CONSIDERED ON BRIEFS APRIL 16, 2018
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
HUTCHINSON COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T.
A. ARENDS of Sioux Falls, South Dakota Attorney for
plaintiffs and appellants.
THOMAS KONRAD of Olinger, Lovald, McCahren, Van Camp, &
Konrad, P.C. Pierre, South Dakota Attorneys for defendant and
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.
The Stoebners and Konrad executed a contract for the sale of
several parcels of real property owned by the
Stoebners. 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.
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.
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."
[¶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
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. 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
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.,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 ...