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 .