabama, Arizona, Arkansas, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, & West Virginia) in connection with the federal government’s (U.S. Secretary of Interior, National Park Service) decision denying a fireworks permit for the 4^th of July celebration at Mount Rushmore. 

 

Fireworks have been denied consistently for some 12 years, with the exception of 2020 (for which President Trump attended the celebration).  The State of South Dakota was denied permission in 2021.  Thereafter, the State of South Dakota instituted this action seeking injunctive and declaratory relief.  The trial court denied relief.  This decision vacates the trial court’s ruling (because it was moot when rendered) and dismisses this appeal.  In so doing, the 8^th Circuit opinion (authored by Judge Stras) states:

 

The bottom line is that we cannot change what happened last year, and South Dakota has not demonstrated that deciding this otherwise moot case will impact any future permitting decision. Any controversy has, in other words, fizzled out.

 

In support of the decision by the National Parks Service, the Cheyenne River Sioux Tribe intervened as a party Defendant/Appellee. 

The Court's decision may be accessed at 212542P.pdf (uscourts.gov) 

SD Supreme Court hands down 2 decisions today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Work comp claim for total permanent disability for PTSD and PCS denied;

 

2)   Mutual wills litigation resolved;

 

 

Summaries follows:

 

BAKER v. RAPID CITY REGIONAL HOSPITAL, 2022 S.D. 40: Employee was injured as a result of assaults by patients.  He made this work comp claim for permanent total disability, asserting that his head injuries generated PTSD (Post-Traumatic Stress Disorder) and PCS (Post-Concussive Syndrome).  The DOL denied his claim on the bases of 1) failure to show causation (that work injuries were a major contributing cause) and 2) failure to establish permanent total disability.  The circuit court reversed on causation and remanded.  On remand, the DOL awarded medical expenses but again denied permanent total disability.  Worker appeals denial of permanent total disability.  The SD Supreme Court affirmed, holding that evidence did not establish permanent total disability.  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Retired Justice Konenkamp and Circuit Judge Vinberg-Wickre sat on this case, in lieu of Justices Kern and DeVaney, disqualified.

 

ESTATE OF SMEENK, 2022 S.D. 41: In 2017 H & W (Neil and Denise) “executed mutual wills” together with “an agreement that neither party would revoke their respective wills without the other’s consent.”  In 2019, H executed a new will without W’s consent.  H died.  This dispute deals with the aftermath.  The result at the trial level and on appeal is set forth in the opening paragraph of the opinion:

 

After Neil’s death, the circuit court ordered the 2019 Will to be probated and appointed Denise as personal representative of Neil’s estate (Estate). Denise filed a motion for approval and payment of claim (Motion) in her capacity as personal representative and sought specific performance of the Agreement [not to revoke without consent Denise’s consent]. The circuit court determined the Motion was not properly presented as a creditor claim and was untimely under the  nonclaim statute. However, the court considered the merits of the Motion and  determined that Denise was not entitled to specific performance. Denise appeals, arguing that the Motion was a timely and properly presented creditor’s claim and  that she is entitled to specific performance as the remedy for Neil’s alleged breach of  the Agreement. We conclude that the circuit court erred in determining that  Denise’s claim was not timely and properly presented but correctly ruled that  Denise was not entitled to specific performance. We therefore affirm in part and  reverse in part.

 

Details concerning the SD Supreme Court’s holding are also found in the final paragraph of the opinion:

 

[¶41.] The circuit court erred in determining that Denise failed to             substantially comply with SDCL 29A-3-804 in presenting the creditor claim within the time requirements of SDCL 29A-3-803, and we vacate the circuit court’s  findings of fact and conclusions of law from February 2, 2021, to the extent that  they are inconsistent with this opinion. However, the court properly considered  whether Denise could seek court approval of her request for specific performance of  he Agreement. We affirm the circuit court’s determination that Denise is not  entitled to the remedy of specific performance on her claim for the alleged breach of  the Agreement.  

 

This 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 .

Non-resident UIM insurer held not subject to personal jurisdiction in SD

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

 

1. Non-resident UIM insurer is not subject to personal jurisdiction in SD simply because its non-resident insured is injured in SD

DAVIS v. OTTEN and MEEMIC INSURANCE, 2022 S.D. 39:  Michigan Passenger on motorcycle driven by another Michigan citizen sustained medical expenses and damages exceeding $300K in accident near Sturgis.  Passenger, receiving offer of  policy limit of $25K from other driver, is pursuing UIM and no-fault benefits under Passenger’s Michigan insurer.  Michigan insurer sought dismissal on basis of “lack of personal jurisdiction” in South Dakota.  Trial Court asserted personal jurisdiction.  The SD Supreme Court reversed, agreeing with Michigan insurer.  The issue, as framed and resolved in the concluding paragraph of the opinion is set forth here:

 

[¶27.] A South Dakota court’s exercise of personal jurisdiction over [the Michigan insurer] under these circumstances is improper under SDCL 15-7-2.  [A] court faced with the facts presented here cannot exercise personal jurisdiction over a non-resident insurer on the basis of a breach of contract claim between a non-resident  insured and non-resident insurer who has not engaged in significant activities  within the state.  As such, the minimum contacts necessary to support the exercise of personal jurisdiction in accordance with due process requirements are not satisfied.

 

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

 

 

This decision may be accessed at

 

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