#27192-a-LSW

2016 S.D. 3

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

DOROTHY SMIZER, Individually and 

as Personal Representative of the 

Estate of HARLAN SMIZER, deceased, Plaintiff and Appellant,

v.

CHRISTINA DREY, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

GREGORY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KATHLEEN F. TRANDAHL

Judge

* * * *

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.

* * * *

ARGUED ON 

OCTOBER 7, 2015

OPINION FILED 01/06/16
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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. 

Background

[¶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 
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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 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 
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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 damages. (Harlan passed away of natural causes in 

February 2014, and his claims were asserted on his behalf by his estate.) 

[¶5.] During discovery, Christina asked the Smizers to identify the evidence 

to support their claim for punitive damages. The Smizers asserted that they had

information and belief that Christina had a habit of failing to yield at that 

intersection. More specifically, during her deposition, Dorothy testified that Karen 

Klein and Brad Skalla had knowledge of Christina’s previous failures to yield at 

that intersection. Yet Dorothy could not say if Karen specifically said she saw 

Christina or if she saw Christina’s sister. Christina later obtained an affidavit from 

Brad, who attested that he had no memory of Christina ever failing to yield at that 

intersection. Brad also attested that he had no memory of telling Dorothy or 

Harlan that he observed Christina fail to yield at that intersection. 

[¶6.] After the parties completed discovery, the Smizers continued to seek 

punitive damages against Christina. In a letter to Christina’s counsel in December 

2013, the Smizers claimed that “there is a reasonable likelihood we will be able to 

obtain a verdict in excess of the policy limits and an award of punitive damages.” 

Unable to convince the Smizers to abandon their claim for punitive damages, 

Christina moved the circuit court for partial summary judgment on the issue of 

punitive damages and for sanctions under SDCL 15-6-11(c). Christina asserted that 
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the Smizers failed to conduct a reasonable investigation of their claim and merely 

recited the applicable legal terms “willful and wanton” without any evidence that 

Christina’s conduct was anything more than simple negligence. Christina further 

claimed that the Smizers were using their request for punitive damages to harass 

her and gain leverage in settlement negotiations. 

[¶7.] The Smizers responded with a cross-motion for partial summary 

judgment on the issue of punitive damages and, in the alternative, moved the court 

to let the jury decide the issue of punitive damages. They claimed that punitive 

damages were warranted as a matter of law because Christina knew she had an 

obligation to yield, knew her view was obstructed, failed to slow to a speed of 15 

mph, and drove through the intersection while looking ahead. Also, “Kiley and 

Karen Klein might have witnessed her previously fail to yield at the intersection of 

294th Street and 347th Avenue.” According to the Smizers, Christina’s actions 

disregarded their rights. The Smizers also filed a separate motion for partial 

summary judgment on the issue of Christina’s negligence. 

[¶8.] After a hearing on the parties’ motions in February 2014, the circuit 

court issued a memorandum decision. It granted the Smizers’ motion for partial 

summary judgment on the issue of Christina’s negligence. It granted Christina’s 

motion for partial summary judgment on the issue of punitive damages and 

dismissed that claim. The court concluded that the Smizers failed to present any 

evidence to support a claim for punitive damages beyond a violation of a safety 

statute. The court also granted Christina’s motion for sanctions under SDCL 15-6-

11(c). It found that “[i]t is clear from the Smizers’ conduct that their purpose in 
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bringing a claim for punitive damages . . . is to harass and attempt to leverage a 

settlement.” It concerned the court that counsel continued to assert a claim for 

punitive damages after discovery was completed. In the court’s view, the “Smizers 

and their attorneys did not conduct any reasonable investigation in fact or law in 

bringing their claim for punitive damages,” and “[t]here is no evidence whatsoever 

that supports a claim for punitive damages.” 

[¶9.] The court ordered the Smizers to “pay the attorneys fees to counsel for 

[Christina] for the time and expense for defending against the punitive damages 

claim after discovery was completed, including preparing the motions and briefs on 

the issue of punitive damages, and arguing the motion to the court.” The Smizers 

appeal and raise the following issues for our review:

1. The court abused its discretion when it found that the 

Smizers had neither legal nor factual support for their 

claim of punitive damages against Christina and granted 

Rule 11 sanctions. 

2. The court abused its discretion when it improperly made 

inferences from the evidence in Christina’s favor, required 

the Smizers to prove that Christina intended to harm 

them, and allowed Christina to rely on an affidavit in 

contradiction to her deposition testimony. 

Standard of Review

[¶10.] The Smizers claim that this Court’s standard of review “appears 

inconsistent.” On the one hand, SDCL 15-6-11(e) provides that “[t]he Supreme 

Court shall consider all appeals pursuant to §§ 15-6-11(a) through 15-6-11(d)

without any presumption of the correctness of the trial court’s findings of fact and 

conclusions of law.” On the other hand, our case law specifically directs that an 

appeal under Rule 11 is reviewed for an abuse of discretion. Hobart v. Ferebee, 2009 
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S.D. 101, ¶ 10, 776 N.W.2d 67, 71; Pioneer Bank & Tr. v. Reynick, 2009 S.D. 3, ¶ 13, 

760 N.W.2d 139, 143; Hahne v. Burr, 2005 S.D. 108, ¶ 22, 705 N.W.2d 867, 874;

Prunty Constr., Inc. v. City of Canistota, 2004 S.D. 78, ¶ 28, 682 N.W.2d 749, 761; 

Anderson v. Prod. Credit Ass’n, 482 N.W.2d 642, 645 (S.D. 1992). We take this 

opportunity to clarify our standard of review.

[¶11.] In 1990, the United States Supreme Court specifically examined the 

issue of an appropriate standard of review when a court imposes Rule 11 sanctions. 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-04, 110 S. Ct. 2447, 2460, 110 L. 

Ed. 2d 359 (1990). We note that the federal rule does not contain language similar 

to SDCL 15-6-11(e)—that this Court is not to presume “the correctness of the trial 

court’s findings of fact and conclusions of law.” Yet the reasoning in Cooter & Gell 

is helpful because there is no decisive distinction between the policy considerations 

implicated by our rule and the federal rule. See Cooter & Gell, 496 U.S. at 404, 110 

S. Ct. at 2460 (goal is “specific and general deterrence”); Anderson, 482 N.W.2d at 

645 (purpose of the rule is to deter abuse). And nothing in SDCL 15-6-11(e) imposes 

a specific standard of review or mandates that this Court reweigh the evidence and 

reconsider the facts already considered and weighed by the circuit court.

[¶12.] In deciding the appropriate standard of review under the federal rule, 

the United States Supreme Court recognized that a federal “court’s ruling that a 

litigant’s position is factually well grounded and legally tenable for Rule 11

purposes is similarly fact specific.” Cooter & Gell, 496 U.S. at 403, 110 S. Ct. at 

2460. Likewise in South Dakota, the decision to impose Rule 11 sanctions under 

SDCL 15-6-11(b) involves multiple factual and legal considerations. The circuit 
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court must examine factual questions related to the attorney or unrepresented 

party’s representations to the court. SDCL 15-6-11(b). Legal issues are implicated 

when the court considers whether “[t]he claims, defenses, and other legal 

contentions therein are warranted by existing law or by a nonfrivolous argument for 

the extension, modification, or reversal of existing law or the establishment of new 

law[.]” SDCL 15-6-11(b)(2). And if the circuit court determines a violation occurred, 

it may exercise its discretion and “impose an appropriate sanction upon the 

attorneys, law firms, or parties that have violated § 15-6-11(b) or are responsible for 

the violation.” SDCL 15-6-11(c).

[¶13.] As the Supreme Court recognized, to decide “whether a complaint was 

supported by fact and law ‘to the best of the signer’s knowledge, information, and 

belief,’ a court must make some assessment of the signer’s credibility.” Cooter & 

Gell, 496 U.S. at 402, 110 S. Ct. at 2459. The “court must consider all the 

circumstances of a case. An inquiry that is unreasonable when an attorney has 

months to prepare a complaint may be reasonable when he has only a few days 

before the statute of limitations runs.” Id. at 401-02, 110 S. Ct. at 2459. Indeed, 

“[f]amiliar with the issues and litigants, the district court is better situated than the 

court of appeals to marshal the pertinent facts and apply the fact-dependent legal 

standard mandated by Rule 11.” Id. at 402, 110 S. Ct. at 2459.

[¶14.] In light of these considerations and the language of SDCL 15-6-11, we 

continue to adhere to our abuse of discretion standard of review. “An abuse of 

discretion is a discretion exercised to an end or purpose not justified by, and clearly 

against, reason and evidence.” Pioneer Bank & Tr., 2009 S.D. 3, ¶ 13, 760 N.W.2d 
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at 143. An abuse of discretion also occurs when the court bases “its ruling on an 

erroneous view of the law or on a clearly erroneous assessment of the evidence.” 

Cooter & Gell, 496 U.S. at 405, 110 S. Ct. at 2461.

Analysis 

[¶15.] The Smizers contend that the circuit court abused its discretion when 

it imposed sanctions under SDCL 15-6-11(c) because they had at least some rational 

basis to support their claim for punitive damages. In particular, the Smizers assert 

that the facts, viewed in a light most favorable to them, show Christina “acted 

intentionally or recklessly” when she drove through the intersection at 35 mph with 

an obscured view of oncoming traffic, had previously avoided a collision with 

another vehicle at that intersection, and “showe[d] a criminal indifference to her 

civil obligations” when she pleaded guilty to failure to yield. In the Smizers’ view, a 

jury could reasonably conclude that Christina “had no intention of yielding or 

recklessly failed to yield to oncoming traffic on the morning of the collision.” 

[¶16.] Christina, on the other hand, insists that the Smizers merely recite the 

litany of legal terms relevant to a claim for punitive damages and provide no factual 

support for their claim that she intentionally failed to yield at the intersection on 

the day of the collision. She notes that she was not intoxicated, was not a distracted 

driver, and has never before been cited for failure to yield. She contends that the 

collision was nothing “other than a simple motor vehicle accident involving general 

negligence.” She also avers that the Smizers asserted their claim for punitive 

damages to harass her and leverage a settlement. 
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[¶17.] SDCL 15-6-11(b) imposes a duty on an attorney “to conduct a 

‘reasonable inquiry’ into the facts and law prior to commencing any action.” 

Anderson, 482 N.W.2d at 645. The allegations and contentions asserted must “have 

evidentiary support or, if specifically so identified, are likely to have evidentiary 

support after a reasonable opportunity for further investigation or discovery[.]” 

SDCL 15-6-11(b)(3). By presenting a claim to the court, the attorney is certifying 

that the claim is “warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the establishment of new 

law[.]” SDCL 15-6-11(b)(3). 

[¶18.] We have said that the purpose of sanctions under SDCL 15-6-11 is to 

deter abuse by parties and counsel. Anderson, 482 N.W.2d at 645 (quoting Rodgers 

v. Lincoln Towing Serv., Inc., 771 F.2d 194, 205 (7th Cir. 1985)). But evidence of 

bad faith is not required under because the aim is “to reduce the reluctance of 

courts to impose sanctions by emphasizing the responsibilities of the attorney and 

reenforcing those obligations by the imposition of sanctions.” Anderson, 482 N.W.2d 

at 645 (quoting Rodgers, 771 F.2d at 205). When imposing sanctions, SDCL 15-6-

11(c)(3) requires that the court “describe the conduct determined to constitute a 

violation of this rule and explain the basis for the sanction imposed.” We have said 

that this requirement “facilitate[s] effective appellate review.” Pioneer Bank & Tr., 

2009 S.D. 3, ¶ 9, 760 N.W.2d at 142 (quoting 5A Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1337.3 (3d ed. 2008)). 

[¶19.] Here, the court described the conduct that constituted a violation of 

SDCL 15-6-11. It explained that “[i]t is clear from the Smizers’ conduct that their 
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purpose in bringing a claim for punitive damages (just like their earlier attempt to 

claim attorney fees under the criminal restitution statutes and the South Dakota 

commercial driver’s license statutes even though Drey doesn’t have a CDL) is to 

harass and attempt to leverage a settlement.” In the court’s view, “[t]here is no 

evidence whatsoever that supports a claim of punitive damages.” According to the 

court, the Smizers failed to meet their duty to conduct a reasonable inquiry under 

the circumstances prior to asserting their claim. It noted that “the Smizers’ 

‘smoking gun’ witness, Brad Skalla, testified under oath that he disagrees with 

Dorothy Smizer’s sworn testimony.” And Christina proved that the Smizers’ 

responses to certain requests for admissions “were untrue.” It particularly 

concerned the court, not that counsel for the Smizers relied on his client’s 

representations, but “that they continued with the claim for punitive damages after 

discovery was completed.” The court concluded that the Smizers should have 

dismissed their claim for punitive damages “at the time their claim for attorney fees 

was dismissed.” 

[¶20.] Punitive damages are warranted “where the defendant has been guilty 

of oppression, fraud, or malice, actual or presumed . . . committed intentionally or 

by willful and wanton misconduct, in disregard of humanity[.]” SDCL 21-3-2. 

“Malice is an essential element of a claim for punitive damages.” Kjerstad v. 

Ravellette Publ’ns, Inc., 517 N.W.2d 419, 425 (S.D. 1994). Malice can be actual or 

presumed. Id. Yet, it is not presumed simply from doing the unlawful or injurious 

act. Presumed malice is inferred from certain acts. Isaac v. State Farm Mut. Auto. 

Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994). The implication is “that the act 
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complained of was conceived in the spirit of mischief or of criminal indifference to 

civil obligations.” Id. (quoting Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D. 1991)). 

[¶21.] From our review of the evidence, the circuit court did not abuse its 

discretion when it held that the Smizers failed to conduct a reasonable investigation 

to support their claim for punitive damages. The Smizers identify no evidence that 

Christina’s failure to yield at the intersection “was conceived in the spirit of 

mischief or of criminal indifference to civil obligations.” See id. Nor does this case 

“involve ingenuity in advocacy or an attempt to develop the law.” See Johnson v. 

Miller, 2012 S.D. 61, ¶ 52, 818 N.W.2d 804, 817 (Zinter, J., dissenting). 

[¶22.] Nonetheless, the Smizers argue that the circuit court ignored disputed 

evidence and failed to view the evidence in a light most favorable to them. 

Specifically, they contend that the court improperly failed to consider that Christina 

made a statement that she was looking straight ahead when she drove through the 

intersection and that she failed to slow to 15 mph, despite having an obstructed 

view of oncoming traffic. The Smizers highlight that Christina admitted to 

violating her statutory duty to yield at the intersection and knew it would be more 

difficult for her to stop because of the gravel road. This evidence, viewed in a light 

most favorable to the Smizers and all reasonable inferences that could be drawn 

from this evidence, does not create a rational basis to assert a claim for punitive 

damages. See Gabriel v. Bauman, 2014 S.D. 30, ¶ 16, 847 N.W.2d 537, 543 (“The 

conduct must be more than mere mistake, inadvertence, or inattention.”). 

[¶23.] The court also did not abuse its discretion when it found that the 

Smizers had no basis in law or fact to assert their claim for punitive damages. 
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Although counsel for the Smizers asserted that—in originally bringing the claim for 

punitive damages—he relied on his client’s representation that Christina had a 

history of failing to yield at that intersection, it became clear during discovery that 

no witness would actually be able to testify to that fact. Indeed, after discovery, the 

Smizers only alleged that a witness might say she saw Christina nearly miss an 

accident at the intersection on a previous occasion. Yet that speculative assertion 

does not lead to the reasonable inference that a witness observed Christina 

previously fail to yield at that intersection or that Christina was a driver involved 

in a near miss at that intersection. See Andrushchenko v. Silchuk, 2008 S.D. 8, ¶ 8, 

744 N.W.2d 850, 854 (evidentiary basis must be supported by more than 

unsupported conclusions and speculative statements). Nor does merely quoting the 

legal terms relevant to a claim of punitive damages equate to a legitimate attempt 

to establish a new theory of law. See Hartman v. Wood, 436 N.W.2d 854, 857 (S.D. 

1989). In fact, no case cited by the Smizers supports their claim that Christina 

acted with the requisite intentional or reckless conduct sufficient to implicate 

punitive damages. See Dame v. Estes, 101 So. 2d 644 (Miss. 1958) (evidence that 

driver either ignored or wholly failed to see the stop sign and made no effort to stop 

at the intersection or check the speed of her vehicle); Eliason v. Wallace, 680 P.2d 

573 (Mont. 1984) (court did not indicate findings to support the claim, just the 

conclusion that the claim was supported); Austin v. Specialty Transp. Servs., Inc., 

594 S.E.2d 867 (S.C. 2004) (driver did not stop at the stop sign); Fairchild v. S.C. 

DOT, 683 S.E.2d 818 (S.C. Ct. App. 2009) (under state law, when there is 

negligence per se, punitive damages may be presented to the jury). 
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[¶24.] The circuit court also did not abuse its discretion when it imposed 

sanctions because it found that the Smizers brought their claim for an improper 

purpose. According to the court, “[i]t is clear” the Smizers used their claim to 

attempt to leverage a settlement and to harass Christina. See Probasco v. Ford 

Motor Co., 182 F. Supp. 2d 701, 705 (C.D. Ill. 2002) (it is improper to use a claim for 

punitive damage as leverage). In the court’s view, there was no evidence 

“whatsoever” to support a claim for punitive damages, and the Smizers should have 

dismissed the claim when it dismissed their claim for attorney’s fees. 

[¶25.] Christina moves this Court for appellate attorney’s fees under SDCL 

15-26A-87.3 and has included a verified statement of legal services to support her 

motion. An award of reasonable appellate attorney’s fees is mandated under SDCL 

15-6-11(e) “to the successful party on appeal.” Id. Christina is the successful party 

on appeal. We award Christina appellate attorney’s fees and costs totaling

$8,752.50.

[¶26.] Affirmed.

[¶27.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.