abuse of discretion standard in South Dakota

2006See, e.g., State v. McKinney, 2005 SD 73, ¶ 10 , 699 N.W.2d 471, 476 (McKinney I) ("We ultimately review a sentence within statutory limits under an abuse of discretion standard."); State v. Goodroad, 1997 SD 46, ¶ 40 , 563 N.W.2d 126, 135 ("A sentence within the statutory limits is reviewed under an abuse of discretion standard."); State v. Anderson, 1996 SD 46, ¶ 30 , 546 N.W.2d 395, 402 (" 'Where the court is asked to review a punishment within the statutory limits, the question is whether the trial court abused its discretion’ "); State v. Kaiser, 526 N.W.2d 722, 726 (S.D.1995) (same); Sta

2006See, e.g., State v. McKinney, 2005 SD 73, ¶ 10 , 699 N.W.2d 471, 476 (McKinney I) ("We ultimately review a sentence within statutory limits under an abuse of discretion standard."); State v. Goodroad, 1997 SD 46, ¶ 40 , 563 N.W.2d 126, 135 ("A sentence within the statutory limits is reviewed under an abuse of discretion standard."); State v. Anderson, 1996 SD 46, ¶ 30 , 546 N.W.2d 395, 402 (" 'Where the court is asked to review a punishment within the statutory limits, the question is whether the trial court abused its discretion’ "); State v. Kaiser, 526 N.W.2d 722, 726 (S.D.1995) (same); Sta

2006Standard of Review [¶16.] "Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard." Veeder v. Kennedy, 1999 SD 23, ¶41 , 589 NW2d 610, 619 (citing State v. Oster, 495 NW2d 305, 309 (SD 1993)).

2006Standard of Review [¶ 16.] “Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard.” Veeder v. Kennedy, 1999 SD 23, ¶ 41 , 589 N.W.2d 610, 619 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)).

2008The abuse of discretion standard is also utilized "when reviewing a trial court's denial of a motion for a new trial." Christenson, 2004 SD 113, ¶ 13 , 688 N.W.2d at 426 (citing Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995) (citing Treib v. Kern, 513 N.W.2d 908, 911 (S.D.1994))).

2008The abuse of discretion standard is also utilized “when reviewing a trial court’s denial of a motion for a new trial.” Christenson, 2004 SD 113, ¶ 13 , 688 N.W.2d at 426 (citing Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995) (citing Treib v. Kern, 513 N.W.2d 908, 911 (S.D.1994))).

2006“In applying the abuse of discretion standard, ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’” State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citing State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citing State v. Pfaff, 456 N.W.2d 558, 560-61 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987); Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989))).

2005When applying the abuse of discretion standard of review, “we must be careful not to substitute our reasoning for that of the trial court.” Id. (quoting State v. Larson, 512 N.W.2d 732, 736 (S.D.1994)). [¶ 28.] When reviewing a trial court’s award of attorney fees, questions of fact are reviewed under the clearly erroneous standard.

2010“We will uphold the trial court’s resolution of the facts unless, upon our viewing of the evidence in a light most favorable to the trial court’s finding, we are convinced the finding was clearly erroneous under this definition.” Id. [¶ 50.] We use the abuse of discretion standard of review to determine whether a trial court erred in its denial of a motion for new trial based upon a claim of juror misconduct.

2009Id. [¶ 26.] The manner in which the trial court applied the law to its findings of fact is reviewed under the abuse of discretion standard.

2009Defendant argues that the answers to these three questions would have shown that Huber testified inconsistently with her prior statements. [¶31.] "A trial court's evidentiary rulings `are presumed correct and are reviewed under an abuse of discretion standard.'" State v. Karlen, 1999 SD 12, ¶6 , 589 NW2d 594, 597 (quoting State v. Larson, 1998 SD 80, ¶10 , 582 NW2d 15, 17 ).

2009Defendant argues that the answers to these three questions would have shown that Huber testified inconsistently with her prior statements. [¶31.] "A trial court's evidentiary rulings `are presumed correct and are reviewed under an abuse of discretion standard.'" State v. Karlen, 1999 SD 12, ¶6 , 589 NW2d 594, 597 (quoting State v. Larson, 1998 SD 80, ¶10 , 582 NW2d 15, 17 ).

2000State v. Vento, 1999 SD 158 ¶ 5 , 604 N.W.2d 468, 469 (citing State v. Anderson, 1996 SD 59 ¶ 8 , 548 N.W.2d 40, 42 (citing State v. Ramirez, 535 N.W.2d 847, 848 (S.D.1995); State v. Smith, 477 N.W.2d 27, 31 (S.D.1991); State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991).

2000Id. ¶ 8 (citing State v. Ramirez, 535 N.W.2d 847, 848 (S.D.1995) (citing State v. Flegel, 485 N.W.2d 210, 213 (S.D.1992))).

2013STANDARD OF REVIEW [¶ 13.] “[This Court] review[s] child custody decisions under the abuse of discretion standard of review.” Simunek v. Auwerter, 2011 S.D. 56 , ¶ 8, 803 N.W.2d 835, 837 (citing Fuerstenberg v. Fuerstenberg, 1999 S.D. 35 , ¶ 22, 591 N.W.2d 798, 807 ).

2013STANDARD OF REVIEW [¶13.] “[This Court] review[s] child custody decisions under the abuse of discretion standard of review.” Simunek v. Auwerter, 2011 S.D. 56 , ¶ 8, 803 N.W.2d -5- #26101 835, 837 (citing Fuerstenberg v. Fuerstenberg, 1999 S.D. 35 , ¶ 22, 591 N.W.2d 798, 807 ).

2005This amount was $248.34 less than Wedmore requested. 24 ‘We review an award of disbursements under an abuse of discretion standard.” Michlitsch v. Meyer, 1999 SD 69, ¶ 10 , 594 N.W.2d 731, 733 (citations omitted).

2005This amount was $248.34 less than Wedmore requested. 24 ‘We review an award of disbursements under an abuse of discretion standard.” Michlitsch v. Meyer, 1999 SD 69, ¶ 10 , 594 N.W.2d 731, 733 (citations omitted).

2026We need not consider the propriety of circuit court’s decision denying the motion for reconsideration based upon our resolution of the Daubert issue. -11- #31052 Standard of Review [¶28.] “We review a trial court’s ‘decision to admit or deny an expert’s testimony under the abuse of discretion standard.’” State v. Fisher, 2011 S.D. 74, ¶ 42 , 805 N.W.2d 571, 580 (citations omitted).

2026We need not consider the propriety of circuit court’s decision denying the motion for reconsideration based upon our resolution of the Daubert issue. -11- #31052 Standard of Review [¶28.] “We review a trial court’s ‘decision to admit or deny an expert’s testimony under the abuse of discretion standard.’” State v. Fisher, 2011 S.D. 74, ¶ 42 , 805 N.W.2d 571, 580 (citations omitted).

2018See U.S. Dep't of the Interior, Indian Probate and Probate-Type Appeals , https://www.doi.gov/oha/organization/ibia/Indian-Probate-and-Probate-Type-Appeals (last visited Feb. 16, 2018). 5 "The abuse of discretion standard is also utilized 'when reviewing a trial court's denial of a motion for a new trial.' " Harmon v. Washburn , 2008 S.D. 42 , ¶ 10, 751 N.W.2d 297 , 300 (quoting Christenson v. Bergeson , 2004 S.D. 113 , ¶ 13, 688 N.W.2d 421 , 426 ). 6 Challenges to an award of an equitable remedy are reviewed for an abuse of discretion.

2013Further, “[a] trial court’s ruling on a motion for directed verdict is reviewed under the abuse of discretion standard.” Harmon v. Washburn, 2008 S.D. 42 , ¶ 8, 751 N.W.2d 297, 300 (citing Christenson v. Bergeson, 2004 S.D. 113 , ¶ 10, 688 N.W.2d 421, 425 ). “ ‘If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.’ ” Id. (quoting Christenson, 2004 S.D. 113 , ¶ 22, 688 N.W.2d at 427 ). [¶ 40.] South Dakota statutes provide: Any person who sells the good will of a business may agree with the buyer to refrain from carrying on a similar busines

2012Hill v. Hill, 2009 S.D. 18 , ¶ 5, 763 N.W.2d 818, 822 (citing Billion v. Billion, 1996 S.D. 101 , ¶ 14, 553 N.W.2d 226, 230 ).

2009Billion v. Billion, 1996 SD 101, ¶ 14 , 553 N.W.2d 226, 230 (citations omitted).

2011Steffen v. Schwan’s Sales Enter., Inc., 2006 S.D. 41 , ¶ 7, 713 N.W.2d 614, 617 (citations omitted).

2010Fiechuk v. Wilson Trailer Co., Inc., 2009 SD 62, ¶ 8 , 769 N.W.2d 843, 846 (citing Steffen v. Schwan’s Sales Enter., Inc., 2006 SD 41, ¶ 19 , 713 N.W.2d 614, 621 ). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” *670 Kostel v. Schwartz, 2008 SD 85, ¶ 12 , 756 N.W.2d 363, 370 (quoting Kaiser v. Univ.

2006“In applying the abuse of discretion standard, ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’” State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citing State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citing State v. Pfaff, 456 N.W.2d 558, 560-61 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987); Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989))).

1995In applying the abuse of discretion standard, “we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.” Id. (citing Pfaff, 456 N.W.2d at 560-61 ; Bartlett, 411 N.W.2d at 414 ; Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989)).

2026“Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard.” Id. (quoting State v. Guthrie, 2002 S.D. 138 , ¶ 5, 654 N.W.2d 201, 203 ). -11- #31196, #31203 Under the clearly erroneous standard, “we will only reverse when we ‘are left with a definite and firm conviction that a mistake has been made’ after [undertaking] a thorough review of the evidence.” Estate of Olson, 2008 S.D. 97 , ¶ 9, 757 N.W.2d 219, 222 (citation modified).

2025“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.’” Gartner v. Temple, 2014 S.D. 74 , ¶ 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003 S.D. 125 , ¶ 14, 670 N.W.2d 904, 910 ). [¶14.] “Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard.” State v. Guthrie, 2002 S.D. 138 , ¶ 5, 654 N.W.2d 201, 203 .

2015Jury Instructions [¶ 62.] It is well-settled that “[a] trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard.” Wangsness v. Builders Cashway, Inc., 2010 S.D. 14 , ¶ 10, 779 N.W.2d 136, 140 (quoting State v. Cottier, 2008 S.D. 79 , ¶ 7, 755 N.W.2d 120, 125 ).

2012“A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard.” State v. Klaudt, 2009 S.D. 71 , ¶ 13, 772 N.W.2d 117, 121 (quoting State v. Cottier, 2008 S.D. 79 , ¶ 7, 755 N.W.2d 120, 125 ).

2008“Thus, we apply the abuse of discretion standard when reviewing the trial court’s ruling.” Id. (citing Bland v. Davison County, 1997 SD 92, ¶26 , 566 N.W.2d 452, 460 ) (citing Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994)). [¶ 15.] On an appeal from a bench trial: We review the circuit court’s findings of fact under the clearly erroneous standard.

2008“Thus, we apply the abuse of discretion standard when reviewing the trial court’s ruling.” Id. (citing Bland v. Davison County, 1997 SD 92, ¶26 , 566 N.W.2d 452, 460 ) (citing Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994)). [¶ 15.] On an appeal from a bench trial: We review the circuit court’s findings of fact under the clearly erroneous standard.

2026The abuse of discretion standard of review “is the most deferential standard of review available with the exception of no review at all.” State v. Janklow, 2005 S.D. 25, ¶ 39 , 693 N.W.2d 685, 699 (quoting In re S.D.

2026The abuse of discretion standard of review “is the most deferential standard of review available with the exception of no review at all.” State v. Janklow, 2005 S.D. 25, ¶ 39 , 693 N.W.2d 685, 699 (quoting In re S.D.

2019Attorney Fees [¶23.] “We review a trial court’s ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard.” Johnson v. Miller, 2012 S.D. 61, ¶ 7 , 818 N.W.2d 804, 806 (quoting Stratmeyer v. Engberg, 2002 S.D. 91 , ¶ 12, 648 N.W.2d 921 , 925).

2019Attorney Fees [¶23.] “We review a trial court’s ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard.” Johnson v. Miller, 2012 S.D. 61, ¶ 7 , 818 N.W.2d 804, 806 (quoting Stratmeyer v. Engberg, 2002 S.D. 91 , ¶ 12, 648 N.W.2d 921 , 925).

2014Consequently, while we “generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard[,] . . . when the question is whether a jury was properly instructed overall, that issue becomes a question of law reviewable de novo.” Vetter, 711 N.W.2d at 615 .

2014Consequently, while we “generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard[,] ... when the question is whether a jury was properly instructed overall, that issue becomes a question of law reviewable de novo.” Vetter, 711 N.W.2d at 615 .

2010As set forth in London, the abuse of discretion standard of review has been used on numerous occasions. 1998 S.D. 41 , ¶ 12, 578 N.W.2d at 148 (citing Devitt v. Hayes, 1996 S.D. 71 , ¶ 7, 551 N.W.2d 298, 300 (citing Annett v. Am.

2007STANDARD OF REVIEW [¶ 7.] “A trial court’s dismissal for failure to prosecute is reviewed under an abuse of discretion standard.” Jenco, Inc. v. United Fire Group, 2003 SD 79, ¶ 7 , 666 N.W.2d 763, 765 (citing Devitt v. Hayes, 1996 SD 71, ¶ 7 , 551 N.W.2d 298, 300 ).

2024We must therefore still analyze the assignments of error urged by Terry. [¶12.] Turning to the standard of review in child custody cases, this Court “review[s] child custody decisions under the abuse of discretion standard of review.” Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13 , 826 N.W.2d 627, 633 (alteration in original).

2024We must therefore still analyze the assignments of error urged by Terry. [¶12.] Turning to the standard of review in child custody cases, this Court “review[s] child custody decisions under the abuse of discretion standard of review.” Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13 , 826 N.W.2d 627, 633 (alteration in original).

2021State v. Owens, 2002 S.D. 42 , ¶¶ 30-31, 643 N.W.2d 735, 745-46 (citations omitted) (A defendant is not entitled to “a jury that has absolutely no prior knowledge of the facts of the case.” However, “a juror must be able to set aside preconceptions and judge the case on the facts presented at trial under the instructions given by the trial court.”); see also Verhoef, 2001 S.D. 58 , ¶ 13, 627 N.W.2d at 440 (holding that the trial court did not abuse its discretion by declining to excuse a juror for cause when the juror was acquainted with the defendant, victim, and victim’s grandmother). [¶19.]

2005Behrens subsequently moved for a mistrial, claiming that jurors had paged through the binders and, as a result, had looked at at least one exhibit that was not admitted into evidence. [¶ 67.] “The trial court’s denial of a motion for mistrial is reviewed under the abuse of discretion standard.” State v. Owens, 2002 SD 42, ¶ 101 , 643 N.W.2d 735, 758 (citing State v. Winckler, 260 N.W.2d 356, 368 (S.D.1977)).

2019Attorney Fees [¶23.] "We review a trial court's ruling on the allowance or disallowance *922 of costs and attorney fees under an abuse of discretion standard." Johnson v. Miller , 2012 S.D. 61 , ¶ 7, 818 N.W.2d 804 , 806 (quoting Stratmeyer v. Engberg , 2002 S.D. 91 , ¶ 12, 649 N.W.2d 921 ).

2019We review a trial court’s ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard.” Stratmeyer v. Engberg, 2002 S.D. 91 , ¶ 12, 649 N.W.2d 921, 925 . [¶35.] Although litigants need only show that a lawsuit was either frivolous or malicious to recover attorney fees, the circuit court found that Bret’s lawsuit was both.