The
SD Supreme Court handed down three decisions this morning:
- Drainage ditch cleanout upheld;
- Direct action against liability insurer upheld;
- 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
