843 N.W.2d 357
S.D.2014Background
- Stephanie Strong (pro se) filed for a writ of mandamus seeking that the Secretary of State investigate and reject Brian Gosch’s nominating petitions for a 2012 legislative race, alleging a notarization defect.
- Defendants (Secretary Gant) and intervenors (Gosch and Pennington County Republican Party) moved to dismiss; the circuit court dismissed Strong’s application as untimely and for failure to state a claim and quashed the writ.
- Intervenors moved for costs, disbursements, and attorney’s fees under SDCL 15-17-51, alleging the suit was frivolous and malicious; the court scheduled a hearing while Strong’s appeal of the merits order was pending.
- Strong did not attend the March 22, 2013 hearing on fees (she had filed a notice of appeal and received a prior court email that the hearing was canceled); the court later invited post-hearing objections and Strong submitted none.
- The circuit court awarded the Intervenors $21,257.50 in attorney’s fees and $57.08 in costs; Strong appealed, raising (1) that the court lacked authority to tax costs without a written objection/hearing request, and (2) that the court lacked jurisdiction to hear attorney’s fees while her appeal of the merits was pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in holding a hearing and taxing costs/disbursements absent a written objection by Strong | Strong: SDCL 15-6-54(d)(1) required her to file a written objection and request a hearing before costs could be taxed; without that the court lacked authority | Intervenors & court: statute permits costs "as of course" unless court directs otherwise; court may hold a hearing and then direct taxation of costs | Court: No error — statute does not prohibit a hearing; court properly taxed $57.08 in costs after hearing |
| Whether the circuit court lacked jurisdiction to hold a hearing on attorney’s fees while Strong’s appeal of the merits was pending | Strong: Her March 20 notice of appeal deprived the circuit court of jurisdiction over the matter; she relied on the court’s email stating the fee hearing was cancelled and did not receive later notice that it proceeded | Intervenors: Appeal of the merits does not divest the court of jurisdiction over collateral, separate matters (like a separate fee award); any notice issues were waived because Strong failed to timely object after the court invited objections post-hearing | Court: No error — appeal did not divest the circuit court of jurisdiction over the collateral fee motion; Strong waived notice/jurisdiction objections by not responding to the court’s post-hearing invitation; fee award stands |
Key Cases Cited
- Muenster v. Muenster, 764 N.W.2d 712 (S.D. 2009) (an appeal divests the trial court only of jurisdiction over matters that would change or affect the appealed judgment)
- Midcom, Inc. v. Oehlerking, 722 N.W.2d 722 (S.D. 2006) (an attorney-fee judgment is collateral and separate from the underlying merits judgment)
- Hobart v. Ferebee, 776 N.W.2d 67 (S.D. 2009) (appeal of a fee award divests the trial court of jurisdiction over that fee award while the appeal is pending)
- City of Watertown v. DM&E R.R., 551 N.W.2d 571 (S.D. 1996) (failure to object or submit alternative findings waives issues for appeal)
- Klutman v. Sioux Falls Storm, 769 N.W.2d 440 (S.D. 2009) (appendix documents must be included in and cross-referenced to the settled record)
- Ridley v. Lawrence Cnty. Comm’n, 619 N.W.2d 254 (S.D. 2000) (court may award appellate attorney’s fees where underlying statutory standards for fees are met)