Three new Decisions by SD Supreme Court Today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Employee prevails with testimony of treating physicians;

 

2. Attorney Fee denial reversed and remanded

 

3. Demolition of partially-completed new home ordered

 

Summaries follows:

 

NEWS AMERICA MARKETING v. SCHOON, 2022 S.D. 79: Employee  injured neck and shoulder while working on the job.  Work comp insurer accepted claim initially but subsequently denied request for surgery and additional benefits.  DOL approved request for additional benefits.  The Circuit affirmed.  The SD Supreme Court also affirmed in a unanimous (5-0) ruling with opinion authored by Justice Chief Justice Jensen.  The SD Supreme Court, ruling consistent with the rulings of the DOL and the lower court, rejected the Work Comp Insurer’s argument that its non-treating physician’s opinion was “more persuasive” that the opinions of the employee’s treating physicians. 

 

ENDRES v. ENDRES, 2022 S.D. 80: Terry, 1 of 7 seven children, filed a lawsuit contesting the handling of an irrevocable trust with assets valued in excess of $10 million.  “Several additional lawsuits” and claims were filed by Terry and the other children. All parties agreed to a consolidation of claims and subsequently reached a “global settlement” which resolved all claims except for Terry’s request for attorney fees.  Terry requested an award of attorney fees in the amount of $389,121.12 ($343,474.20 in attorney fees, expenses, and applicable sales tax, along with interest in the amount of $45,646.92.).  The trial court denied Terry’s request entirely.  The SD Supreme Court reversed and remanded, holding that Terry is entitled to an attorney fee award pursual to SDCL 55-3-13, in an amount to determined on remand.  Because of the Court’s ruling vis a vis SDCL 55-3-13, it did not address the possibility of an award under SDCL 15-17-38.  The concluding paragraph of the Court’s opinion states:

 

[¶55.] Terry is entitled to attorney fees under SDCL 55-3-13 for his actions as a co-trustee which were productive of actual benefit to the Trust. The circuit court shall determine on remand, in a manner consistent with this opinion, the amount of attorney fees Terry may recover.

 

This decision is unanimous (5-0) with opinion authored by Justice Kern. Circuit Judge Gering sat on this case, in lieu of Justice Myren who served as the trial judge. 

NOTE: The list of attorneys litigating this case on appeal reads like a “Who’s Who” in the SD State Bar: Senator Lee Schoenbeck, former U.S. Attorney Ron Parsons, former State Bar President Tom Welk, and other brilliant legal minds. 

 

CITY OF SIOUX FALLS V. STRIZHEUS, 2022 S.D 81:  Owners obtained permit to build single-family home in Sioux Falls in 2013.  Their intention was to build a multi-million dollar house.  Construction stalled in 2015 due to, inter alia, lack of finances.  City of Sioux Falls determined the structure was unsafe in 2016 and sought demolition, in accordance with City Ordinance.  Trial court ordered demolition.  The SD Supreme Court affirmed.  This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Circuit Judge Gering sat on this case, in lieu of Justice Salter.

          

These decisions may be accessed at

 

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

CAFO Permit upheld; Premarital Agreement voided

 

The SD Supreme Court handed down two decisions this morning:

 

1. CAFO conditional use permit upheld, with attorney fees denied;

 

2. Pre-marital agreement set aside because not signed voluntarily by W;

 

 

Summaries follows:

 

POWERS v. TURNER COUNTY BOARD OF ADJUSTMENT, 2022 S.D. 77:  This dispute evolves from an application for a large concentrated animal feed operation (CAFO) in Turner County.  The facts and history are set forth in the opening paragraph of the Court’s opinion:

 

[¶1.] The Turner County Board of Adjustment (Board) granted Steve and Ethan Schmeichel and Norway Pork Op, LLC (Intervenors) a conditional use permit (CUP) for a large concentrated animal feed operation (CAFO). Nearby landowners Jeffrey K. Powers and Vicky Urban-Reasonover (Petitioners) petitioned the circuit court pursuant to SDCL 11-2-61 for a writ of certiorari challenging the legality of the CUP. Over the objections of the Board and Intervenors, the circuit court determined Petitioners had standing to challenge the conditional use permit but denied the writ of certiorari. Petitioners appeal the circuit court’s denial of the writ of certiorari. By notice of review, the Board and Intervenors appeal the issues of standing and the circuit court’s refusal to impose attorney fees on Petitioners under SDCL 11-2-65.

 

The SD Supreme Court affirmed in a 5-0 decision, with opinion authored by Chief Justice Jensen.  As to the issue of attorney fees requested by the prevailing parties but denied by the circuit court, the Supreme Court --  while acknowledging that there is statutory authority for such an award -- states in surely-to-be-quoted language in ¶34, “[W]hen the Legislature uses the word ‘may,’ fee awards are discretionary.”  And, in furtherance of the example set by the trial court, the SD Supreme Court also declined to award appellate attorney fees.

 

ESTATE OF EICHSTADT, 2022 S.D. 78:  W signed a premarital agreement which became the subject of litigation when H died.  The resolution of this dispute is governed by the South Dakota’s 1989 adoption of the Uniform Premarital Agreement Act (UPAA), found in SDCL 25-2-16 thru -25.  The trial court held the agreement was not enforceable for two reasons: 1^st, because W did not voluntarily sign it and, 2^nd, because the agreement was unconscionable.   The SD Supreme Court affirmed the lower court’s holding that W did not voluntarily sign the agreement, thereby rendering it unenforceable.  As to the issue of unconscionability, the Court held that the lower court erred in finding the agreement was unconscionable.  The Court’s decision is a 3-1-1 ruling, with opinion authored by Justice DeVaney.  Both Justice Kern and Justice Salter filed separate opinions in which both express the view that the trial court’s decision was wrong altogether in holding that the agreement was unenforceable. 

 

 These decisions may be accessed at

 

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

 

 

Contractor loses dispute; Juvenile's tip about Mother's possible drunk driving upheld by 4-1 ruling

 

The SD Supreme Court handed down two decisions this morning:

 

1. Contractor loses dispute with Owners;

 

2. Juvenile’s tip about Mother’s possible drunk driving upheld as basis for DUI arrest, by 4-1 vote;

 

Summaries follows:

 

SUVADA v. MULLER, 2022 S.D. 75:  This is a dispute between a contractor and the owners of a cabin to be renovated.  The issues and resolution at the trial level are set forth in the opening paragraph of the opinion and in ¶17, as follows:

 

[¶1.] Ed Suvada commenced this action to foreclose a materialmen’s lien to recover for material and labor he expended in renovating a cabin for George (Jack) and Christine Muller. Suvada also sought damages for breach of contract. The Mullers counterclaimed for breach of contract and fraud. The jury found in favor of Suvada on his materialmen’s lien, awarding him damages. The jury also found in favor of the Mullers on both of their claims but only awarded damages on the breach of contract claim. Suvada appeals, raising multiple issues.

 

[¶17.] The jury awarded Suvada $8,049.99 for his claims. The jury also awarded the Mullers $28,505.22 for their breach of contract claim. Although the jury found Suvada committed fraud, the jury declined to award the Mullers any damages on the fraud claim. The circuit court denied both parties’ requests for attorney fees and costs. The circuit court also set off the verdicts resulting in a judgment for the Mullers for $20,455.23, prejudgment interest in the stipulated amount of $4,129.80, and post-judgment interest.

 

The SD Supreme Court affirmed the victory for the Owners in a unanimous ruling (5-0) with opinion authored by Justice Myren.  The Court also denied the appellant/contractor’s request for appellate attorney fees.

 

STATE v. ROSA, 2022 S.D. 76: Fourteen year old juvenile (in detention) phoned law enforcement authorities to report that she had been talking with her mother on the phone and that her mother “sounded drunk” and that she had a history of drinking and driving.  Mother was located and arrested for DUI and open container.  Trial court denied Mother’s Motion to Suppress and found her guilty of DUI and Open Container, giving Mother a Suspended Imposition of Sentence.  The SD Supreme Court affirmed in a split decision (4-1).  The Court’s opinion is authored by Chief Justice Jensen. 

Justice Myren filed a dissenting opinion in which he stated, in part:

 

[¶33.] I respectfully dissent. Law enforcement did not have reasonable suspicion of criminal activity to justify the stop of Rosa.

 

[¶34.] Both officers testified that they stopped Rosa solely based on A.R.’s report that her mother sounded intoxicated over the phone and had a history of drinking and disappearing. Neither officer testified that they saw any erratic driving, traffic violations, or indication of intoxication. “Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’” Navarette, 572 U.S. at 401, 134 S. Ct. at 1690 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)).

 

 These decisions may be accessed at

 

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

 

 

 

Two New Decisions by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

 

1. Administration of inmate’s Holographic Will upheld;

 

2. Military Retirement pay, including disability benefits, adjudicated in divorce proceeding – In opinion dated December 7, Pearl Harbor Day, substantial relief accorded to Green Beret Husband;

 

 

Summaries follows:

 

ESTATE OF HUBERT, 2022 S.D. 73:  Inmate at SD’s women’s penitentiary left holographic will which the SD Supreme Court previously examined in Estate of Hubert, 2016 S.D. 74 (Hubert I).  The dispute in this case is between the long-time friends and the inmate’s brother.  The inmate’s will gave the her long-time friends basically everything subject to 3 conditions and appointed the friends as personal representatives.  The will disinherits all of testator’s family except for a discretionary portion to be allocated to her brother.  Inmate’s will also provides for the care of the testator’s pet bird Cocky and purports to allocate money to the ACLU for the purpose of funding litigation “to correct injustices at SDWP [South Dakota Women’s Penitentiary] in Pierre.” On remand from Hubert I, the trial court ultimately approved the proposed disposition set forth by the inmate’s long-time friends and ruled against the inmate’s brother on his assertions.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice Jensen. Circuit Judge Klinger sat on this case, in lieu of Justice Myren.

          

COOK v. COOK, 2022 S.D. 74:  The trial court adjudicated a divorce proceeding between H & W, ages 79 & 78 at the time of trial.  This was “lengthy marriage,” with H having acquired military retirement pay which included disability payments -- as a result of his service as a Green Beret in the U.S. Army Special Forces.  H appeals the trial court’s ruling which ordered him to pay W $1,500 per month permanent alimony and which ordered him to pay W cash of $201,130 which payment was designed to equalize assets and which would compensate W for assets which H allegedly “had dissipated in violation of SDCL 25-4-33.1,” during the pendency of the proceeding.  The SD Supreme Court reversed and remanded, awarding H substantial relief on appeal.  A major part of this decision involves treatment of military retirement pay which includes a portion for disability benefits.  (NOTE: I recommend attorneys who are called upon to deal with military benefits in the future read this decision carefully before undertaking to make arguments.)  The Court holds that the trial court inappropriately treated $117,405 as marital property because this amount was clearly shown to be allocated to H as disability payments which are, as a matter of federal law, separate property.  The Court also holds that the trial court’s handling of the remaining portion of H’s military retirement pay was not in accordance with the principles established in SD law.  Additionally, the Court reverses and remands the issue of alimony because of the impact to be realized after “division of property” is accomplished.  As to the assertion that H dissipated assets, the Court finds that the lower court’s ruling is “clearly erroneous.”  Requests for appellate attorney fees, made by both H & W, were denied.  The Court’s ruling 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 .

 

 

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 .