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.

State v. Quist, 2018 SD 30.  Defendant was at a bar in Aberdeen and drinking with his “self-described” best friend.  Defendant and his friend got into an argument about loaned money.  Surveillance video recorded Defendant leaving the bar to smoke a cigarette, with Defendant’s friend also leaving the bar and walking away from Defendant.  While the friend’s back was turned, Defendant jogged up behind him and struck him.  The friend turned around, but was struck again by the Defendant, which knocked the friend to the ground.  Defendant then proceeded to kick the friend multiple times while he was on the ground.

Law enforcement arrived; bar employees identified Defendant; and Defendant made various admissions about his physical contact to his friend.  Ultimately, the friend died as a result of the injuries suffered that night from the Defendant, who was charged with second-degree murder.  Defendant was found guilty and appealed various issues.

The Supreme Court of South Dakota first held that the State’s return of the friend’s body to his family did not deprive the Defendant of due process, that Defendant failed to demonstrate he was deprived of exculpatory evidence, and that a dismissal was not warranted.  Secondly, the Court found that the totality of the evidence in the case was clearly sufficient to support Defendant’s conviction given the surveillance video directly showing Defendant brutally killed his friend without provocation.  Lastly, the Court found that the admission of autopsy photos was allowed as they were relevant to proving that Defendant’s “blows were imminently dangerous to [the friend], evincing a depraved mind, without regard for human life.”  As such, the jury’s conviction of the Defendant was affirmed.

State v. Dunkelberger, 2018 SD 22.  Defendant was indicted of first-degree robbery of a casino after being implicated by his accomplice, who testified against Defendant.  During the direct examination at trial of the detective in the case, the State moved to introduce surveillance video, which Defendant objected to for lack of foundation.  The video showed Defendant getting out of his accomplice’s vehicle and his appearance inside a Beresford gas station the night before the robbery.  Defendant argued that without the video there was insufficient evidence to corroborate the accomplice’s testimony.  The trial court overruled Defendant’s objection and admitted the video, which was shown to the jury.

The Supreme Court of South Dakota affirmed the trial court’s decision.  Defendant admitted that he was the individual depicted in the surveillance video, which was enough to support a finding that “the item is what the proponent claims it is.”  However, the Supreme Court of South Dakota also held that the State had introduced sufficient evidence to corroborate the accomplice’s testimony and establish Defendant’s guilt even without the video evidence.  Defendant had admitted that he rode with the accomplice the night before the robbery in clothing similar to that worn by the robber and that he was having financial problems, which was consistent with the accomplice’s testimony and suggested a motive to commit the robbery.  Physical evidence and a casino employee’s testimony further corroborated the accomplice’s testimony. Thus, there was evidence independent of the surveillance video that affirmed the accomplice’s testimony and established Defendant’s guilt, and the trial court’s denial of Defendant’s objection to the admission of the video was affirmed.

Howlett v. Stellingwerf, 2018 SD 19.  Biological Father appealed from an order granting primary physical custody of his minor child to minor child’s maternal Grandmother.  At the initial custody trial, the trial court found that minor child’s mother had turned over her authority to Grandmother and that the case was really “between Father and Grandmother.”  Analyzing the Fuerstenberg factors, which includes parental fitness, stability, child preference, etc., the court awarded Grandmother full physical custody of the minor child while granting Father liberal visitation rights. Father filed a motion to reconsider, which was denied, arguing that the circuit court should have evaluated the case as a guardianship proceeding, or at the very least, as a custody proceeding between a nonparent and parent pursuant to SDCL 25-5-9 and 25-5-30.

On appeal, the Supreme Court of South Dakota found that the Fuerstenberg factors only applied to disputes between parents and that disputes between “parents and grandparents…are not contests between equals.”  The trial court failed to examine whether Father’s presumptive right to custody of the minor child was rebutted under SDCL 25-5-29 and 25-5-30.  Thus, because the trial court analyzed the dispute using the Fuerstenberg factors, which do not apply in a dispute between a parent and a non-parent, the trial’s court’s order granting Grandmother full physical custody was reversed and remanded.

Hedlund v. River Bluff Estates, 2018 SD 20. This case is a water drainage dispute between neighboring landowners in Fort Pierre.  Defendant had made certain physical alterations to its property such that Plaintiffs’ properties started to experience an increase in drainage.  As such, Plaintiffs sought a preliminary injunction and a permanent injunction, as well as money damages, alleging nuisance and trespass. The trial court held an evidentiary hearing and denied Plaintiffs’ request for a preliminary injunction, concluding that monetary compensation would afford adequate relief such that Plaintiffs had an adequate remedy at law.

On appeal, the Supreme Court of South Dakota held that the trial court’s conclusion that monetary compensation could afford adequate relief for the drainage at-issue was incorrect.  Essentially, the court found that only modifying Defendant’s property would abate the alleged nuisance by preventing the drainage.  However, the court found that Plaintiffs failed to demonstrate a need for their requested preliminary injunctive relief.  Defendant’s modifications to its property occurred in 2005 and it was not until 2011 that Plaintiffs notified Defendant of their concerns.  Given that the drainage at-issue had been ongoing for years, the Plaintiffs failed to assert they would suffer irreparable harm prior to the disposition of the case on the merits.  The trial court’s denial of the Plaintiff’s request for preliminary injunctive relief was affirmed.

State v. Wills, 2018 SD 21. Defendant was convicted of first-degree rape and sexual contact with a child under age 16.  At trial, the State called an expert witness on forensic interviews that testified that she saw no “red flags” in the child’s description of the abuse.  Defendant called his own expert to point out alleged weaknesses in the State’s expert witness, however, the trial court held that Defendant’s expert witness was not qualified to give an expert opinion.  Defendant also testified and denied having an attraction to younger girls.  The State attempted to impeach Defendant with inconsistent statements Defendant had made to a law enforcement in a prior and unrelated child pornography investigation.  Defendant objected, arguing that the impeachment evidence was unduly prejudicial and would suggest that Defendant has possessed child pornography, although those charges had been dismissed.  The trial court held that the prior statements could come in given that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice.  Defendant appealed, challenging (1) the trial court’s decision to permit impeachment of Defendant with inconsistent statements; and (2) the trial court’s decision to preclude his expert witness from testifying about the methods used by the forensic interviewer who interviewed the child.

The Supreme Court of South Dakota first held that Defendant failed to demonstrate any error when the trial court allowed Defendant’s inconsistent statements to come in.  Defendant was not deprived of his confrontation rights; the impeachment questions were based on actual statements; no further foundational evidence was necessary; and the trial court’s determination that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice was not a “fundamental error of law.”  As to the issue relating to Defendant’s expert witness, the Supreme Court of South Dakota held that the trial court misapplied Daubert and that Defendant’s expert witness was clearly qualified as an expert and that her proposed testimony was sufficiently reliable.  Defendant’s expert witness had extensive education, training, knowledge, and experience in child psychiatry and forensic interviewing and, as such, she was qualified as an expert in child forensic interviews. Ultimately, the South Dakota Supreme Court held that the trial court did not err in permitting the State to impeach Defendant with inconsistent statements, however, the trial court did err in excluding Defendant’s expert witness’s testimony.


Wyman v. Bruckner, 2018 SD 17.  This case involved a dispute between sisters related to the handling of the financial affairs of their now-deceased Mother.  Plaintiff, as personal representative of the estate, brought this action against Defendant, her sister, premised upon alleged “self-dealing in her capacity as [Mother’s] attorney-in-fact,” and alleging that Defendant improperly wrote checks from an account owned jointly by Defendant and Mother for the benefit of herself and her family.  These amounts included a $200,000.00 check to Defendant’s husband and two checks of $6,377.16 to herself.

Plaintiff brought several claims against the Defendant in a separate civil action “on several grounds,” but eventually narrowed her action solely to a claim of “breach of fiduciary duty.”  Defendant responded that her status as a joint owner entitled her to withdraw funds from the account.  Furthermore, Defendant argued that a power of attorney, which named Defendant as attorney-in-fact, permitted self-dealing and authorized her to transfer funds out of the joint account to herself and to her family members.

The trial court granted summary judgment for Defendant and ruled that the power of attorney permitted Defendant to self-deal and to gift Mother’s money to herself as well as to her immediate family. However, the Supreme Court of South Dakota reversed and remanded the case.  The Court held that there was no “clear and unmistakable language” in the power of attorney that authorized self-dealing acts and, moreover, that the power of attorney did not clearly authorize transfers to Defendant’s family members as well.  The Court also found that Defendant had breached her fiduciary duties, stemming from her role as attorney-in-fact, to her Mother when she spent funds from the joint account on herself and her family while Mother was still alive.  To this extent, the trial court was reversed.

However, the Court remanded to the trial court to determine whether Defendant acted in her fiduciary capacity when she was added to the joint account.  Since Defendant’s durable power of attorney expired after Mother’s death, along with Defendant’s fiduciary duties stemming from that role, the Court held that a determination was necessary as to whether Defendant’s role as being listed on the joint-account established fiduciary duties that would extend after Mother passed away.

State v. Lar, 2018 SD 18.  This case involved a Defendant that was a passenger in a vehicle that was pulled over for an “inoperable headlight.”  Due to the driver’s nervous appearance, law enforcement deployed a drug dog that indicated a controlled substance was present in the vehicle.  Law enforcement searched the vehicle and found a metal pipe and marijuana.  No controlled substances were found on Defendant, however, Defendant, the driver, and the two other passengers were arrested for possession of marijuana and drug paraphernalia.  After being arrested, law enforcement required Defendant to provide a urine sample without his consent and without a warrant.  The results of the urine test detected metabolites of meth, to which Defendant was charged with unauthorized ingestion of a controlled substance.  Defendant filed a motion to suppress the results of the urine test, but said motion was denied.

On appeal, the Supreme Court of South Dakota held that the “privacy concerns surrounding the category of effects at issue in this case (i.e., an arrestee’s urine) outweigh the State’s interest in preserving evidence.”  Given the significant invasion of privacy of collecting urine samples, the Supreme Court of South Dakota held that law enforcement may not require an arrestee to urinate into a specimen container as a search incident to arrest, but instead must secure a warrant prior to obtaining a urine sample from an arrestee.  Thus, the search at issue violated the Fourth Amendment and the trial court erred by denying Defendant’s motion to suppress.