APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE WALLY EKLUND Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON AUGUST 23, 2011
[¶1.] The circuit court dismissed this case when plaintiff was unable to bring the matter to trial within one year after we remanded in a previous appeal. Because good cause existed to extend the deadline, we reverse and remand.
[¶2.] In December 2007, Kjerstad Realty, Inc. brought suit against Bootjack Ranch, Inc. for breach of a realty contract. Kjerstad sought and obtained summary judgment. Bootjack appealed, and, on October 28, 2009, we reversed and remanded for trial. Kjerstad Realty , Inc. v. Bootjack Ranch, Inc. , 2009 S.D. 93, 774 N.W.2d 797. We concluded that an issue of material fact was in dispute on "[w]hether the efforts of Kjerstad Realty constituted substantial performance" under the contract. Id. ¶ 17.
[¶3.] On remand, Kjerstad pursued further discovery, amended its complaint, and added party defendants. In January 2010, the assigned judge, Circuit Judge Merton B. Tice, retired. A hearing was held on February 9, 2010, before Circuit Judge John J. Delaney, who had been temporarily assigned to the case. Judge Delaney informed counsel that he would preside only until Judge Tice's replacement was named.
[¶4.] On May 4, 2010, Judge Delaney held another hearing, this time on Kjerstad's motion to compel the defendants to produce certain documents requested in a December 2009 subpoena duces tecum. Judge Delaney ordered production of the documents. Kjerstad also moved for an award of attorney's fees because of the defendants' failure to produce the documents. A hearing was set for June 29, 2010.
At that hearing, counsel for Kjerstad remarked, "In this case we've gotten nothing but obstruction in our discovery requests from both the defendants. And to not sanction them for this action only gives them a license." Judge Delaney agreed, saying, "That kind of strikes me as a true statement." He awarded Kjerstad $2,660.16 in fees and costs.
[¶5.] On June 18, 2010, Circuit Judge Wally Eklund was appointed to the bench and assigned to the case, relieving Judge Delaney of this temporary assignment. A little over a month after Judge Eklund took the bench, Kjerstad moved for a scheduling order and trial date. On July 20, 2010, Kjerstad moved for a hearing to proceed with exemplary damages. On the same day, Bootjack and Patricia Hanson moved for summary judgment, asserting that Hanson did not act fraudulently or with deceit in selling Bootjack Ranch. Kjerstad moved for summary judgment on its breach of contract claim. On September 22, 2010, Judge Eklund held a hearing on all the motions. He granted summary judgment to Hanson and denied Kjerstad's motion.
[¶6.] During the summary judgment hearing, counsel discussed trial scheduling. The court asked about the timing of the trial in relation to the date the Supreme Court issued its decision remanding the case. Counsel for Bootjack indicated that the case was remanded in October 2009 and that after the one-year deadline passed, he planned to move for dismissal under SDCL 15-30-16. Counsel for Kjerstad responded that he was ready to try the case "tomorrow." Counsel for Bootjack also was ready for trial tomorrow. The court responded, "We aren't going to do it tomorrow." Thereafter, a pretrial order was entered setting the trial date for February 15, 2011.
[¶7.] On November 16, 2010, Bootjack moved to dismiss for Kjerstad's failure to commence trial within one year from the date of remand. See SDCL 15-30-16. A hearing was held on December 14, 2010. After considering arguments from counsel, the court granted Bootjack's motion. It believed it was "just duty-bound to dismiss the action as against Bootjack," because it concluded that "under the circumstances [it did not] have discretion to exercise . . . under the rulings of" the Supreme Court. Kjerstad's suit against another party remained on schedule, but we granted Kjerstad's petition for intermediate appeal and stayed further proceedings.
[¶8.] We review a court's decision to dismiss a case under SDCL 15-30-16 for an abuse of discretion. Lamar Adver., Inc. v. Heavy Constructors, Inc. (Lamar II), 2010 S.D. 77, ¶ 10, 790 N.W.2d 45, 48; White Eagle v. City of Fort Pierre, 2002 S.D. 68, ¶ 4, 647 N.W.2d 716, 718. An abuse of discretion "is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Stavig v. Stavig , 2009 S.D. 89, ¶ 13, 774 N.W.2d 454, 458 (citations omitted).
[¶9.] Kjerstad asserts that the circuit court abused its discretion when it granted Bootjack's motion to dismiss because Kjerstad "had requested a trial date be set within the one year period and the [circuit court] denied the request." Kjerstad also contends that good cause existed to delay the deadline under SDCL 15-30-16. It points to the undisputed record showing that after this Court's remand, counsel for Kjerstad conducted "legitimate discovery," "pursued and prosecuted the case," engaged in no "unreasonable delay," "acted with due ...