City of Wall exonerated; 2 criminal convictions affirmed, 2 family law disputes resolved

 

The SD Supreme Court handed down five decisions this morning:

 

1. 1^st degree rape conviction affirmed;

 

2. City of Wall exonerated:

 

3. Defense of lack of personal jurisdiction preserved adequately;

 

4. Child dependency exemption clarified; and

 

5. LWOP sentence for 2^nd Degree Murder affirmed.

 

 

Summaries follows:

 

STATE v. CARTER, 2023 S.D. 67: Defendant was convicted by jury of 1^st degree rape and sentenced to 45 years in prison, with 25 years suspended.  The SD Supreme Court Affirmed, rejecting the following assertions of error made on appeal:

 

1. Whether the circuit court abused its discretion when it allowed the State to publish to the jury three short videos of child pornography.

2. Whether the circuit court abused its discretion when it refused to allow Carter’s expert the opportunity to testify as to the reliability of the NAAT testing.

3. Whether the circuit court’s decision to admit E.W.’s unsworn statements into evidence was an abuse of discretion and violated Carter’s right of confrontation.

4. Whether the circuit court erred by denying Carter’s motion for judgment of acquittal on the grounds of insufficient evidence.

5. Whether Carter’s trial counsel was so ineffective that Carter was denied his due process right to counsel.

 

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

 

LOVE’S TRAVEL STOPS v. CITY OF WALL, 2023 S.D. 68: The City of Wall secures relief from the trial court’s orders of mandamus and contempt in connection with an effort by Love’s Travel Stops to build a facility in Wall.  The dispute and its history are described in the first 2 paragraphs of the Court’s Opinion, as follows:

 

[¶1.] Love’s Travel Stops & Country Stores, Inc. (Loves) entered into a conditional agreement to purchase property in Wall, South Dakota (City). Loves applied to rezone the property and sought a building permit to develop a new travel stop on the property. After the City Council denied these requests, Loves filed a petition for writ of mandamus, writ of certiorari, and request for declaratory relief with the circuit court. The circuit court granted Loves’ petition in part (Mandamus Order) declaring that the City’s Zoning Ordinance did not apply to the subject property and granted mandamus relief requiring the City to reconsider Loves’ application for a building permit after it “review[ed] and determine[d] whether any member of the City Council is disqualified” from considering Loves’ application under SDCL 6-1-17. Neither party appealed the circuit court’s ruling.

[¶2.] The City Council subsequently conducted a conflict-of-interest analysis and determined that no member was disqualified from considering Loves’ application under SDCL 6-1-17. Thereafter, the City Council reconsidered and again denied Loves’ building permit application. Following the denial, Loves filed a motion for order to show cause requesting the circuit court to find the City in contempt of the court’s order and sought issuance of a building permit. The circuit court found the City to be in contempt for willfully and contumaciously disobeying its Mandamus Order and ordered the City to issue Loves a building permit. The City appeals the circuit court’s contempt order. We reverse.

 

The Court’s holding is unanimous (5-0) with opinion by Chief Justice Jensen and is explained in the concluding paragraph, set forth here:

 

[¶35.] While the circuit court erred in the first instance in finding the City in contempt of its mandamus order, the circuit court’s remedy also exceeded its authority by imposing a punitive, rather than coercive civil contempt remedy. Therefore, for the reasons stated above, we reverse the circuit court’s finding of contempt and the order issuing a building permit to Loves.

 

ENGEL v. GEARY, 2023 S.D. 69: Defendant Husband (in California) was sued for divorce in South Dakota. Through a pro se’ affidavit, Defendant Husband asserted, inter alia, lack of personal jurisdiction.  The trial court conducted hearings and rendered a divorce decree and orders relating to division of property, including “specific directives as it relates to the parties’ property, including bank accounts and debts.” The SD Supreme Court reversed and remanded, holding as follows:

 

[¶32.] We therefore conclude that the circuit court erred when it entered orders relating to the division of property and when it imposed obligations on Geary personally. On remand, the circuit court is directed to vacate these directives from the judgment and decree of divorce.

 

The SD Supreme Court held that while the defense of personal jurisdiction is easily waived, the Defendant’s pro se’ affidavit was adequate to preserve it, notwithstanding the fact the words “personal jurisdiction” were not specifically set forth in it.   The decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

ERICKSON v. ERICKSON, 2023 S.D. 70: This is post-divorce dispute involving the Mother’s entitlement to declare the parties’ children as “depcndents” on her income tax filings.  The underlying stipulation, upon which the divorce decree was granted, is ambiguous.  The trial court modified the divorce decree to as to clearly favor Mother.  The trial court additionally awarded Mother attorney fees stating, “[w]e shouldn’t be here, and [Mother] shouldn’t have to pay for it. [Father] tried to take advantage of the situation, and he should have to pay for it.”

 

The SD Supreme Court affirmed the trial court’s modification of the divorce decree, but reversed and remanded on the issue of attorney fees.  The closing paragraph of the opinion, which explains the ruling, is set forth below:

 

[¶44.] Though the case did not implicate Rule 60(b), the circuit court, nevertheless, possessed authority to clarify its own judgment. Because the Agreement was ambiguous, the court could properly consider parol evidence, and its factual determination that the parties intended to allow Tara to claim the children as dependents was not clearly erroneous; nor was its related conclusion that the Agreement should have been written to allow Tara to claim the children as dependents. As a result, the court’s determination that Tara did not deliberately violate the court’s order was equally supportable. However, the court did not make the required findings of fact to support its award of attorney fees. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

 

This decision is unanimous (5-0) with opinion authored by Justice Salter.  It should also be noted that the SD Supreme Court declined the opportunity to award Mother appellate attorney fees.

 

STATE v. RICHARD, 2023 S.D. 71: Defendant was found guilty by jury of 2^nd Degree Murder and sentenced to Life without Parole.   The SD Supreme Court affirmed.  This decision is unanimous (5-0) with opinion authored by Justice Salter. 

 

This decision addresses two issues urged on appeal:  1) the trial court’s refusal to grant Defendant’s Motion In Limine seeking to prohibit the state from introducing evidence of his gang affiliation; and 2) the trial court’s refusal to grant a mistrial when it because apparent that the State had not complied with a specific order of the trial court to provide Defendant with all expert reports. 

 

As to issue # 1, the Court held that the trial court’s ruling was within its discretion. 

 

As to issue # 2, the Court stated, “Here, the State complied with its statutory obligations, but it does not appear it complied with the circuit court’s specific discovery order which required it to produce copies of all expert reports.”  The Court next proceeded to hold that the Defendant had failed to establish prejudice as a result of the non-disclosure.

 

These decisions may be accessed at

 

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

SD Supreme Court holds Injured Motorist has actionable claim against DOT

 

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

 

1. Injured motorist has actionable claim against DOT

 

MCGEE v. SPENCER QUARRIES, INC., 2023 S.D. 66:  Plaintiff was injured when he “rolled his pickup while driving on a portion of Highway 45 that was being resurfaced.”  He filed suit against “the contractor responsible for the resurfacing project and against the South Dakota Department of  Transportation (DOT) and several DOT employees.”  This decision pertains only to Plaintiff’s claims against the DOT and its employees.  The trial court denied the DOT’s Motion for Summary Judgment premised, inter alia, on sovereign immunity.  The SD Supreme Court granted an intermediate appeal and, in this decision, the Court affirms the trial court’s holding that Plaintiff may proceed against the DOT and its employees.  The Court holds that a portion of the DOT’s Standards impose a ministerial duty, the breach of a portion of which is actionable.  The Court holds, inter alia, that Plaintiff’s claim is not barred under the law related to 3^rd Party Beneficiaries.  But, this decision also holds that not all of Plaintiff’s assertions relate to ministerial duties.  The case is affirmed in part, reversed in part remanded for further proceedings.

 

The issues in this case have divided the Justices.  Justice DeVaney is the author of most of the Court’s decision.  Chief Justice Jensen is the author of a portion of the Court’s Opinion.

 

For clarity (or perhaps suggesting the lack thereof), I have copied ¶ ¶ 1-4 and ¶ ¶ 53-56 below”

 

[¶1.] Justice DeVaney delivers the majority opinion on Issues 1, 2, and 3(b). Chief Justice Jensen delivers the majority opinion on Issue 3(a).

 

[¶2.] DEVANEY, Justice, writing for the Court on Issues 1, 2, and 3(b).

 

[¶3.] After Austin McGee rolled his pickup while driving on a portion of Highway 45 that was being resurfaced, he brought suit against the contractor responsible for the resurfacing project and against the South Dakota Department of Transportation (DOT) and several DOT employees. Relevant here is his suit against the DOT and its employees. McGee claims that the crash and his injuries resulted from the DOT employees’ negligent failure to inspect and to ensure the contractor’s compliance with the DOT standards governing the project, the requirements of the construction contract, and industry customs and practices. The DOT moved for summary judgment, asserting multiple defenses, including that sovereign immunity bars McGee’s suit. The circuit court denied the motion, and this Court granted the DOT’s petition for intermediate appeal.

 

[¶4.] We affirm the circuit court’s decision rejecting the DOT’s claims that McGee’s suit is barred under the law governing a third-party beneficiary’s standing to seek damages for a breach of contract and that McGee failed to plead an actionable duty. We further affirm the court’s decision denying the DOT’s motion for summary judgment on the question whether the DOT’s Standard Specification 330.3(E) set forth a ministerial duty not protected by sovereign immunity. However, because neither the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (MUTCD) nor a document the parties refer to as “the Hot Mix Handbook” set forth ministerial duties for the actions at issue in this case, we reverse the portion of the court’s denial of summary judgment relating to the precautionary measures McGee alleges the DOT should have taken and remand for further proceedings consistent with this opinion.

 

AND

 

[¶53.] Affirmed in part, reversed in part, and remanded.

 

[¶54.] JENSEN, Chief Justice, and KERN and MYREN, Justices, concur.

 

[¶55.] SALTER, Justice, concurs in part and dissents in part.

 

[¶56.] DEVANEY, Justice, dissents in part.

 

This decision may be accessed at

 

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

Divorce Decree affirmed; trial court's ruling for inmate reversed

 

The SD Supreme Court handed down two decisions this morning:

 

1. Divorce decree affirmed, wife awarded appellate attorney fees

 

2. Trial Court’s ruling for inmate on habeas corpus action reversed;

 

 

Summaries follows:

 

WEBER v. WEBER, 2023 S.D. 64: H and W were older when married (ages 51 & 53) and divorced less than four years later.  W owned substantial assets prior to the marriage.  The trial court treated most of the assets as “marital property,” but nonetheless awarded W a substantially larger share of the assets.  H appeals the division of property and also appeals the trial court’s failure to award him alimony/maintenance.  The SD Supreme Court Affirmed. This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.  The Court also awarded Wife appellate attorney fees of $5,000.

 

ALLY v. YOUNG, 2023 S.D. 65:  Inmate was found guilty by jury of 1^st degree manslaughter and sentenced to 45 years, with 20 suspended.  After his sentence was affirmed, Inmate brought this habeas corpus action, asserting ineffective assistance of counsel.  The trial court agreed with Inmate’s assertions, finding that he was “depriv[ed] of a fair trial.”   The SD Supreme Court reversed.  This decision is 70 paragraphs long.  The concluding paragraph states as follows:

 

[¶70.] Ally was not deprived of his Sixth Amendment right to counsel. While defense counsel’s opening statement included an imprecise remark, not attributable to trial strategy, the mistake did not undermine the adversarial process or deprive Ally of a fair trial. Further, Ally’s defense counsel made a reasonably strategic decision to exclude parts of Ally’s three interviews with Detective Carda. Counsel effectively elicited the same exculpatory evidence, and inferences contained therein, from the hour-long segment of interview footage played for the jury and from Detective Carda’s and Ally’s testimony at trial. In addition, counsel’s decision not to elicit additional testimony from Dr. Ophoven was a strategically reasonable decision. Further, Ally has not shown how failing to ask certain questions that were developed with the benefit of hindsight overcomes the presumption that counsel exercised reasonably professional judgment during trial. Lastly, counsel’s failure to disclose the video shared with Dr. Van Ee prior to cross-examination was a deviation from prevailing professional norms, but it did not result in significant prejudice to Ally. The court did not exclude any favorable evidence as a consequence, the matter was handled outside the presence of the jury, and defense counsel was able to address the State’s limited reference to the matter during Ally’s closing argument. Accordingly, we conclude that Ally did not receive ineffective assistance of counsel at his 2012 trial, and the habeas court’s decision is hereby reversed.

 

This ruling is unanimous (5-0) with opinion authored by Justice Kern. Circuit Judge Smith sat on this case, in lieu of Justice Salter.

 

These decisions may be accessed at

 

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

Four Decisions today by SD Supreme Court

 NOTE:  These 4 decisions are being handed down 3 months or less after the submission of the cases for decision by the Court. One decision is only 22 days after submission. 

 

The SD Supreme Court handed down four decisions this morning:

 

1. Legal malpractice claim fails on basis of “lack of causation”

 

2. Insurer’s pollution exclusion upheld:

 

3. 1^st degree manslaughter verdict/sentence upheld

 

4. Res judicata defeats habeas corpus claims.

 

 

Summaries follows:

 

BARR v. COLE, 2023 S.D. 60: This is an action against 3 attorneys for legal malpractice in connection with a personal injury claim against the State of SD (PEPL fund) in connection with a motor vehicle accident involving a state employee.  The “malpractice” premise was the failure to give timely notice to the State.  The trial court granted summary judgment for the Defendants on the basis that claim against the State would fail because the employee “was not acting within the scope of his employment at the time of the accident.”  The SD Supreme Court affirmed, quoting SD case law, “the plaintiff must essentially prove a ‘case within a case’ by showing ‘that the underlying claim was valid [and] would have resulted in a  favorable judgment had it not been for the attorney’s error[.]” This ruling is unanimous (5-0) with opinion authored by Chief Justice Jensen.

 

STATE FARM v. GRUNEWALDT, 2023 S.D. 61: Auto liability insurer filed suit for a Declaratory Judgment of no coverage, no duty to defend in connection with a claim “alleging the [insureds] delivered wheat contaminated with fertilizer to [tort plaintiff’s] elevator and are therefore liable to [tort plaintiff] for associated damages.”  The trial court granted insurer summary judgment based upon the policy’s “pollution exclusion.”  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice DeVaney.

 

STATE v. PELTIER, 2023 S.D. 62: Defendant was convicted by jury of 1^st degree manslaughter and received a sentence of 40 years, with 20 years suspended.  Assertions on appeal include insufficiency of evidence and an alleged Brady violation in connection with an audio-recorded interview of a witness 1 week prior to trial -- with Defendant claiming a failure to provide the actual audio recording, although a written summary had been provided.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice Jensen.  In regard to the alleged Brady violation, the Court stated that the audio recording had been placed in the State’s Attorney’s  “discovery outbox” and available to Defense Counsel one day after the recording was made.

 

CEPLECHA v. SULLIVAN, 2023 S.D. 63: Inmate serving a life sentence brought habeas corpus action asserting actual innocence and that “his trial counsel rendered ineffective assistance by not assuring [that Defendant] understood his right to assert a self-defense claim.”  The trial court dismissed the habeas action on the basis that the inmate’s “claims [were considered] on direct appeal, which precluded their relitigation under the doctrine of res judicata.” The SD Supreme Court affirmed the dismissal in a unanimous ruling (5-0) with opinion authored by Justice Salter. 

 

These decisions may be accessed at

 

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

 

SD Supreme Court reinstates jury verdict of undue influence

 

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

 

1)    Jury verdict of undue influence reinstated

 

ESTATE OF TANK, 2023 S.D. 59:  This proceeding involves a challenge to a will which named Decedent’s Neighbor as sole heir and personal representative of a “sizeable estate.”  Decedent’s “four children challenged the validity of the will based on a lack of testamentary capacity, insane delusions, and undue influence.”  The trial court had previously granted summary judgment for Neighbor, but this was reversed by the SD Supreme Court in In re Estate of Tank, 2020 S.D. 2, 938 N.W.2d 449.  On remand, a jury rendered its verdict against the Neighbor on the ground of undue influence. The trial court granted Neighbor’s “motion for judgment as a matter of law and, in the alternative, a motion for a new trial.”  In this appeal, the SD Supreme Court reversed, reinstated the Jury Verdict and remanded for further proceedings.  This ruling is unanimous (5-0), with opinion authored by Justice Kern.  Circuit Judge Knoff sat on this case, in lieu of Justice Myren.  NOTE: this decision is lengthy, 31 pages, and addresses many issues. 

 

This decision may be accessed at

 

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

 

 

Landowner must endure dimunition in "right to access"

 

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

 

1. Landowner Must Endure diminution in “right to access”

 

S.D. DEP’T OF TRANSPORTATION v. LEGACY LAND CO., 2023 S.D. 58:  South Dakota Department of Transportation (DOT) constructed a median on a roadway adjoining Plaintiff’s property in Rapid City.  The result of the construction impacted access to the property as follows, “Vehicles could no longer make a left turn directly into the [Plaintiff’s] property, and those leaving the [Plaintiff’s] property could only turn right onto the highway.” (from ¶1).  Plaintiff filed suit, asserting that there had been a “taking” and requested just compensation.  DOT argued that because Plaintiff still had “access” to the property, the “right to access” had not been “substantially impaired.” (the “substantially impaired” requirement has been established by existing case law in SD).  The trial court granted summary judgment to the DOT.  The SD Supreme Court affirmed, in a 4-1 ruling.  The majority opinion is authored by Justice Salter.  Justice Kern dissented, stating:

 

[¶57.] Other nearby properties are located next to median breaks that allow traffic to enter and exit in both directions. [Plaintiff] is uniquely affected because of its intended commercial use of the property. Although drivers of eastbound small cars may be able to reach the property through a U-turn, the record, viewed most favorably to [Plaintiff], demonstrates that regular access by large vehicles is likely not possible. [Plaintiff] thus experiences a unique injury to its property.

 

This decision may be accessed at

 

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

Two new decisions by SD Supreme Court today

 

The SD Supreme Court handed down two decisions this morning:

 

1. Statute of limitations longer for independent contractor than for employee;

 

2. Open meetings litigation in regard to School District;

 

 

Summaries follows:

 

PAUL v. BATHURST, 2023 S.D. 56: Plaintiff filed suit for work done for Defendants in connection with a Custer County ranch.  Plaintiff’s suit alleged “breach of contract, quantum meruit, unjust enrichment, and promissory estoppel.”  The trial court dismissed the action, applying the 4 year statute of limitations found in SDCL 15-2-15(4) which relates to wages paid to an employee.  The SD Supreme Court reversed, holding that the trail court should more fully explore “the contractual relationship between the parties,” recognizing that if the Plaintiff was an “independent contractor,” then the 6 year statute of limitations found in SDCL 15-2-13(1) is applicable.  The Court also recognized that even for an employee, Plaintiff’s claims for reimbursement for expenses would be viable under the 6 year statute.

 

SD CITIZENS FOR LIBERTY, INC. ET AL. v. RAPID CITY AREA SCHOOL DISTRICT 51-4, 2023 S.D. 57: This is an action asserting that the Rapid City Area School District was acting in violation of the South Dakota’s open meetings law.  One issue involves the phrase “regularly scheduled official meeting” as used in SDCL 1-25-1.  The Court noted that this language was amended by the 2023 legislature in a manner that directly affects the issue raised.  Nonetheless, the Court restrained itself from addressing an issue that is now “moot,” simultaneously vacating the trial court’s ruling on this issue.  There is another issue involving the reviewability of a determination made by the State’s Attorney as to lack of merit for an open meetings complaint.  Both the trial court and the SD Supreme Court held that such a determination is not reviewable.  For those seeking more information on this decision, I am reproducing the 1^st and last paragraphs of the opinion here:

 

[¶1.] An organized citizens group, along with several individuals, commenced an action against Rapid City Area School District 51-4 (RCAS) seeking a declaration that RCAS was acting contrary to South Dakota’s open meeting law by not allowing public comment at some of its board meetings. After a hearing on the parties’ cross-motions for summary judgment, the circuit court ruled in favor of RCAS and denied the group’s summary judgment motion. The court also determined that it could not review a determination made by a state’s attorney concerning an alleged violation of a separate open meeting statute. We vacate the portion of the court’s decision concerning public comment and affirm the court’s decision to not review the state’s attorney’s determination.

 

[¶45.] We hold that the issue regarding the interpretation of “regularly scheduled official meeting” as used in SDCL 1-25-1 is moot and, therefore, nonjusticiable. Accordingly, we vacate the circuit court’s decision interpreting the statute. We also determine that SDCL chapter 1-25 does not confer jurisdiction upon circuit courts to review the actions of a state’s attorney taken under SDCL 1-25-6. Thus, we affirm the circuit court’s decision to not review the State’s Attorney’s determination.

 

The Court’s ruling is unanimous (5-0), with opinion authored by Justice Salter. Retired Justice Wilbur sat on this case, in lieu of Justice Kern.

 

These decisions may be accessed at

 

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

Tax Deed upheld by 3/2 vote

 

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

 

1. Tax deed upheld by 3/2 vote

 

BIALOTA v. LAKOTA LAKES, LLC, 2023 S.D. 55:  Plaintiff filed this quiet title action for the purpose of eliminating the interest of a Prior Owner as a result of her purchase at a tax sale, offered for sale as a result of failure to pay taxes in Pennington County.  Prior Owner is a Minnesota Limited Liability Company.  Various efforts (by the County and by Plaintiff) to serve the Prior Owner with notice failed.  Ultimately, Plaintiff proceeded by serving the Minnesota Secretary of State as agent for the Prior Owner.  In this action, the trial court granted summary judgment for the Prior Owner, holding that Prior Owner had not been properly served with “notice of intent to take tax deed.”  The SD Supreme Court reversed, upholding title in Plaintiff as purchaser at the tax sale.  The Court’s decision is 3/2, with majority opinion authored by Chief Justice Jensen.  Justice Kern filed a dissenting opinion, in which Justice DeVaney concurs. 

The dissent’s view is that the tax deed is void on the basis that Plaintiff did “not establish that she personally served the Notice on the Minnesota Secretary of State as required by SDCL 10-25-5.”

The majority opinion upholds service by mail to the Minnesota Secretary of State, stating in note 4, “SDCL 15-6-4(d) does not define the method of delivery required to accomplish service. In fact, the service rules contemplate that delivery may take place by mail when there is an acceptance of service. See SDCL 15-6-4(j).”

 

This decision may be accessed at

 

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

Inmate denied appellate review of habeas dismissal

 

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

 

1. Inmate denied possibility of review in case where habeas counsel failed to seek certificate of probable cause for appeal of trial court’s dismissal

 

LEE v. WEBER, 2023 S.D. 54:  This is an action for habeas relief filed by a prisoner who was sentenced to life for 2^nd degree murder in 1998.  This is actually the prisoner’s 2^nd habeas action and it includes the assertion that his attorney in his 1^st habeas action was ineffective for failure to seek a certificate of probable cause for an appeal.  This 2^nd action was filed in 2007, but languished on the docket until 2018 at which time the trial court issued an order to show cause for dismissal for failure to prosecute.  State moved to dismiss the action on the basis that prisoner did not have a right to appeal the dismissal of his 1^st habeas action and because notice had not been timely served on the State, arguing that the 30 day time limit of 21-27-18.1 is absolute.  The trial court denied the State’s Motions to Dismiss. This is an interlocutory appeal by the State.

In this decision, the State prevails.  But, this decision generates 3 separate opinions.  The Court’s opinion is authored by Justice Myren and agreed to by Chief Justice Jensen.  Justice Salter filed a separate concurring opinion.  Justice DeVaney filed a separate concurring opinion, with which Justice Kern agrees.  The issue that divides the Justices appears to be the applicability (or continued stare decisis effect) of Jackson v. Weber, 2001 S.D. 30 and the possibility of relief for prisoner (in this situation) under Rule 60(b) (civil for collateral attacks of civil judgments, SDLC 15-6-60(b)). 

 

This decision may be accessed at

 

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

 

 

 

40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

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

 

1. 40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

STATE v. BLACK CLOUD, 2023 S.D. 53: Defendant, who was 14 years old at the time of the offense, was tried as an adult and found guilty of 2^nd degree murder by jury. The trial court sentenced Defendant to 40 years in prison.  Defendant’s 16 year old companion Johnson -- who was present during the events related to the killing, but who did not pull the trigger --  was tried as an adult.  Johnson “pled guilty to aggravated assault and accessory to [the] crime,” and received a 20 year sentence.  The SD Supreme Court affirmed, ruling against Defendant on each of the following assertions of error:

 

1. Whether the circuit court abused its discretion in denying Black Cloud’s motion for a mistrial following the voir dire discussion regarding Black Cloud being tried in adult court.

2. Whether comments to the jury regarding Johnson’s guilty plea constituted plain error.

3. Whether the circuit court abused its discretion when it refused to instruct the jury to disregard Johnson’s guilty plea.

4. Whether the circuit court erred in excluding evidence that [the victim] was on parole at the time of his death.

5. Whether the circuit court abused its discretion by imposing a 40-year sentence or erred by imposing a sentence in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

 

The Court’s decision is unanimous (5-0), with opinion authored by Justice Salter.

 

Although the State had made some inappropriate comments in voir dire relating to the fact the Defendant was being “tried as an adult,” the trial court directed the State’s Attorney to provide an explanation which “clarified” the inappropriate comments.

 

As to the propriety of transfer from Juvenile Court to Circuit Court, the SD Supreme Court held that the transfer “issue is not properly before us.” (footnote 10).

 

This decision may be accessed at

 

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

Deadwood Dispute

 

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

 

1)    Deadwood Hotel/Casino Sale Dispute laid to rest

 

BROCKLEY v. ELLIS, ET AL., 2023 S.D. 52:  Protracted litigation in regard to the sale of a hotel/casino in Deadwood.  The events giving rise to litigation are not susceptible to a succinct summary.  The opening paragraph of the opinion describes the resolution of the dispute at the trial level and on appeal, as follows:

[¶1.] The circuit court entered two orders in which it denied requests from Mark and Annesse Brockley (the Brockleys) to hold Michael Trucano (Trucano), the Michael J. Trucano Living Trust (Trucano Trust), and Hickoks Hotel & Suites, LLC (Hickoks) in contempt. The Brockleys filed a timely appeal. We affirm.

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 .

 

 

3 reversals (civil cases); 1 affirmance (criminal case)

 

The SD Supreme Court handed down four decisions this morning:

 

1. Mechanic’s lien enforced;

 

2. Option agreement upheld:

 

3. Attempted modification of variance rejected; and

 

4. LWOP sentence upheld.

 

 

Summaries follows:

 

SMITH MASONRY v. WIPI GROUP, USA, INC., 2023 S.D. 48:  This is an action for a mechanic’s lien foreclosure and attorney fees.  A counterclaim was filed. Following a 6-day bench trial, the trial court denied relief to both plaintiff and defendant invoking “principles of equity” to support its ruling.  The trial court also ordered each side bear its own attorney fee obligation.  The SD Supreme Court reversed and remanded, ordering the “[trial] court to enter a judgment of foreclosure in favor of Smith Masonry on its mechanic’s lien.” The Court also ordered the trial court to reconsider Plaintiff’s request for attorney fees.  This decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

PARMELY TRUST v. MAGNESS, 2023 S.D. 49: This dispute, as well as its resolution at the trial level and on appeal, is summarize in the opening paragraph as follows:

 

[¶1.] The Genevieve J. Parmely Revocable Trust sought a declaratory judgment asking the court to determine that an option agreement made with Brad Magness was invalid because of the absence of consideration. The parties filed cross-motions for summary judgment regarding the existence of consideration. The circuit court granted summary judgment in favor of the Trust. Magness appeals. We reverse and remand with direction to enter summary judgment on that issue in favor of Magness.

 

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

 

GONSOR v. DAY COUNTY, 2023 S.D. 50: Landowners were granted a variance from zoning requirement (for grading rocks and setbacks) as to their property.  This decision was “filed” on or before December 15, 2015.  Neighbors requested a reconsideration on January 14, 2016.  On March 29, 2016, Zoning Board “modified” the variance by imposing an additional requirement.  Landowners then sought a building permit 4 years later and were denied because on non-compliance with the “modification” which was subsequently imposed.  Landowners sued County Commission and Board for Declaratory Judgment. Both the County Commission and the trial court ruled against the landowners, due to non-compliance with the “modification.” The SD Supreme Court reversed and remanded.   Applying SDCL 11-2-61, the Court stated:

 

[¶13.] As noted in Jundt, the “right to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by appeal or until a reasonable time has run, which would at least be co-extensive with the time required by statute for review.” 2007 S.D. 62, ¶ 7, 736 N.W.2d at 512 (quoting Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. Ct. App. 1985)). Consequently, any authority the Board of Adjustment had to reconsider its November 2015 decision ceased to exist when that decision became final on January 14, 2016. The filing of a request for reconsideration did not extend the time to appeal, and the Board of Adjustment did not reconsider the variance before the appeal time expired. Consequently, the Board of Adjustment no longer had the authority to reconsider the variance when it did so on March 29, 2016.

 

This decision is unanimous, with opinion authored by Justice Myren.

 

STATE v. CAFFEE, 2023 S.D. 51: Upon a guilty plea to 1^st degree manslaughter, Defendant was sentenced to life without parole.  The SD Supreme Court rejected Defendant’s appeal predicated upon cruel and unusual punishment and abuse of discretion.  The underlying facts, as set forth in the opinion are as follows:

 

[¶1.] On October 24, 2021, while a no-contact order was in place, Mitch Caffee (Caffee), armed with a pistol, forced his way into the home where his wife, Katie Caffee (Katie), was staying with her ninety-year-old grandmother, Lorraine Redmann. Caffee had posted bond following a prior violation of the no-contact order just four days before. Once inside Redmann’s home, he struck Katie and pushed her down onto a couch. When Redmann came out of her bedroom and tried to call 911, Caffee fatally shot her in the face. With Redmann lying dead on the floor, Caffee proceeded to hold Katie hostage in the home for hours while he contemplated his next steps. Caffee eventually surrendered and was arrested and charged with multiple offenses including first-degree murder.

 

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

 

These decisions may be accessed at

 

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

Appeals by Juveniles sentenced to prison dismissed

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

 

1)    Appeals by Juveniles sentenced to prison dismissed

 

INTEREST OF S.A. and INTEREST OF E.B., 2023 S.D. 47:  In separate cases, now consolidated on appeal, Juveniles seek to appeal determinations of “juvenile delinquency” and orders of commitment to the Department of Corrections.  Both appeals are dismissed because “the juveniles failed to properly serve the notices of appeal on their respondent parents.”  This decision is unanimous (5-0) with opinion designated as per curiam. 

This decision may be accessed at

 

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