Two New SD Supreme Court Decisions

 

The SD Supreme Court handed down two decisions this morning:

 

1. Barratry claim against County of Yankton permitted to stand

 

2. Rapid City Journal prevails in “right to records” claim by 3-2 vote;

 

 

Summaries follows:

 

YANKTON COUNTY v. MCALLISTER, 2022 S.D. 37:  Yankton County, as Plaintiff, sought to enjoin three Defendants from operating as an internet provider in violation of County Zoning Ordinance.  Defendants filed counterclaims, including the abuse of process and assertion of barratry. Defendants also filed a third party complaint against the Yankton County State’s attorney personally, as well as the County Zoning Administrator.  The trial court granted a summary judgment of dismissal as to Defendants claims and counterclaims because, “they had failed to provide timely notice to the county auditor of their injuries as required by SDCL 3-21-2 and SDCL 3-21-3… [and because the State’s Attorney] was entitled to prosecutorial immunity.”  The SD Supreme Court affirmed the dismissal of all claims except for the barratry claims filed by 2 of the 3 Defendants against the County of Yankton on the basis of failure to give notice, holding “Because [Defendants’] barratry counterclaim arises from the complaint filed by Yankton County for the alleged Ordinance violation, any risk of surprise to Yankton County was minimal.”  This opinion reviews the separate causes of action of barratry and abuse of process which the Court states are “similar … However, [they] are distinct and have different elements.”  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen. NOTE: Because it is able to uphold the dismissal of the claims against the State’s Attorney on a different basis, the Court, “decline[s] to address whether [the State’s Attorney] was entitled to prosecutorial immunity.”

 

RAPID CITY JOURNAL v. CALLAHAN, 2022 S.D. 38:  This is an original proceeding which addresses the right of new media Rapid City Journal to gain access to court records.   The dispute, as presented and honed for resolution, is set forth in the opening two paragraphs of the Court’s opinion as follows:

 

[¶1.] This matter concerns the Rapid City Journal’s (Journal) applications for alternative writs of prohibition and mandamus and corresponding applications for permission to commence original prohibition and mandamus proceedings against the Honorable Chad Callahan, magistrate judge. The Journal alleges that its right to access Gary Cammack’s criminal court file was violated when Judge Callahan entered an order sealing Cammack’s court file prior to the expiration of the condition that he obey all laws for six months. The Journal further asserts that Judge Callahan could not enter an order that had the effect of suspending imposition of sentence without a probation condition. After reviewing the Journal’s applications, we directed the Journal to address on what basis it has standing to apply for its requested relief and directed Judge Callahan to detail the procedural history of the matter and identify the authority upon which the court sealed Cammack’s court file.

[¶2.] Having now reviewed the parties’ submissions, we conclude that while the Journal does not have standing to challenge the sentence imposed by the magistrate court, it does have standing to challenge the magistrate court’s seal order. We therefore examine the merits of the Journal’s claim that the magistrate court violated its right to access Cammack’s court file.

 

The Court ruled in favor of the Rapid City Journal, holding:

 

[¶34.] [W]e grant the Journal’s application for a writ of mandamus and direct Judge Callahan to provide the Journal access to any documents filed up to and including the court’s amended order suspending imposition of sentence entered on December 15, 2021. This would include Judge Callahan’s initial order suspending imposition of sentence entered on October 4 that retained the obey all laws condition and the court’s December 15, 2021 amended order removing this condition. A writ of mandamus will issue following the expiration of the time for petitioning for rehearing pursuant to SDCL 15-25-3 or following the resolution of any such petition.

 

That portion of the Court’s ruling which favors the Rapid City Journal is a 3-2 ruling, with opinion authored by Justice DeVaney.  As to aspect of the ruling, Chief Justice Gilbertson filed a dissenting opinion, in which Justice Myren joins. 

 

 These decisions may be accessed at

 

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

Four New Decisions by SD Supreme Court today

 

The SD Supreme Court handed down four decisions this morning:

 

1. Breach of contract action reversed;

 

2. “out of plan” medical expenses permitted in work comp setting;

 

3. Prison sentence for Facebook fraud scheme upheld;

 

4. Farm liability insurer prevails on coverage for personal injuries claim.

 

Summaries follows:

 

PESKA PROPERTIES, INC. v. NORTHERN RENTAL CORP., 2022 S.D. 33: In this breach of contract action, Defendants conceded they breached the contract, arguing that the only issue was calculation of damages.  The trial court awarded damages to Plaintiff according to Defedants’ viewpoint – an amount less than Plaintiff’s contention.  The Court also declined to award attorney fees to Plaintiff.  The SD Supreme Court reversed and remanded on both issues, directing the trial court to determine damages so as to restore plaintiff “to the position it would have occupied if the contract had been performed.” The Court also directed the trial court to re-consider Plaintiff’s entitlement to attorney fees, in accordance with the contract’s provision for such an award.  This decision is unanimous (5-0) with opinion authored by Justice Myren.

 

DITTMAN v. RAPID CITY SCHOOL DISTRICT, 2022 S.D. 34: Back injury on the job.  The trial court’s ruling was reversed and remanded because it held that expenses incurred by an “out of plan” doctor were not compensable.  The SD Supreme Court reversed and remanded, holding that the “out of plan” doctor’s expenses were compensable as a referral under SDCL 62-4-43 and  ARSD 47:03:04:05(4).  This decision is unanimous (5-0), with opinion authored by Justice Myren.

 

STATE v. OTOBHIALE, 2022 S.D. 35: Defendant was convicted by jury and sentenced to 6 years in prison for “aiding, abetting, or advising grand theft by deception.”  The facts show that the victim, a 76 year old widow, was bilked out of some $14,000 by the creation of a false identity on Facebook and a plea for money.  This Defendant, located in New Jersey, was the actual recipient of the funds.  Defendant was arrested in New Jersey and brought to South Dakota for prosecution.  The SD Supreme Court rejected Defendant’s appeal based upon alleged insufficiency of evidence and evidentiary matters.  This decision is unanimous (5-0) with opinion authored by  Justice Myren.

 

NATIONWIDE AGRIBUSINESS v. FITCH, 2022 S.D. 36: Insurer under a farm liability policy successfully sought a declaratory judgment that it had no duty to indemnify nor defend a “personal injury lawsuit stemming from an accident that occurred on [insureds’] farm.” The plaintiff is the grandson of the insureds and he sustained permanent injuries to his legs when he was trapped under a gator while attempting to spray for weeds on insureds’ property.  The trial court held that while coverage appears to exist under the “Recreational Vehicle Liability Coverage Endorsement,” this incident is excluded when , “the Gator when it [wa]s ‘used for farming purposes.’”  The SD Supreme Court affirmed in a unanimous decision (5-0) with opinion authored by Justice Salter.  Both the trial court and the SD Supreme Court were disinclined to find coverage through the “concurrent cause doctrine,” which is addressed in this opinion.  The “concurrent cause doctrine”  has been addressed in previous decisions by the SD Supreme Court, but never adopted by the Court. 

 

These decisions may be accessed at

 

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

 

 

 

SD Supreme Court holds enforcement of forum selection clause is non-waivable

 

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

 

1. Enforcement of forum selection clause is non-waivable

 

NORTHLAND CAPTIAL v. ROBINSON, 2022 S.D. 32:  Plaintiff sued Defendant (debtor) on a “lease financing agreement” in Spink County, SD, where Defendant resided.  The written agreement contained a, “forum selection clause requiring any suit filed by either party to be filed in Stearns County, Minnesota.”  Defendant resisted Plaintiff’s Motion for Summary Judgment by arguing that this suit was in violation of the forum selection clause.  The trial court granted Summary Judgment for Plaintiff, rejecting Defendant’s argument by holding that enforcement of a forum selection clause was tantamount to an objection to venue and that Defendant waived his right to object to improper venue by failing to follow the procedure set forth in SDCL 15-5-10.  The SD Supreme Court reversed and directed that the case be dismissed without prejudice.  The Court stated:

 

[¶29.] We conclude as a matter of law that the forum selection clause does not permit [Plaintiff] to waive the agreed choice of forum and requires an action by either party arising from the Lease to be commenced in Stearns County, Minnesota. Brookfield Trade Ctr., Inc. v. Cnty. of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998) (“The construction and effect of a contract presents a question of law, unless an ambiguity exists.”). [Defendant] was entitled to enforce the forum selection clause and require [Plaintiff] to file the action in the forum chosen by the parties in the Lease. Therefore, we reverse and vacate the circuit court’s judgment, and direct the circuit court to dismiss the case in Spink County without prejudice.

 

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

 

This decision may be accessed at

 

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

SD Supreme Court hands down 2 decisions this morning

 

The SD Supreme Court handed down two decisions this morning:

 

1. Reversal of decision upon remand where trial court’s new decision rests on previously unraised issue of standing

 

2. Conviction for having a potentially dangerous animal reversed;

 

 

Summaries follows:

 

DUNHAM v. LAKE COUNTY COMMISSION, 2022 S.D. 30:  This is the 2^nd appellate decision in this litigation.  The opening paragraph of the opinion explains:

 

[¶1.] Karen Dunham petitioned the circuit court for a writ of certiorari challenging the Lake County Board of Adjustment’s (Board) decision to grant a variance to Hodne Homes, LLC (Hodne Homes) to build a facility to store and display boats. On remand from this Court, the circuit court addressed a newly-raised issue about Dunham’s standing and dismissed Dunham’s petition. Dunham appeals.

 

The SD Supreme court reversed and remanded, stating:

 

[¶17.] When we remanded, we necessarily determined that Dunham would continue to have standing to seek relief from the circuit court if the Board once again granted the requested variance. We reverse the circuit court’s dismissal and remand for the circuit court to address the merits of Dunham’s petition.

 

The Court’s opinion is authored by Justice Myren.  All five justices agree in the result.  Justice Salter supplied an additional brief one-paragraph concurrence.

 

STATE v. ALEXANDER, 2022 S.D. 31: Defendant was “convicted of violating SDCL 40-1-23 for having a ‘potentially dangerous animal.’” (pit bulls).  The SD Supreme Court reversed because there was a failure of due process in the making the determination that the dogs were in fact “dangerous” as defined in SDCL 40-1-1(5). All five justices agree with the result. The Court’s opinion is authored by Justice Kern.  Justice Salter filed a concurring opinion, as to which Chief Justice Jensen agrees. 

 

 These decisions may be accessed at

 

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

 

 

SD Supreme Court Denies Habeas Relief in Delayed Rape Prosecution

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

 

1. Habeas relief denied on rape charges filed 16 years after the offense

Summary follows:

 

LACROIX v. FLUKE, 2022 S.D. 29:  Defendant entered a nolo contender plea to charges of 1^st degree rape and sexual contact as against his daughter who was 10 years old at the time of the alleged offenses. Charges were filed after daughter turned 26 years old and made a report to law enforcement personnel.  The trial court sentenced Defendant 25 years in prison, with 5 years suspended on the rape charge and entered a suspended 1 year jail sentence on the sexual conduct charge. 

 

In his first application for writ of habeas corpus, Defendant asserted ineffective assistance of counsel.  In his amended application for habeas corpus, Defendant asserted this was an “unconstitutional ex post facto” prosecution (because he “was charged and pled guilty to a crime that wasn’t a crime at the time it was committed and was sentenced for the same”), protection by the statute of limitations, arguing “the charges were barred by the statute of limitations because the charges were filed when [the victim] was 26 years old and SDCL 22-22-1 required that the charges be filed within seven years of the offense date or prior to the time the victim turns 25 years of age.” The habeas trial court denied relief, holding that the Defendant’s “waiver of rights” in the plea agreement foreclosed habeas relief. 

 

The SD Supreme Court affirmed.   in a unanimous ruling, with opinion authored by Justice Kern.  Similar to the trial court, the SD Supreme Court also applied the doctrine of waiver to Defendant’s assertions and further stated that appellate review as to the statute of limitations issues was “precluded because [the issue] was not certified by the habeas court in its CPC. Our review is limited to consideration of only those issues certified for probable cause by the habeas court under SDCL 21-27-18.1.”  This decision is unanimous (5-0) ruling, with opinion authored by Justice Kern.

 

 

This decision may be accessed at

 

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

 

 

Prison Sentence for aggravated assault on girlfriend upheld

 

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

 

1. Prison sentence for aggravated assault on girlfriend upheld

Summary follows:

 

STATE v. TIMMONS, 2022 S.D. 28:  Defendant was sentenced to 15 years in prison, with 3 years suspended, for aggravated assault on his girlfriend.  Defendant's motion for new trial was supported by letter from girlfriend which Defendant asserted to be “newly discovered evidence.”  In the letter:

 

[girlfriend] stated that she felt like she was lied to, manipulated, and threatened by the State’s prosecutor…[and] that she did not want to call the cops, was coming down from meth, and did not believe that [Defendant] deserved a heavy sentence. She believed that [Defendant’s] [intentions] were not to hurt me.”

 

On appeal, Defendant asserted both insufficiency of evidence and denial of motion for new trial based upon newly discovered evidence (the letter). The SD Supreme Court affirmed, with opinion authored by Chief Justice Jensen.  The decision is unanimous (4-0) with Justice DeVaney having recused herself.  NOTE:  This case was submitted to the Court, on briefs, less than 2 months ago on March 21, 2011.           

 

This decision may be accessed at

 

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

 

 

SD Supreme Court hands down 3 decisions today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Right of First Refusal in effective to defeat Wind Farm lease;

 

2. Another Drainage Permit dispute;

 

3. Custody modification upheld,

 

NOTE: The first two decisions were submitted to the Court this past Fall, in October and November, 2021 and have been decided with opinions authored by Justice DeVaney.  The 3^rd decision was submitted to the Court only 17 days ago and is decided by opinion authored by Justice Salter.

 

Summaries follows:

 

POWERS v. POWERS and PREVAILING WINDS, LLC, 2022 S.D. 25: Owner for a “right of first refusal” on real estate claimed right of specific performance as a result of lease for a wind farm on the property.  The trial court held the right was not triggered by the lease because it applied only to a fee interest transfer and further held that the right was “void as an unreasonable restraint on alienation.”  The SD Supreme Court affirmed.  This is a unanimous (5-0) ruling, with opinion authored by Justice DeVaney.

 

McLAEN v. WHITE TOWNSHIP, 2022 S.D. 26: This is a dispute over an application for a drainage permit.  The issues and result are described in the opening paragraph of the Court’s opinion:

[¶1.] Steven and Matthew McLaen obtained a drainage permit from the Marshall County Drainage Board. Thereafter, they sought approval of their project from the White Township Board of Supervisors because their drainage project could impact roads or rights-of-way in the Township. Ultimately, the Township denied the McLaens’ request, and the McLaens filed an administrative appeal and a separate declaratory action, both of which challenged the Township’s authority to regulate their drainage project and the merits of the Township’s decision. The circuit court issued one memorandum decision addressing both actions and upholding the Township’s decision. The McLaens filed a separate appeal in each action, asserting multiple issues related to the Township’s denial of their requested project. We consolidate the appeals and affirm.

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

 

FLINT v. FLINT, 2022 S.D. 27:  This is a modification of a “shared physical custody [provision in a] parenting order entered as part of [the parties’] 2018 Arizona divorce.”  After divorce, Father moved to South Dakota and Mother moved to California.  Father registered the decree in SD and sought primary custody.  The trial court granted primary custody to Mother, ruling contrary to the recommendation of the custody evaluator.  The SD Supreme Court affirmed, applying the principles found in Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798.  This ruling is unanimous (5-0), with opinion authored by Justice Salter.  Appellate attorney fees were requested by both parties and denied.  (NOTE:  This case was submitted on the briefs just 17 days ago, on April 25, 2022.)

 

These decisions may be accessed at

 

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