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.
Streff v. State Farm Mut’l Auto. Ins. Co., 2017 SD 83. SDCL 58-11-9.4 requires underinsured motorist (UIM) coverage in “motor vehicle liability polic[ies]” of insurance. The Streffs purchased a motor vehicle liability policy from one insurer and also purchased a personal liability umbrella policy from a separate but related insurer. Both policies provided UIM coverage, but both excluded coverage for accidents caused by government vehicles. When Jody was injured in an accident involving a government vehicle, a dispute arose concerning the enforceability of the exclusions. The circuit court ruled that the exclusion was not enforceable in the motor vehicle liability policy but was enforceable in the umbrella policy. The Streffs appealed, and the Court, per Justice Severson (on reassignment), reversed, holding that the South Dakota UIM statute is not limited to primary insurance policies, and that the statute contemplates additional coverage. Thus, by extension, umbrella policies that include UIM coverage are subject to the same public policy prohibitions on the exception of government vehicles from UIM coverage. Justices Zinter and Kern dissented.
The Court has released the list of its November 2017 summary dispositions:
|Siems v. Pilot Travel Centers, LLC||28254||11-13-17||Affirmed||Long|
|State v. Hanson||28178||11-13-17||Affirmed||Sabers|
|Wright v. Theophilus||28108||11-13-17||Affirmed||Pekas|
|State v. Bortock||28131||11-13-17||Affirmed||Long|
|Schwartz, on behalf of M.N. v. Neuenschwander||28081||11-13-17||Affirmed||Linngren|
|Schwartz, on behalf of M.N. v. Neuenschwander||28082||11-13-17||Affirmed||Linngren|
|State v. Shepard||28142||11-13-17||Affirmed||Davis|
|State v. Fitzgerald||28170||11-13-17||Affirmed||Eckrich|
|State v. Hamling||28171||11-13-17||Affirmed||Eckrich|
|State v. Weber||28184||11-13-17||Affirmed||Myren|
|Ollila, et al. v. Ginsbach, et al.||28206||11-13-17||Affirmed||Percy|
|State v. Eberhardt||28225||11-13-17||Affirmed||Means|
|State v. Popkes||28244||11-13-17||Affirmed||Zell|
|Curran v. Curran||28182||11-13-17||Affirmed||Pfeifle|
|Horn n/k/a Haub v. Horn||28233||11-30-17||Affirmed||Day|
Oyen v. Lawrence Cnty. Comm’n, 2017 SD 81. Various landowners petitioned the Lawrence County Commission requesting that the County maintain a road providing access to their homes. The County denied the landowners’ request. Oyen appealed the County’s action to circuit court. The County filed a motion to join the United States of America as an indispensable party. The court denied the motion, finding the County responsible for the road and directing the County to provide maintenance. The County appealed, and the Court, per Justice Severson, reversed and remanded for the circuit court to join, if feasible, the United States of America as an indispensable party. If joinder is not possible, then the circuit court is to determine whether to dismiss the case.
State v. Humpal, 2017 SD 82. The sentencing court imposed a five-year penitentiary term upon the defendant while he was serving a probationary sentence in a different criminal file. The defendant appealed, arguing that the court imposed an illegal sentence when it placed him under the dual supervision of the judicial and executive branches. On appeal, the Court, per Retired Justice Wilbur held that, although the sentencing court erred when it placed defendant under simultaneous supervision of two branches of government, defendant is currently only under the supervision of the executive branch. His sentence was therefore affirmed.
State v. Draskovich, 2017 SD 76. Draskovich was convicted of threatening a judicial officer and disorderly conduct as a result of statements he made in the Minnehaha County Courthouse. The circuit court ruled that the statements were “true threats,” rather than First Amendment-protected speech. He had told the clerk of courts that he could “see why people shoot up courthouses,” and, when discussing a judge’s refusal to grant him a work permit, he commented to Court Administration, “Well, that deserves 180 pounds of lead between the eyes.” On appeal, the Court, per Justice Zinter, affirmed, concluding that a reasonable recipient would view his statements as “a serious expression of an intent to commit an act of unlawful violence” against court staff and the circuit court judge.
On November 7, 2017, the South Dakota Supreme Court considered a number of proposed modifications to the appendix to SDCL chapter 16-17, which sets forth the by-laws of the South Dakota State Bar, as well as amendments to SDCL 16-18-34.4 and the Rules of Professional Conduct.
In re Guardianship of Novotny, 2017 S.D. 74. The sole beneficiary of an irrevocable trust petitioned the circuit court to terminate the trust and distribute the trust property to her. After a hearing on the beneficiary’s motion for summary judgment, the circuit court refused to terminate the trust and entered summary judgment in favor of the trustees. The beneficiary appealed, the Court, per Justice Wilbur, reversed and remanded, concluding that the trust purpose had been fulfilled, and that termination of the trust would “substantially further the trustor’s purposes in creating the trust.” The circuit court was therefore directed on remand to terminate the trust and distribute the trust property, which was “in accordance with the trustors’ probable intention.”
Erickson v. Dep’t of Public Safety, 2017 S.D. 75. Erickson, who holds a commercial driver’s license, pleaded guilty to driving with a blood alcohol content of 0.08 or more (SDCL 32-23-1(1)) – as opposed to driving under the influence of alcohol (SDCL 32-23-1(1)). The South Dakota Department of Public Safety subsequently disqualified him from operating commercial motor vehicles for one year. Erickson appealed the Department’s decision to circuit court, which reversed the Department’s decision without remanding. The Department appealed, and the Court, per Chief Justice Gilbertson, reversed the circuit court’s decision, concluding that SDCL 32-12A-36(1), which disqualifies a person from driving a motor vehicle if they have been convicted of driving under the influence of alcohol, includes convictions for both driving with a blood alcohol content of 0.08 or more (SDCL 32-23-1(1)) and convictions for driving under the influence of alcohol (SDCL 32-23-1(1)). The Department therefore properly disqualified Erickson from holding a commercial driver’s license for one year.
The Court has released the list of its October 2017 summary dispositions:
|State v. Sharp||28026||10-10-17||Affirmed||Long|
|State v. Oquendo Cedeno||28140||10-10-17||Affirmed||Brown|
|State v. Beynon||28141||10-10-17||Affirmed||Spears|
|Interest of A.M. and E.M.||
|Interests of O.A., E.A., and L.A.||
Surat v. America Township, Brule Cnty. Bd. Of Supervisors, 2017 S.D. 69. The board of supervisors downgraded a seven-mile stretch of road from full maintenance to minimum maintenance. A portion of the road provided the Surat family and Surat Farmers access to South Dakota Highway 50. Surat appealed the Board’s decision to the circuit court. The circuit court reversed the board’s decision, and the Township appealed.
The Court is inviting proposals for the amendment or adoption of rules to be considered at its scheduled February 13, 2018, Rules Hearing. To view the Court’s invitation, click here.