Same sentence imposed 3 times by same judge, affirmed

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

         Same sentence imposed 3 times by same judge, affirmed

Summary follows:

STATE v. HIRNING, 2020 S.D. 29:  This Defendant pled guilty three times to the offense of possession of a controlled substance and was sentenced three times by the same trial judge. Each time the trial judge imposed a sentence of 25 years, with 7 years suspended.   After the first proceeding, Defendant requested a change of judge which was denied.  The history of these proceedings is unique, with my summary as follows:

Defendant sentenced to 25 years (with 7 years suspended) in 2010, reversed on direct appeal;  request for change of judge denied and Defendant again sentenced to 25 years (with 7 years suspended) in 2012; pro se direct appeal dismissed, but his subsequent writ of habeas corpus (filed in 2014) was successful, but Defendant again sentenced to 25 years (with 7 years suspended).

This Decision affirms the conviction and sentence. The Court states in its final paragraph, ¶ 15:

Judge Portra violated SDCL 15-12-22 by presiding over the hearing on Hirning’s affidavit for a change of judge and determining that Hirning’s affidavit was not properly filed. Under SDCL 15-12-32, only the presiding judge of the circuit could determine whether Hirning’s affidavit was timely and whether Hirning had a right to file the affidavit. Nonetheless, because Hirning was not entitled to file the affidavit, Judge Portra’s non-compliance with SDCL chapter 15-12, did not deprive the court of authority to accept Hirning’s guilty plea and impose a sentence.  

The ruling is unanimous (4-0), with a per curiam opinion. This decision was submitted on the briefs one month ago, April 29, 2020.  Retired Justice Wilbur sat on this case, with Justices Salter, Kern and Chief Justice Gilbertson also participating  (no explanation given regarding Justices DeVaney and Jensen).   

This decision may be accessed at

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

SD Supreme Court hands down 1 decision

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

1)    Dispute between neighboring landowners laid to rest

Summary follows:

HELLEBERG v. ESTES, 2020 S.D. 27: 

This dispute evolved from an alleged easement road and a restrictive covenant placed upon 40 acres of land which, in 1977, was divided into residential lots.   The covenant provided “The right of access to repair or install the water lines and to build an access road and use said access road over the water line is hereby granted by owner.” Multiple claims, including an assault and battery claim, were filed by and between the parties (neighboring landowners). The trial court resolved some claims by summary judgment and the remaining claims by bench trial. 

The SD Supreme Court affirmed, with the Court reviewing the trial court’s interpretation of the restrictive covenant de novo and also upholding the trial court’s finding that the Defendants failed to prove elements necessary to establish a prescriptive easement. 

The Court’s ruling is unanimous, with opinion authored by Justice Jensen.  Circuit Judge Giles sat on this case, in lieu of Justice Kern.  NOTE:  This decision is handed down less than two months after it was submitted on the briefs to the Court on March 13, 2020. 

This decision may be accessed at

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

SD Supreme Court, 2 new decisions today

The SD Supreme Court handed down two decisions this morning:

1)    Challenge to productivity-based land assessment fails;

2)   Meaningful review of key issue in jury trial precluded by lack of trial transcript.

Summaries follows:

TRASK v. MEADE CTY. COMM’N, 2020 S.D. 25:  Landowners in Meade County challenged the valuation of their agricultural land.  Landowners secured minor relief from the Meade County Commission (sitting as a board of equalization).  The Circuit Court affirmed and the SD Supreme Court affirmed.  At issue in this case is the propriety of the change “from a market-value approach to a productivity-based model” encompassed in the recently enacted provisions of SDCL 10-6-33.28 to 10-6- 33.37.  This resulted in the landowner being taxed for a substantially large portion of his land as “cropland” despite the fact it is not used as “cropland.”   [The landowners’ ranch land was taxed at 61% cropland notwithstanding their assertion that only 23% of their property was actually utilized as cropland.] The Court recognized that this was the first taxpayer challenge to the new approach adopted by the Legislature.  In regard to the alleged “unfairness” of this new approach, the Court recognized in ¶ 42:

We understand that the Trasks offer a determined argument that productivity valuation should be based upon the actual use and production of the land. However, our role in this appeal is not to determine this claim of inequity directly. Instead, we must faithfully interpret and apply the statutes enacted by the Legislature for the specific purpose of departing from a market-based method of valuation for agricultural land. Lingering dissatisfaction with the resulting statutory procedure is best addressed by the Legislature, whose fact-finding committees and task force are uniquely situated to carefully study the impact of the productivity model statewide and propose legislative changes or adjustments.

And the Court further noted in footnote 9:

We note that during the 2019 legislative session, the Governor signed Senate Bill 4 into law, requiring the Department of Revenue, in conjunction with South Dakota State University to “study the impact of changes to the methodology of rating soils for purposes of assessing agricultural land.” SDCL 10-6-33.38.

This decision is unanimous, with opinion authored by Justice Salter.  Retired Justice Wilbur sat on this case which was submitted on the briefs over a year ago, on April 19, 2019.  Circuit Judge Sabers sat on this case in lieu of Justice Kern. 

GRAFF v. CHILDREN’S CARE HOSP. AND SCHOOL, 2020 S.D. 26:  This is a tort action on behalf of a 16 year old boy suffering “a variety of conditions related to his physical, mental, and intellectual abilities.”  This claim is against “Children’s Care Hospital and School (CCHS), alleging it was negligent and inflicted emotional distress by using physical restraints on [the 16 year old boy] when he received services at CCHS.”  Following a 3 week trial, jury found for Defendant.  Appellant’s primary assertion on appeal was that the trial court erred in refusing to allow certain Department of Health surveys into evidence – surveys “performed to assess CCHS’s compliance with Medicaid and Medicare requirements.”  The SD Supreme Court affirmed holding that “the lack of a trial transcript precludes meaningful appellate review.” This decision is unanimous, with opinion authored by Justice Salter.  [Of interest is footnote 2 of the opinion which indicates that Defendant “no longer uses prone restraints,” which was one of the assertions made in this case.]

These decisions may be accessed at

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

SD Supreme Court, 2 new decisions April 30

The SD Supreme Court handed down two decisions this morning:

1. Dispute over proposed boat storage/sales facility in Lake County;

2. Appeal dismissed in dispute over buy-sell agreements related to hog confinement facilities in McCook County

Summaries follows:

DUNHAM v. LAKE CTY. COMMISSION, 2020 S.D. 23: Neighboring lot owner contested the application for a variance as to setback and size restrictions for the construction of a proposed facility for the storage and sale of boats.  Lake County Board of Adjustment granted variance and issued a Conditional Use Permit.  Objecting neighbor sought relief in Circuit Court through petition for Writ of Certiorari.  Trial court denied relief.  The SD Supreme Court reversed and remanded, stating in ¶¶ 20-21:

[T]he Board failed to consider the second prong requiring the existence of special conditions to grant a variance. The Board made a terse finding that special conditions exist on the property but failed to meaningfully address the special conditions required by Section 505 for the Board to have authority to grant a variance. More specifically, the Board made no determination that because of a particular feature of the property at the time the Ordinance was enacted, or because of some “extraordinary and exceptional” situation on the property, a variance was necessary. The Board also failed to consider whether the denial of the variance to build a facility exceeding the setback requirements would create “peculiar and exceptional practical difficulties” or an “exceptional and undue hardship” on Hodne Homes. The Board exceeded its authority by failing “to follow the prescribed test” within the Ordinance. Hines, 2004 S.D. 13, ¶ 13, 657 N.W.2d at 234. 

For this reason, we reverse the circuit court’s denial of certiorari relief to Dunham on the Board’s decision granting a variance to Hodne Homes.

This decision is unanimous with opinion authored by Justice Jensen.

HULS v. MEYER, 2020 S.D. 24:  This attempted appeal is dismissed because:

The [trial] court’s order granting summary judgment did not resolve all of the parties’ claims, and it was not certified as a final decision prior to the Appellants’ appeal.

The underlying dispute relates to:

[An action by] Appellants [who] are part owners of four LLCs [for] specific enforcement of unexecuted buy-sell agreements against two other members.

[Plaintiffs and Defendants joined together] to form four limited liability companies (LLCs) in 2006 and 2007. The entities include: Magnum 43, LLC; Rawhide, LLC; Remington, LLC; and Windmill Ridge, LLC. Under the parties’ business plan, the LLCs would construct and operate hog confinement facilities on property located in McCook County. Each LLC owns one facility that is leased to the Meyers who operate it. Three of the four LLCs feature an even equity distribution between the Meyers and the individual investors. 

The Court considered this case on the briefs on March 17, 2020, just over a month ago.  The Court’s ruling is unanimous with opinion authored by Justice Salter.  [language quoted above is taken from ¶¶ 1-2 of opinion.]

These decisions may be accessed at

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

SD Supreme Court hands down 3 Decisions, April 9

The SD Supreme Court handed down three decisions this morning:

1)    Sheriff-Elect’s assault conviction upheld;

2)   Passenger injured in drive-by shooting denied insurance coverage;

3)   Resolution of dispute in auction proceeds from cattle sale

Summaries follows:

STATE v. WARE, 2020 S.D. 20: Sheriff-elect of Roberts County was found guilty by jury of aggravated assault, sentenced to 7 years and placed upon probation.  The SD Supreme Court affirmed this conviction.  The concluding paragraph of the Court’s opinion, ¶ 21, states:

Here, the evidence that [Victim’s] jaw was broken and required to be wired shut for a month and a half was sufficient to support a verdict for aggravated assault under SDCL 22-18-1.1(4). Additionally, the State offered evidence that the  suddenness of the attack caused [Victim] psychological damage, along with his physical injury. Further, Dr. Phillips testified that even after fixing the jaw, [Victim]  faced the possibility of ongoing health issues related to his jaw injury. Ware attempts to minimize this evidence by arguing that there was no apprehension of danger to life, health, or limb because [Victim]  had no warning of the punch, [Victim]  himself had to request bartenders call law enforcement because no one made the call, and he did not receive medical attention until the next day. The jury considered all the evidence and performed its exclusive role when it returned the verdict of guilty for aggravated assault, and there is sufficient evidence to support the verdict. Therefore, the circuit court did not err when it denied  Ware’s motion for judgment of acquittal. We affirm.

This decision is unanimous with opinion authored by Chief Justice Gilbertson.

OLSON v. SLATTERY, 2020 S.D. 21: Passenger riding in backseat of her parents’ car was injured by a bullet fired from a gun by the driver of another vehicle.  This litigation (consolidated DJ actions) relates to whether insurance coverage exists for injured passenger under her parents’ policy and/or under the policy of the other driver. The trial court found that neither policy extends coverage, “because the injuries did not arise out of the use of a vehicle and, alternatively, were not caused by an accident.”  The SD  Supreme Court affirmed in a unanimous ruling, with opinion authored by Justice DeVaney. Circuit Judge Klinger sat on this case, in lieu of Justice Jensen.

STROMBERGER FARMS, INC. v. JOHNSON, 2020 S.D. 22:  This litigation involves an action for injunctive relief and money damages in connection with the auction of cattle, with the underlying dispute lying between the original owner of the cattle and the subsequent purchase who placed the cattle up for auction.  The trial court ruled for the subsequent purchaser by granting a motion for partial summary judgment in the amount of $185,718.30.  The trial court also denied a request for change of venue filed by original owner.  The SD Supreme Court dismissed the appeal related to the denial of change of venue on the basis of lack of jurisdiction.  With respect to the award of $185,718.30, the Court affirmed all but $12,500 and remanded for a resolution of claims as to the lesser amount.  This ruling is unanimous with opinion authored by Justice Jensen. 

These decisions may be accessed at

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

SD Supreme Court hands down 3 decisions today, April 2

The SD Supreme Court handed down three decisions this morning:

1)    Undue influence upheld in will contest;

2)   Utilization of general verdict precludes appellate review of issues;

3)   $1.5 million verdict upheld

Summaries follows:

 MATTER OF THE ESTATE OF GAASKJOLEN, 2020 S.D. 17: This dispute is between two daughters following the death of their mother.  After father’s earlier death, mother executed a new will disinheriting one daughter.  Disinherited daughter brought this will contest challenging the new will on the bases of a lack of testamentary capacity and undue influence.  After a 5 day court trial, the trial court ruled in favor of the disinherited daughter on the basis of undue influence.  The SD Supreme Court affirmed.  This decision is unanimous with opinion authored by Justice Jensen. 

SEDLACEK v. PRUSSMAN CONTRACTING, INC., 2020 S.D. 18: Plaintiff sued for injuries “allegedly sustained while repairing a crane owned” by Defendant. The issue, as submitted to the jury, was by a general verdict form.  Jury found for Defendant.  Plaintiff asserts on appeal that

the [trial] court abused its discretion when it admonished the jury not to consider testimony regarding OSHA standards, denied a proposed jury instruction on OSHA standards, and denied [Plaintiff’s] motion for a mistrial

The SD Supreme Court affirmed, holding that the utilization of a general verdict form prevents appellate review of the issues framed on appeal stating in ¶ 22:

Without special interrogatories detailing the basis for the jury’s determination of no liability, we are unable to discern the reason for its verdict, which could have rested on multiple permissible bases. Under the circumstances, we cannot assess prejudice even if the court abused its discretion. We must therefore affirm without reaching the merits of [Plaintiff’s] issues. 

This decision is unanimous, with opinion authored by Justice Salter.

EXCEL UNDERGROUND, INC. v. BRANT LAKE SANITARY DISTRICT, 2020 S.D. 19: In this lawsuit involving additional parties, the underlying dispute is between Brant Lake Sanitary District and Excel Underground, Inc.  The jury awarded a verdict of $1,569,691.81 in favor of Excel and rejected a damage claim for $794,763.56 asserted by the District. The 9 day jury trial began in April 2018. This case was argued in the SD Supreme Court in February 2019.  Today the SD Supreme Court affirmed the verdict in a unanimous ruling, with opinion authored by Justice Kern.  The concluding paragraph of the Court’s opinion, ¶ 22, states:

We affirm on all grounds. We need not address the District’s claim that the circuit court erred by granting Excel’s motion for summary judgment on the District’s liquidated damages claim because the jury ruled for Excel. We affirm the circuit court’s denial of the District’s motion for summary judgment against Excel and decline the District’s invitation to adopt the rule endorsed by the Wisconsin Court of Appeals in Precision Erecting. Further, the circuit court did not err by instructing the jury regarding the District’s emergency bidding procedures. Although the circuit court erred by giving the agency instruction, the District has failed to establish reversible error on this basis. Finally, the jury verdict was not excessive, speculative, or contrary to law. Ample evidence exists within the trial record to support the jury’s award of contract damages. 

Retired Justice Konenkamp sat on this case in the vacancy created by Justice Zinter’s death.  Circuit Judge Clark also sat on this case in lieu of Justice Salter. 

These decisions may be accessed at

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

SD Supreme Court hands down 4 decisions

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

   Dismissal of work comp claim on basis of failure to prosecute reversed;

   Students denied claim (on basis of lack of standing) for lost GEAR UP funding; 

   Trial court’s post-verdict judgment of acquittal reversed, using de novo standard of review;

    Work Comp Insurers’ denial of death benefits rejected

Summaries follow:

LAPLANTE v. GGNSC MADISON, S.D., 2020 S.D. 13:  Employee’s petition for work comp benefits was dismissed “for lack of prosecution pursuant to ARSD 47:03:01:09 [… if there has been no activity for at least one year…]”   The Circuit Court affirmed, but the SD Supreme Court reversed and remanded because employee's participation in vocational rehabilitation program constituted "activity" sufficient to avoid dismissal for failure to prosecute.  This decision is unanimous (4-0) with opinion authored by Justice Jensen. Justice Salter did not participate. 

BLACK BEAR v. MID-CENTRAL, 2020 S.D. 14: Action by several students against multiple defendants, seeking lost funding under the Gaining Early Awareness and Readiness for Undergraduate Programs, a/k/a “GEAR UP.”  The lower court ruled against the students and the SD Supreme Court affirmed, but on a different basis (lack of standing) than the lower court.  The issues and resolution thereof are succinctly stated in ¶ 1 of the Court’s opinion:

Students sued various defendants to recover for lost funding for services denied to them under the GEAR UP program due to mismanagement and embezzlement. The circuit court denied summary judgment on several motions by defendants before finding the students’ claims preempted by federal law and dismissing the case. The students appeal and the defendants raise multiple issues by notice of review. We affirm the circuit court’s decision dismissing the students’ case, but do so because the students lack standing to bring their claims. 

The Court’s decision is unanimous (5-0) with opinion authored by Chief Justice Gilbertson. 

STATE v. WOLF, 2020 S.D. 15:  As a result of an altercation initiated by inmate against correctional officer, State pursued 3 charges/counts against inmate.  Jury found inmate guilty on 2 counts, but acquitted inmate on 1 count.  Trial judge granted inmate’s post verdict motion and entered judgment of acquittal on 1 count and sentenced inmate on the remaining count as to which he was found guilty.  In adjudicating the State’s appeal, the SD Supreme Court reversed the trial court’s post-verdict judgment of acquittal and remanded for sentencing in accordance with the jury’s verdict of guilty.  This decision addresses a previously unresolved issue concerning the standard of review, with the issue framed and resolved in ¶ 12, as follows:

We have not previously considered the standard of review applicable to the State’s challenge of an order granting a motion for judgment of acquittal after the jury has returned a guilty verdict. However, a motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law whether the motion is considered before or after the jury’s verdict. “Whether the State has provided sufficient evidence to sustain the conviction is a question of law reviewed de novo.” State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149 (citing State v. Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633).  

This decision is unanimous (5-0), with opinion authored by Justice Jensen.

BONEBRIGHT v. CITY OF MILLER,  2020 S.D. 16: Employee died in work-related accident.  Employer (City of Miller) and Work Comp fund contested payment of benefits to widow on the basis that employee was engaged in “willful misconduct.”  The Department of Labor ruled for widow on the basis that the “alleged willful misconduct was not a proximate cause of his death.”  The Circuit Court affirmed on a different basis – because the employee “had not engaged in willful misconduct.”  The SD Supreme Court affirmed the Circuit Court, stating in ¶ 24:

The circuit court did not err when it reversed the Department’s determination on bona fide enforcement and proximate cause. Stephanie’s workers’ compensation claim is not precluded by willful misconduct because the City did not demonstrate bona fide enforcement of its safety rules. Given this disposition, it is unnecessary to address the question of proximate cause. 

The Court’s ruling is unanimous (5-0), with opinion authored by Justice Salter.  Retired Justice Konenkamp sat on this case in lieu of Justice De Vaney who served as the trial judge in this case. 

These decisions may be accessed at

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