The SD Supreme Court handed down one decision this morning, holding inter alia:

1. Mortgage Dispute Resolved

PLAINS COMMERCE BANK, INC. v. BECK, et. al., 2023 S.D. 8:  This appeal is characterized as an appeal relating to the actions of two trial judges: Judge Myren and Judge Sommers.  As explained in footnote 5:

The Honorable Scott P. Myren was appointed to the South Dakota Supreme Court on October 28, 2020, and assumed office on January 5, 2021. Prior to his change in judicial duties, he exercised his authority as presiding judge for the Fifth Judicial Circuit to appoint the Honorable Richard Sommers to serve as the judge for the case.

As a result of Justice Myren’s participation in the proceedings below,  Retired Circuit Judge Zell sat on this appeal. 

This decision by the SD Supreme Court today consists of majority opinions authored by two different Justices: Justice Kern and Justice Salter.  Justice Kern dissents on one issue (attorney fees).  Judge Zell dissents on the four remaining issues.

The underlying dispute and its resolution is set forth in ¶3 as follows:

[¶3.] Gary and Betty Beck created B&B Farms Trust as an irrevocable spendthrift trust in 1999, naming their three children as secondary beneficiaries and themselves as primary beneficiaries. Matthew Beck, their youngest child, served as Trustee. In 2015, Matthew took out a large personal loan with Plains Commerce Bank and granted a mortgage to Plains Commerce on $800,000-worth of Trust real estate as partial collateral. All beneficiaries of the Trust signed a consent to mortgage the Trust real estate prepared by their family attorney at the request of Plains Commerce. Matthew defaulted on the loan, and Plains Commerce commenced a foreclosure action against Matthew in his capacity as Trustee for B&B Farms Trust. Jamie Moeckly intervened in the action on behalf of the Trust and the parties filed cross-motions for summary judgment on whether Plains Commerce can foreclose on the Trust real estate. The circuit court granted Jamie’s motion for summary judgment and denied Plains Commerce’s. The court concluded that Matthew’s mortgage on Trust real estate was void and unenforceable. The circuit court subsequently awarded attorney fees to Jamie Moeckly. Plains Commerce appeals the court’s order granting Jamie summary judgment and her motion for attorney fees. We affirm in part and reverse in part.

This case was orally argued 16+ months ago, Oct. 6, 2021.