#28491-stay-SLZ
2018 S.D. 27

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
BRET HEALY,                                  Plaintiff and Appellant,

      v.

MARY ANN OSBORNE, BRYCE HEALY,
BARRY HEALY, HEALY RANCH
PARTNERSHIP, HEALY RANCH, INC.,
and ALBERT STEVEN FOX,                       Defendants and Appellees.

                                    ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                     BRULE COUNTY, SOUTH DAKOTA
                                    ****
                       THE HONORABLE CHRIS GILES
                                Judge
                                    ****

CYNTHIA SRSTKA
Sioux Falls, South Dakota                    Attorney for plaintiff
                                             and appellant.

JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise
 Sauck & Hieb, LLP
Aberdeen, South Dakota                       Attorneys for defendants
                                             and appellees Mary Ann
                                             Osborne and Healy Ranch
                                             Partnership.

                                    ****
                                             MOTION CONSIDERED
                                             ON FEBRUARY 8, 2018

                                             OPINION FILED 03/14/2018
LEE SCHOENBECK
Watertown, South Dakota        Attorney for defendants
                               and appellees Healy Ranch,
                               Inc., Barry Healy and Bryce
                               Healy.

KARA SEMMLER of
May, Adam, Gerdes & Thompson
Pierre, South Dakota           Attorneys for defendant
                               and appellee Albert Steven Fox.
#28491

ZINTER, Justice

[¶1.]        On February 9, 2018, this Court issued an order granting Bret Healy’s

(Healy) motion for a stay of a circuit court’s final judgment pending appeal.

Additionally, we dismissed his first appeal from a non-final judgment. We now

issue this opinion setting forth the reasons for our order.

                          Facts and Procedural History

[¶2.]        Healy sued Mary Ann Osborne and others (collectively Osborne) for

alleged fraud in transferring ownership of a ranch and acreage in which Healy

claimed an interest. As part of the suit, Healy filed a lis pendens as to the subject

property. Osborne answered, counterclaimed, and later moved for summary

judgment based upon the statute of limitations. The summary judgment motion

was granted and the complaint dismissed, but neither the counterclaims nor the

pending motions for attorney’s fees were addressed. The issues pending before this

Court developed as a result of a series of subsequent filings relating to Healy’s

appeal and his request for a stay of execution of the circuit court’s judgment.

[¶3.]        Although the summary judgment did not dispose of all pending claims,

and although the circuit court did not enter an SDCL 15-6-54(b) certification, Healy

filed an appeal of the summary judgment. Shortly thereafter, the circuit court filed

a final judgment disposing of all pending claims. That judgment dismissed the

counterclaims, awarded Osborne attorney’s fees, and ordered an immediate release

of the lis pendens. On the same date, Osborne filed a motion with this Court to

dismiss Healy’s appeal of the earlier summary judgment because it was not a final

judgment.

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[¶4.]         Healy also filed a motion in the circuit court to stay execution of that

part of its final judgment ordering immediate release of the lis pendens. Following

email exchanges among the parties and the circuit court, the court denied the stay.

It ruled that the lis pendens was “inappropriate” and that the court lost jurisdiction

to grant a stay as a result of Healy’s appeal. Healy then moved this Court for

special relief pursuant to SDCL 15-26A-391 to grant the stay. Healy also filed a




1.      SDCL 15-26A-39 provides:
              A motion for the relief provided in §§ 15-26A-25 to 15-26A-38,
              inclusive, may be made to the Supreme Court but said motion
              shall show that the application to the circuit court for the relief
              sought is not practicable or that the circuit court has denied an
              application or has failed to afford the relief which the applicant
              requested, with the reasons given by the circuit court for its
              action. Said motion shall also show the reasons for the relief
              requested and the facts relied upon; and if the facts are subject
              to dispute, the motion shall be supported by affidavit or other
              sworn statements or copies thereof. With the motion shall be
              filed such parts of the record as are relevant. Reasonable notice
              of the motion shall be given to all parties. The motion shall be
              filed with the clerk of the Supreme Court and normally will be
              considered by all members of the court, but in exceptional cases
              where such a procedure would be impracticable due to the
              requirements of time, the application may be made to and
              considered by a single justice of the court.
        Notably absent in the text of this rule is the phrase “motion for special relief.”
        The terminology “special relief” appears only in the title, which is not part of
        the rule. SDCL 2-14-9 (“[T]itles . . . constitute no part of any statute.”). The
        rule itself limits the relief available to that “provided in §§ 15-26A-25 to 15-
        26A-38, inclusive[.]” These provisions relate to stays pending appeal. Thus,
        Healy makes appropriate use of SDCL 15-26A-39 here. We emphasize,
        however, the limits of the relief available under the rule and that the title’s
        somewhat vague reference to “special relief” is not an additional basis for any
        appellate relief beyond that “in §§ 15-26A-25 to 15-26A-38, inclusive[.]”
        SDCL 15-26A-39.


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second notice of appeal pertaining to the circuit court’s final judgment adjudicating

all claims.

[¶5.]         Following consideration of Osborne’s and Healy’s motions, this Court

granted Osborne’s motion to dismiss Healy’s first appeal of the summary judgment

because it was not final. See Brasel v. City of Pierre, 87 S.D. 561, 565, 211 N.W.2d

846, 848 (1973) (dismissing appeals of partial summary judgments because, absent

a Rule 54(b) certification, “a judgment adjudicating fewer than all the claims, rights

and liabilities of fewer than all the parties [including cross-claims] . . . is not a final

judgment” that may be appealed as a matter of right). We also granted Healy’s

motion for special relief and stayed execution of the circuit court’s judgment relating

to the lis pendens. We now issue our opinion to explain the reasons for granting the

stay.

                                        Analysis

[¶6.]         Absent a showing of good cause, the circuit court’s final judgment

ordering release of the lis pendens was automatically stayed for thirty days. See

SDCL 15-6-62(a) (“Except as stated herein[2] or as otherwise ordered by the court

for good cause shown . . . no execution shall issue upon a judgment nor shall

proceedings be taken for its enforcement until the expiration of thirty days after its

entry.” (emphasis added)). Within that thirty-day automatic-stay period, Healy

filed a motion under the appellate rules for the circuit court to stay execution of that




2.      The exceptions largely relate to injunctions. See SDCL 15-6-62(a), (c).


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part of its judgment ordering release of the lis pendens. The motion was filed in

circuit court pursuant to SDCL 15-26A-25 and our rules accompanying it.

[¶7.]        SDCL 15-26A-25 and the additional appellate rules applicable in this

matter “are rules promulgated by this Court[.]” Landstrom v. Shaver, 1996 S.D. 49,

¶ 10, 550 N.W.2d 699, 703 (quoting Sander v. Geib, Elston, Frost Prof. Ass’n, 506

N.W.2d 107, 121 (S.D. 1993)). “We are . . . uniquely situated to determine the intent

and application of our own rules.” Id. In interpreting the rules on supersedeas

bonds in Landstrom, we found it helpful to look to the original Supreme Court Rule

79-1 as the source of those rules. 1996 S.D. 49, ¶ 10 n.5, 550 N.W.2d at 703 n.5. In

a similar exercise here, we note that SDCL 15-26A-25 through SDCL 15-26A-39,

inclusive, were enacted as a series of rules under the title “Rule 8 Stay of Execution

Pending Appeal.” It is apparent from reviewing that series of rules, that the

provisions now codified from SDCL 15-26A-25 through -39 were intended to work

together in the granting of stays pending appeal. Though modifications have been

made to some of those provisions over time, we still believe this to be the case and

find that point helpful in interpreting and applying the rules here.

[¶8.]        To obtain a stay under SDCL 15-26A-25, the movant must generally

provide a supersedeas bond, but alternatives are also contemplated depending on

the nature of the judgment. Id. (“An appeal from a judgment or order shall not stay

enforcement of proceedings in the circuit court except as provided in § 15-6-62

unless the appellant executes a supersedeas bond in the amount and form approved

by the circuit court or otherwise complies with the provisions of this rule.” (emphasis

added)). Healy apparently sought a stay of the release of the lis pendens in circuit

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court under this emphasized language because his motion for a stay included an

executed “Discharge and Release of Lis Pendens.” See SDCL 15-26A-29. (“If the

appeal is from a judgment directing the execution of a conveyance or other

instrument,[3] its execution shall not be stayed by the appeal unless the instrument

shall be properly executed and deposited with the clerk of the circuit court to abide

the judgment of the Supreme Court.” (emphasis added)).

[¶9.]          Although Healy complied with the requirements for a stay under

SDCL 15-26A-25, et seq., Osborne resisted the stay. Osborne contended: no hearing

was noticed; the lis pendens should never have been filed; and Healy had a pending

appeal before this Court. The circuit court denied the stay by email, ruling that the

“lis pendens was not appropriate in the first place” and that the court lost

jurisdiction to grant a stay as a result of the first appeal to this Court. Healy then

appealed that decision by filing his motion for special relief with this Court.

[¶10.]         We first note that the circuit court should have granted Healy’s motion

for a stay. Healy sought only to stay that part of the circuit court’s final judgment

ordering release of the lis pendens. No payment of “a sum of money” was involved.

Cf. Landstrom, 1996 S.D. 49, ¶ 10, 550 N.W.2d at 703 (discussing requirements for

a stay pending appeal of a judgment directing payment of “a sum of money”). The

circuit court’s discretion to grant a stay in this type of case is narrow. See id. n.5

(discussing requirements for a stay pending appeal of a judgment directing actions

other than payment of a sum of money). A monetary bond is not required. Id. All


3.       The provisions of the circuit court’s final judgment ordering release of the lis
         pendens required the filing of the documents necessary for the release.

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that is required in cases of judgments directing “the delivery or execution of

documents” is compliance with the applicable provisions of “SDCL 15-26A-27,

15-26A-29, 15-26A-38.” Id. And the applicable rule here, SDCL 15-26A-29, only

requires execution and deposit of the instrument with “the clerk of the circuit

court[.]” Healy executed a signed, dated, and notarized “Discharge and Release of

Lis Pendens” and filed it with the clerk of court along with his motion for a stay.

Healy met the requirements for a stay.

[¶11.]        We also note that the circuit court’s reliance on the “propriety” of the

initial filing of the lis pendens was misplaced. As set forth above, the granting of a

stay in this situation is largely automatic. Moreover, “the privilege of suspending

the execution of [a] judgment is that of the party entitled to appeal.” Aune v. B-Y

Water Dist., 505 N.W.2d 761, 763 (S.D. 1993) (quoting Wentzel v. Huebner, 78 S.D.

471, 474, 104 N.W.2d 476, 477 (1960)). The purpose of the stay on appeal provisions

is “to preserve the status quo and the ability of the judgment holder to execute on

the judgment if it is affirmed[.]” Landstrom, 1996 S.D. 49, ¶ 14 n.7, 550 N.W.2d at

704 n.7. That purpose was fulfilled here by Healy’s filing of the executed discharge

and release of lis pendens as provided for by SDCL 15-26A-29.

[¶12.]       We finally note that the circuit court erred in concluding it had lost

jurisdiction to issue a stay as a result of Healy’s appeal. This Court has not

squarely addressed the question whether an invalid appeal from an earlier non-

final judgment, such as the summary judgment here, divests the circuit court of

jurisdiction over subsequent matters in the same case. A good analysis of the issue

appears in Estate of Beavers v. Knapp, 889 N.E.2d 181, 206 (Ohio Ct. App. 2008):

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               Appellants’ filing of their first notice of appeal, prior to the trial
               court’s issuance of a final, appealable order, was premature, and
               this court lacked jurisdiction to consider appellants’ first appeal.
               “A premature notice of appeal does not divest the trial court of
               jurisdiction to proceed because the appeal has not yet been
               perfected.” State ex rel. Everhart v. McIntosh, 874 N.E. 2d 516,
               519 (Ohio 2007).

See also Musick v. Woznicki, 136 P.3d 244, 246 (Colo. 2006) ( “[A] trial court is not

divested of jurisdiction when a party files a premature notice of appeal of a nonfinal

judgment.”); Reynolds v. Reynolds, 109 S.W.3d 258, 269 (Mo. Ct. App. 2003) (“Where

the appeal is premature because it is from a non-final, and, thus, nonappealable,

judgment, the trial court retains jurisdiction over the case.”); Patton v. Patton, 340

P.3d 1242, 1250 (Mont. 2015) (holding that a trial court was “not deprived of

jurisdiction to enter” an order on a subsequent motion “by the premature filing of a

notice of appeal” (quoting M.R. App. P. 4(5)(a)(iv)(E)). We hold that the premature

appeal of Osborne’s non-final summary judgment did not divest the circuit court of

jurisdiction to rule on Healy’s motion for a stay.

[¶13.]         For the foregoing reasons, this Court issued its order of February 9,

2018. We dismissed Healy’s first appeal from a non-final judgment and granted his

motion for special relief staying execution of the circuit court’s judgment as to the

lis pendens.

[¶14.]         GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices

concur.

[¶15.]         JENSEN, Justice, disqualified, did not participate.




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