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 .
