MEIERHENRY, Justice. [ 1.] We must decide in this case whether South Dakota's third party custody statutes are constitutional. The two statutes in question are SDCL 25-5-29 and 25-5-30. The circuit court found these statutes unconstitutional because they do not specifically require "a finding of parental unfitness prior to awarding custody to a non-parent." We hold that the statutes can be construed constitutionally, and therefore, the circuit court must be reversed. FACTS [ 2.] Zachary...
GILBERTSON, Chief Justice. [ 1.] Jay Link petitioned for judicial dissolution of L.S.I., Inc. (LSI). The circuit court denied the petition and granted LSI's petition to buy out Jay's shares at a "fair value." Jay appeals the valuation of his shares, the condition of the payments, and the dismissal of his remaining claims. We affirm in part, reverse in part, and remand. LSI filed a later appeal, challenging the interest awarded on the buy-out. We conclude the circuit court did not issue a...
SEVERSON, Justice. [ 1.] Bowes Construction, Inc., a subcontractor hired to produce aggregate materials for three asphalt paving projects, initiated this breach of contract action against the South Dakota Department of Transportation. Under the subcontracts, Bowes was contractually obligated to produce aggregate materials that would pass the Department's sodium-sulfate-soundness test, and the Department was contractually obligated to accept Bowes' aggregate materials in the absence of a valid...
GILBERTSON, Chief Justice. [ 1.] K.K. admitted to a juvenile delinquency petition alleging misprision of a felony. The trial court ordered her to pay restitution to the owners of the bar that was burglarized. She appeals, arguing there is not a sufficient causal connection between K.K.'s misprision of a felony and the victim's loss to require restitution. We affirm. FACTS [ 2.] In January 2009, a group of teenagers broke into the Blue Room Bar in Geddes, South Dakota. Substantial damage...
MEIERHENRY, Justice. [ 1.] A Brookings County Deputy Sheriff stopped Annette Herren's vehicle primarily because of his observation that it hesitated too long (about 40 seconds) at a stop sign at a rural intersection. The stop resulted in Herren's arrest for driving while under the influence of alcohol. Herren challenges the constitutionality of the investigatory stop, claiming that the arresting officer did not have reasonable suspicion to stop her. The trial court determined that the officer...
KONENKAMP, Justice. [ 1.] The ultimate question here is whether the circuit court abused its discretion in declining to enjoin a business from selling grocery items in violation of a restrictive covenant. In balancing the equities, the court ruled that the landowners failed to establish irreparable harm and that the hardship suffered by the business would be disproportionate to the benefit to be gained by the landowners. We find no abuse of discretion in this ruling. Background [ 2.] In...
KONENKAMP, Justice. [ 1.] In responding to an emergency call, a police officer ran a red light and struck plaintiff's vehicle. Plaintiff brought suit against the officer for negligence. Granting summary judgment for the officer, the circuit court ruled that the limitation period expired under SDCL 9-24-5, which requires a negligence action against a "municipality" to be brought within two years. The court concluded that although the statute makes no mention of municipal employees, the term "...
PER CURIAM. [ 1.] Steven Shumaker appeals his conviction for fourth offense DUI. The issue is whether the trial court erred in sentencing Shumaker to five years in the state penitentiary, with two years conditionally suspended. Because the trial court accepted Shumaker's binding plea agreement, which called for a sentence no greater than three years, the court erred when it sentenced Shumaker. Background [ 2.] On June 18, 2009, Defendant Steven Shumaker was arrested for Driving Under the...
KONENKAMP, Justice. [ 1.] A parent whose child was injured while in the care of a babysitter brought suit to recover damages. In a declaratory judgment action, the insurance company successfully argued that its policy did not cover injuries sustained in a daycare-type business. We conclude that the circuit court correctly ruled that the policy was unambiguous and the business exclusion applied. Background [ 2.] On January 11, 2001, Joe Decker left his eight-month-old child, L.E.D., with...
KONENKAMP, Justice. [ 1.] Defendant was convicted in Hutchinson County of grand theft by passing an insufficient funds check in Jackson County. His motion to dismiss for lack of proper venue was denied because the circuit court reasoned that the ultimate recipient of the check was in Hutchinson County. On appeal, we conclude that the acts constituting the offense occurred in Jackson County, and therefore, the case should have been dismissed for lack of proper venue. Background [ 2.] Mark...
ZINTER, Justice. [ 1.] TRM ATM Corporation (TRM) appeals a sales tax assessment on services it rendered to intermediaries involved in providing automatic teller machine (ATM) banking. The case requires us to consider whether concededly taxable services are subject to sales tax that must be paid by TRM, the provider of the services; or, whether the services are subject to use tax that must be paid by the intermediaries that use TRM's services. If the services are subject to sales tax, we must...
GILBERTSON, Chief Justice. [ 1.] Michael and Ann Arnoldy each purchased assignments of judgments against David and Connie Finneman. They used the judgments to redeem land owned by the Finnemans that had been foreclosed. Daniel Mahoney also purchased judgments that he used to redeem the land from Michael. Arnoldys filed this separate declaratory judgment action challenging the validity of the judgments Mahoney used to redeem from them. The trial court granted summary judgment in favor of...
MEIERHENRY, Justice. [ 1.] Nicholas Rondell appeals an adverse ruling on a suppression motion. Rondell was arrested for driving while under the influence of alcohol. Rondell claimed that the traffic stop was an unconstitutional search and seizure and moved to suppress evidence resulting from the stop. After the trial court denied Rondell's motion, he entered into a plea agreement with the State. The State and Rondell agreed that Rondell would enter a "conditional guilty plea" to preserve his...
ZINTER, Justice. [ 1.] In this case we must determine whether a dispute regarding governance of a religious corporation involves issues over which courts have subject matter jurisdiction. We conclude that underlying religious controversies over church leadership and the validity of member excommunications so pervade the governance issue that it is beyond the jurisdiction of secular courts. Background and Procedural History [ 2.] Hutterville Hutterian Brethren, Inc. (Hutterville) is a...
SEVERSON, Justice. [ 1.] When Bryan and Kayla Jacquot experienced water problems in their basement, they initiated this action against the prior owners of their home, James and Karen Rozum, and the parties' limited real estate agent, Stephen Peschong, an employee of Mitchell Realty, LLC. The trial court granted the Rozums' motion for summary judgment on the Jacquots' fraud, deceit, and fraudulent misrepresentation claims. The trial court also granted all the defendants' motion for summary...
KONENKAMP, Justice. [ 1.] When a bank returned a series of checks for insufficient funds, the returns were challenged as untimely. Under the Uniform Commercial Code midnight-deadline rule for check processing, a payor bank must, after receipt of a check presented for payment, pay the check, return it, or send notice of dishonor by midnight of the next banking day. Otherwise, the payor bank becomes "accountable" for the amount of the check. Because, here, the bank returned the checks by...
PER CURIAM. [ 1.] A magistrate court convicted Gutnik of possession of marijuana, but acquitted him of possession of drug paraphernalia. Gutnik appealed his conviction to circuit court. He filed a notice of appeal and attached a copy of the judgment, but mistakenly identified the conviction as possession of paraphernalia rather than possession of marijuana. The circuit court dismissed the appeal for lack of jurisdiction. Because notices of appeal are to be construed liberally in favor of...
MEIERHENRY, Justice. [ 1.] The question in this case is whether a city can enforce its speed limit ordinance, instead of state law, on a state trunk highway and thereby direct the fine to city coffers rather than local school districts. This question was brought to the South Dakota Attorney General's attention after the City of Colman, South Dakota, ticketed speeders on State Highway 34 with a city ordinance violation rather than a state law violation. The Attorney General notified Colman...
SEVERSON, Justice. [ 1.] Lloyd Stockwell initiated this action to quiet title to property deeded to him by his father, Cecil Stockwell, Sr. (Cecil Sr.). Cecil Stockwell, Jr. (Cecil Jr.), Bruce Stockwell, John Stockwell, and the Estate of Cecil Sr. filed a counterclaim, alleging that Cecil Sr. lacked the testamentary capacity to execute the deed and that the deed was the product of undue influence. 1 The trial court entered a judgment quieting title and recognizing the legal validity of and...
GILBERTSON, Chief Justice. [ 1.] Lamar Advertising of South Dakota, Inc. (Lamar) failed to adhere to the one-year deadline imposed by SDCL 15-30-16 in which to conclude proceedings on a matter remanded by this Court. Heavy Constructors, Inc. (Heavy), the defendant in the matter, moved to dismiss. The trial court heard arguments in which Lamar contended it had good cause for not having proceedings within a year. The trial court granted Heavy's motion to dismiss. Lamar appeals. We affirm....
