Competency Challenge Reinstated

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

 

1. Competency challenge ailing spouse’s execution of documents reinstated

 

JOHNSON v. MARKVE, 2022 S.D. 57: 

 

The facts in this case are somewhat intricate.

 

H & W (Ken and Susan) met in their golden years and entered into a prenuptial agreement found on the internet. W was worth $1 million and H was worth $1.8 million.  The agreement is not challenged in this litigation, but I found this fact interesting. 

 

W became seriously ill, thereafter executing a quitclaim deed to W & H as joint tenants and she also executed a general Power of Attorney naming H as her agent.  After W’s death, W’s brother (Gus) filed this action challenging W’s competency at the time she executed the deed and created the trust.

For a brief (and perhaps inadequate) “rest of the story,” see the 1^st and last paragraphs of the opinion reproduced here:

 

[¶1.] Acting as the personal representative of the Estate of Susan Markve, Gustav Johnson commenced this action against Kenneth Markve, alleging a variety of claims including undue influence, conversion, breach of fiduciary duty, statutory fraud, and common law fraud. The circuit court granted Kenneth Markve’s motion for summary judgment after determining that there were no genuine disputes of material fact as to any of the claims. The Estate appeals, and we affirm in part and reverse in part.

 

*  * *

 

[¶77.] Ken may well believe he has a strong case in his effort to resist the Estate’s claims of incapacity, undue influence, conversion, and breach of fiduciary duty, and we express no opinion in this regard. Suffice it to say that Ken’s evidence is not of such a character that it eliminates issues of material fact relating to the Estate’s claims, particularly when we review the facts in the light most favorable to the Estate. Neither we, nor the circuit court, can weigh the strength of the parties’ evidence, the reasonableness of Ken’s actions, or the credibility of any witness as matters of law. These questions must be submitted to a fact finder. We affirm in part, reverse in part, and remand for further proceedings.

 

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 .

Landlord not liable for dog bite; criminal conviction affirmed

 

The SD Supreme Court handed down two decisions this morning:

 

1. Landlord not liable for dog bite;

 

2. Criminal conviction affirmed.

 

 

Summaries follows:

 

DAVIES v. GPHC, LLC, 2022 S.D. 55: This is a “dog bite” case filed by tenant against his Landlord after tenant was bitten by dog named Tequila. Tequila was owned by another tenant.  Plaintiff brought general negligence and negligence per se claims against Landlord.  Trial court granted summary judgment for Landlord on both claims because Plaintiff could not show Landlord had actual knowledge of dangerous propensities and that the relevant statute (SDCL 40-34-13) for the negligence per se claim applied only to a “person owning or keeping” of Tequila.  Landlord was not an owner or keeper. The SD Supreme Court affirmed in a unanimous (5-0) with opinion authored by Justice Salter.

 

STATE v. LOESCHKE, 2022 S.D. 56:  Following jury trial, Defendant was sentenced to 15 years in prison, with 5 suspended, and with this sentence to run consecutively with a sentence imposed in a companion criminal case where Defendant was charged with witness tampering and violation of a "no contact" order.  The facts and issues as developed at the trial level and as framed on appeal are set forth in the opening paragraph of the Court's opinion as follows:

 

[¶1.] Robert Loeschke was indicted and subsequently tried in August 2020 for six counts of assault against his girlfriend, Melissa Greenwalt, arising out of two separate incidents. He was charged with one count of aggravated assault and two counts of simple assault arising from a stab wound inflicted on Greenwalt on February 20, 2019. He was also charged with one count of aggravated assault and two counts of simple assault arising from an assault with fists on June 17, 2018, which left Greenwalt with a broken jaw. The jury convicted Loeschke on the assault counts arising from the February 20, 2019 stabbing but acquitted him of the charges from the June 17, 2018 broken-jaw incident. Prior to trial, Loeschke had moved to sever the charges based on the dates of the offenses, but the court denied his motion. At trial, Loeschke objected on hearsay grounds to the admissibility of Greenwalt’s statements contained in recorded phone conversations between Greenwalt and Loeschke while he was in jail. The circuit court overruled the objection and admitted the statements as context to aid the jury in understanding the conversation but gave the jury a limiting instruction. Loeschke appeals the circuit court’s order denying his motion to sever and the admission of the challenged statements at trial.

 

The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Kern.

 

 These decisions may be accessed at

 

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

Arson Conviction Upheld

 

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

 

1)    Criminal Convictions reversed because “illegal immigrant” status of victim not disclosed to jury

 

STATE v. KROUSE, 2022 S.D. 54:  Adjudicated by bench trial, Defendant was convicted of 2^nd degree Arson of her home.  The facts of this case would provide an interesting narrative for Dateline, assuming Dateline were interested in non-death scenarios.  Home was valued at over $ 1 million; Defendant (home owner) was divorced and receiving alimony of $21,000 monthly.  The criminal investigation for the fire originated from the fire insurer’s investigation and by referral from the fire insurer’s investigators to law enforcement authorities.  The SD Supreme Court affirmed.  This decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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