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.

Stern Oil, Inc. v. Brown, 2018 SD 15. This is the second time this case has been appealed to the Supreme Court.  In the first trial, Stern Oil was awarded over $900,000.00 in lost profits related to the breach of fuel supply contracts.  However, that verdict was appealed, reversed, and remanded relating to the trial court’s errors in granting summary judgment as to Stern Oil’s breach of contract claims against Brown and the trial court’s denial of Brown’s fraud claims against Stern Oil.  Another jury trial was held, which found in favor of Stern Oil in the amount of $260,464.00 plus $143,708.00 in prejudgment interest.  After the verdict, Stern Oil submitted a request for attorneys’ fees as there was a provision in the contract between Stern Oil and Brown that the prevailing party would be awarded attorney’s fees.  The trial court held that Stern Oil was not the prevailing party and its request for attorneys’ fees was denied.  This decision, along with certain issues at trial, were appealed to the Supreme Court of South Dakota

Ultimately, the Supreme Court of South Dakota reversed and remanded for a new trial on Stern Oil’s damages for lost profits.  The trial court had erred when it instructed the jury on consequential damages and the foreseeability of Stern Oil’s lost profits to Brown at the time of contracting.  The trial court also erred by excluding Stern Oil’s evidence on certain damage scenarios.  However, the Supreme Court of South Dakota did uphold the jury’s decision awarding BIP contract damages (reimbursements under the Motor Fuel Supply Agreements) to Stern Oil in the amount of $22,659.00 and denying Stern Oil’s lost profits claim for diesel fuel. As it relates to the request for attorneys’ fees, the Supreme Court of South Dakota reversed Judge Long’s decision that Stern Oil was not the prevailing party, finding that Stern Oil was the party “whose favor the decision or verdict is or should be rendered and judgment entered” based on the jury verdict of $260,464.00 and the jury’s findings in favor of Stern Oil’s breach of contract claim.  Therefore, Stern Oil was entitled to attorneys’ fees.

Matter of M.M.W. & Wilkie, 2018 SD 16. This case involved a “son” who was charged with domestic assault of “granddaughter” in Minnesota.  In pursuit of prosecution in Minnesota, the Minnesota authorities sought to compel the attendance of “grandfather” and “granddaughter” (the alleged victim), both who resided in South Dakota.  The Minnesota trial court made appropriate findings and certified the matter which was then handled by the Moody County State’s Attorney, who filed a motion requesting the South Dakota Circuit Court enter an order summoning granddaughter and grandfather to appear and testify in the Minnesota criminal proceeding.   The South Dakota Circuit Court ruled for the state, ordering both grandfather and granddaughter to appear in Minnesota.  The Supreme Court of South Dakota affirmed as to the grandfather but reversed and remanded as to the granddaughter, holding that the failure of the circuit court to make adequate findings in considering the hardship issue raised by the granddaughter was an abuse of discretion.  The Supreme Court of South Dakota directed the trial court to allow granddaughter to testify so that the record could be further developed, and adequate findings of facts made as it regarded granddaughter’s claim of hardship.

Laska v. Barr, 2016 SD 6.  This is the second appeal regarding the interpretation of an agreement titled as a “right of first refusal.”  Through the years, the Laskas executed multiple agreements with Jerry Bar, Pat Cole, and Gerrit Juffer involving real estate in Charles Mix County.  This case involved an agreement entered into on February 3, 2005.  Although the agreement was titled as a “Right of First Refusal,” it also contained a fixed price option.  It also provided a provision that allowed the Barr Partners an opportunity to purchase the property if the Laskas received a bona fide third party offer to purchase all or a portion of the property at issue.  When the Laskas asked the Barr Partners to release their interest in the property, the Barr Partners refused, and a lawsuit was brought.  After a court trial, the trial court found that the language of the agreement unambiguously granted the Barr Partners a right of first refusal that terminated upon the deaths of the Laskas.  The Barr Partners appealed, and, on the first appeal, the Court concluded that the agreement was ambiguous as to whether it created a right of first refusal, an option, or a dual option and directed the court on remand to consider the parol evidence previously received during the court trial.  The Court also directed the trial court to consider whether the 2005 agreement constituted an unreasonable restraint on alienation.  After considering the parol evidence, and after briefing on the question whether the 2005 agreement was an unreasonable restraint on alienation, the trial court concluded that the agreement was a right of first refusal, but that it was void as an unreasonable restraint on alienation.  On the second appeal, the Court, per Retired Justice Wilbur, affirmed.

Continue Reading January 25, 2018, Case Summaries

State v. Bertram, 2018 S.D. 4.  Bertram was convicted of first-degree murder and sentenced to life imprisonment for life in connection with the shooting death of his fiancée.  Bertram, appeals, arguing that the circuit court violated his Sixth Amendment right of cross-examination by refusing to admit evidence that he passed a polygraph examination for the purpose of impeaching another witness’s testimony.  He also argued that the circuit court improperly admitted character evidence used against him.  On appeal, the Court, per Chief Justice Gilbertson, affirmed, holding that South Dakota’s per se rule against admitting polygraph test results did not violate the Sixth Amendment, and that the circuit court also did not abuse its discretion either by excluding Bertram’s polygraph evidence or by admitting the State’s evidence of Bertram’s liaisons with other women in the days leading up to his fiancee’s death.  Even so, the Court held, Bertram had not established prejudice on either issue.

Continue Reading January 11, 2018, Case Summaries

McDowell v. Sapienza, 2018 S.D. 1.  Property owners constructed a new home on property located within a historic district.  The adjacent owners alleged that the new home violated state regulations on new construction in historic districts as well as a local ordinance governing chimneys.  The adjacent owners sought a mandatory injunction requiring modification or reconstruction of the new home.  The adjacent owners also sued the City of Sioux Falls, alleging negligence in issuing a building permit and failing to enforce the regulations.  The circuit court granted the injunction, and it concluded that the City owed the adjacent owners a duty to properly enforce building codes.  On appeal, the Court, per Justice Zinter, affirmed the issuance of an injunction, concluding that the new construction standards found in ARSD 24:52:07:04 apply to the new home, and that the circuit court therefore did not abuse its discretion in granting an injunction with respect to historic-district regulations.  The circuit court did, however, err in concluding that the new home violated the chimney ordinance, and that the City owed a duty to the adjacent property owners, and, as to that issue, the Court therefore reversed and remanded for further proceedings.

Continue Reading January 4, 2018, Case Summaries

Schott v. S.D. Wheat Growers, 2017 S.D. 91.  Schott, the owner of Corson County Feeders, Inc., sued the South Dakota Wheat Growers Association, alleging that its agronomist incorrectly prescribed a herbicide that Schott sprayed on his 2014 sunflower crop.  The herbicide was not labeled for use on all of Schott’s sunflowers, and 1,200 acres were destroyed.  The circuit court granted the Wheat Growers summary judgment, ruling that Schott assumed the risk.  On appeal, the Court, per Justice Zinter, reversed and remanded, concluding that genuine issues of material fact existed concerning Schott’s knowledge and appreciation of the risk.

Continue Reading December 28, 2017, Case Summaries

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.

Continue Reading December 21, 2017, Case Summaries