Brude v. Breen, 2017 SD 46. Brude brought a lawsuit against Shane Breen, who was doing business as Yellow Jacket Irrigation and Landscaping, for negligence in constructing a retaining wall that injured her. The circuit court granted summary judgment in favor of Yellow Jacket on the basis that the claim was barred by a ten-year statute of repose. Brude appealed, and the Supreme Court, per Justice Severson, reversed and remanded. While statutes of repose ordinarily run from the last culpable act or omission of the defendant, the applicable statute of repose ran from the date of substantial completion of construction. Because the work done in 2011/2013 that led to Brude’s injury could be considered an improvement to real property, not a mere repair, and because her claim was brought within ten years of substantial completion of that improvement, her claim was not barred. Additionally, or alternatively, because she set forth sufficient facts that her injury arose out of 2011/2013 work on the retaining wall, and not 2005 work, her claim may not be barred in any event.
State v. Kiir, 2017 SD 47. A jury found the defendant guilty of eight offenses, including various counts of assault against law enforcement, possession of a controlled substance, possession of an illegal firearm, and grand theft. The defendant appealed, arguing that the admission of res gestae evidence violated his Sixth Amendment right of confrontation. He also challenged the sufficiency of the evidence for three offenses. Per Justice Wilbur, the Court affirmed. Although the officer repeated witness’s statements made to him while testifying, he did so to provide context for his reason for arriving at the apartment complex and his reason for approaching the defendant. The statements were inextricably intertwined with the charged crime, were not offered to prove the truth of the matter asserted, and the defendant had an opportunity to cross-examine the officer about the statements. Justice Kern concurred in part, and dissented in part, finding that one of the convictions was not supported by the evidence, and even stating that the defendant had “met the high burden of establishing on direct appeal that [his] trial counsel was ineffective.”