#28201-dismiss-SRJ
2018 S.D. 47


                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****


MYRON and PAT STOEBNER,                      Plaintiffs and Appellants,

      v.

THOMAS KONRAD,                               Defendant and Appellee.

                                    ****


                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                  HUTCHINSON COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE PATRICK T. SMITH
                                 Judge

                                    ****


JOEL A. ARENDS of
Sioux Falls, South Dakota                    Attorney for plaintiffs and
                                             appellants.


ROBERT THOMAS KONRAD of
Olinger, Lovald, McCahren,
   Van Camp, & Konrad, P.C.
Pierre, South Dakota                         Attorneys for defendant and
                                             appellant.

                                    ****


                                             CONSIDERED ON BRIEFS
                                             APRIL 16, 2018
                                             OPINION FILED 06/20/18
#28201

JENSEN, Justice

[¶1.]         Myron and Pat Stoebner (the Stoebners) sued Thomas Konrad seeking

a declaratory judgment and rescission of a contract for the sale of land and an

incorporated lease. The Stoebners appeal the circuit court’s order granting

Konrad’s motion to compel arbitration, dismissing the temporary injunction, and

staying all proceedings until the parties engage in arbitration. Because no

statutory authority exists to entertain the Stoebners’ appeal as a matter of right, we

dismiss for lack of appellate jurisdiction.

                                     Background

[¶2.]         The Stoebners and Konrad executed a contract for the sale of several

parcels of real property owned by the Stoebners. 1 A lease agreement that granted

the Stoebners a lifetime interest in a certain subset of the parcels of land sold was

attached and incorporated by reference into the sales contract. On February 14,

2017, the Stoebners filed a complaint against Konrad alleging that Konrad intended

to lease 70 acres of land to a third party that would infringe on some of the property

leased to the Stoebners. The Stoebners also alleged that the lease is facially invalid

and executed under a mistake of law because agricultural land cannot be leased for

a period of time exceeding 20 years pursuant to SDCL 43-32-2. As a result, the

Stoebners claim they are entitled to rescission of both the lease and sales contract.




1.      We recently upheld an order confirming an arbitration award that required
        the Stoebners to transfer certain parcels of land to Konrad under the same
        contract between the parties. See Konrad v. Stoebner, 2016 S.D. 77, 887
        N.W.2d 327.

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#28201

[¶3.]         The Stoebners also filed a motion for a temporary restraining order

and a request for an order to show cause why a preliminary injunction should not be

issued by the circuit court. On February 23, 2017, the circuit court issued the

temporary restraining order against Konrad and a show cause order setting a

hearing for preliminary injunction on February 27, 2017. On February 24, 2017,

Konrad filed a demand for arbitration, a motion to stay all proceedings pending

arbitration, and an objection to injunctive relief.

[¶4.]         At the hearing, the circuit court only considered the demand for

arbitration, stating “it would seem logical, then, to take that question up first, as I

believe it would be dispositive of other questions if arbitration were, in fact, ordered

by this court.” During the hearing, the circuit court heard arguments on the

arbitration issue and determined that the Stoebners’ claims were subject to

arbitration. The request for a preliminary injunction was not argued or addressed

by the circuit court at the hearing. The court entered an order on March 2, 2017,

compelling arbitration on all the claims alleged in the Stoebners’ complaint and the

motion for injunctive relief; staying all proceedings until the parties have engaged

in arbitration; and dismissing the “temporary injunction ordered in this case.” 2



2.      By statute, a temporary injunction may be either a temporary restraining
        order or a preliminary injunction. SDCL 21-8-1. The circuit court never
        issued a preliminary injunction or addressed the motion for preliminary
        injunction. Rather, it ordered the motion for preliminary injunction to be
        heard as part of the arbitration. Because the temporary restraining order
        was the only temporary injunction ordered in the case, we conclude the
        court’s order dismissed the temporary restraining order.
        We recently held that an order denying or dismissing a preliminary
        injunction is appealable, as a matter of right, under SDCL 15-26A-3(5). See
        Hedlund v. River Bluff Estates, LLC, 2018 S.D. 20, ¶ 13, 908 N.W.2d 766,
                                                             (continued . . .)
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#28201

[¶5.]         The Stoebners appeal the circuit court’s order raising several issues for

our review. Because all the issues raised are predicated on the circuit court’s order

compelling arbitration, we need only address whether that order is appealable as a

matter of right under our statutes. 3

                                        Analysis

[¶6.]         Whether presented by the parties or not, we are required to take notice

of jurisdictional questions. Dale v. City of Sioux Falls, 2003 S.D. 124, ¶ 6,

670 N.W.2d 892, 894. “This Court has only ‘such appellate jurisdiction as may be

provided by the Legislature.’” State v. Stenstrom, 2017 S.D. 61, ¶ 15, 902 N.W.2d

787, 791 (quoting S.D. Const. art. 5, § 5). “The right to appeal is statutory and

therefore does not exist in the absence of a statute permitting it.” State v.

Schwaller, 2006 S.D. 30, ¶ 5, 712 N.W.2d 869, 871 (quoting Dale, 2003 S.D. 124, ¶ 6,

670 N.W.2d at 894). “To determine whether the statutory grant of appellate

jurisdiction has been met, the rules of statutory interpretation apply.” Cable v.




________________________
(. . . continued)
         771. However, an order dismissing a temporary restraining order is not an
         appealable order. See Beers v. City of Watertown, 42 S.D. 441, 447, 176 N.W.
         149, 150 (1920) (declaring that a temporary restraining order “is merely to
         preserve the status quo until there can be a hearing upon the question of
         whether or not to grant an injunction—such order does not rise to the dignity
         of an injunction”). SDCL 15-6-65(b) also provides that “[t]emporary
         restraining orders by their very nature may not be appealed.”

3.      The Stoebners’ brief asserts that this appeal is appropriately considered as
        an intermediate appeal under SDCL 15-26A-3(6), but the Stoebners failed to
        timely file a petition for intermediate appeal as required by SDCL 15-26A-13.
        As such, the Stoebners are limited in this instance to arguing that they have
        an appeal as a matter of right.

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#28201

Union Cty. Bd. of Cty. Commn’rs, 2009 S.D. 59, ¶ 19, 769 N.W.2d 817, 825 (quoting

Johnson v. Lebert Const., Inc., 2007 S.D. 74, ¶ 4, 736 N.W.2d 878, 879).

[¶7.]          The Stoebners initially argue that SDCL 15-26A-3(2) provides a right

of appeal from the order compelling arbitration. SDCL 15-26A-3(2) provides that

appeals may be taken from “[a]n order affecting a substantial right, made in any

action, when such order in effect determines the action and prevents a judgment

from which an appeal might be taken.” While the Stoebners summarily claim that

the order compelling arbitration affects a substantial right, they fail to address the

remainder of the statute’s text: “when such order in effect determines the action and

prevents a judgment from which an appeal might be taken.” SDCL 15-26A-3(2).

The circuit court’s order does not determine or resolve the merits of the Stoebners’

claims regarding the sales contract or the lease agreement. We have stated that

“[t]o be final, a judgment must ‘finally and completely adjudicate all of the issues of

fact and law involved in the case.’” Midcom, Inc. v. Oehlerking, 2006 S.D. 87, ¶ 11,

722 N.W.2d 722, 725 (quoting Griffin v. Dwyer, 88 S.D. 357, 358, 220 N.W.2d 1, 2

(1974)). Moreover, SDCL 21-25A-35 affords a right of appeal from an order or

judgment entered by the circuit court following the completion of the arbitration

proceedings.

[¶8.]          Under the Federal Arbitration Act (FAA), the United States Supreme

Court has similarly defined a final decision as one that “ends the litigation on the

merits and leaves nothing more for the court to do but execute the judgment.”

Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86, 121 S. Ct. 513, 519,

148 L. Ed. 2d 373 (2000) (quoting Digital Equip. Corp. v. Desktop Direct, Inc.,


                                          -4-
#28201

511 U.S. 863, 867, 114 S. Ct. 1992, 1995, 128 L. Ed. 2d 842 (1994)). The Court in

Green Tree held that an order compelling arbitration and dismissing all claims is

considered final and appealable. Id. at 89, 121 S. Ct. at 521. Here, because the

circuit court’s order compelling arbitration did not address the merits of the claims

and lacks finality, the Stoebners do not have an appeal as a matter of right from the

order compelling arbitration under SDCL 15-26A-3(2).

[¶9.]        South Dakota’s version of the Uniform Arbitration Act, found in SDCL

chapter 21-25A, also fails to provide a right of appeal from the circuit court’s order

compelling arbitration. SDCL 21-25A-35 delineates when an appeal may be taken

from court orders involving issues of arbitration:

             (1) An order denying an application to compel arbitration made
                 under § 21-25A-5;
             (2) An order granting an application to stay arbitration made
                 under § 21-25A-8;
             (3) An order confirming or denying confirmation of an award;
             (4) An order modifying or correcting an award;
             (5) An order vacating an award without directing a rehearing; or
             (6) A judgment or decree entered pursuant to the provision of
                 this chapter.

Notably absent from the above list is the right to appeal from an order granting an

application to compel arbitration.

[¶10.]       The plain language of SDCL 21-25A-35, being clear, certain and

unambiguous, does not provide for a right of appeal from an order compelling

arbitration. As such, “there is no reason for construction, and the Court’s only

function is to declare the meaning of the statute as clearly expressed.” Larson v.




                                          -5-
#28201

Krebs, 2017 S.D. 39, ¶ 18, 898 N.W.2d 10, 17 (quoting Rowley v. S.D. Bd. of Pardons

& Paroles, 2013 S.D. 6, ¶ 7, 826 N.W.2d 360, 363-64). 4

[¶11.]         The Stoebners also cite Nature’s 10 Jewelers v. Gunderson, 2002 S.D.

80, 648 N.W.2d 804, in support of their claim that they have an appeal of right from

an order compelling arbitration. Nature’s 10 reversed a circuit court’s order

compelling arbitration determining that the franchise agreement, which included

an arbitration clause, perpetrated a crime and was void under South Dakota law.

2002 S.D. 80, ¶¶ 12-13, 648 N.W.2d at 807. The Stoebners argue that like the

situation in Nature’s 10, the Court should consider their appeal because the

arbitration clauses are contained in the sales contract and lease, which they allege

are void. The Stoebners do not cite the companion case to Nature’s 10: Rossi Fine

Jewelers, Inc. v. Gunderson, 2002 S.D. 82, ¶ 4, 648 N.W.2d 812, 813, which was

decided on the same day. In Rossi, this Court also affirmed an order compelling

arbitration. 2002 S.D. 82, ¶ 13, 648 N.W.2d at 816-17. We note that Nature’s 10

and Rossi were both considered under the Federal Arbitration Act (FAA) found at

9 U.S.C. §§ 1-16 (2012). More importantly, the question of whether the Court had

jurisdiction to consider an appeal as a matter of right from the order compelling

arbitration was not raised or considered in either case.




4.       Other courts which have addressed the right of appeal from an order
         compelling arbitration under the Uniform Arbitration Act are divided. See
         Annotation, Appealability of State Court’s Order or Decree Compelling or
         Refusing to Compel Arbitration, 6 A.L.R. 4th 652 (Originally published in
         1981). These differing resolutions rest on the exclusivity of the state
         statutory language at issue or the finality of the order.

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#28201

[¶12.]         We only have “such appellate jurisdiction as may be provided by the

Legislature[,]” S.D. Const. art. 5, § 5, and without such authority provided by

statute to review an order compelling arbitration, we conclude that an interlocutory

order as the one at hand is not appealable as a matter of right. 5 See Dennis v. Jack

Dennis Sports, Inc., 253 P.3d 495, 496 (Wyo. 2011) (interpreting language identical

to SDCL 21-25A-35 and citing cases that support the court’s conclusion that an

order compelling arbitration is not appealable as a matter of right); but see, e.g.,

Kremer v. Rural Cmty. Ins. Co., 788 N.W.2d 538, 549 (Neb. 2010) (holding under a

statute differing from our own, that an order compelling arbitration is appealable as




5.       The Stoebners’ challenge does not go to the validity of the arbitration clause
         itself, which would have required the circuit court to summarily determine
         the issue under SDCL 21-25A-5. Because such a determination was not
         made in this case, it is unnecessary to consider whether a right of appeal
         exists under SDCL 15-26A-3(2) from such a summary determination.
         Severing the question of the validity of an arbitration clause under SDCL 21-
         25A-5 from other questions challenging the validity of a contract is consistent
         with SDCL 53-5-4, which provides for the severability of contracts. “A court
         may divide a contract into ‘corresponding pairs of part performances,’ and
         then enforce only those parts which do not ‘materially advance the improper
         purpose’ of the agreement.” Thunderstik Lodge, Inc. v. Reuer, 2000 S.D. 84,
         ¶ 7, 613 N.W.2d 44, 46 (quoting E. Allan Farnsworth, Contracts § 5.8, at
         381-82 (2d ed. 1990)).
         This approach under South Dakota’s version of the Uniform Arbitration Act
         is consistent with the United States Supreme Court’s reading of the FAA in
         Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163
         L. Ed. 2d 1038 (2006). Buckeye held that “[f]irst, as a matter of substantive
         federal arbitration law, an arbitration provision is severable from the
         remainder of the contract. Second, unless the challenge is to the arbitration
         clause itself, the issue of the contract’s validity is considered by the arbitrator
         in the first instance.” 546 U.S. at 445-46, 126 S. Ct. at 1209, 163 L. Ed. 2d
         1038. This rule permits “a court to enforce an arbitration agreement in a
         contract that the arbitrator later finds to be void.” Id. at 448, 126 S. Ct. at
         1210 (emphasis added).

                                             -7-
#28201

a final order under the Nebraska statute that defines a “final order” to include any

“order affecting a substantial right made in a special proceeding”).

[¶13.]         Our decision dismissing this appeal is in harmony with the plain

reading of the applicable appeal statutes and our case law favoring resolution of

disputes by arbitration:

               This dismissal is in accord with the legislative dictate and the
               fact that “this Court has consistently favored the resolution of
               disputes by arbitration.” . . . [T]his is consistent “with the sound
               policy, present throughout our system of jurisprudence as well
               as in the arbitration statute, of preserving judicial resources and
               limiting appeals prior to judgment to those instances where the
               element of finality is present.” This is because if the action is
               allowed to proceed no appeal may be necessary. “Judicial
               economy demands that courts not provide time-consuming and
               perhaps unnecessary interlocutory appeals which delay the
               favored dispute-resolution process of arbitration.”

Double Diamond Constr. v. Farmers Coop. Elevator Ass’n of Beresford, 2003 S.D. 9,

¶ 10, 656 N.W.2d 744, 747 (per curiam) (citations omitted).

[¶14.]         Based on the foregoing, the circuit court’s order compelling the

Stoebners and Konrad to engage in arbitration is not an order appealable as a

matter of right under either SDCL 15-26A-3(2) or SDCL 21-25A-35. Therefore, we

dismiss the Stoebners’ appeal. 6

[¶15.]         GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

SEVERSON, Retired Justice, concur.




6.       Konrad filed a motion to recover appellate attorney fees as the prevailing
         party under the terms of the contract. Because the claims have not been
         determined on the merits, any request for attorney’s fees is premature.

                                            -8-
