Two Decisions the Day Before Thanksgiving (By the SD Supreme Court)

 

The SD Supreme Court handed down two decisions this morning:

 

1. Appeal (from grant of summary judgment) dismissed;

 

2. Attorney fees in regard to trust supervision litigation addressed.

 

Summaries follows:

 

GOENS v. FDT, LLC, 2022 S.D. 71: Plaintiffs sued two Defendants.  Defendant #1 filed Answer.  Defendant # 2 field an Answer and a Counterclaim. Trial court granted Summary Judgment for Defendant # 1.  Plaintiff appealed.  The SD Supreme Court dismissed the appeal, noting that there was no certification under SDCL 15-6-54(b) which is required for the rendering of an appealable final judgment, stating:

 

[¶5.] … [T]his interlocutory judgment “is not a final judgment under SDCL 15-6-54(b) and is not appealable.” Because active claims remained in this action at the time of appeal and no Rule 54(b) certification was made, we dismiss for lack of appellate jurisdiction under SDCL 15-26A-3.

 

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

 

MATTER OF PETERSEN TRUSTS, 2022 S.D. 72: This litigation involves two trusts. Daughter Sally filed suit seeking reformation of one of the trusts.  Daughter Mindy opposed Sally’s suit and also filed suit seeking clarification and other relief. The trial court ruled against Mindy, but ruled in favor of Sally and granted reformation.  Also, the trial court denied Sally and her husband’s request for attorney fees and expenses, “concluding the trust did not receive an economic benefit from the litigation, which, the court determined, was required to justify reimbursement from the trust.”  

 

Sally appeals.  The sole issue on the appeal relates to the trial court’s ruling on attorney fee and expenses.  Sally (& her husband) also request an award appellate attorney fees.   

 

The SD Supreme Court denied appellate attorney fees but otherwise reversed and remanded the issue of attorney fees as handled by the trial court.  The Court took provided a more liberal interpretation of the attorney fee statute than did the trial court, stating:

 

[¶42.] Attorney fees are authorized in trust supervision proceedings under SDCL 15-17-38 where the litigation has been beneficial to the trust estate. Though the benefit will often be expressed in terms of an economic benefit, the concept is broader than that and can include instances, such as this one, where a beneficiary’s litigation was necessary to uphold the settlor’s universally acknowledged intent. In those cases where the benefit asserted by an attorney fees applicant is economic, the applicant must show that the litigation produced a benefit beyond that which the trust estate would have otherwise realized.

 

[¶43.] Here, then, attorney fees are authorized for Sally’s efforts to vindicate her father’s intent. Short of litigation, there was no other means for her to do so. We reverse the circuit court’s denial of attorney fees for Sally’s litigation efforts to obtain the homestead. However, the circuit court correctly determined that attorney fees were not authorized for Mike and Sally’s efforts to resist Mindy’s attempt to reform the Land Trust and retire the mortgage debt sooner, and we affirm this determination.

 

[¶44.] Finally, the plain fact that fees are authorized does not make a fee award a fait accompli. See Ctr. of Life Church v. Nelson, 2018 S.D. 42, ¶ 34, 913 .W.2d 105, 114 (holding the fact that a court was authorized to exercise its discretion and award attorney fees did not obligate it to do so). Whether to exercise its discretion to award attorney fees and, if so, in what amount are beyond the issues presented here, and we remand the case for the court to consider these questions.

 

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

 

These decisions may be accessed at

 

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

Rape Convictions and multiple life sentences upheld on appeal today by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

 

1. 3^rd degree rape conviction upheld;

 

2. Multiple consecutive life sentences in 1^st degree rape convictions upheld.

 

 

Summaries follows:

 

STATE v. MCDERMOTT, 2022 S.D. 69:  Defendant drove to Vermillion from Sioux City and met the Victim at McDonalds, shortly after 2 AM, after visiting a local bar in Vermillion – a bar which the Victim had also visited that evening.  Subsequent consensual encounters with the Victim resulted in an overnight stay in Victim’s dorm room and this charge being filed as a result of non-consensual activity in dorm room.  Defendant was found guilty of 3^rd degree rape by jury.  Trial court sentenced Defendant to 10 years in prison, with 8 years suspended.  This appeal is summarized in the opening paragraph of the Court’s opinion:

 

[¶1.] Defendant appeals his jury conviction of third-degree rape. He contends that the evidence was insufficient to sustain the conviction because “[t]he DNA evidence raised significant doubt that penetration could have occurred.” He thus requests that this Court reverse the circuit court’s denial of his motion for judgment of acquittal. Because there is sufficient evidence in the record, including the testimony from the victim and the doctor that examined her after the rape, we affirm.

 

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

 

 

 

STATE v. GUZMAN, 2022 S.D. 70:  At the first trial on these rape and sexual contact charges, the jury was hung.  A mistrial was declared.  The 2^nd trial resulted in the Defendant being found guilty on 3 counts of 1^st degree rape and an additional charge of sexual contact.  The trial court sentenced Defendant to life imprisonment on each of the 3 counts and an additional 15 years in prison, with all sentences to run consecutively.  The trial court also ordered Defendant to pay costs of prosecution ($13,390.66) to Pennington County for the State’s expert witness fees.  Defendant’s testimony in the 1^st trial was utilized as evidence by the State in the 2^nd trial, with Defendant choosing not to testify in the 2^nd trial.  The gist of this appeal is summarized in the opening paragraph of the Court’s opinion:

 

[¶1.] Theodore Guzman appeals his convictions of first-degree rape and sexual contact stemming from incidents involving two of his children and one of his children’s friends. Guzman asserts that the circuit court erred by excluding witness testimony and evidence offered in his case-in-chief; by allowing the State to admit a trial transcript of his testimony from his first trial; by allowing the State to admit other act evidence and expert testimony; and by ordering him to pay certain costs of prosecution.

 

The SD Supreme Court rejected all of the Defendant’s arguments on appeal, affirming the lower court.  The Court’s opinion is authored by Justice DeVany and is unanimous in result on all issues.  The Court’s opinion is unanimous as to reasoning as to all issues, except the assessment of costs of $13,390.66 to Defendant.  Chief Justice Jensen, agreeing with the result, nonetheless filed concurring opinion as to the matter of costs. 

 

 These decisions may be accessed at

 

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

Today's Ruling by the SD Supreme Court: Defendant wins. Reversed and Remanded. Plaintiff wins. Affirmed.

 

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

 Defendant wins. Reversed and Remanded. Plaintiff wins.  Affirmed.

J. CLANCY, INC. v. KHAN COMFORT, LLC, 2022 S.D. 68: Plaintiff sued for money due on a contract for work done in renovating a Spearfish hotel.  Defendant counterclaimed for overpayment, arguing that Plaintiff failed to complete certain “implied-in-fact” contracts.  The trial court agreed with Defendant, awarding damages to Defendant.  This was appealed to the SD Supreme Court and reversed on the basis that the matter should be resolved on the basis of the express contract originally entered into between the parties. J. Clancy, Inc. v. Khan Comfort,LLC, 2021 S.D. 9, ¶ 45, 955 N.W.2d 382, 397. On remand, the trial court found for Plaintiff on the basis of the original record, awarding damages “for breach of contract and foreclosure of the mechanic’s liens in the amount of $105,135.33, plus prejudgment interest and attorney fees and costs.”  Defendant appealed.  Today, the SD Supreme Court affirmed the trial court.  The Court’s decision is unanimous with opinion authored by Chief Justice Jensen.  

 

This decision may be accessed at

 

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

Two New Decisions by the SD Supreme Court this morning

 The SD Supreme Court handed down two decisions this morning:

 

1. 100 year sentence upon guilty plea to 1 count of 1^st degree rape affirmed;

 

2. Criminal convictions and sentences for 1^st degree rape upheld;

 

 

Summaries follows:

 

STATE v. ALVAREZ, 2022 S.D. 66: Defendant, who is less than proficient in English, pled guilty to one count of 1^st degree rape of victim less than 13 years old.  Thereafter Defendant sought to withdraw his guilty plea and requested substitute counsel.  The trial court, after denying both requests, sentenced Defendant to 100 years in prison, with 15 years suspended.  On this direct appeal, Defendant asserts error in 1) the trial court’s denial of his request to withdraw his guilty plea and 2) ineffective assistance of counsel.  The SD Supreme Court affirmed the trial court, holding that the trial court acted within its discretion in refusing the request to withdraw the guilty plea. As to the assertion of ineffective assistance of counsel, the Court declined the opportunity to review its merits, holding that Defendant’s assertion of error would be more appropriately considered “within the context of a habeas corpus action where the parties may develop the factual record.”  This decision is unanimous (5-0), with opinion authored by Justice Salter. 

 

STATE v. HANKINS, 2022 S.D. 67:  This decision affirms the criminal convictions and sentences of 50 years on each of two counts, with 25 years suspended for each count, and with the sentences to run consecutively.  The facts and issues on appeal are set forth in the opening paragraph of the Court’s opinion:

 

[¶1.] A Lawrence County grand jury indicted Nathan Hankins on two counts of first-degree rape and two alternative counts of sexual contact with a minor under 16 with his half-sister, R.H. A jury convicted Hankins of two counts of first[1]degree rape. Hankins appeals, asserting that his due process rights were violated due to an insufficient arraignment, that the court abused its discretion in admitting testimony from certain witnesses, and that the State engaged in prosecutorial misconduct. We affirm.

 

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

 

 These decisions may be accessed at

 

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

 

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 .