Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smizer v. Drey

Supreme Court of South Dakota

January 6, 2016

DOROTHY SMIZER, Individually and as Personal Representative of the Estate of HARLAN SMIZER, deceased, Plaintiff and Appellant,
CHRISTINA DREY, Defendant and Appellee

Argued October 7, 2015.

Page 698


MICHAEL D. BORNITZ, ROBERT D. TRZYNKA of Cutler Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

RYLAND DEINERT, TIMOTHY A. CLAUSEN of Klass Law Firm, LLP, Sioux City, Iowa, Attorneys for defendant and appellee.

WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.


Page 699

WILBUR, Justice

[¶1] Dorothy Smizer, in her individual capacity and as personal representative of the estate of Harlan Smizer, appeals the circuit court's decision to impose sanctions under SDCL 15-6-11(c). The circuit court awarded Christina Drey attorney's fees as sanctions after the court concluded that the Smizers did not conduct a reasonable investigation in law or fact to support their claim for punitive damages against Christina. The court also imposed sanctions because it found that the Smizers improperly sought punitive damages to gain leverage toward settlement of their negligence claim against Christina. We affirm.


[¶2] On July 25, 2010, Dorothy and Harlan Smizer were traveling to church with their daughter and granddaughter when a vehicle driven by Christina collided with their vehicle at the intersection of 347th Avenue and 294th Street in Gregory County, South Dakota. Christina was traveling west on 294th Street, and the Smizers were traveling south on 347th Avenue. A yield sign on 294th Street controls the intersection, and the speed limit is 65 mph. Christina later explained that prior to the accident she was traveling 45 mph and that she slowed to 35 mph before the intersection. She looked for oncoming traffic and drove through the intersection. But she explained that a cornfield obstructed her view of traffic traveling south. She did not see the Smizers' vehicle until it was too late. Christina slammed on her brakes to attempt to avoid the accident, but could not stop. Christina's vehicle struck the Smizers' vehicle behind the driver's-side door. The Smizers were seriously injured. Christina was cited for and admitted to a failure to yield in violation of SDCL 32-29-3.

[¶3] The Smizers brought suit against Christina in November 2012. They alleged that Christina was negligent and that her failure to yield at the intersection constituted negligence per se. The Smizers sought to recover compensatory and punitive damages. To support their claim for punitive damages, the Smizers alleged that Christina " regularly fails to yield at this intersection, in willful violation of SDCL § 32-29-3 Failure to Yield to Traffic at Yield Sign." And they asserted that Christina " engaged in extreme and outrageous conduct in operating her motor vehicle in conscious disregard of the traffic laws of this State." The Smizers alleged that Christina's " actions were willful, wanton, and reckless, entitling [them] to punitive damages in an amount to be determined by the trier of fact." They also requested attorney's fees based on SDCL 23A-28-6. That statute provides that " [i]f the victim is not satisfied with the approved or modified plan of restitution, the victim's exclusive remedy is a civil action against the defendant, which, if successful, may include attorney's fees."

[¶4] Christina answered and denied liability. She asserted that the Smizers had no legal basis or authority to seek punitive damages or attorney's fees. Christina averred that the Smizers brought their claim for punitive damages solely to " harass and intimidate her[.]" Christina served upon the Smizers (but did not file) a motion for an award of sanctions. Counsel for Christina later explained that he

Page 700

did not file the motion because SDCL 15-6-11(c)(1)(A) requires that a motion for sanctions " shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged . . . claim . . . is not withdrawn or appropriately corrected." The parties held a teleconference, after which the Smizers amended their complaint and removed their claim for attorney's fees under SDCL 23A-28-6. The Smizers continued to seek punitive ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.