Taxpayer Denied refund of overpayment; McCook County Ordinance divides Justices 3/2

 

The SD Supreme Court handed down two decisions this morning:

 

1. Taxpayers request for refund of overpayment denied under “make whole” doctrine;

 

2. McCook County Zoning Ordinance divides Justices 3/2.

 

Summaries follows:

 

MCLANE WESTERN, INC. v. S.D. DEPARTMENT OF REVENUE, 2024 S.D. 1: Taxpayer is a wholesaler of tobacco products in South Dakota.  Through a miscalculation, Taxpayer overpaid its sales tax obligation by some $530,000.  Taxpayer sought a refund from the SD Dept. of Revenue (DOR).  DOR eventually denied the request.  After a contested hearing before the Office of Hearing Examiner, the DOR’s denial was confirmed.  Appeal to the Circuit Court also resulted in an affirmance.  On appeal, the SD Supreme Court agreed with the taxpayer that it had overpaid the required sales tax, thereby disagreeing with the DOR and lower court.  Nonetheless, the Taxpayer was denied relief on appeal because it had passed the overpaid tax obligation on to its purchasers and had been “made whole” in regard to the obligation. The Court stated in ¶¶ 15-16:

 

[¶15.] Because McLane calculated the tax it owed based on the higher  price it paid to UST Sales, it overpaid the tobacco taxes due under SDCL 10-50-61. The Department erred in concluding otherwise.

 

[¶16.] However, this does not mean that McLane was entitled to a refund for these overpaid amounts.  Although McLane overpaid its advance tax obligation, it fully recovered the advance tax it paid from the dealers to whom it subsequently sold the OTP.  McLane was made whole by its resale of the OTP and is not entitled to any refund. On this basis, we affirm the Department’s denial of McLane’s request for a refund.

 

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

 

STOCKWELL v. MCCOOK COUNTY BOARD OF COMMISSIONERS, 2024 S.D. 2:  This dispute involves the interpretation of a County Zoning Ordinance in McCook County which was enacted in 2014.  BACKGROUND:  In 1999, Landowner had sought to re-zone some 5 platted lots (ranging in size from 3.8 to 5.4 acres) from agricultural to rural residential.  The county officials approved the request at that time, but that decision was overturned by an election in the County, initiated by County Residents.  In 2022, Landowner made a 2^nd Zoning request, arguing that the plain language of the County’s 2014 Zoning Ordinance in fact permitted “single family dwellings” in land previously zoned as agricultural for “lots of record.”  The County Officials and the Trial Court ruled against the Landowner, holding the history and overall effect of the 2014 Ordinance was intended to grandfather in the prior determination.  The SD Supreme Court reversed, stating:

 

[¶23.] The circuit court erred by deviating from these well-established rules of statutory construction in favor of its effort to ascertain what it believed to be the broader “intent of the zoning regulations.” In so doing, the court failed to apply the unambiguous text of the 2014 ordinance, which the court acknowledged made clear that Stockwell’s lots were, indeed, lots of record

 

[¶35.] The 2014 ordinance’s lot of record definition unambiguously refers to the effective date of the 2014 ordinance. Despite recognizing that Stockwell’s lots satisfy this definition, the circuit court erroneously supplanted a plain application of the text with a determination of the BOC’s intent to hold Stockwell’s lots were in fact not buildable. We reverse.

 

The Court’s decision is a 3/2 ruling.  Justices DeVaney and Kern dissent, with the dissenting opinion authored by Justice DeVaney. 

 

These decisions may be accessed at

 

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

 

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 .