Vor, Inc. v. Estate of O'farrell

#30344-aff in pt & rev in pt-SPM
2025 S.D. 2

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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VOR, INC., and GRAND VALLEY
HUTTERIAN BRETHREN, INC., Plaintiffs and Appellees,

v.

ESTATE OF PAUL O’FARRELL
and SKYLINE CATTLE COMPANY,
a South Dakota Corporation, Defendants and Appellants.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE ROBERT L. SPEARS
Retired Judge

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DANIEL K. BRENDTRO
MARY ELLEN DIRKSEN
BENJAMIN M. HUMMEL of
Hovland, Rasmus, Brendtro,
& Trzynka, Prof. LLC
Sioux Falls, South Dakota Attorneys for defendants and
appellants.

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ARGUED
NOVEMBER 8, 2023
OPINION FILED 02/05/25
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LEE SCHOENBECK
JOE ERICKSON of
Schoenbeck & Erickson, P.C.
Watertown, South Dakota Attorneys for plaintiff and
appellee VOR, Inc.

REED RASMUSSEN of
Siegel, Barnett & Schutz
Aberdeen, South Dakota

WILLIAM G. BECK
SETH LOPOUR of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for plaintiff and
appellee Grand Valley
Hutterian Brethren, Inc.
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MYREN, Justice

[¶1.] VOR, Inc. and the Grand Valley Hutterite Brethren (Colony) brought

an eviction action against Paul O’Farrell and Paul’s company, Skyline Cattle Co.

(Skyline), under South Dakota’s forcible entry and detainer (FED) statutes. Paul

moved to dismiss the suit and argued, among other things, that the eviction should

have been brought as a compulsory counterclaim in Paul’s pending undue influence

suit against his brother Kelly, the Colony, and the Raymond and Victoria O’Farrell

Living Trust (Trust). After the circuit court denied Paul’s motion to dismiss, Paul

filed an answer demanding a jury trial and requested a continuance. The circuit

court denied the continuance request and proceeded with a court trial. The circuit

court granted the eviction, ordered Paul to vacate the property within ten days, and

permitted the Colony to keep any of Paul’s personal property abandoned after the

ten days expired. Paul now appeals. We affirm in part and reverse in part.

Factual and Procedural Background

[¶2.] Raymond and Victoria O’Farrell, husband and wife, resided in Marvin,

South Dakota, and had five children: Paul, Lance, Kelly, Rita, and Marcie. In 2002,

Raymond and Victoria created VOR, a corporation to hold ownership of their land.

Each spouse was initially assigned 12,500 shares in VOR. In 2011, Raymond and

Victoria created the Trust, named themselves trustees, and transferred all VOR

shares to the Trust.

[¶3.] Raymond and Victoria originally had ownership interests in Skyline.

However, Paul became the company’s sole owner in 2019. Acting through Skyline,

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Paul rented some of VOR’s land (the Property) through an oral lease. Paul lived on

the Property and moved a house onto it approximately five years ago.

[¶4.] Raymond and Victoria’s son Kelly moved in with them in 2021.

Shortly after that, Victoria injured her leg in a fall and underwent surgery. While

recovering from the surgery, Victoria temporarily lived at the hospital and then at a

nursing home. While Victoria was not living at home, Kelly allegedly began

manipulating Raymond to persuade him to make changes to his and Victoria’s

estate plans. These changes included naming Kelly as Raymond’s power of

attorney, naming different directors of VOR, and transferring half of the VOR

shares from the Trust to Raymond individually. Raymond was allegedly susceptible

to persuasion because of his limited education and literacy.

[¶5.] VOR sold parcels of land, including the Property, to the Colony in

August 2022 for $3.2 million. As part of the purchase agreement, the Colony could

withhold paying $300,000 of the purchase price until Paul had vacated or had been

evicted from the Property. Paul and Skyline (collectively referred to as “Paul”) were

notified in August that the oral lease agreement with VOR would not be renewed

and was being terminated. Paul attempted to negotiate a new lease with the

Colony. The Colony sent a written lease, but it was never finalized because Paul

did not return a signed copy to the Colony.

[¶6.] VOR and the Colony (collectively referred to as the “Landlords”) served

Paul with a notice to quit on March 29, 2023. The Landlords then initiated this

action under South Dakota’s forcible entry and detainer statutes (SDCL chapter 21-

16) to regain possession of the Property from Paul. Paul was served with the

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summons and complaint on April 17, 2023. Rather than filing an answer, Paul filed

“Defendants’ 04/21/2023 Motions,” seeking to dismiss the suit. Paul’s motions to

dismiss were based on the Landlords’ failure to state a claim under SDCL 15-6-

12(b)(5), failure to join essential parties under SDCL 15-6-12(b)(6) and SDCL 15-6-

19, and failure to bring compulsory counterclaims under SDCL 15-6-13(a). Paul

asserted that the eviction claim should have been brought in an existing civil

lawsuit in which he had sued Kelly, the Colony, and the Trust, seeking to rescind

the land sale between VOR and the Colony.

[¶7.] In this eviction action, the Landlords filed a notice of court trial on

April 24, 2023, pursuant to SDCL 21-16-7 and -8, that notified Paul of a court trial

set for April 27. Paul filed an objection to the notice of court trial on April 25,

claiming that “Plaintiffs are seeking to hold an eviction trial before any of the

pending motions to dismiss have been resolved” and before Paul had an

“opportunity for a jury demand.” The circuit court subsequently denied Paul’s

motions to dismiss on April 26, concluding, “Based on my independent review of the

statutes and authorities cited, I have determined that an eviction action is a

specialized proceeding with specific rules and statutes that apply. The statutes and

authorities cited by the defendant are inapplicable to such a proceeding. I will

proceed as scheduled with the eviction matter tomorrow.”

[¶8.] Paul filed an answer the next morning with a demand for a jury trial.

While the circuit court had already denied the motions to dismiss via email, it

allowed the attorneys to argue on the motions to dismiss in court the following day.

The circuit court again denied the motions to dismiss before the trial began and

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noted, “Under Rule 21-16-4, this is an eviction proceeding. . . . The only thing

allowed by statute in an eviction proceeding is the facts and circumstances

surrounding the eviction.”

[¶9.] After the circuit court denied the motions to dismiss, Paul requested a

continuance of five days. The circuit court denied the request and held the notice of

court trial was proper. The circuit court reasoned:

It appears to the Court, that the defendant utilized a tactical
procedure such as asking for a continuance, dismissal and
brought in issues of compulsory counter claims [sic] and tried to,
for lack of a better word, in this Court’s opinion, drag other
issues into an eviction proceeding that are inappropriate. He
utilized that tactic instead of answering the summons and
complaint and dealing with the allegations relevant to an
eviction procedure.

[¶10.] The circuit court then proceeded with a court trial. The Landlords

called Paul as its first witness in its case-in-chief. During Paul’s testimony, he

attempted to explain how Kelly had “manipulated” Raymond and that Kelly was

“making the decisions, not Raymond[,]” regarding Raymond and Victoria’s estate

plans. The Landlords objected to this testimony, arguing that allegations of undue

influence of a prior sale of the Property were outside the scope of an eviction

proceeding. The circuit court sustained the objection and continued throughout the

trial to limit evidence of alleged undue influence exerted upon Raymond by Kelly.

During Paul’s testimony, while sustaining an objection, the circuit court said, “I will

also comment, that based on my memory, late last fall, Mr. O’Farrell senior testified

live in front of me and it’s this Court’s opinion that some of the testimony now is

contrary to what this Court observed.” Paul moved to strike the circuit court’s

observations from the previous proceeding, but the circuit court denied the motion.

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[¶11.] The Landlords also called Tom Wipf, secretary of the Colony, who

testified that the Colony purchased the Property, Paul never leased the Property

from the Colony, and Paul was wrongfully living on the Property.

[¶12.] After the Landlords concluded their case-in-chief, Paul called Wipf as

the defense’s first witness and attempted to use him to “challenge the validity of the

underlying transactions on legal and equitable grounds.” The Landlords objected,

arguing the testimony was beyond the scope of an eviction proceeding. The circuit

court permitted some testimony of Kelly’s involvement with Raymond and the sale

of the Property but excluded testimony that discussed the estate plans or alluded to

undue influence. Wipf also explained how some of the Property’s purchase price

was withheld until Paul had vacated the Property or was evicted.

[¶13.] Paul’s final witness was his brother Lance, who was asked about

Kelly’s attempt to isolate Raymond and assert undue influence. The Landlords

objected to this testimony, arguing it was beyond the scope of eviction, and the

circuit court again excluded the testimony.

[¶14.] After all the evidence was presented, the circuit court explained that

“[m]uch of the testimony and much of the other issues that were brought into this

proceeding or attempted to be brought into this proceeding were completely

irrelevant to an eviction proceeding and simply not allowed.” The circuit court

again noted that it had “heard some of this before in a previous proceeding” and

that it “found much of the testimony of the defendant [Paul] to be non-credible.”

The circuit court granted the eviction in favor of the Landlords and ordered the

Property to be vacated within ten days. Additionally, in its written judgment, the

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court ordered that upon expiration of the ten days, the Colony “may treat all

personal property remaining on the . . . real property and in the buildings located on

the real property . . . as having been abandoned by the Defendants[.]” At a

subsequent hearing, the circuit court also granted the Landlords’ motion for

attorney’s fees.

[¶15.] Paul and Skyline appeal and raise the following issues, which we

restate:

1. Whether South Dakota’s forcible entry and detainer
statutes allow for pre-answer motions and whether such
motions extend the time for filing an answer.

2. Whether this FED action must have been brought as a
compulsory counterclaim in an existing non-eviction
lawsuit.

3. Whether the circuit court erred when it denied Paul and
Skyline’s demand for a jury trial.

4. Whether the circuit court abused its discretion when it
denied Paul and Skyline’s request for a continuance.

5. Whether the circuit court abused its discretion when it
excluded evidence of alleged undue influence and
considered information from prior proceedings between
the parties.

6. Whether Paul and Skyline’s personal property was
subject to forfeiture.

Decision

1. Whether South Dakota’s forcible entry and detainer
statutes allow for pre-answer motions and whether
such motions extend the time for filing an answer.

[¶16.] This case turns on the interrelation between South Dakota’s rules of

civil procedure and FED statutes and requires us to consider two questions: (1)

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whether a party may file pre-answer motions during a FED suit and (2) whether

filing such motions extend the time to file an answer. Paul argues on appeal that

the circuit court “erred by overlooking SDCL 15-6-81(a) . . . . Although evictions are

specialized proceedings, they are still subject to the Rules of Civil Procedure, and,

the scope of such proceedings is not rigidly limited to the question of possession.”

Therefore, we first analyze the nature of the relevant statutes before considering

the issues raised by Paul. “We review issues of statutory interpretation de novo.”

State v. Long Soldier, 2023 S.D. 37, ¶ 11, 994 N.W.2d 212, 217.

[¶17.] All parties agree that SDCL 15-6-81(a) provides context for the

relationship between SDCL chapters 15-6 and 21-16. SDCL 15-6-81(a) reads, “This

chapter does not govern pleadings, practice, and procedure in the statutory and

other proceedings included in but not limited to those listed in Appendix A to this

chapter insofar as they are inconsistent or in conflict with this chapter.” (Emphasis

added.) The statutory FED proceeding is among those listed in Appendix A, which

means South Dakota’s rules of civil procedure are effective in FED proceedings as

long as they are not inconsistent or in conflict with the procedural rules established

in chapter 21-16. Paul argues that “[e]ven though they are ‘special proceedings,’

eviction actions remain subject to the Rules of Civil Procedure.” That is correct

unless those rules conflict with the FED statutes and thwart the underlying

purpose of the FED statutes. 1

1. Paul correctly notes the circuit court did not wait five days to sign the
Landlords’ proposed findings of fact and conclusions of law pursuant to SDCL
15-6-52(a). While this was error, the circuit court’s actions caused no
prejudice to Paul. Paul was able to file objections and Landlords have not
(continued . . .)
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[¶18.] FED proceedings are truncated and designed to bring a quick

resolution to the question of possession. SDCL 21-16-7 provides:

The time for appearance and pleading shall be four days from
the time of service on the defendant or thirty days after the
publication of service under § 21-16-6.1, whichever occurs
sooner. No adjournment or continuance shall be made for more
than fourteen days, unless the defendant applying therefor shall
give an undertaking to the plaintiff with good and sufficient
surety to be approved by the court, conditioned for the payment
of the rent that may accrue, together with costs if judgment be
rendered against the defendant.

[¶19.] SDCL 21-16-8 further aids in setting a FED timeline and provides

that:

An action under this chapter may be brought on for trial upon
two days’ notice after issue is joined. If a jury trial be demanded
and no jury is in attendance on the day the action is noticed for
trial, the court shall cause a special venire to issue as in cases
where extra jurors are required, and proceed to impanel a jury
and try the action as in other civil cases.

[¶20.] Paul argues his motion to dismiss was proper and that its filing

extended the time to file an answer. The FED statutes neither expressly permit nor

prohibit a party’s ability to engage in motions practice. Motions practice that is not

inconsistent with or in conflict with the FED statutes is permissible.

[¶21.] Generally, a motion filed under SDCL 15-6-12 extends the time for

when the answer must be filed. See SDCL 15-6-12(a) (“The service of a motion

________________________
(. . . continued)
argued on appeal that Paul did not preserve the issues for appeal by not
filing proper objections. See People ex rel. A.A., 2021 S.D. 66, ¶ 31, 967
N.W.2d 810, 820 (“Although prematurely signing the State’s proposed
findings and conclusions prevented the circuit court from ruling on Father’s
objections . . . , there is no question that his arguments are, nevertheless,
preserved for review. Under the circumstances, Father has not established
prejudice caused by the circuit court’s error.”).

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permitted under § 15-6-12 alters these periods of time [to answer] . . . : (1) If the

court denies the motion or postpones its disposition until the trial on the merits, the

responsive pleading shall be served within ten days after notice of the court’s

action[.]”). But “[c]hapter 21-16 is designed as a speedy remedy to provide

possession to the person rightfully entitled to it.” Heiser v. Rodway, 247 N.W.2d 65,

67 (S.D. 1976). Unlike the rules of civil procedure, SDCL 21-16-7 does not extend

the time for appearance and pleading when a motion to dismiss is filed. Instead,

unless the court grants an extension, the defendant is required to join all issues and

defenses within four days after service. Id. (“The time for appearance and pleading

shall be four days from the time of service on the defendant[.]”). As noted earlier,

when general rules of civil procedure are inconsistent or in conflict with the FED

statutes, they must yield to the statutory FED procedure.

[¶22.] Under SDCL 21-16-7, Paul was required to appear and plead within

four days of being served and thus was required to file his motion to dismiss and

answer simultaneously, or at least within the four days required by SDCL 21-16-7.

Paul notes SDCL 15-6-12(b), which states, “[a] motion making any of these defenses

shall be made before pleading if a further pleading is permitted.” However, SDCL

21-16-7 requires all the issues to be joined within four days after service.

Construing SDCL 15-6-12(b) to allow a FED defendant to extend unilaterally the

time to file his answer would be inconsistent with the expedited timing

requirements of the FED statutes and a violation of the principle outlined in SDCL

15-6-81(a).

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[¶23.] Paul suggests that we must harmonize the rules in chapter 21-16 with

the general rules of civil procedure found within chapter 15-6. SDCL 15-6-81(a)

does not dictate harmonization; it directs precedence. When general rules of civil

procedure conflict with the procedural rules found in the FED statutes, the general

rules must yield to the FED procedural rules designed to expedite the procedure.

Consequently, pursuant to SDCL 21-16-7, Paul was required to file his answer

within four days of receiving service of the complaint. Filing a pre-answer motion

to dismiss did not extend the time to file his answer, and, as a result, Paul’s answer

was untimely.

2. Whether this FED action must have been brought as
a compulsory counterclaim in an existing non-
eviction lawsuit.

[¶24.] Paul moved to dismiss on the grounds that the FED claim should have

been raised as a compulsory counterclaim in the civil action in which he was

alleging Kelly had unduly influenced Raymond into selling the Property to the

Colony and seeking a declaration that Skyline is legally entitled to continue farming

the property at issue. 2 We first consider the merits of Paul’s argument that the

Landlords’ FED action was a compulsory counterclaim to the undue influence

proceeding.

[¶25.] SDCL 15-6-13(a) provides, in relevant part, “A pleading shall state as a

counterclaim any claim which at the time of serving the pleading the pleader has

against any opposing party, if it arises out of the transaction or occurrence that is

2. Paul only appeals the denial of the motion to dismiss for failure to bring
compulsory counterclaims.

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the subject matter of the opposing party’s claim[.]” Paul contends the Landlords’

FED action should have been asserted in the Colony’s answer in the undue

influence proceeding. In that proceeding, Paul alleged that, “For the past year,

Kelly O’Farrell has orchestrated a scheme to interfere with the long-standing trust

and estate plans of his parents,” and such conduct “resulted in the precipitous and

illegal sale of nearly all the family’s farm ground.” Paul claimed that Kelly

manipulated Raymond, “a person in need of protection,” and “engaged in other

misconduct, in order to set in motion an improper and illegal set of maneuvers, all

of which were designed to enrich himself at the expense of his parents and his

brother Paul.” Paul’s primary objectives for the undue influence claim were to

“declare ‘void’ the improper corporate/trust maneuvers,” “rescind and unwind the

$3.2 million real estate transaction,” and “recover damages for the injured parties.”

[¶26.] Generally, a FED action “cannot be brought in connection with any

other [action] except for rents and profits or damages[.]” SDCL 21-16-4; see also

LPN Tr. v. Farrar Outdoor Advert., Inc., 1996 S.D. 97, ¶ 8, 552 N.W.2d 796, 798.

However, some “inquiry may be made into equitable considerations in an unlawful

detainer action, as long as those considerations are relevant to the right of

possession.” LPN Tr., 1996 S.D. 97, ¶ 9, 552 N.W.2d at 798 (emphasis added)

(quoting Heiser, 247 N.W.2d at 68). Paul’s undue influence action did not seek any

remedies related to rents, profits, or damages from the lease. Consequently, unless

Paul’s undue influence action involved “questions of possession,” the Landlords’

eviction claim would not have constituted a compulsory counterclaim.

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[¶27.] Our case law surrounding FED actions is not extensive and we have

not yet determined what actions comprise the “question of possession” category of

claims. However, the Nebraska Supreme Court has noted that: “A forcible entry

and detainer action does not try the question of title, but only the immediate right

of possession.” Fed. Nat’l Mortg. Ass’n v. Marcuzzo, 854 N.W.2d 774, 779 (Neb.

2014).

[¶28.] VOR sold the Property to the Colony. Paul’s undue influence

proceeding challenges the validity of that transfer. If the sale to the Colony were

invalidated, the title of the Property would return to VOR. Thus, either VOR or the

Colony will hold title to the Property at the conclusion of Paul’s undue influence

litigation. Both VOR and the Colony were plaintiffs in this eviction action against

Paul and Skyline. Consequently, the existence of the undue influence lawsuit did

not raise any questions of title that would affect the Landlords’ ability to terminate

the lease and evict Paul or Skyline. That lawsuit did not involve any dispute about

who had the right to the immediate possession of the Property. Therefore, the

Landlords were not obligated to assert their FED claim as a counterclaim in Paul’s

case relating to title. See SDCL 21-16-4.

[¶29.] The dissent cites Heiser and LPN Trust as examples in which we have

allowed consideration of “equitable considerations” within FED actions in support of

its more expansive view of possession. But these decisions merely illustrate the

uncontroverted rule that issues relating to immediate possession may fairly be tried

in a FED action. In both Heiser and LPN Trust, the equitable considerations went

directly to a tenant’s right to possession under the provisions of a lease. In Heiser,

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the tenant claimed the existence of an oral lease entitling him to possession. 247

N.W.2d at 66. In LPN Trust, the tenant cited a ten-year option provision in the

parties’ written lease. 1996 S.D. 97, ¶ 3, 552 N.W.2d at 797.

[¶30.] Neither Paul nor Skyline has a right to immediate possession. Unlike

the tenants in Heiser and LPN Trust, Paul and Skyline do not have a lease; they

claim that they should have a lease and were prevented from having a claim to

possession by Kelly’s unlawful conduct. This claim to possession is remote and

attenuated, not immediate. Paul and Skyline admit they must first win on their

other claims in order to “unwind” past events. It is only if they are successful in

this “unwinding” that they can claim a right to possession.

[¶31.] As it relates to the question of immediate possession, the Landlords

initiated the FED action to recover possession. The FED action is limited to issues

related to the right of possession. As a result, the FED action was not a compulsory

claim that the Colony was required to assert as part of Paul’s undue influence

action. We affirm the circuit court’s denial of Paul’s motion to dismiss for failure to

bring a compulsory counterclaim.

3. Whether the circuit court erred when it denied Paul
and Skyline’s demand for a jury trial.

[¶32.] Paul argues it was error for the circuit court to deny his request for a

jury trial. “Article VI, Section 6 of the South Dakota Constitution guarantees a

right to a jury trial in all cases at law.” Granite Buick GMC, Inc. v. Ray, 2014 S.D.

78, ¶ 7, 856 N.W.2d 799, 802 (citation omitted). The rules of civil procedure provide

that “[a]ny party may demand a trial by jury of any issue triable of right by a jury

by serving upon the other parties a demand therefor in writing at any time after the

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commencement of the action[.]” SDCL 15-6-38(b). But “[t]he failure of a party to

serve a demand as required by § 15-6-38 constitutes a waiver by the party of trial by

jury.” SDCL 15-6-38(d).

[¶33.] SDCL 21-16-8 also requires a party to demand a jury trial. While

SDCL 21-16-8 does not specify the time for making the demand, the statute permits

a trial to be held upon two days’ notice after the issues are joined. Paul relies on

SDCL 15-6-38(b), which provides an additional ten days to demand a jury trial after

the last responsive pleading is filed. However, this Rule is inapplicable because the

additional ten days would be inconsistent and in conflict with the timing specified

in SDCL 21-16-7 and -8.

[¶34.] Paul did not demand a jury trial within the four days allowed for his

appearance and pleading. In these circumstances, the circuit court did not error in

concluding that Paul’s demand for a jury trial on the day of the scheduled court trial

was untimely and, therefore, waived.

4. Whether the circuit court abused its discretion when
it denied Paul and Skyline’s request for a
continuance.

[¶35.] After the circuit court made its oral denial of Paul’s motions to dismiss,

Paul requested a continuance of five days. The circuit court denied the request and

continued with the court trial. “A trial court’s decision to grant or deny a

continuance is reviewed under an abuse of discretion standard.” People ex rel. L.N.,

2022 S.D. 8, ¶ 41, 970 N.W.2d 531, 544 (citation omitted). “The granting or refusing

[of] a continuance rests in the sound discretion of the court below, and its ruling will

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not be reversed, except for the most cogent reasons.” Id. (alteration in original)

(citation omitted).

[¶36.] Paul asserts the circuit court abused its discretion because it “did not

consider any of the factors relating to motions for continuance.” Paul points to our

decision in Meadowland Apartments v. Schumacher, where we discussed four

considerations a court should make when addressing a request for continuance.

2012 S.D. 30, ¶ 17, 813 N.W.2d 618, 623. These considerations include:

(1) whether the delay resulting from the continuance will be
prejudicial to the opposing party; (2) whether the continuance
motion was motivated by procrastination, bad planning, dilatory
tactics or bad faith on the part of the moving party or his
counsel; (3) the prejudice caused to the moving party by the trial
court’s refusal to grant the continuance; and (4) whether there
have been any prior continuances or delays.

Id. (citation omitted). In denying the requested continuance, the circuit court

reasoned that, “It appears to the Court, that the defendant utilized a tactical

procedure such as asking for a continuance, dismissal and brought in issues of

compulsory counter claims [sic] and tried to, for lack of a better word, in this Court’s

opinion, drag other issues into an eviction proceeding that are inappropriate. He

utilized that tactic instead of answering the summons and complaint and dealing

with the allegations relevant to an eviction procedure.” It appears the circuit court

was correctly oriented to the appropriate considerations. In these circumstances,

we cannot conclude the circuit court abused its discretion in denying the request for

a continuance.

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5. Whether the circuit court abused its discretion when
it excluded evidence of alleged undue influence and
considered information from prior proceedings
between the parties.

[¶37.] Paul claims “[t]he Circuit Court erred by rejecting key evidence [and]

considering improper evidence[.]” “We review a circuit court’s evidentiary rulings

by utilizing a ‘two-step process.’” Sedlacek v. Prussman Contracting, Inc., 2020 S.D.

18, ¶ 16, 941 N.W.2d 819, 822 (citation omitted). “First, we ‘determine whether the

trial court abused its discretion in making an evidentiary ruling.’” Id. (citation

omitted). “[S]econd, we determine ‘whether this error was a prejudicial error[.]’”

Id. (alteration in original) (citation omitted). We have recently clarified the

prejudice standard as “a reasonable probability that, but for [the error], the result of

the proceeding would have been different.” State v. Carter, 2023 S.D. 67, ¶ 26, 1

N.W.3d 674, 686 (alteration in original) (citation omitted).

a. Exclusion of testimony relating to undue influence

[¶38.] During the eviction proceeding, Paul attempted to introduce

testimonial evidence demonstrating how Kelly had unduly influenced Raymond.

The circuit court consistently limited the scope of the FED proceeding. Paul argues

“[t]his was an abuse of discretion, because [the court] excluded pertinent

information.” We disagree.

[¶39.] FED actions are limited in nature and “are intended to prevent

protracted litigation by limiting the scope so collateral issues not connected with the

question of possession do not burden the proceeding.” LPN Tr., 1996 S.D. 97, ¶ 9,

552 N.W.2d at 798. Paul’s proffered testimony concerning his claims of undue

influence in the transfer of title is irrelevant to this eviction action, where all

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putative title holders joined as plaintiffs in support of the eviction. As the circuit

court concluded, “[m]uch of the testimony and much of the other issues that were

brought into this proceeding or attempted to be brought into this proceeding were

completely irrelevant to an eviction proceeding and simply not allowed.” The circuit

court did not abuse its discretion by excluding evidence of undue influence.

b. Extraneous evidence

[¶40.] Paul also believes the circuit court erred by “injecting extraneous

evidence” into the eviction proceeding. During Paul’s direct examination, while

sustaining an objection, the court said, “I will also comment, that based on my

memory, late last fall, Mr. O’Farrell senior testified live in front of me and it’s this

Court’s opinion that some of the testimony now is contrary to what this Court

observed.” Paul believes this translated into the circuit court’s finding of fact 22,

which reads: “The Court finds the testimony of Paul O’Farrell to not be credible,

when it conflicts with the Findings made by the Court.”

[¶41.] Paul first claims this was an error because a “judge cannot make

himself a witness.” He also believes the circuit court erred by using evidence from a

previous proceeding. To that contention, we note that early in the FED hearing,

Paul requested the circuit court to take judicial notice of four previous cases

involving the parties. When asked to clarify his judicial notice request, Paul stated,

“Judge, judicial notice in this sense is not necessarily for the contents of the

pleadings but for the existence of these other proceedings taking place and the

contents of the file as far as what the litigants are arguing.” A review of the record

reveals a lack of clarity about the scope and nature of the judicial notice taken by

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the circuit court. Ultimately, the circuit court said, “I’ll take judicial notice of all

those files. And on the record, I’ll take judicial notice that there are several things

in dispute that the parties are arguing about.” For context, it is important to note

that the circuit court, at Paul’s request, took judicial notice of the other related

proceedings. Beyond that context, we need not determine the exact scope of the

circuit court’s judicial notice to resolve this issue.

[¶42.] Although the circuit court referenced testimony from a prior

proceeding, this does not support Paul’s contention that the circuit court’s

determination that Paul was not credible was based solely on the testimony from

that prior proceeding. In his testimony during this eviction proceeding, Paul made

inconsistent statements that could reasonably support the circuit court’s

determination that Paul was not a credible witness. The circuit judge heard and

observed the witnesses and was best placed to assess their credibility. We perceive

no error in the circuit court’s credibility assessments.

6. Whether Paul and Skyline’s personal property was
subject to forfeiture.

[¶43.] Lastly, we must address the relief granted by the circuit court in its

judgment. The circuit court granted the eviction and ordered Paul to vacate the

Property within ten days of the judgment. But also included within the circuit

court’s judgment was an order that the Colony “may treat all personal property

remaining on the . . . real property . . . as having been abandoned by the

Defendants[.]” Paul argues the forfeiture “is not authorized by any statute within

Chapter 21-16, nor any other statute that counsel has been able to identify.”

During its argument before this Court, VOR conceded this point.

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[¶44.] The plain reading of the FED statutes does not permit such a

forfeiture. No party presented any authority supporting the circuit court’s action,

and our research has not yielded any support. The circuit court’s forfeiture of Paul’s

personal property was unsupported by law and, therefore, erroneous.

[¶45.] We affirm the eviction but remand with direction to the circuit court to

revise the judgment consistent with this decision.

Motion for attorney’s fees

[¶46.] VOR and the Colony requested appellate attorney fees and filed a joint

affidavit itemizing the legal services rendered, seeking $18,382.86. “SDCL 21-16-11

authorizes an award of attorneys’ fees for forcible entry and detainer actions[.]”

Arrowhead Ridge I, LLC v. Cold Stone Creamery, Inc., 2011 S.D. 38, ¶ 27, 800

N.W.2d 730, 737. We award VOR and the Colony combined appellate attorney fees

of $9,000.

[¶47.] JENSEN, Chief Justice, and SALTER, Justice, concur.

[¶48.] KERN and DEVANEY, Justices, concur in part and dissent in part.

DEVANEY, Justice (concurring in part and dissenting in part).

[¶49.] I agree with the determination in the majority opinion that the

forfeiture of Paul’s personal property is not supported by law and would affirm on

that issue. I also agree that a motion to dismiss may be filed in an action brought

under SDCL chapter 21-16 (FED action). However, I respectfully disagree with

other determinations in the majority opinion. In my view, the circuit court erred at

the outset when concluding the FED action was not a compulsory counterclaim and

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abused its discretion in denying the motion for a continuance and in its rulings

related to the evidentiary issues discussed below.

Compulsory counterclaim

[¶50.] To properly assess the counterclaim issue, a full consideration of the

underlying allegations in the lawsuits preexisting this FED action is necessary.

The first lawsuit was commenced in June 2022. In that action, Victoria sued

Raymond and their son Kelly (Victoria’s lawsuit), claiming that Raymond lacked

capacity and was the subject of undue influence by Kelly. Her complaint alleged

that Raymond breached his fiduciary duty when he took certain actions relating to

assets held by the Trust and VOR. In particular, Victoria alleged that Raymond

wrongfully and/or without capacity transferred 50% of their jointly assigned VOR

shares out of the Trust and assigned them to himself, then signed an instrument, as

a Trustee and shareholder, to remove Victoria as a director of VOR. Victoria sought

declaratory and injunctive relief to rescind Raymond’s actions and to preclude him

from transferring any shares of VOR out of the Trust and to preclude Raymond and

Kelly “from taking further actions as purported directors of VOR.” The alleged

improper actions by Raymond and Kelly occurred while Victoria was hospitalized

and recovering from surgeries, and she died on July 11, 2022, prior to her claims

being decided.

[¶51.] After Victoria’s death, but while her lawsuit against Raymond was still

pending, Raymond filed a petition on July 18, 2022, seeking to be appointed as

special administrator of Victoria’s estate without notice or a hearing, and he was

appointed as such the same day. On September 26, 2022, Paul filed a petition

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requesting the removal of Raymond as the special administrator of Victoria’s estate

and a petition requesting that he be appointed as the special administrator. Paul

asserted that Raymond had a conflict of interest given Victoria’s pending lawsuit

against him and further claimed that Raymond would not act in the best interest of

Victoria’s estate. A hearing on Paul’s petitions was set for October 18, 2022.

[¶52.] Meanwhile, on August 12, 2022, Raymond, acting on behalf of VOR,

entered into a purchase agreement to sell the Property at issue in this appeal to the

Colony, with a December 2022 closing date. The agreement was contingent on the

eviction of Paul from the house and building sites on the Property and the

termination of Skyline’s current crop and pasture leases. In accord with these

terms, VOR sent Paul and Skyline notices of termination and nonrenewal of the

existing leases via letters dated August 18, 2022.

[¶53.] Paul and Skyline thereafter filed a complaint on March 3, 2023,

naming Kelly, the Colony, and the Trust as defendants. Relevant here, this lawsuit

sought a declaration that Skyline was lawfully permitted to continue farming the

Property for the 2023 crop season, and also sought rescission of the sale of the land

to the Colony (declaratory/rescission action). In support of these requests, Paul

alleged that starting in March 2022, Kelly manipulated Raymond “to set in motion

an improper and illegal set of maneuvers” related to the Trust and corporate assets.

Paul asserted that various corporate actions of VOR occurring prior to Victoria’s

death “were taken by attempting to ‘vote’ Victoria’s stock shares on her behalf . . .

without her knowledge . . . even after she disavowed such attempts.” Such actions

culminated in the August 2022 sale of the Property to the Colony and the related

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notice of termination and nonrenewal of Paul and Skyline’s leases. Paul alleged

“Raymond’s consent for these transactions was procured via undue influence, or

without his full understanding, and without following necessary corporate

formalities.” Particularly important to the issues in this appeal, Paul alleged that

VOR “failed to issue a legally effective termination notice” as to the lease of the

Property and that VOR’s attempts to non-renew his and Skyline’s leases were

carried out without proper authority. 3

[¶54.] On April 5, 2023, VOR filed an answer to Paul and Skyline’s complaint

and asserted two counterclaims (tortious interference with contractual rights and

barratry) against Paul. Rather than including a counterclaim seeking a declaration

that Skyline’s oral lease was properly terminated and an order requiring Skyline

and Paul to vacate the Property, VOR and the Colony filed this FED action by

complaint served upon Paul and Skyline on April 17, 2023, seeking immediate

possession of the property via the summary procedure outlined in SDCL chapter 21-

16.

[¶55.] Paul moved to dismiss the FED action, asserting, inter alia, that the

claims raised in the FED action should have been asserted as a compulsory

counterclaim in the preexisting declaratory/rescission action. Paul contends the

circuit court should have dismissed the FED action or, in the alternative, stayed the

action until the matters at issue in his preexisting action were resolved. He notes

3. On March 8, 2023, Paul also filed a petition for appointment of guardian and
conservator for Raymond, alleging Raymond lacked capacity and was being
unduly influenced by Kelly. Paul further alleged that Kelly’s improper
influence resulted in Raymond “enter[ing] into a secret agreement to
purportedly sell nine parcels of family farm ground to [Grand Valley].”

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that in that action, he and Skyline have asserted that the title to the Property was

improperly conveyed, that VOR “failed to issue a legally effective termination

notice,” and that Skyline has the right to continue farming the Property. Paul

therefore contends that he and Skyline have asserted “inverse, identical claims that

the Landlord seeks to bring in this eviction action.”

[¶56.] The majority opinion concludes that the Colony and VOR’s eviction

claim is not a compulsory counterclaim, and in doing so, focuses primarily on the

claims in Paul and Skyline’s lawsuit relating to questions of title. After initially

acknowledging that this lawsuit sought “a declaration that Skyline is legally

entitled to continue farming the property at issue[,]” the majority opinion later

inconsistently states that this lawsuit “did not involve any dispute about who had

the right to the immediate possession of the Property.” Even the Colony and VOR,

in their appellate brief, acknowledge that Paul and Skyline’s lawsuit sought the

right to continue farming the property and to keep living on the residential

property. Based on this undisputed fact, the factors relevant to whether a claim is a

compulsory counterclaim support a conclusion that the Colony and VOR’s claimed

right to immediate possession is a compulsory counterclaim that should have been

raised in the existing civil lawsuit.

[¶57.] The statute governing compulsory counterclaims provides, in relevant

part, “A pleading shall state as a counterclaim any claim which at the time of

serving the pleading the pleader has against any opposing party, if it arises out of

the transaction or occurrence that is the subject matter of the opposing party’s

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claim[.]” 4 SDCL 15-6-13(a). This Court explained in Olawsky v. Clausen the four

standards that are considered in determining whether a claim is compulsory:

1) Are the issues of fact and law raised by the claim and
counterclaim largely the same?

2) Would res judicata bar a subsequent suit on defendant’s claim
absent the compulsory counterclaim rule?

3) Will substantially the same evidence support or refute
plaintiff’s claim as well as defendant’s counterclaim?

4) Is there any logical relation between the claim and the
counterclaim?

87 S.D. 578, 581, 212 N.W.2d 653, 654 (1973).

[¶58.] While an “affirmative answer to any one of these standards posed

would mean that the counterclaim is compulsory[,]” the Court noted in Olawsky

that the fourth standard is “preferred.” Id. (other citations omitted). We further

noted the United States Supreme Court’s explanation of the “logical relation”

standard:

“Transaction” is a word of flexible meaning. It may comprehend
a series of many occurrences, depending not so much upon the

4. SDCL 15-6-13(a) further states that a counterclaim need not be pled if:

(1) At the time the action was commenced the claim was the
subject of another pending action; or

(2) The opposing party brought suit upon his claim by
attachment or other process by which the court did not acquire
jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counterclaim under § 15-6-13; or

(3) If the claim is not one over which the court would have
jurisdiction if brought as an original action.

None of these circumstances are present in this case.

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immediateness of their connection as upon their logical
relationship. * * * Essential facts alleged by appellant (plaintiff)
enter into and constitute in part the cause of action set forth in
the counterclaim. That they are not precisely identical, or that
the counterclaim embraces additional allegations * * * does not
matter. To hold otherwise would be to rob this branch of the
rule of all serviceable meaning, since the facts relied upon by the
plaintiff rarely, if ever, are, in all particulars, the same as those
constituting the defendant’s counterclaim.”

Id. at 581–82, 212 N.W.2d at 654–55 (quoting Moore v. New York Cotton Exchange,

270 U.S. 593, 610, 46 S. Ct. 367, 371, 70 L. Ed. 750 (1926)). We then observed that

“the objective of the rule is the settlement of all ‘logically related’ disputes between

the parties in a single lawsuit.” Id. at 582, 212 N.W.2d at 655.

[¶59.] Paul contends the Colony and VOR’s claims in the FED action are

“directly and logically related” to his claims in the declaratory/rescission action

challenging the corporate actions taken by Raymond on behalf of VOR, which

culminated in the sale of the Property and the related attempt to terminate

Skyline’s lease. In response, the Colony and VOR do not address the compulsory

counterclaim standards in their appellate brief. Instead, they argue that the

purposes of SDCL chapter 21-16 would be subverted if the Court were to apply

SDCL 15-6-13 and require the possession dispute to be tried as a counterclaim in

Paul’s lawsuit.

[¶60.] It is true that an action under SDCL 21-16-4 “cannot be brought in

connection with any other except for rents and profits or damages but the plaintiff

may bring separate actions for the same[.]” However, while this statute does not

require plaintiffs to assert all of their related claims within a proceeding commenced

under SDCL 21-16-4, it does not govern whether a landlord or property owner’s

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claimed right to immediate possession of property must be asserted as a compulsory

counterclaim in a preexisting civil proceeding involving an inverse claim. Also,

nothing in SDCL chapter 21-16 requires defendants in FED actions to forego a

claim to immediate possession they had asserted in a preexisting lawsuit.

[¶61.] This Court has previously addressed what issues can be considered in

a FED action, and when a FED action should yield to another action. In Heiser v.

Rodway, we held that “inquiry may be made into equitable considerations in an

unlawful detainer action, as long as those considerations are relevant to the right of

possession.” 247 N.W.2d 65, 68 (S.D. 1976). We then explained that “[t]he fusion of

the practice and procedure in suits at law and in equity accomplished by the Civil

Practice Act is, in our opinion, sufficient to permit necessary equitable relief in

these proceedings, rather than to force upon defendants a separate proceeding

where the same relief will be forthcoming.” Id. (citation omitted). Accordingly, we

held that “evidence pertinent to the issue of possession is properly admissible in an

unlawful detainer action, even though the evidence is equitable in nature.” Id.

[¶62.] In LPN Trust v. Farrar Outdoor Advertising, Inc., 1996 S.D. 97, 552

N.W.2d 796, the Court considered whether the trial court erred by joining a FED

action with an action seeking a reformation of the lease at issue. In affirming the

joinder of such actions, the Court reiterated that some “inquiry may be made into

equitable considerations in an unlawful detainer action, as long as those

considerations are relevant to the right of possession.” Id. ¶ 9, 552 N.W.2d at 798

(emphasis added) (quoting Heiser, 247 N.W.2d at 68). See also Rindal v. Sohler,

2003 S.D. 24, ¶ 9, 658 N.W.2d 769, 772 (noting that although FED actions provide a

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summary remedy for possession of real property, courts hearing such actions

“should also hear other relevant matters to avoid a multiplicity of suits”).

[¶63.] The issues relating to the sale of the Property and the related

termination of Paul and Skyline’s leases raised in Paul’s declaratory/rescission

action are logically related and unquestionably relevant to the determination in the

FED action as to which party is entitled to immediate possession of the Property.

The Colony and VOR argue, however, that they should not be required to litigate

their right to possession in Paul’s complex lawsuit because FED actions are

“intended to prevent protracted litigation.”

[¶64.] While FED actions are intended to be swift, we have also recognized

that there are circumstances, such as disagreement over title and right to

possession of the property at issue, that make the expediency of a FED action

secondary. In Raich v. Weisman, 57 S.D. 182, 231 N.W. 897 (1930) (Raich I), the

Court considered the interplay of multiple actions involving a dispute over title and

possession of property. Raich claimed title and right of possession via a sheriff’s

deed she obtained as a redemptioner from the foreclosure of a first mortgage on the

property at issue. Id. at 898. Weisman, the mortgagor of two mortgages on the

property and the person in possession of the property, claimed the second mortgage

was fraudulent and given without consideration and believed that she was,

therefore, the title holder.

[¶65.] The procedural history of this dispute is complicated. Weisman first

filed an action seeking to cancel the mortgage. Raich intervened in Weisman’s

action, and thereafter redeemed the first mortgage and obtained the sheriff’s deed.

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Raich then filed an action for forcible entry and detainer against Weisman. In her

answer, Weisman claimed title to the property. The FED action was decided in

Raich’s favor, and while the appeal was pending, Raich filed an action to quiet title.

See id.

[¶66.] On appeal, Weisman argued the FED action should have been

dismissed so that the other pending actions could “be consolidated and the broader

issues tried.” The Court initially disagreed, stating, it “is not the province of this

court to reverse a judgment and dismiss the action because there are other actions

pending in the lower court which may, if tried, afford more complete relief to

litigants.” See id.

[¶67.] On a motion for rehearing, however, the Court reversed course,

stating:

[W]e are convinced that the issues ought to be tried in those
actions with the issue here involved. This being a strictly law
action in forcible entry and detainer, it can only determine the
right of possession of the property as of the date of the
commencement of the action, and involves only the then legal
title. As a proceeding to determine the real issues between the
parties, it is inadequate, and a final judgment here can only
complicate the other issues. Comparatively simple issues have
become tangled in a multiplicity of suits, and, if this court can
straighten the matter out and permit the entire matter to be
litigated in one action before a court of competent jurisdiction, it
should be done.

Raich v. Weisman, 58 S.D. 4, 234 N.W. 664, 665 (1931) (Raich II). At the time the

Raich cases were decided, there were courts of limited jurisdiction that could only

hear matters of law but not equitable claims. The Court thus “direct[ed] a dismissal

of [the FED] action in order that those issues may be tried and determined in a

court of equity either in one action or a consolidation of those pending.” Id.

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[¶68.] After the distinction between actions at law and suits in equity was

later abolished, see SDCL 15-6-2, this Court, in Heiser, recognized that although

FED actions are “designed as a speedy remedy to provide possession rightfully

entitled to it” and to “prevent protracted litigation,” the consideration of other

matters related to possession was paramount. See 247 N.W.2d at 67–68. We

concluded the “right . . . to be heard on relevant matters, . . . as well as the desirable

purpose of preventing a multiplicity of suits, is, and must be, superior to the desire

to provide a speedy remedy for possession.” 5 Id. at 68 (citation omitted). Heiser did

not, however, involve a scenario in which there was already another existing

lawsuit seeking a declaration as to the right to immediate possession of the property

at issue in a later-filed FED action. Thus, there was no compulsory counterclaim

issue before the Court.

[¶69.] The majority opinion attempts to distinguish Heiser on the basis that

the tenant there claimed the existence of an oral lease entitling him to possession.

Heiser, 247 N.W.2d at 66. But the existence of an oral lease is the same claim that

Paul and Skyline have made in this case and the right to immediate possession of

the Property is also at the forefront of their preexisting declaratory/rescission

5. In Heiser, the Court noted that due to the summary nature of FED actions,
questions of title, which could present many collateral issues, should not be
settled in FED actions. 247 N.W.2d at 68 n.2. The Court further noted that
the question of title may not be relevant to the issue of possession at the time
in question. Id. Here, while neither Paul nor Skyline are claiming that they
hold current title to the Property, they are challenging the validity of the
termination of their leases and claiming the right to maintain immediate
possession of the Property.

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action. 6 The further attempt to distinguish this case from Heiser and LPN Trust by

suggesting that Paul and Skyline are only claiming “that they should have a lease”

likewise fails to comport with the record. Paul and Skyline have maintained in both

their preexisting lawsuit and in this eviction action that their existing oral lease

was not validly terminated by VOR. This was the basis for their request in the

declaratory/rescission action for a determination that Skyline was the rightful

tenant of the Property and that Paul is legally permitted to continue occupying the

residential and nonagricultural parts of the Property.

[¶70.] Because there is a “logical relation” between Paul’s

declaratory/recission action and the Colony’s and VOR’s claim to immediate

possession in the FED action, such claim should have been asserted as a compulsory

counterclaim in the existing lawsuit. See Olawsky, 212 N.W.2d at 654. Doing so

would certainly fulfill the objective of the compulsory counterclaim rule—“the

settlement of all ‘logically related’ disputes between the parties in a single lawsuit.’”

Id. at 655. In Olawsky, after determining that the plaintiffs’ alleged breach of

contract was a compulsory counterclaim in the defendants’ prior action to rescind

the contract, the Court held that defendants were “precluded from maintaining any

independent action.” 212 N.W.2d at 655. I would reach the same conclusion here

6. The complaint in the declaratory/rescission action states, inter alia, “Skyline
Cattle Company seeks an immediate declaration that it is the rightful tenant
for the 2023 crop season” and alleges “Plaintiff Paul O’Farrell is entitled to a
declaration that he is legally permitted to continue occupying the premises of
the Family Trust Land, including residential and non-agricultural land and
buildings which are the site of his home and shop.”

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and find that the circuit court erred in denying Paul’s motion to dismiss the FED

action on this basis. 7

[¶71.] But even if VOR and the Colony were not required to assert their right

to immediate possession of the property as a compulsory counterclaim in Paul’s

preexisting lawsuit, Paul and Skyline’s alternative request that the circuit court

stay the FED action to allow this underlying dispute to be resolved in the

preexisting lawsuit is also supported by the Court’s ruling in Raich II. In that case,

the Court directed that Raich’s FED action be dismissed without prejudice and

further noted alternative ways of avoiding piecemeal litigation, stating that the

underlying issues may be resolved either in one action or a consolidation of those

pending. Raich II, 234 N.W. at 665. Other courts presented with similar scenarios

have stayed eviction proceedings to allow the underlying disputed issues of the

parties to be properly addressed in another pending action. See Bjorklund v.

Bjorklund Trucking, Inc., 753 N.W.2d 312, 318–19 (Minn. Ct. App. 2008) (holding

that “when the counterclaims and defenses are necessary to a fair determination of

the eviction action, it is an abuse of discretion not to grant a stay of the eviction

proceedings when an alternate civil action that involves those counterclaims and

defenses is pending.”); see also William Weisman Holding Co. v. Miller, 188 N.W.

7. Notably, despite its rejection of Paul’s argument on the compulsory
counterclaim issue raised in the FED action, the circuit court, when later
issuing a Rule 54(b) certification and judgment dismissing Paul and Skyline’s
claims in the preexisting civil action stated that “Paul’s claim for rescission
practically mirrors the eviction action” and noted that “principles of judicial
economy suggest that these two issues should be handled at the same time
before [this] Court.” This judgment was recently vacated, for other reasons,
in Estate of O’Farrell v. Grand Valley Hutterian Brethren, Inc., 2024 S.D. 81,
___ N.W.3d ___.

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732, 733 (Minn. 1922) (holding that “the court in which the equitable action is

pending may enjoin the prosecution of the unlawful detainer action if it be shown

that the equitable rights of the defendant in that action are such that he ought not

to be ousted from possession.”).

[¶72.] In any event, it is clear under our governing case law that Paul and

Skyline were entitled to fully litigate their challenge to the termination of their oral

lease of the Property in some forum. At the very least, they were entitled to do so

within this FED action. However, they were not afforded that opportunity here,

based on the other improper rulings by the circuit court addressed below.

Denial of the Continuance Motion

[¶73.] After Paul filed his motion to dismiss on April 21, VOR and the Colony

filed a notice on April 24 of a court trial to be held on April 27. Prior to hearing any

oral argument on the motion, the circuit court advised the parties, via an email on

April 26, that it would be denying the motion to dismiss but would allow counsel for

Paul and Skyline “to make a record” on their motions at the court trial scheduled

the next day. When the parties appeared before the court on April 27, the court

formally denied the motion to dismiss on the record. Paul then requested a

continuance under SDCL 21-16-7. The circuit court denied this request and ordered

the parties to proceed with the court trial that day.

[¶74.] The majority opinion, citing the Meadowland factors that a court is to

consider when ruling on a motion for continuance, see 2012 S.D. 30, ¶ 17, 813

N.W.2d at 623, concludes the circuit court did not abuse its discretion in denying

Paul’s motion for continuance, stating the circuit court was correctly oriented to the

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appropriate considerations. I disagree. The circuit court focused on just one of the

factors, concluding “the defendant utilized a tactical procedure such as asking for a

continuance, dismissal and brought in issues of compulsory counter claims [sic] and

tried to, for lack of a better word, in this Court’s opinion, drag other issues into an

eviction proceeding that are inappropriate.” The circuit court’s basis for denying

the continuance was erroneous because the “other issues” the court found Paul

attempted to “drag” into the FED action were directly related to Paul and Skyline’s

asserted right to immediate possession. Under our governing case law, Paul and

Skyline had a right to be heard on those issues, which in this particular case, were

complex and warranted a continuance. See Heiser, 247 N.W.2d at 68.

[¶75.] Further, the FED statutes themselves allow for a continuance of up to

14 days or longer upon payment of “an undertaking to the plaintiff with good and

sufficient surety to be approved by the court. . . .” SDCL 21-16-7. Therefore, any

suggestion that FED actions must be resolved at the lightning-speed pace in which

this one was resolved is contrary to the governing statutes. Here, Paul requested a

continuance of just five days and also offered, in accord with this statute, to “make

an undertaking with adequate security” to support a motion for a longer

continuance. In my view, the circuit court failed to apply the governing law to the

scenario presented and, therefore, abused its discretion in denying the continuance.

Evidentiary Issues

[¶76.] Paul further contends the circuit court abused its discretion in

excluding evidence at the eviction trial relating to Raymond’s allegedly invalid

actions that led to the sale and termination of the oral lease of the Property at issue.

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Relying on LPN Trust, 1996 S.D. 97, ¶ 9, 552 N.W.2d at 798, the majority opinion

concludes the circuit court did not abuse its discretion in excluding this evidence

because FED actions are limited and intended to prevent protracted litigation so

that “collateral issues not connected with the question of possession do not burden

the proceeding.”

[¶77.] However, this conclusion does not take into account this Court’s prior

holdings that expediency must give way when there exists a dispute as to who is

entitled to immediate possession, as we expressed in LPN Trust and Heiser. See id.

(noting that “inquiry may be made into equitable considerations in an unlawful

detainer action, as long as those considerations are relevant to the right of

possession”); Heiser, 247 N.W.2d at 68 (acknowledging that allowing evidence of

equitable issues even on a limited basis may interfere with the summary nature of

the remedy, but concluding “that [such] interference is warranted”). Here, Paul was

entitled to put on testimony to support his claim that the termination of the existing

leases was unauthorized and improper, but the circuit court continued to sustain

objections to testimony Paul attempted to present related to this issue. In my view,

this was an abuse of discretion.

[¶78.] I would also conclude the circuit court erred as a matter of law to the

extent it relied on testimony regarding disputed facts provided in hearings in the

other pending actions when rendering its findings. In declining to find error on this

issue, the majority opinion notes that the circuit court took judicial notice of the

other proceedings at Paul’s request. However, a review of the transcript reveals

that Paul requested the court take judicial notice of the existence of the other

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proceedings and the parties’ claims therein. Paul did not ask the court to take

judicial notice of any testimony. Of particular concern here, the testimony the

circuit court appears to have been referring to occurred in a prior proceeding in

which the hearing was cut short and Paul was prevented from fully presenting his

evidence. Moreover, the circuit court then issued its ruling on the pending matter

at this prior hearing, even though the court had advised the parties that it would

not do so. 8

[¶79.] The circuit court’s rulings have effectively precluded Paul and Skyline

from fully and fairly litigating the issue of who has the right to immediate

possession of this Property. I would therefore reverse the above-mentioned rulings

by the circuit court, vacate the judgment and order entered in this case, and remand

for the entry of an order either dismissing the FED action or, in the alternative,

holding it in abeyance until the underlying issues relevant to the right to immediate

possession of the Property are resolved in Paul and Skyline’s preexisting lawsuit.

[¶80.] KERN, Justice, joins this writing.

8. The testimony the circuit court appears to have referred to was during a
hearing on Paul’s motion to intervene in Victoria’s action, O’Farrell v.
O’Farrell, 25CIV22-000038, an action that was later dismissed without
prejudice by Victoria’s counsel.

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