FLUTH v. SCHOENFELDER CONSTR., 2018 S.D. 65: Owner of a rental property had a prior disgruntled tenant set off a gas explosion in one of his properties.  Owner contracted with Contractor to demolish the home and grade the property.  Owner was told that the waterline accessing the property needed to be shut off at the street-curb.  Owner only shut off the water in the basement and had the water meter removed.  During demolition, Contractor broke the waterline, to which it bent the pipe over and hammered it shut to temporarily lessen the flow of water.  However, the water valve was never shut off at the street-curb.

The following spring, Plaintiff noticed that water was penetrating her basement to which she discovered extensive water damage.  Plaintiff noticed water pooling on Owner’s empty lot and Owner, upon being notified, had the water valve shut off at the curb.  Thereafter, Plaintiff did not experience any further trouble with ground water entering her basement. Plaintiff brought suit against the Owner and Contractor.  Prior to trial, Plaintiff settled with Contractor for $7,500.00, the funds were remitted, and Plaintiff filed a satisfaction of judgment.

Owner moved for summary judgment, which was granted on the basis that a “satisfaction of one judgment precludes action against another joint tortfeasor.”  Plaintiff thereby appealed.

In a case of first impression, the South Dakota Supreme Court held that although Plaintiff filed a satisfaction of judgment, doing so did not automatically discharge Owner.  Where an action for damages proceeds to trial and judgment is entered on the verdict, that judgment represents a final determination, however, this principle does not necessarily apply to a consent judgment.  The issue of full damages has generally not been litigated when a consent judgment is entered, and the parties may or may not agree that the amount being entered by consent represents the plaintiff’s full claim for damages.  As such, the Court found that Plaintiff’s agreement with Contractor did not represent the full extent of Plaintiff’s damages and, therefore, Plaintiff did not discharge Owner from liability if the satisfaction of judgment did not reflect a full satisfaction of Plaintiff’s damages.  The Court also emphasized that such decision does not mean that Plaintiff is entitled to a double recovery, instead, Plaintiff’s partial satisfaction simply reduces the award of a subsequent judgment against other tortfeasors.

Owner also asserted that the trial court erred by denying a motion he brought to bring a cross-claim against Contractor and, furthermore, that if Plaintiff prevailed at trial that Owner was entitled to a pro-rata reduction of $7,500.  The Court found that a release reduces a claim against other joint tortfeasors in the amount of consideration paid.  However, SDCL 15-8-17 does not provide for a pro-rata deduction unless so provided by the release.  Here, even assuming the satisfaction acted as a release, there was nothing in the satisfaction providing for a pro rata reduction.

As to whether Contractor could be brought in by a cross-claim, the Court found that the trial court’s judicial economy arguments no longer applied and, moreover, that if Contractor wished to foreclose Owner’s right to obtain contribution, then Contractor should have sought a release that met the requirements of SDCL 15-8-18.  However, the Court stated that the applicable limitations issue might bar a contribution claim and thereby remanded for that issue to be determined by the trial court.

ISG, CORP. v. PLE, INC., 2018 SD 64: Plaintiff contracted with Defendant to build two observation platforms for use by law enforcement at an annual festival held in San Juan, Puerto Rico.  Defendant did not deliver the platforms they agreed to build and instead delivered a used, contractually non-compliant platform.  Plaintiff sued Defendant and its president for breach of contract and fraud.  The case went to trial and the jury found in favor of Plaintiff, awarding both compensatory and punitive damages.  Specifically, the jury award $450,000 in compensatory damages for the breach of contract claim; $662,000 in damages for the fraudulent-inducement claim; and a total of $1,500,000 in punitive damages. Defendant filed a motion for a new trial, which was denied as to the issue of liability, but granted as to the issue of damages.

Plaintiff appealed, raising five issues, which were consolidated into three by the South Dakota Supreme Court:

  1. Whether the circuit court erred in granting a new trial on compensatory damages for breach of contract?
  2. Whether the circuit court erred in granting a new trial on compensatory damages on the fraud claims?
  3. Whether the circuit court erred in granting a new trial on punitive damages on the fraud claims?

As to the issue of granting a new trial on compensatory damages, the South Dakota Supreme Court held that the jury’s award could be explained by the evidence as it accurately reflected the expected profit lost minus costs and expenses Plaintiff would have incurred in completing the contract.  The South Dakota Supreme Court held that Plaintiff was not required to prove its damages with absolute exactness if there is certainty as to the fact of damages.  As such, the South Dakota Supreme Court found that the jury’s award accurately placed Plaintiff in the position it would have occupied if the contract had been performed and, thus, held that the circuit court erred by ordering a new trial on the issue of compensatory damages as to the breach of contract claim.

The South Dakota Supreme Court also found that the circuit court erred by ordering a new trial on the damages assessed for the fraud claims. The Court recognized that there is lesser degree of certainty required to prove tort damages as compared to contract damages.  As such, the Court found that the evidence supported the jury’s award and, given that such award had a sound basis in the evidence and did not appear unreasonable, the jury’s verdict was to be affirmed.

Lastly, the issue of whether the punitive damages award was tainted by the compensatory damages award was taken up.  The South Dakota Supreme Court found that, since the compensatory damages award was affirmed, such holding eliminated any concerns with the punitive damages award, and thereby found sufficient evidence to support said award.

STATE v. RANDLE, 2018 S.D. 61: Defendant was attending a party where he was handling an AK-47.  While sitting down, the AK-47 was discharged while in Defendant’s possession.  The bullet struck another party-goer.  Defendant claimed that he was handed the gun and it caused his chair to slide backwards and the gun to slide off his lap.  Defendant then grabbed the gun to prevent it from falling causing it to discharge.  The victim ultimately died from a gunshot wound to the femoral region.  Defendant was charged with first-degree manslaughter, second-degree manslaughter, and two drug related charges.  Defendant was convicted on all counts and, thereafter, appealed several issues.

The first issue appealed from was whether the circuit court erred by denying Defendant’s motion for mistrial after a state witness violated the court’s sequestration order.  The circuit court’s denial was affirmed.  The South Dakota Supreme Court found that Defendant could not show that the state witness’s testimony was tainted by what she heard in the courtroom.

The second issue was whether the court erred in denying Defendant’s motion for mistrial after the prosecutor asked a police officer whether Defendant had invoked his right to counsel during an interview with the officer.  The South Dakota Supreme Court found that the state’s inquiry about whether Defendant invoked his right to an attorney was not relevant nor proper.  However, the question was never answered and there was no comment or evidence presented concerning whether Defendant asked for an attorney or refused to answer questions.  The question alone did not implicate Defendant’s right to remain silent nor was there any showing of prejudice from a single unanswered question.

The third issue related to the circuit court’s rejection of a proposed jury instruction by Defendant on excusable homicide.  The South Dakota Supreme Court found that Defendant was entitled to this instruction and, without the instruction, Defendant was prejudiced.  The evidence presented a theory for the jury’s consideration of whether the homicide was accidental or excusable under SDCL 22-16-30 and, thus, the circuit court erred in its instructions on first-degree manslaughter.  The manslaughter conviction was therefore reversed and remanded for a new trial.

HANSON v. BIG STONE THERAPIES, 2018 SD 60: Plaintiff began experiencing pain in her leg during a physical therapy session following hip surgery.  Plaintiff was diagnosed with a fractured femur and subsequently brought suit against the physical therapy company and the hospital.  Plaintiff alleged that the physical therapist was negligent during physical therapy and that the hospital was negligent in failing to timely diagnose the fractured femur.  Both the physical therapy company and the hospital moved for summary judgment separately, both which were granted by the circuit court after a hearing.  Plaintiff thereafter appealed.

As to the hospital, plaintiff argued that the circuit court improperly granted summary judgment of plaintiff’s negligence claim asserting that the hospital had a duty to more promptly x-ray plaintiff’s right leg after becoming aware of plaintiff’s incident during her physical therapy.  However, the South Dakota Supreme Court held that plaintiff was required to support her claim of professional negligence with expert testimony, which was not done, and the circuit court’s grant of summary judgment as to the hospital was affirmed.

As to Plaintiff’s professional negligence claims against the physical therapy company, the South Dakota Supreme Court found that plaintiff did present expert testimony that, when viewed in a light most favorable to plaintiff, revealed that the physical therapy company deviated from the required standard of care in its therapy to plaintiff.  Thus, the circuit court’s granting of summary judgment was in error and, thus, reversed.

STATE v. ROSS, 2018 SD 59: Defendant pled guilty to third-degree burglary as part of a plea agreement.  The circuit court sentenced the defendant to five years in prison with three and one-half years suspended.  As defendant was leaving his counsel’s table, the defendant made an obscene hand gesture toward the court.  The court then summoned the defendant back to counsel’s table and re-sentenced him, imposing the entire five-year term.  Before entry of the judgment of conviction, the defendant filed a pro se motion for re sentencing.  The court entered a judgment of conviction but also granted a re sentencing hearing, where the court imposed a 60-month sentence with 40 months suspended.  The defendant appealed, asserting that the circuit court was without authority to increase the defendant’s punishment beyond the court’s initial sentence of five years with three and one-half years suspended.

The South Dakota Supreme Court found that the circuit court had not dismissed the attorneys; that the circuit court had not called the next case; and that defendant had not left the courtroom and, therefore, there was no “formal break in the proceedings.”  Defendant had, thus, not commenced the serving of said sentence and the circuit court was with authority to increase the severity of the defendant’s sentence.  The circuit court’s sentence was affirmed.

BLUE v. BLUE, 2018 SD 58: Plaintiff and Defendant inherited two parcels of land as tenants in common.  Ten years later, Plaintiff commenced an action to partition one of the parcels.  Defendant counterclaimed for partition; for the value of the purported improvements; and for restitution for the time he spent caring for both properties.  The circuit court partitioned the land equally, awarded Defendant owelty, and denied Defendant’s claims for improvements and restitution.  Defendant thereby appealed.

Defendant argued that, based on the principles of quantum meruit and unjust enrichment, he was entitled to compensation for his time and services spent in caring for both parcels of land for over 10 years.  The Supreme Court of South Dakota first denied Defendant’s quantum meruit claim as there was neither an express agreement nor any evidence that established any sort of implied contract between Plaintiff and Defendant for payment of services.  The evidence supported the circuit court’s findings that Plaintiff did not expect or necessarily want Defendant’s services; that Defendant never requested compensation until the falling out; and that no real expectation of payment by Defendant existed.  As such, the facts did not suggest the existence of an implied contract and Defendant’s quantum meruit claim was rightfully denied.

As to Defendant’s unjust enrichment claim, the South Dakota Supreme Court found that Defendant’s services were provided in his own self-interest because of his passion for the land.  The Court also reiterated that Defendant never expected nor requested compensation until the commencement of litigation.  Defendant, “without mistake, coercion, or request” unconditionally conferred a benefit to Plaintiff and was not entitled to restitution.  Thus, the circuit court’s denial of Plaintiff’s unjust enrichment claim was also upheld.

THOMPSON v. BEAR RUNNER, 2018 SD 57: Petitioner filed a petition for a protection order against the Respondent for stalking.  After a hearing, the circuit court granted the petition for a protection order on the grounds that Respondent’s actions and Facebook posts concerning Petitioner amounted to stalking.  Respondent appealed that decision.

The South Dakota Supreme Court agreed with Respondent, holding that the circuit court failed to state what activities or speech it found to be harassing and, thus, inadequate findings were made.  The circuit court’s findings merely parroted the relevant statutory text without further elaboration as to what conduct it considered to constitute stalking—specifically, what it found to be considered harassment.  As such, the circuit court’s decision was reversed and remanded to permit the circuit court to identify which of Respondent’s acts or conduct constituted stalking.

Harvieux v. Progressive, 2018 SD 52:  Plaintiff filed an action under her uninsured motorist insurance (“UM”) coverage with Defendant for injuries she sustained in a car accident.  Plaintiff also filed claims of bad faith and barratry against Defendant.  The UM claim resulted in a jury verdict of $16,296.75; however, after the jury verdict the circuit court granted Defendant’s renewed motion for summary judgment on the bad faith and barratry claims.  Plaintiff appealed thereafter.

The Supreme Court of South Dakota found that while the respective valuations for Plaintiff’s injuries were extremely divergent, the facts viewed in the light most favorable to Plaintiff failed to show that Defendant did not have a reasonable basis for its valuation.  Moreover, the Court found that since Plaintiff’s injuries were in dispute, Defendant was entitled to challenge Plaintiff’s damages claims.

As to Plaintiff’s claim of barratry, the Court affirmed the circuit court’s dismissal given that Plaintiff had not shown that any actions by Defendant were frivolous or malicious.  Plaintiff’s claim of barratry was based on Defendant’s attempt to enforce a verbal settlement and the Court found that there exists settled law supporting the enforcement of oral settlement agreements.

Lastly, Plaintiff demanded costs and disbursements from Defendant as the prevailing party, which was denied by the circuit court.  The Supreme Court of South Dakota affirmed the denial of such costs, finding that the circuit court has discretion to limit disbursements to a prevailing party in the interests of justice and, therefore, the circuit court did not abuse its discretion in denying Plaintiff’s application for costs.

Lagler v. Menard, Inc., 2018 SD 53: Claimant suffered a workplace injury while employed by the Defendant.  Plaintiff was awarded a lump sum, permanent-total-disability (“PTD”) compensation but her request for attorney’s fees was denied.  Claimant appealed, and the circuit court affirmed the Department’s decision to award compensation but reversed the decision to award it as a lump sum and reversed the Department’s denial of attorney’s fees.  Both parties appealed the circuit court’s decision.

The Supreme Court of South Dakota first found that the circuit court did not err by affirming the Department’s decision to award the Claimant PTD compensation.  The Court held that Claimant was a resident of Winner and the availability of employment opportunities in Sioux Falls was not relevant; that Claimant did not purposefully leave the Sioux Falls jobs market; that Claimant’s departure was an incidental effect of finding replacement housing that was necessitated by the denial of all workers’ compensation, and, lastly, that Claimant did establish a showing of PTD and a reasonable, good-faith-work-search effort.

As it regards the issue of attorney’s fees, the Court first held that Claimant’s failure to file a notice of review did not deprive the circuit court of jurisdiction to review a particular decision that had been identified in the Defendant’s notice of appeal.  The Court, having reviewed the issue, upheld the circuit court’s decision finding that Defendant’s denial was not based on reasonable cause and that Claimant was entitled to attorney’s fees.

Lastly, the Supreme Court of South Dakota held that the circuit court did not err by reversing the Department’s decision to award a lump-sum payment, finding that such lump-sum payments are disfavored and that the determinative factors did not support such a payment.


Petersen v. S.D. Bd. Of Pardons and Paroles, 2018 SD 39: Defendant was convicted of additional felonies while in prison, and the South Dakota Board of Pardons and Paroles (“SDBPP”) redetermined defendant’s initial parole-eligibility date.  Defendant requested a review of the redetermination and SDBPP held a hearing, issued findings of fact and conclusions of law, and entered an order setting the initial parole-eligibility date.  Defendant did not appeal, but two years later, requested a review of her parole date that was denied, and defendant appealed that denial.  The circuit court ruled that the SDBPP’s letter declining to review defendant’s parole date was not an appealable “decision, order, or action” under SDCL 1-26-30.2 and dismissed the appeal with prejudice.

The Supreme Court of South Dakota agreed with the trial court, finding that defendant’s interpretation would mean that inmates would have the right to unlimited hearings before the SDBPP and to circuit court appeals concerning their paroles dates without any change in facts.  Absent a change in circumstances, once an inmate’s parole date has been administratively reviewed, the SDBPP is not required to provide additional reviews at the discretion of the inmate.  Thus, the Supreme Court of South Dakota affirmed the circuit court’s decision, finding that said court did not have subject matter jurisdiction to hear defendant’s appeal.

Zwarts v. Penning, 2018 SD 40: Plaintiffs owned agricultural property located upstream and to the north of defendant’s agricultural property.  A stream runs across the two parcels in a southeasterly direction.  In 2008, defendant installed a drain-tile system, which discharges into the above-referenced stream.  At that same time, defendant also had an earthen berm across an artificial ditch that diverted surface runoff from the plaintiffs’ parcel toward defendant’s surface inlet.  In 2010, plaintiffs applied for a county-drainage permit to install a drain-tile system on their land.  Plaintiffs also obtained a waiver from defendant to connect the two drain-tile systems.  The parties further agreed that if defendant’s land became overwhelmed because of the connection, the plaintiffs would install their own tile line independent of defendant’s.

In 2011 and 2012, defendant experienced flooding, believing that the connection of the drain-tile systems was causing an overload.  Defendant then granted plaintiff a waiver to install their own independent tile line underneath defendant’s property.  In June or July of 2012, defendant installed a restrictor plate at the property line to partially block the flow of water from the plaintiffs’ drain-tile system.  In 2013, defendant removed his earthen berm.  That same year, plaintiffs discovered and removed the restrictor plate after ponding occurred on their land.  Plaintiffs subsequently filed a complaint against defendant.  Thereafter, defendant applied for a permit to disconnect his drain-tile system from the plaintiffs’, which was granted and disconnected and ultimately caused plaintiffs’ drain-tile system to be ineffective.  Defendant than revoked his permission to allow plaintiff to install their own tile across his field.  Plaintiffs amended their complaint to allege that defendant unlawfully blocked a natural drainage way; committed trespass by causing water to pond on their land, breach of contract; and requesting an order allowing them to reconnect their system to defendant’s.

The trial court determined that defendant violated civil drainage law by obstructing a natural watercourse, awarded plaintiff damages, and awarded plaintiff an easement to install and maintain an independent tile line under defendant’s property.  Defendant appealed.  First, the Supreme Court of South Dakota held that, because the parties’ agreement controls, the issue need not be decided under the civil law rule.  Second, the court found that there would be no injustice from the enforcement of the promises made between the parties and that plaintiffs were entitled to an easement and crop damages based on promissory estoppel.  Lastly, the Supreme Court of South Dakota reversed the trial court’s finding that defendant committed a trespass by causing water to pool on plaintiffs’ property, as trespass does not occur where one simply causes water to remain on as opposed to enter another’s land.  Moreover, the court affirmed that the plaintiffs also did not commit any trespass against defendant as the parties’ agreement permitted plaintiffs to discharge water into defendant’s drain-tile system.

Madetzke v. Dooley, 2018 SD 38: Habeas corpus case where Defendant had pled guilty to the second-degree robbery charge and further admitted he had been convicted of four prior felonies, however, he disputed that those felonies were violent offenses.  Defendant and the State agreed that the State would seek an enhancement under SDCL 22-7-8.1 (for nonviolent habitual criminals) rather than SDCL 22-7-8 (for violent habitual criminals)—thus making Defendant’s offense sentenced as a Class 2 felony rather than a Class C felony.  At sentencing, the trial court mistakenly informed Defendant that he would be eligible for parole after 8 years, however, that statement was made on the trial court’s belief that second-degree robbery is considered a nonviolent offense where it is actually considered a violent offense.  As a violent offense, Defendant would not be eligible for parole until he serves 13 years of his 20-year sentence.

Thereafter, Defendant petitioned for habeas corpus, arguing that his attorney was ineffective for not correcting the trial court’s error.  The Supreme Court of South Dakota affirmed the trial court’s dismissal of the petition on two fronts.  First, the Supreme Court of South Dakota found that it was not objectively unreasonable for Defendant’s attorney to conclude there was no reason to correct the trial court.  Second, and more importantly, Defendant could not prove he was prejudiced as Defendant failed to place in the record any evidence that the trial court would have imposed a different sentence had the trial court known the correct statute of the conviction under the crime-of-violence statute.

Johnson v. Jackley, 2018 SD 37: Challenge to Attorney General’s explanation of a proposed measure, which was an act to “establish a prescription drug pricing law enabling a State Agency to pay the same or lower prices for prescription drugs as the prices paid by the United States Department of Veteran Affairs.”  The Attorney General submitted the following statement for the proposed measure:

Title: An initiated measure establishing a cap on the price a State agency may pay for a prescription drug.

Explanation: This measure limits the amount that a State agency may pay for a prescription drug. Under the measure, a State agency may not directly or indirectly pay more for a prescription drug than the U.S. Department of Veterans Affairs pays for that same drug. The measure requires the State Bureau of Administration to enact rules establishing prescription drug prices payable by State agencies.

Appellant objected to the explanation and filed a writ of certiorari to challenge it, which was denied by the trial court and subsequently appealed.  The South Dakota Supreme Court held that it was to determine whether the Attorney General’s explanation satisfies the legal requirement of SDCL 12-13-25.1, that is, whether the explanation adequately included the proposed measure’s purpose, effect, and legal consequences.  Emphasizing the Attorney General’s discretion in drafting ballot explanations, the South Dakota Supreme Court held that the Attorney General provided an adequate explanation meeting the above-referenced requirements.  In holding as much, the South Dakota Supreme Court found that the Attorney General is not required to “include every practical or possible effect of each initiated measure.”  The trial court’s denial of the appellant’s writ of certiorari was affirmed.

Giesen v. Giesen, 2018 SD 36: Divorce action where husband challenged circuit court’s valuation of his three business interests, the valuation of a bank account on a date other than the date of divorce, and the decision to recapture into the marital estate the value of home improvements made to a third party’s rental property.  Starting with the date of the valuation of the bank account, the South Dakota Supreme Court held that the trial court’s decision to value the bank account 11 months before trial based on the record evidence that husband’s monthly account balances declined once wife could no longer obtain detailed statements—approximately eleven months prior to trial.  Husband could not explain the steady decline in the account balance and, therefore, the circuit court did not abuse its discretion when it relied on the last complete bank statement.

As to improvements that were made on husband’s father’s rental property, the trial court properly considered evidence and testimony finding that husband had indeed made substantial improvements to his father’s rental property.  As husband had spent approximately $15,000.00 on said improvements, the South Dakota Supreme Court affirmed the trial court’s decision to recapture that amount into the marital estate.

Lastly, as to the value of husband’s business interests, the South Dakota Supreme Court held that husband failed to show that the trial court erred in valuing said business interests and, moreover, record evidence existed to support the trial court’s decision not to apply the marketability discount.  The trial court’s holdings were affirmed, and wife was awarded $7,518.90 in appellate attorney fees.

State v. Abdo, 2018 SD 34: Criminal defendant challenges the circuit court’s denial of a motion to suppress; denial of new trial when the circuit court found him guilty of aggravated assault and guilty of the lesser-included offense of simple assault; and that the circuit court abused its discretion in certain evidentiary rulings and that the evidence is insufficient to support the jury’s verdict.  Defendant was at the home of a friend when law enforcement entered the home and seized him.  Defendant argued that law enforcement needed a warrant to enter said home, especially given that he had been staying there for approximately two weeks prior, kept his belongings there, and had his own bedroom.  The court held that law enforcement had consent from a third party with common authority over the premises, including Defendant’s room since Defendant was merely an overnight guest and that the third party had authority over Defendant’s purported bedroom.

Defendant further asserted that he was entitled to a new trial, arguing the jury did not follow the court’s instructions.  Defendant argued that the jury was not supposed to be able to find him guilty of both Aggravated Assault and Simply Assault.  The South Dakota Supreme Court held that a finding of guilty on the lesser offenses as well as on the major offenses creates per se no inconsistency in conclusions.  When that happens, the conviction and sentence on the lesser charge must be vacated, which is what occurred.  Thus, the trial court properly denied Defendant’s request to declare a mistrial.

Lastly, Defendant argued that the jury’s verdict was based upon mere suspicion or possibility of guilty and not “hard evidence.”  The South Dakota Supreme Court, having reviewed the record evidence, found that said evidence supported a jury’s finding of guilt beyond a reasonable doubt.  The court also denied Defendant’s arguments related to certain evidentiary rulings.

Estate of Fox, 2018 SD 35: Decedent passed away, and his longtime girlfriend filed an application for informal probate and for appointment as personal representative.  The day after the clerk of courts issued the letters of appointment and statement admitting the will to informal probate, the circuit court entered an order revoking them.  Girlfriend appealed the circuit court’s revocation.  The South Dakota Supreme Court held that the clerk’s appointment fully and conclusively established girlfriend as personal representative.  However, the trial court had yet to determine the rights of the parties as it related to the probate of decedent’s will, and the appointment of a personal representative as the matter was stayed pending appeal.  The trial court had not determined whether the clerk’s appointment was void for girlfriend’s failure to state that the original of the decedent’s will was in the possession of the circuit court.  Thus, even if the circuit court was without authority to revoke the clerk’s appointment, the circuit court had yet to finally determine the rights of the parties as it related to the probate of the decedent’s will and the appointment of the personal representative.  As such, the circuit court’s order revoking the letters of appointment and clerk’s statement did not end the particular action in which it was entered and leave nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that proceeding.  Until further proceedings determine such rights, the South Dakota Supreme Court did not have appellate jurisdiction.

Ahrendt v. Chamberlain, 2018 SD 31.  Divorce case where both spouses attained new jobs during the marriage, allowing them to accumulate significant assets, consisting primarily of real estate, business interests, and retirements accounts.  The spouses separated, and wife remained in the marital home while paying the entire monthly mortgage payment.  Husband paid his own expenses associated with his new apartment.  A divorce action was commenced where the circuit court found that both parties had made significant contributions to the acquisition of property, and the court classified most of their separately held assets as marital property.  Wife received nets assets valued at approximately $720,000.00 while husband received net assets valued at approximately $285,000.00.  The circuit court ruled that such distribution was not equitable and ordered wife to make a $217,000.00 equalization payment.  Wife appealed, arguing that certain assets were not marital property and that the marital estate should not have been equitably divided.

Given that South Dakota is an “all property state” and that all property of divorcing parties is subject to equitable division, the South Dakota Supreme Court held that the evidence accurately reflected that both parties contributed to the accumulation of marital property.  In that vein, the South Dakota Supreme Court also found that the trial court did not abuse its discretion when it included specific assets as part of the marital estate and affirmed the trial court in all respects except one clerical matter, which was to be addressed by the trial court on remand.

Winegart v. Winegart, 2018 SD 32. Another divorce case where Husband and Wife underwent a mediation.  At the mediation, an agreement was signed by Husband with a real-estate agent to list the jointly owned real estate.  The listing agreement included a commission for the realtor.  A third party signed an agreement to purchase the jointly owned real estate for $330,000.00.  However, Wife refused to sign the purchase agreement, asserting that during mediation, Husband had orally agreed to sell the property without paying for a realtor.  Husband than filed a motion requesting that Wife sign the purchase agreement.  The mediator was deposed and testified as to certain aspects of his understanding of the mediation settlement.  The trial court found that the parties had not entered into an enforceable agreement in regard to realtor fees and ordered Wife to sign the purchase agreement.  Wife then appealed, requesting Husband pay her the realtor fees incurred as a result of his violation of the oral mediated agreement.

The South Dakota Supreme Court affirmed the trial court’s decision on various grounds.  First, the South Dakota Supreme Court held that communications occurring in the course of mediation are confidential and cannot be used to prove the existence of an agreement.  The court evaluated South Dakota’s statutes adopting the Uniform Mediation Act, finding that said statutes do not permit a mediator to disclose the terms of a settlement produced in mediation unless that settlement has been reduced to writing.  Second, the court held that even if the mediator’s testimony was admissible, Wife signed a confidentiality agreement that precluded the introduction of such evidence.  Lastly, the South Dakota Supreme Court held that the trial court’s findings that the parties did not mutually assent to selling their home without paying realtor fees was not clearly erroneous, even if all contested testimony was allowed.