4 new decisions this morning

 

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

1)    Split decision (3/2) adverse to surviving Wife;

 

2)   Landowners secure reversal in pipeline dispute;

 

3)   UIM coverage found for employee;

 

4)   Full faith and Credit does not warrant dismissal of simultaneous divorce action filed in state court;

 

Summaries follows:

 

ESTATE OF SIMON, 2024 S.D. 47: Omitted spouse (Wife) filed this action seeking, “intestate share of [Husband’s] estate pursuant to SDCL 29A-2-301.”  The trial court denied relief, holding that Wife’s claim was barred by the “exception found in SDCL 29A-2-301(a)(3) [concluding] that [Husband] provided for [Wife] outside of the will with the intent that those transfers would be in lieu of any testamentary provision.”  In a split decision the SD Supreme Court affirmed.  The majority opinion, agreeing with the trial court, is authored by Chief Justice Jensen. 

Justice Kern filed a dissenting opinion, in which Justice Myren concurs.  The dissenting opinion states,

[¶59.] Because the record lacks any statements by [Husband] regarding the intent of his transfers to [Wife] and because his intent cannot be reasonably inferred from the amount of the transfers or other evidence, the Estate, as the proponent of the will, has failed to establish that it falls within the exception set forth in SDCL 29A-2-301(a)(3), and the circuit court erred as a matter of law in determining otherwise.

This case was orally argued on March 23, 2023 and decided some 17 months later, after “reassignment” to CJ Jensen.

 

STROM TRUST, et al. v. SCS CARBON TRANSPORT, LLC, 2024 S.D. 48: This case involves a consolidated appeal by aggrieved landowners, in regard to pipeline dispue.  The landowners are successful in securing a reversal. Details of the dispute, the holding in the lower courts and the ruling on appeal are set forth in the first 5 paragraphs of the decision, as follows: 

[¶1.] SCS Carbon Transport, LLC (SCS) is planning to develop a pipeline network to transport carbon dioxide (CO2) through South Dakota. Several landowners (Landowners) along the proposed route refused to allow SCS pre[1]condemnation survey access, which SCS claims is authorized by SDCL 21-35-31. Landowners sued in both the Third and Fifth Judicial Circuits, seeking declaratory and injunctive relief to prevent the surveys. These proceedings resulted in a consolidated appeal from six lawsuits filed by Landowners and one by SCS. Two cases were filed in the Third Circuit: CIV 22-64 (Strom) and CIV 22-129 (Deeg). Five cases were filed in the Fifth Circuit namely: CIV 22-14 (Helfenstein), CIV 22-47 (Braun), CIV 22-253 (Bossly), CIV 22-20 (Schumacher), and CIV 22-18 (Jordre). 

[¶2.] All cases except for Jordre—where SCS was the plaintiff and sought declaratory relief permitting survey access—involved similar claims challenging the constitutionality of SDCL 21-35-31 under the takings and due process clauses of the state and federal constitutions. Landowners also challenged SCS’s status as a common carrier and, by extension, its right to exercise eminent domain power. After limited discovery, SCS moved for and was granted summary judgment on all issues in the cases filed in both circuits. Landowners appeal. 

[¶3.] We reverse the circuit courts’ grants of summary judgment on the common carrier issues. SCS’s ability to conduct pre-condemnation surveys depends on whether it is a common carrier vested with the power of eminent domain. However, in this early phase of the litigation, the record does not demonstrate that SCS is holding itself out to the general public as transporting a commodity for hire. It is thus premature to conclude that SCS is a common carrier, especially where the record before us suggests that CO2 is being shipped and sequestered underground with no apparent productive use. In addition, the circuit courts abused their discretion in denying Landowners’ request for further discovery. The record demonstrates that SCS resisted Landowners’ efforts to obtain depositions and documents that are of fundamental importance to the issues in this case. Within the scope of SDCL 15-6-26, Landowners are entitled to conduct depositions and have access to documents relevant to SCS’s pricing terms and business model under conditions prescribed by the courts to preserve the confidentiality of the information. 

[¶4.] On remand, in the event SCS is determined to be a common carrier, we also analyze the scope and constitutionality of SDCL 21-35-31. Mindful of our mandate to interpret the statute according to its plain meaning, and to do so in a fashion that preserves its constitutionality where possible, we conclude that the circuit courts partially erred in their analyses of the types of surveys authorized by SDCL 21-35-31. We hold that—absent landowner consent—the statute, to be interpreted as constitutionally valid, authorizes only minimally invasive superficial inspections that, at most, cause minor soil disturbances. In addition, we interpret SDCL 21-35-31 as incorporating our state constitutional guarantee of a jury determination of damages that are caused by pre-condemnation surveys. Based on this interpretation, we conclude that the limited pre-condemnation surveys authorized by SDCL 21-35-31, as strictly interpreted herein, do not violate the federal or state constitutions. 

[¶5.] We reverse and remand for further proceedings consistent with this opinion.

This decision is unanimous (5-0), with opinion authored by Justice Kern.  Retired Circuit Judge Wipf Pfeifle sat on this case, in lieu of Justice DeVaney. 

 

ACUITY v. TERRA-TEK, LLC & WABA, 2024 S.D. 49: UIM insurer denied coverage for claim, asserting that employees were not occupying a “covered auto” at the time of the accident. The trial court found coverage existed, looking at the Declarations Page and Endorsement which identified employee as an additional insured, without regard to whether employee was in a “covered auto” at the time of the accident.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney. 

TORGERSON v. TORGERSON, 2024 S.D. 50: Wife, an enrolled member of the Sisseton Wahpeton Oyate Tribe, filed for divorce against Husband in tribal court.  Thereafter, Husband filed suit for divorce in state court.  State trial court found that both tribal court and state court had jurisdiction, but that the tribal court was first in time and that Full Faith and Credit required dismissal of the state court action. The SD Supreme Court reversed and remanded, applying SD’s “comity” statute, SDCL 1-1-25.  The Court’s opinion is authored by Justice Kern.  Justices Salter and Myren filed separate opinions, dissenting in part.  Justice DeVaney concurs in the views expressed by Justice Salter. 

These decisions may be accessed at

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

 

Lawsuit against pesticide applicator reinstated

 

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

 

1)    Lawsuit against Pesticide Applicator reinstated

 

 

Summary follows:

 

JUCHT v. SCHULZ, 2024 S.D. 46: Soybean farmed sued neighbor for crop damage arising out of neighbor’s spraying of pesticide which drifted.  The trial court dismissed the lawsuit on the basis of “failure to state a claim” because the Complaint did not allege compliance with SDCL 38-21-46’s thirty (30) day notice requirement for actions against a “pesticide applicator.”  The SD Supreme Court reversed, acknowledging that farmer’s Complaint’s alleged, “actual notice of DANR’s investigation of [farmer’s] complaint” filed by farmer with the South Dakota Department of Agriculture and Natural Resources (DANR).  And, by further holding:

 

[¶9.] … While SDCL 38-21-46 requires that the person claiming damage give notice of the alleged damage to the pesticide applicator, failure to provide such notice does not bar the claimant from bringing their claim.∗ Instead, a claimant is barred from seeking recovery under SDCL 38-21-47 when the claimant “fails to allow entry” to the pesticide applicator to observe and inspect the alleged damage.

 

In the footnote corresponding to the “*” in the language above, the Court distinguishes the language of  this pesticide applicator statute (SDCL 38-21-46) from the language of SDCL 3-21-2 which imposes a 180 notice requirement for suits against a public entity.

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

 

This decision may be accessed at

 

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

 

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 .

 

 

 

Three Decisions today by the SD Supreme Court

 

The SD Supreme Court handed three decisions this morning:

 

1. Pre-marital property settlement upheld; 

 

2. Quiet Title Adjudication Reversed

 

3. Denial of Habeas Relief to Lifer upheld

 

Summaries follows:

 

LIEBEL v. LIEBEL, 2024 S.D. 34: Having both been married twice before, H & W married in 2010, with divorce proceedings instituted in 2022.  In dividing property, the trial court upheld the parties “pre-marital agreement” signed 13 days before their marriage ceremony.  W appeals, but the SD Supreme Court affirmed.  This opinion discusses and applies the Uniform Premarital Agreement Act (UPAA), as adopted by SD in 1989.  The Court’s ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.

 

MOHNEN v. ESTATE OF MOHNEN, 2024 S.D. 35: This is a quiet title action regarding land in Aurora County. The trial court’s ruling is reversed and the case remanded by the SD Supreme Court.  The facts and issues are summarized in ¶1 and the result is set forth in ¶35, the concluding paragraph of the Court’s Opinion, as follows:

 

 

[¶1.] Edward Mohnen commenced this action to quiet title to five parcels of land in Aurora County that have remained, at least in part, titled in his father’s name after he died intestate in 1969. The complaint named multiple defendants, including the estate of Edward’s late brother John Mohnen and the John J. Mohnen Trust (“John’s Trust” and collectively “John’s Estate”). In a counterclaim, John’s Estate alleged it held a complete fee interest in all the disputed parcels through adverse possession and also asserted the affirmative defense of laches. Following a court trial, the circuit court rejected both the laches defense and adverse possession theory and then determined ownership for the five tracts at issue, applying intestacy laws to evidence concerning the current state of record title. We reverse.

 

[¶35.] The circuit court’s determination that John’s Estate cannot prevail on its adverse possession claim because John did not oust Edward was erroneous. We also conclude that the court’s findings establish each of the elements of adverse possession under SDCL 15-3-15. This effectively renders moot the laches question, the alternate adverse possession theory under SDCL 15-3-12 to -13, and the court’s determination of ownership shares for the five parcels. We reverse the circuit court’s decision denying John’s Estate’s adverse possession claim under SDCL 15-3-15, and we remand the case for further proceedings consistent with this opinion.

 

This ruling is unanimous (5-0), with the Court’s opinion being authored by Justice Salter.

 

EVANS v. SULLIVAN, 2024 S.D. 36: Inmate serving a life sentence sought Habeas Corpus relief.  Trial court dismissed 3 of his 9 claims on the basis of res judicata because they had been resolved in his direct appeal.  The Trial Court, after entertaining an evidentiary hearing, dismissed the remaining claims.  “[M]ost of [inmate’s claims] alleged ineffective assistance of counsel in connection with his underlying criminal trial, [but] He also alleged violations of his rights to due process and to be free of unreasonable searches and seizures.].”  The Trial Court issued a certificate of probable cause and the SD Supreme Court entertained this appeal, after previously dismissing an earlier attempted appeal in regard to just the res judicata dismissals.  Inmate, once again, loses.  This is a unanimous (5-0) decision, with opinion authored by Justice Salter.

 

These decisions may be accessed at

 

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

 

 

Stepparent Adoption Denied; Felonious Property Damage Conviction Upheld

 

The SD Supreme Court handed down two decisions this morning:

 

1. Stepparent adoption denied;

 

2. Felonious property damage conviction upheld.

 

Summaries follows:

 

ADOPTION OF I.V.E., C.A.E., AND L.A.E., 2024 S.D. 32: This is an attempted stepparent adoption in which the argument is made that the father’s consent may be considered waived by the Court under SDCL 25-6-4, in particular under SDCL 25-6-4 (3) and (4).  (neglect and failure to support).  The trial court denied the adoption and the SD Supreme Court affirmed, holding that the evidence produced by Mother and Step Father failed to establish the grounds of SDCL 25-6-4 (3) and (4) by “clear and convincing evidence.” The Court’s ruling is unanimous (5-0) with opinion authored by Justice DeVaney.

 

STATE v. HAHN, 2024 S.D. 33: In what appears to be a random act of vandalism by a “highly intoxicated” Defendant, the jury convicted the Defendant “of intentional damage to property with the damage amount totaling more than $1,000 but less than $2,500,” with the damaged property being the front door of a residence.  The sole issue on appeal was the assertion that the state failed to meet the “correct legal standard for determining damages” in regard to the value of the front door. The SD Supreme Court affirmed.  The Court’s 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 .