Three Decisions Released by SD Supreme Court today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Drainage ditch cleanout upheld;

 

2. Direct action against liability insurer upheld;

 

3. Divorce issues resolved.

 

Summaries follows:

 

LITTLE v. HANSON COUNTY DRAINAGE BOARD, 2022 S.D. 63:  This litigation concerns an application for the clean out of a pre-existing drainage ditch located in a township road right-of-way.  The clean out “would return [the ditch] to its pre-existing, natural state.”  The opening paragraph of the opinion provides the following summary:

 

[¶1.] The Littles appealed to the circuit court a decision by the Hanson County Drainage Board (Board) granting a drainage permit to James F. Paulson.  The permit application sought to clean out a pre-existing ditch. The Littles claim the Board failed to follow the approval procedures outlined in its ordinances and South Dakota statutes. The circuit court affirmed the Board’s decision. The Littles now appeal to this Court, raising the additional issues that the circuit court failed to admit relevant testimony and failed to take judicial notice of a prior proceeding involving the parties. We affirm.

 

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

 

KAISER TRUCKING, INC. v. LIBERTY MUTUAL, 2022 S.D. 64: Plaintiffs brought suit against driver of motor vehicle for damages arising out of accident.  Driver defaulted.  Judgments were returned “unsatisfied.”  Plaintiffs next filed this direct action against the driver’s Liability Insurer.  The trial court dismissed the action because Plaintiffs did not provide notice to the Liability Insurer as required under the Liability Insurer’s policy.  The SD Supreme Court reversed, holding that Plaintiff was entitled to proceed in accordance with SDCL 58-23-1 when an effort to execute on the judgment is returned unsatisfied.  This “direct action” statute does not impose a pleading requirement that Plaintiffs must show compliance with “conditions precedent,” in this case meaning compliance with the policy’s notice provision.  This decision is unanimous, with the Court’s opinion authored by Justice Kern.

 

DUNHAM v. SABERS, 2022 S.D. 65: This divorce action required the trial court to resolve multiple issues, following a 5 day trial: custody/visitation, division of property, child support, grounds for divorce, attorney fees, etc.  Both sides appeal.  H asserted 13 issues on appeal.  W (attorney, now circuit judge) asserted 4 issues on appeal.  The matter was heard by a retired judge. 

 

The SD Supreme Court affirmed all aspects of the lower court’s ruling, except for in the following:

 

The trial court’s order that the parties are required “to exchange tax returns every year,” following the divorce was in error. On this issue, the Court stated:

 

Before sua sponte ordering the production of the parties’ tax returns post-divorce, the court should have sought input from the parties on the relevant considerations for a protective order under SDCL 15-6-26(c) and the need for a protective order for some or all of the information contained in the tax returns.            

 

The trial court abused its discretion in excluding “buy out” funds related to a law building and the law firm of W’s prior association.  On this issue, the Court stated:

 

Because the circuit court’s findings were insufficient to support           its conclusion that the buy-out funds should be excluded from the marital estate, the  court abused its discretion in setting aside the property as non-marital. On remand, we direct the circuit court to apply the appropriate factors.

 

There is a plethora of additional issues and sub-issues which are addressed in this 36 page opinion.  Some of the additional issues include:

 

trial court’s upward deviation in assessing child support against H affirmed;

 

refusal to require counseling for custody/visitation upheld;

 

minor child is permitted “to choose the time, location, and length of the visits” with non-custodial H;

 

trial court did not error by refusing to grant W a divorce on the ground of extreme cruelty;

 

trial court’s award of $50,000 in attorney fees to wife upheld notwithstanding objections by both H (as to the imposition of the award) and W (as to inadequacy of the award). 

 

The SD Supreme Court’s decision is unanimous (5-0) with opinion authored by Chief Justice Jensen.  Circuit Court Judges Day and Connolly sat on this case, in lieu of Justices Salter and DeVaney.

 

These decisions may be accessed at

 

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

Two New Decisions by the SD Supreme Court Today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Denial of habeas relief affirmed;

 

2)   Breakup of unmarried couple’s cohabitation litigated;

 

 

Summaries follows:

 

SPANIOL v. YOUNG, 2022 S.D. 61: This a post-conviction habeas proceeding by an inmate.  The lower court denied relief and the SD Supreme Court affirmed.  The case is summarized in the opening paragraph of the opinion:

 

[¶1.] Joshua Spaniol was convicted of raping and having sexual contact with his four-year-old autistic daughter. Spaniol appealed his conviction, which was affirmed. Thereafter, he filed a petition for habeas corpus alleging that his trial counsel was ineffective by failing to retain an expert witness, object to certain exhibits during trial, and investigate alleged third-party perpetrator information. After an evidentiary hearing, the circuit court denied the petition. Spaniol appeals. We affirm.

 

The Court’s ruling is unanimous (5-0), with opinion authored by Justice Kern. 

 

 

MURPHEY v. PEARSON, 2022 S.D. 62:

 

Unmarried couple split up after 10+ years cohabitation.  A child was born.  This action was filed by Mother to determine custody and child support.  Father counterclaimed, asserting an interest in the equity of the home which was titled Mother’s name only. Father asserted an implied contract and unjust enrichment, based upon his financial contributions during cohabitation.  Mother filed a Reply to the counterclaim by asserting that Father was paying rent.  Mother also claimed that Father owed her back rent.  Notably, Mother never actually filed a claim for back rent as part of her original complaint or in response to Father’s counterclaim.  (Mother’s failure to assert such a claim in a pleading is detrimental to her interest on appeal.)

The trial court resolved the issues and, in the process awarded Mother back rent of $17,069.59 plus 10%.  The trial court also made an award of back child support.

The SD Supreme Court reversed the award of back rent in favor of Mother, but affirmed the denial of Father’s claim based on implied contract and unjust enrichment.  The Court also partially reversed an award of back child support in favor of Mother by lowering it $1,064.   

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

 

 These decisions may be accessed at

 

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

 

abuse of vulnerable adult cause of action held NOT to survive death

 

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

 

1. abuse of vulnerable adult cause of action does not survive death

HERMANEK-PECK v. SPRY, 2022 S.D. 60: This decision addresses important issues relating to civil remedies available for the abuse of a vulnerable adult – more specifically in this case, the remedy (if any) available to the estate of a deceased vulnerable adult.  The underlying action was filed by the estate of the deceased vulnerable adult in SD state court. Defendants removed the case to federal court on the basis of diversity of citizenship.  Next, the federal district court, Honorable Lawrence L Piersol, certified three questions to the SD Supreme Court.  This decision answers those questions.  The opening paragraph of the opinion summarizes the three questions and the Court’s answers, as follows:

 

[¶1.] In this case, we consider three certified questions from the United States District Court for the District of South Dakota,1 all relating to rights and remedies available to the estate of a vulnerable adult for conduct alleged to have been committed during the vulnerable adult’s life. In essence, the questions ask whether SDCL chapter 21-65 creates a private right of action that survives a vulnerable adult’s death and whether a criminal conviction for theft by exploitation is required for a cause of action under SDCL 22-46-13. We answer the questions by holding that the right to commence an action under chapter 21-65 does not survive the death of the vulnerable adult, though the ability to seek relief in a separate action when there has been financial exploitation may still be available after death. We further conclude that a predicate theft conviction is not required to maintain an action authorized under SDCL 22-46-13.

 

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

 

This decision may be accessed at

 

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

Circuit Court of Hughes County Affirmed X 2

 

The SD Supreme Court handed down two decisions this morning. Both cases involve appeals from the Circuit Court of Hughes County, Honorable Bobbi J. Rank.  Judge Rank is affirmed in both decisions:

 

1. Criminal Conviction and Life Sentence Upheld

 

2. Tax litigation resolved against U.S. Bank

 

 

Summaries follows:

 

STATE v. LARSON, 2022 S.D. 58:  Jury convicted Defendant of 2^nd Degree Murder and aggravated battery of an infant, with the events having taken place in Pierre.  Trial court sentenced Defendant to life imprisonment and 55 years to run concurrently.  Defendant’s unsuccessful appeal was predicated upon alleged error relating to a Motion to Suppress Statements and Denial of his Motion for Judgment of Acquittal.  The SD Supreme Court affirmed (5-0), with the Court’s opinion authored by Justice Myren.  Justice Salter filed a brief concurring opinion.

 

 

U.S. BANK NATIONAL ASSOC. v. S.D. DEPT OF REVENUE, 2022 S.D. 59: This is a tax case which is nicely summarized in the opening ¶ of the Court’s opinion :

 

[¶1.] The South Dakota Department of Revenue (the Department) rejected U.S. Bank’s1 method of calculating its federal income tax deduction from net income subject to South Dakota’s bank franchise tax for tax years 2010, 2011, and 2012. As a result, the Department denied U.S. Bank’s request for a refund for 2010 and 2011 and disallowed the entire deduction for 2012. The Department issued a certificate of assessment for additional tax and interest for 2012. U.S. Bank appealed the administrative decision to the circuit court, which affirmed the Department’s decision. U.S. Bank now appeals to this Court. We affirm.

 

The Court’s affirmance is a unanimous (5-0) decision with opinion authored by Justice Salter.  Retired Judge Severson sat on this case, in lieu of Justice DeVaney.  This case was orally argued over 1 ½ years ago on February 16, 2021.

          

These decisions may be accessed at

 

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

Competency Challenge Reinstated

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

 

1. Competency challenge ailing spouse’s execution of documents reinstated

 

JOHNSON v. MARKVE, 2022 S.D. 57: 

 

The facts in this case are somewhat intricate.

 

H & W (Ken and Susan) met in their golden years and entered into a prenuptial agreement found on the internet. W was worth $1 million and H was worth $1.8 million.  The agreement is not challenged in this litigation, but I found this fact interesting. 

 

W became seriously ill, thereafter executing a quitclaim deed to W & H as joint tenants and she also executed a general Power of Attorney naming H as her agent.  After W’s death, W’s brother (Gus) filed this action challenging W’s competency at the time she executed the deed and created the trust.

For a brief (and perhaps inadequate) “rest of the story,” see the 1^st and last paragraphs of the opinion reproduced here:

 

[¶1.] Acting as the personal representative of the Estate of Susan Markve, Gustav Johnson commenced this action against Kenneth Markve, alleging a variety of claims including undue influence, conversion, breach of fiduciary duty, statutory fraud, and common law fraud. The circuit court granted Kenneth Markve’s motion for summary judgment after determining that there were no genuine disputes of material fact as to any of the claims. The Estate appeals, and we affirm in part and reverse in part.

 

*  * *

 

[¶77.] Ken may well believe he has a strong case in his effort to resist the Estate’s claims of incapacity, undue influence, conversion, and breach of fiduciary duty, and we express no opinion in this regard. Suffice it to say that Ken’s evidence is not of such a character that it eliminates issues of material fact relating to the Estate’s claims, particularly when we review the facts in the light most favorable to the Estate. Neither we, nor the circuit court, can weigh the strength of the parties’ evidence, the reasonableness of Ken’s actions, or the credibility of any witness as matters of law. These questions must be submitted to a fact finder. We affirm in part, reverse in part, and remand for further proceedings.

 

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

 

This decision may be accessed at

 

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

Landlord not liable for dog bite; criminal conviction affirmed

 

The SD Supreme Court handed down two decisions this morning:

 

1. Landlord not liable for dog bite;

 

2. Criminal conviction affirmed.

 

 

Summaries follows:

 

DAVIES v. GPHC, LLC, 2022 S.D. 55: This is a “dog bite” case filed by tenant against his Landlord after tenant was bitten by dog named Tequila. Tequila was owned by another tenant.  Plaintiff brought general negligence and negligence per se claims against Landlord.  Trial court granted summary judgment for Landlord on both claims because Plaintiff could not show Landlord had actual knowledge of dangerous propensities and that the relevant statute (SDCL 40-34-13) for the negligence per se claim applied only to a “person owning or keeping” of Tequila.  Landlord was not an owner or keeper. The SD Supreme Court affirmed in a unanimous (5-0) with opinion authored by Justice Salter.

 

STATE v. LOESCHKE, 2022 S.D. 56:  Following jury trial, Defendant was sentenced to 15 years in prison, with 5 suspended, and with this sentence to run consecutively with a sentence imposed in a companion criminal case where Defendant was charged with witness tampering and violation of a "no contact" order.  The facts and issues as developed at the trial level and as framed on appeal are set forth in the opening paragraph of the Court's opinion as follows:

 

[¶1.] Robert Loeschke was indicted and subsequently tried in August 2020 for six counts of assault against his girlfriend, Melissa Greenwalt, arising out of two separate incidents. He was charged with one count of aggravated assault and two counts of simple assault arising from a stab wound inflicted on Greenwalt on February 20, 2019. He was also charged with one count of aggravated assault and two counts of simple assault arising from an assault with fists on June 17, 2018, which left Greenwalt with a broken jaw. The jury convicted Loeschke on the assault counts arising from the February 20, 2019 stabbing but acquitted him of the charges from the June 17, 2018 broken-jaw incident. Prior to trial, Loeschke had moved to sever the charges based on the dates of the offenses, but the court denied his motion. At trial, Loeschke objected on hearsay grounds to the admissibility of Greenwalt’s statements contained in recorded phone conversations between Greenwalt and Loeschke while he was in jail. The circuit court overruled the objection and admitted the statements as context to aid the jury in understanding the conversation but gave the jury a limiting instruction. Loeschke appeals the circuit court’s order denying his motion to sever and the admission of the challenged statements at trial.

 

The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Kern.

 

 These decisions may be accessed at

 

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

Arson Conviction Upheld

 

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

 

1)    Criminal Convictions reversed because “illegal immigrant” status of victim not disclosed to jury

 

STATE v. KROUSE, 2022 S.D. 54:  Adjudicated by bench trial, Defendant was convicted of 2^nd degree Arson of her home.  The facts of this case would provide an interesting narrative for Dateline, assuming Dateline were interested in non-death scenarios.  Home was valued at over $ 1 million; Defendant (home owner) was divorced and receiving alimony of $21,000 monthly.  The criminal investigation for the fire originated from the fire insurer’s investigation and by referral from the fire insurer’s investigators to law enforcement authorities.  The SD Supreme Court affirmed.  This decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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