Theft by Exploitation

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Multiple Convictions of “theft by exploitation” upheld. Summary follows: STATE v. CLEMENSEN, 2025 S.D. 68: Defendant was found guilty, by jury, of 7 Counts of theft/fraud related charges (“theft by exploitation”) in regard to the misappropriation of more than $500,000 from his mother. Upon receipt of an inquiry initiated by a grandson of the victim, the South Dakota DCI conducted an intensive investigation and caused these charges to be filed. Following the jury convictions, the trial court imposed “fully suspended” prison sentences (of unspecified lengths) and placed Defendant on probation. This appeal follows, with Defendant asserting, “the State failed to present sufficient evidence to prove the elements of the crimes charged… [and that] the circuit court failed to properly instruct the jury regarding his good faith defense.” The SD Supreme Court affirmed in a unanimous (5-0) decision, with opinion authored by Justice DeVaney. This opinion runs 26 pages. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Two New Decisions today by SD Supreme Court

The SD Supreme Court handed down two decisions this morning: 1) Award of attorney fees to landowner in condemnation proceeding upheld; 2) H loses appeal on property division ruling and ordered to pay W attorney fees; Summaries follow: CITY OF SIOUX FALLS v. JOHNSON PROPERTIES, 2025 S.D. 66: This is a condemnation proceeding initiated by the City of Sioux Falls. Jury awarded landowner “just compensation of $382,600.” Thereafter, the Trial Judge awarded landowner “reasonable attorney fees of $139,724.60.” City appeals the attorney fee award. The SD Supreme Court affirmed. This is a unanimous (5-0) decision, with opinion authored by Chief Justice Jensen. [NOTE, although I don’t normally keep track and report the identity of the trial judge, I see that Hon. Jeffrey C. Clapper (a former student) was the trial judge here. I am not sure I have seen his name “on appeal” before. But maybe – my memory isn’t as good as it used to be.] KING v. KING, 2025 S.D. 67: In this divorce action the trial court treated H’s “pending lawsuit against his former business partners as a marital asset,” awarding it to H at a value of $350,000. H appeals this aspect of the divorce judgment. The SD Supreme Court affirmed in a unanimous (5-0) decision, with opinion by Justice Salter. The Court also awarded W appellate attorney fees of $7,812.50. [NOTE: The resolution of this appeal rested easily upon the fact that SD is an “all property” state, per SDCL 25-4-44.] These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

4 new SD Supreme Court Decisions, Nov 13, 2025

The SD Supreme Court handed down four (4) decisions this morning: 1) Attorney Disciplined; 2) Rule 60(b) entitles relief from summary judgment; 3) Dispute relating to construction of research facility in Brookings; 4) H given relief as to omitted assets in divorce proceeding. Summaries follow: DISCIPLINE OF VOLESKY, 2025 S.D. 62: This is an attorney disciplinary proceeding. Footnote 1 of the Opinion points out that this attorney’s “conduct included commencing a lawsuit against the members of this Court and alleging the Court had fabricated evidence.” Proceedings before this opinion and the result of this decision are described in ¶¶ 1, 64 & 65, set forth here: [¶1.] The Disciplinary Board of the State Bar of South Dakota initiated formal disciplinary proceedings against Attorney Tucker Volesky after concluding that his conduct in handling several lawsuits and the management of his law firm trust account violated the South Dakota Rules of Professional Conduct (Rules). The Board recommended a 30-day suspension of Volesky’s license to practice law. Volesky denied the allegations and this Court appointed retired circuit court Judge Craig Pfeifle (Referee) to conduct an evidentiary hearing. The Referee also determined that Volesky violated the Rules and recommended this Court suspend Volesky’s license to practice law for 30 days and that he be placed on a probationary term of no less than six months. After considering the record and the recommendations of the Board and the Referee, we conclude Volesky violated the Rules and impose discipline. * * * [¶64.] Finally, after weighing the serious and intentional conduct by Volesky, the recommendations of the Board, the Referee, and the entirety of the record, we conclude that the considerations of maintaining the integrity of the profession and deterring similar conduct by other lawyers require a significant suspension. The Court hereby suspends Volesky’s license to practice law in South Dakota for a period of 90 days, with a probationary period of two years upon reinstatement. The suspension shall commence on the date of entry of the order of suspension, which shall follow this opinion. [¶65.] During the probationary period, Volesky must meet quarterly with a mentor attorney, approved by the Board, who is able to provide general guidance and assistance to Volesky. Volesky must provide his mentor attorney with copies of any civil complaints filed in state and federal courts; provide a quarterly update to the mentor on the progress of such civil litigation; comply with any other conditions required by the Board; and provide the Board with access to his trust account records as requested. Pursuant to SDCL 16-19-70.4, Volesky shall reimburse the State Bar of South Dakota for all costs and expenses related to these proceedings and must pay the sanction issued against him by Judge Smith, both of which shall be paid prior to his reinstatement to practice law in South Dakota. This ruling is a 4-1 decision, with opinion authored by Chief Justice Jensen. Justice Salter disagrees and would enter an order of disbarment, stating, “the stark question of whether an unrepentant lawyer who is willing to make a baseless allegation that a court is corrupt in order to obtain a litigation advantage should have a license to practice law. The answer, in my view, is no, and I don’t think it’s a close call.” COYLE v. MCFARLAND, 2025 S.D. 63: This is a dispute between neighboring landowners in Butte County. The trial court granted a summary judgment for Plaintiffs early in the proceeding, denying Defendant’s motion for continuance. New Counsel took over and sought relief under Rule 60(b). Trial Judge denied relief. The SD Supreme Court reversed and remanded, holding: [¶51.] The relevant factors related to requests for a continuance supported a finding that excusable neglect existed under the circumstances here. We conclude that the circuit court abused its discretion by not giving due consideration to the fact that the litigation was in its infancy and no discovery had occurred, the [Defendants’ meritorious request for Rule 56(f) relief, the nature of their counsel’s personal circumstances, and the lack of actual prejudice to the [Plaintiffs]. We therefore reverse and remand for further proceedings consistent with this opinion. This is a 4-1 decision, with opinion authored by Justice DeVaney. Justice Myren dissented, stating that he believed the trial judge did not abuse its discretion. RTI, LLC v. PRO ENGINEERING, ET AL., 2025 S.D. 64: This is an action initiated by an owner/contractor who “sought to build a clinical research facility (the Facility) in Brookings, South Dakota.” The construction did not go well and Plaintiffs seek relief against an architect and contractors. The trial court granted summary judgment to all Defendants on all claims, holding that that Plaintiffs would be unable to produce adequate expert testimony necessary to make a submissible case. The SD Supreme Court reversed in part and remanded. The final five ¶¶s of the Opinion explain the result on appeal: [¶76.] The systems at issue in this case involve specialized equipment, processes, parts, and services. Expert testimony is, therefore, required for RTI to sustain its claims against designArc, Pro Engineering, and FM, and Nevins lacks the expertise required to provide such testimony. Accordingly, as to those defendants, the circuit court properly granted summary judgment. [¶77.] However, [Plaintiff] has alleged facts that if proven, support its causes of action for breach of contract and breach of implied warranties against Trane. [Plaintiff] has also alleged that Ekern is vicariously liable for Trane’s defective work—a claim that the circuit court failed to address. The circuit court, therefore, erred in granting Trane’s and Ekern’s motions for summary judgment. [¶78.] Finally, the negligence claim that [Plaintiff] sought to assert against Trane, and the vicarious liability claim against Ekern are not futile. And Trane and Ekern have not shown that they would be prejudiced by the proposed amendments. Accordingly, the circuit court erred in denying [Plaintiff’s] motion to amend the complaint. [¶79.] To summarize, we affirm the court’s order granting summary judgment to designArc, Pro Engineering, and FM. We reverse the circuit court’s order granting Trane’s and Ekern’s motions for summary judgment and the circuit court’s denial of [Plaintiff’s] motion to amend its complaint. The matter is remanded for further proceedings consistent with this opinion. [¶80.] Affirmed in part and reversed in part. This decision is unanimous (5-0) with opinion authored by Justice Kern. TRUMBLE v. TRUMBLE, 2025 S.D. 65: In this divorce case, the parties’ Canadian real estate had burned down. W represented that this was the sole policy of insurance and that it was in the amount of $2 million Canadian. The parties agree W should be given all of it. After the divorce, H discovered that W actually received $4 million, not $2 million and sought relief under Rule 60(b)(3) (fraudulent concealment). The trial court granted relief, ordering “that the undisclosed proceeds be split evenly between the parties.” The SD Supreme Court affirmed and also awarded H appellate attorney fees of “$6,253.66, plus printing costs in the amount of $37.17.” This decision is unanimous with opinion authored by Justice Kern. [NOTE: there is also an issue, not summarized here, related to the disposition of the proceeds pending the appeal.] These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Four Decisions by SD Supreme Court today

The SD Supreme Court handed down four decisions this morning: 1) Sexual Contact Offenses affirmed; 2) Ex-Wife prevails in claim of lack of jurisdiction; 3) UIM claim, with significant awards of additional damages upheld; 4) Hyde County Criminal Proceeding upheld. Summaries follow: STATE v. RICHTER, 2025 S.D. 58: Defendant was convicted, by jury, of “three counts of sexual contact with a person incapable of consenting, a developmentally disabled adult.” The SD Supreme Court affirmed. This decision is unanimous (5-0), with opinion authored by Justice Myren. ESTATE OF CUNNINGHAM, 2025 S.D. 59: This is a dispute over H’s IRA account. Ex-W had been named as beneficiary, but Ex-W relinquished claim to it in settlement in Tennessee Divorce proceeding. H moved to South Dakota and died without changing the beneficiary designation. At the request of H’s Personal Representative (H’s daughter), trial court asserted jurisdiction and ruled against Ex-W. Recognizing that Ex-W had properly preserved the issue (failure of personal jurisdiction), the SD Supreme Court vacated the trial court’s ruling, with instructions that Ex-W’s Motion to Dismiss for lack of Jurisdiction should be granted. The Court stated, “exercising jurisdiction over [Ex-W] —whether viewed as in rem or personal jurisdiction—would not comport with the ‘traditional notions of fair play and substantial justice.’” This decision is unanimous (5-0), with opinion authored by Justice Salter. FIECHTNER v. AMERICAN WEST INS., 2025 S.D. 60: This is a suit for UIM benefits, bad faith and related damages. The jury and trial court awarded Plaintiff damages as follows: [¶26.] The jury rendered a verdict in favor of Fiechtner on all counts. The jury found that American West breached its insurance contract and awarded $400,000 in damages for that count, representing the value of [Plaintiff’s] UIM claim. The jury determined the date the UIM claim should have been paid was October 23, 2019. The circuit court later included $189,369.86 in prejudgment interest relating to breach of contract damages. The jury found that American West breached its duty of good faith and fair dealing and awarded $250,000 in damages for that count. Finally, the jury found that punitive damages were appropriate and awarded $890,000 in such damages. Additionally, attorney fees were awarded to the Plaintiff, pursuant to SDCL 58-12-3 as follows: [¶28.] The circuit court awarded $96,045 in statutory attorney fees and sales tax of $5,954.79 on the fees. The SD Supreme Court affirmed all aspects of the lower court’s rulings, with all five justices agreeing to affirm. The Court’s opinion is authored by Justice Myren. Chief Justice Jensen and Justice Salter filed separate concurring opinions. Of particular interest is the following paragraph of the Court’s opinion which discusses evidence presented by Plaintiff regarding the “insurance premium”: [¶18.] [Plaintiff’s] counsel published a document that the parties have denominated the “claims dollar exhibit.” As depicted below, this document consists of a picture of a dollar bill with writing over the top that generally describes how insurance companies process premium payments. STATE v. LONGCHASE, 2025 S.D. 61: Criminal Defendant, following guilty plea, presents this appeal asserting a violation of his right to a speedy trial and inappropriate requirement that he reimburse Hyde County for his court-appointed attorney fees. The SD Supreme Court affirmed, stating: [¶43.] Longchase waived his right to a speedy trial by entering an unconditional guilty plea. Because Longchase received the assistance of appointed counsel at every critical stage of the criminal proceedings against him, the circuit court’s order requiring him to reimburse his court-appointed attorney fees did not deprive him of his constitutional right to counsel. Nor did the court’s recoupment order deprive Longchase of due process; the order was not imposed until after a hearing at which Longchase had a meaningful opportunity to be heard. Finally, the circuit court’s findings regarding Longchase’s future ability to pay were sufficiently particular and adequately supported by the record. We therefore affirm the court’s order denying Longchase’s motion to dismiss and its order requiring Longchase to reimburse his court-appointed attorney fees. This decision is unanimous (5-0), with opinion authored by Justice Salter. These opinions may be accessed by clicking on this link: http://ujs.sd.gov/Supreme_Court/opinions.aspx .