Berggren v. Schonebaum, 2017 S.D. 89. This case involves a motion to disqualify opposing counsel for a violation of the Rules of Professional Conduct. Meendering alleged that he had met with the opposing counsel and discussed the money he loaned Schonebaum, and that, during the meeting, Fischer failed to disclose that he represented Berggren in a lawsuit against Schonebaum. After the meeting, the opposing counsel sent Meendering a letter, explaining that he was currently involved in a lawsuit against Schonebaum and requested that Meendering contact him by phone to speak about Schonebaum. Schonebaum and Meendering claim Meendering and Fischer later spoke over the phone. Two months later, Berggren amended his complaint against Schonebaum to include Meendering as a defendant. Meendering filed a motion to disqualify opposing counsel for an alleged violation of the South Dakota Rules of Professional Conduct. Meendering also sought attorneys’ fees from opposing counsel for costs incurred in bringing the motion. The circuit court, citing Jacobson v. Leisinger, 2008 S.D. 19, 746 N.W.2d 739 (Leisinger II), granted the motion. In imposing fees, the court reasoned that the sanctions were appropriate because the motion to disqualify was “other litigation” resulting from opposing counsel’s alleged ethical violation. On appeal, the Court, per Justice Kern, reversed, holding that opposing counsel’s alleged violation of the Rules of Professional Conduct did not result in “other litigation” comprehended by Leisinger II or the precedent on which it relies, and his conduct did not necessitate further litigation to protect a property right. It was a component of the same, not other, litigation. Further, the procedural requirements for Rule 11 sanctions were not met, and the Court therefore declined to address whether a sanction was proper under Rule 11.
O’Day v. Nanton, 2017 S.D. 90. O’Day and McClure, as guardians ad litem for N.W.O., sued Dr. Nanton for medical malpractice, alleging he improperly treated N.W.O. with the drug Reglan. At the jury trial, O’Day and McClure attempted to present undisclosed rebuttal testimony from an expert witness and also requested a nonapportionment-of-damages jury instruction. The circuit court excluded the undisclosed expert witness offered in rebuttal from testifying, and it denied their requested jury instruction. The jury concluded that Dr. Nanton was not negligent and returned a verdict in his favor. O’Day and McClure appealed, arguing that the circuit court erred in excluding their rebuttal expert witness and in refusing their nonapportionment-of-damages jury instruction. On appeal, the Court, per Chief Justice Gilbertson, affirmed.