896 N.W.2d 267
S.D.2017Background
- Legendary Loan sued Todd Larson on a promissory note secured by property; partial summary judgment (liability for principal and interest) was entered by Judge Robert Timm before his retirement.
- After Timm retired, the case was reassigned to Judge Carmen Means, who ruled on multiple motions and entered a protective order adverse to Larson.
- Nearly a year after Means was assigned and after submitting argument to Means, Larson filed an informal disqualification request and a formal affidavit for change of judge under SDCL ch. 15-12.
- Presiding Judge Gregory Stoltenburg emailed the clerk that “The case remains with Judge Means” but did not enter a formal written order; Stoltenburg later wrote Larson that the affidavit was denied as untimely.
- Judge Means later granted final summary judgment to Legendary Loan; Larson appealed, arguing Means lacked jurisdiction because the presiding judge did not enter a formal assignment order after his affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Means had jurisdiction after Larson filed an affidavit for change of judge | Legendary Loan: procedural requirements were followed; no formal order was required to vest Means with authority | Larson: presiding judge failed to enter formal order denying the affidavit/assigning Means, so Means lacked authority | Court: Larson was not entitled to file the affidavit (untimely and waived); therefore Means had authority and judgment affirmed |
| Whether Larson’s affidavit was timely under SDCL 15‑12‑27 | Legendary Loan: affidavit untimely and thus properly denied | Larson: affidavit should have been considered despite timing | Court: affidavit was untimely under statute; not entitled to relief |
| Whether Larson waived right to peremptory recusal under SDCL 15‑12‑24 by submitting argument to Means | Legendary Loan: Larson waived the right by participating in hearings and submitting argument | Larson: he retained right to change judge despite prior submissions | Court: Larson waived the right by presenting argument before filing the affidavit |
| Whether procedural formality (formal written order by presiding judge) was required to confer jurisdiction | Legendary Loan: procedural steps were effectively completed; formal entry not controlling given Larson’s lack of entitlement | Larson: absence of a formal order deprived Means of authority | Court: did not decide necessity of formal order because Larson lacked the underlying right to file affidavit; affirmed on waiver/timeliness grounds |
Key Cases Cited
- State v. Peterson, 531 N.W.2d 581 (S.D. 1995) (affidavit for change is reviewed by the presiding judge and challenged judge cannot determine its sufficiency)
- State v. Tapio, 432 N.W.2d 268 (S.D. 1988) (presiding judge must determine timeliness and entitlement to an affidavit before reassignment)
- State v. Burgers, 602 N.W.2d 277 (S.D. 1999) (party waives peremptory recusal right by submitting matters to the judge)