The SD Supreme Court handed three decisions this morning:
1) Appeal dismissed for failure to serve Notice of Appeal;
2) Request for Change of Judge improperly denied;
3) 5 year prison sentence upheld
Summaries follows:
DITTUS v. BLACK HILLS CARE & REHAB AND AVANTARA, 2024 S.D.
80: Appellant’s effort to appeal results in a dismissal because of failure to properly
serve a Notice of Appeal. The result in
the trial court is described in the opening paragraph as follows:
[¶1.] In a
lawsuit claiming a wrongful termination, Krista Dittus appeals from an order
striking her response to a motion for summary judgment, and from an order granting summary judgment in favor
of RC North SD Skilled Nursing Facility,
LLC d/b/a Avantara North (Avantara).
The problem with Appellant’s effort to appeal is described as
follows:
[¶5.]
Thereafter, Avantara filed a motion to dismiss the appeal for lack of appellate
jurisdiction based on Dittus’s failure to serve the notice of appeal as
required by SDCL 15-26A-4. In support of the motion, Avantara included in its
attached documents an email from a Unified Judicial System (UJS) employee who
confirmed the notice of appeal had only been “EFiled” but not served through
the Odyssey system.
The SD Supreme Court agreed with Appellee’s argument and dismissed
the appeal, holding:
[¶11.]
Dittus does not dispute that the notice of appeal was not served on Avantara’s
counsel. In both her response to the motion to dismiss the appeal and her
initial appellate brief, Dittus states, without further explanation, that the
omission “was an inadvertent error.” Moreover, the fact the notice of appeal
was only electronically filed, but not served, was readily apparent in the
Odyssey confirmation email sent to Dittus’s counsel on October 13. Under SDCL
16-21A-7(2), “[e]lectronic service is not effective if the party making service
learns that the attempted service did not reach the person to be served.”
Because service of the notice of appeal is jurisdictional, we lack appellate
jurisdiction. Therefore, we dismiss this appeal.
This ruling is unanimous (5-0), with opinion by Justice
DeVaney.
ESTATE OF PAUL O’FARRELL v. GRAND VALLEY HUTTERIAN BRETHREN,
2024 S.D. 81: Judge Spears, having denied a request for change of judge, ruled
for Defendants and awarded attorney fees.
This decision vacates all orders entered by Circuit Judge Spears and
reverses the Circuit’s Presiding Judge’s Decision to Deny the Affidavit for the
purpose of disqualifying Judge Spears. The
case is “remand[ed] for the appointment of a
replacement judge.” This ruling is a 3-1-1 decision. The Court’s
opinion is authored by Justice Myren. Justice Salter dissents. Chief Justice Jensen
concurs in part and dissents in part.
STATE v. BELT, 2024 S.D. 82: The lower court’s 5 year prison
sentence is affirmed in this decision.
The situation is adequately described in the opening paragraph as
follows:
[¶1.]
Following a jury trial, William Belt was convicted of sexual contact with a person
incapable of consenting. In this appeal, he challenges the circuit court’s
decision to allow expert testimony concerning the presence of inconclusive male
DNA found in samples taken from the victim. He also challenges the court’s jury
instruction that referenced the “interests of society” and the court’s decision
to deny his motion for judgment of acquittal. We affirm.
This ruling is unanimous (5-0) with opinion authored by
Justice Salter.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
