Four New Decisions today by the SD Supreme Court

 

The SD Supreme Court handed down four decisions this morning, holding, inter alia:

 

1)    Sale of Accounting practice ligitation;

 

2)   Treatment of alimony in child support determination;

 

3)   Bail Bond Surety is “off the hook” when Defendant appears in court;

 

4)   City of Custer prevails;

 

Summaries follows:

 

FDJ, LLC v. DETERMAN, 2024 S.D. 42:  This dispute involves the sale of an accounting practice.  The agreement for sale involved a covenant not to compete.  Buyers (corporation) sued alleging that Seller breached the covenant not to compete.  Seller counterclaimed for $$ damages alleging breach of agreement to make payment.  Trial was to the court.  The trial court found for Seller, finding that Buyer was in breach and that Seller was relieved of his obligation not to compete.  The trial court also awarded Seller damages of $106,972.36, ordering holding that the principals of the corporate entity (Buyer) were jointly and severally liable. The SD Supreme Court affirmed the result, except for the trial court’s ruling that the principals were personally liable.  The Court stated:

[¶28.] Under the terms of the Purchase Agreement, the LLC was responsible for paying Determan. Nothing in the Purchase Agreement or the findings and conclusions of the circuit court shifts that responsibility to Flugge or Julius in their individual capacities. Determan did not allege facts that would support disregarding the corporate entity, and the circuit court failed to delineate any such facts.

 

[¶29.] We affirm judgment in favor of Determan but reverse the circuit court’s imposition of joint and several liability against Flugge and Julius.

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

 

CONDRON v. CONDRON, 2024 S.D. 43: At the time of the Divorce, H was ordered to pay W child support of $3,218 per month. H was also ordered to pay W  “a combination of permanent and rehabilitative alimony” as follows, “in the amount of $15,000 per month for four years (48 months); and thereafter [Steven] shall pay [Jennifer] permanent alimony in the amount of $11,000 per month until [Jennifer’s] death or remarriage or [Steven’s] death.”  Subsequently, H sought to modify child support.  The issue presented for resolution is how to treat the alimony payment.  The trial court (adopting the referee’s decision) did not include the alimony payment in W’s income and did not subtract the alimony payment from H’s income.  The SD Supreme Court reversed and remanded, stating:

[¶25.] The circuit court’s determination that the payments were a form of property division instead of alimony and its failure to deduct these payments from Steven’s income and include them in Jennifer’s income when calculating child support was a legal error. We reverse and remand for the circuit court to recalculate child support consistent with this opinion.

The Court’s decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.  H did not request appellate attorney fees.  W’s request for appellate attorney fees in the amount of  $6,087.56 and costs was denied because she lost the appeal. 

 

STATE v. DAKOTA BAIL BONDS, 2024 S.D. 44: These cases present the interesting question of whether a bail bond surety is obligated to pay $$ when the criminal defendant actually “appears” in court as required but also violates the conditions of the bail bond. The trial court found the bail bond surety liable.  The SD Supreme Court reverse, holding:

[¶9.] DBB’s surety agreement was a contract with the court to pay the specified dollar amount should the defendants fail to appear. Although the defendants violated other conditions of their release, neither of the defendants failed to appear in court. Instead, the defendants’ violations were all related to conditions of release that were not guaranteed by DBB’s surety. In the absence of a failure to appear, there was no violation of the sole condition DBB guaranteed. Therefore, under SDCL 23A-43-22, the circuit court should have directed that the forfeiture of DBB’s appearance bond be set aside. Consequently, the circuit court erred when it instead entered a judgment of default against DBB.

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

 

PRESERVE FRENCH CREEK v. CUSTER COUNTY, 2024 S.D. 45: This dispute involves the City of Custer’s discharge of wastewater into French Creek. The background and resolution of the current litigation is described in the opening paragraph of the opinion as follows:

[¶1.] The City of Custer made application to the South Dakota Department of Agriculture and Natural Resources (DANR) for a permit authorizing the City to discharge wastewater into French Creek as a part of an upgrade of its wastewater treatment facility (Facility). Preserve French Creek, Inc. (Preserve) was formed by a group of citizens from Custer County, South Dakota, who objected to the discharge of wastewater into French Creek. Two years after issuance of the DANR permit, a Custer County ordinance was passed by citizen initiative, declaring the discharge of treated water into French Creek to be a nuisance. Preserve demanded that,pursuant to the newly enacted ordinance, the City cease construction of the Facility. When the City did not respond, Preserve petitioned for mandamus relief, which the circuit court denied. French Creek appeals. We affirm.

The Court’s decision 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 .

 

 

Habeas Relief Denied

 

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

 

1)    Habeas Relief denied

 

 

Summary follows:

 

FOOTE v. YOUNG, 2024 S.D. 41:  Inmate, serving time for two convictions of aggravated assault on a law enforcement officer with a deadly weapon, brought this habeas action asserting double jeopardy, cruel & unusual punishment, and ineffective assistance of counsel.  The trial court denied relief but issued a certificate of probably cause for appeal based only on the issue of ineffective assistance of counsel.  The SD Supreme Court affirmed the lower court.  This opinion reviews and rejects three specific assertions of ineffectiveness of counsel (1,  failure to object to the State’s disclosure of its experts, 2, failure to challenge the  state’s experts’ qualifications and 3, failure to engage an expert to rebut  the testimony taser experts produced by the state).  This ruling is a 4-1 decision, with all 5 members of the Court voting to affirm.  Justice Salter authored the Court’s opinion.  Justice Myren filed a separate concurring opinion.  Circuit Judge Fitzgerald sat on this case, in lieu of Justice DeVaney.   

NOTE: This case was submitted on the briefs to the Court just 6 weeks ago, on June 6. 

 

FURTHER NOTE: Inmate’s trial counsel, whose effectiveness was upheld, was our deceased colleague and friend Brad Schreiber. 

 

This decision may be accessed at

 

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

child support, damage to Ponderosa Pine Trees, Child Porn convictions upheld

 The SD Supreme Court handed three decisions this morning:

 

1)    Child support award reviewed;

 

2)   Split decision (3-2) on damages in case involving Ponderosa Pine trees;

 

3)   Child porn convictions upheld in 3-1-1 decision.

 

Summaries follows:

 

BURKARD v. BURKARD, 2024 S.D. 38: This case involves the child support determination for children in a joint custody situation. The Referee devised a plan to provide an equitable award.  And, the Referee testified in Circuit Court as to his methodology.  The SD Supreme Court reversed and remanded, holding:

(1) it was error, but harmless error, for the trial court to consider the Referee’s testimony;

(2) the trial court’s adoption of the methodology was acceptable, with the Court stating,

[¶30.] [O]ur role on appeal is not to create a specific child support formula to fill the statutory gap discussed above. That is for the Legislature. Here, the child support statutes do not address the factual scenario presented and the circuit court had discretion to equitably determine an amount of child support that reflects, as closely as possible, the overarching Legislative intent behind our statutory scheme.

(3) Remand is necessary “due the discrepancies in the parties’ stated income and health insurance amounts.”

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

 

 

 

ESTATE OF OLSEN v. AGTEGRA CO., ET AL, 2024 S.D. 39: This is an action for damages to Ponderosa Pine Trees allegedly caused by herbicide intended for a neighboring field.  The trial court granted summary judgment for the Defendants.  The SD Supreme Court reversed and remanded, holding:

[¶32.] Accordingly, the circuit court erred in granting summary judgment on the Olsens’ trespass, statutory nuisance, and common law nuisance claims. However, because the Olsens have failed to present evidence as to causation for the claimed damages, any compensatory damages under these theories may be limited to nominal damages. See Hoffman v. Bob Law, Inc., 2016 S.D. 94, ¶ 20, 888 N.W.2d 569, 577 (holding in a claim for trespass arising from an adjoining landowner’s encroachment that an award of nominal damages was not erroneous when a party failed to introduce credible evidence of damages).

[¶33.] We affirm the circuit court’s grant of the motion for summary judgment on the question of damages to the Olsens’ trees. We also affirm the circuit court’s grant of the motion for summary judgment on the claims of promissory estoppel and civil conspiracy. We reverse the circuit court’s entry of summary judgment on the claims of trespass, statutory nuisance, and common law nuisance and remand for further proceedings consistent with this opinion.

The Court’s 3-Justice majority opinion is authored by Chief Justice Jensen.

Justice Kern provided a dissenting opinion which states, “I concur only in the majority opinion’s determination that the circuit court erred in granting summary judgment on the Olsens’ claims for trespass, statutory nuisance, and common law nuisance. The majority opinion thereafter wrongly asserts that any compensatory damages for these claims are limited to an award of nominal damages.”  Justice DeVaney concurs with Justice Kern’s dissenting view.

 

STATE v. O'NEAL, 2024 S.D. 40: Defendant was convicted, by jury, of 15 counts of possession of child porn.  The SD Supreme Court affirmed, rejecting each of the following assertions of error made by Defendant on appeal:

1. Whether the circuit court erred by denying O’Neal’s motions to suppress.

2. Whether the circuit court erred when it denied O’Neal’s motion to dismiss.

3. Whether the circuit court abused its discretion when it admitted images corresponding to hash values that had not been previously identified by the State.

4. Whether the evidence was sufficient to sustain the jury’s verdict.

5. Whether the indictment was duplicitous and violated O’Neal’s right to jury unanimity.

The Court’s decision is 3-1-1 with the majority opinion authored by Justice DeVaney.  Justice Salter and Justice Myren filed separate concurring opinions.

 

 

These decisions may be accessed at

 

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