#28971, #28986-a-DG 2020 S.D. 32
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** MOLLY GOIN, Plaintiff and Appellant,
v.
BRANDON KEITH HOUDASHELT, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE JANE WIPF PFEIFLE Judge
ERIC M. SCHLIMGEN MICHAEL C. LOOS of Clayborne, Loos & Sabers, LLP Rapid City, South Dakota Attorneys for plaintiff and appellant.
SCOTT ARMSTRONG Rapid City, South Dakota Attorney for defendant and appellee.
CONSIDERED ON BRIEFS JANUARY 13, 2020 OPINION FILED 06/10/20 #28971, #28986
GILBERTSON, Chief Justice
[¶1.] Keith Houdashelt employed Molly Goin for approximately one month
to help him prepare to open his kombucha bar in Rapid City. After Houdashelt
fired her, Goin brought an action in small claims court for unpaid wages, among
other claims, which Houdashelt removed to circuit court. After ruling in favor of
Goin on the unpaid wages claim at trial, the circuit court determined that Goin’s
request for attorney fees under SDCL 60-11-24 could not be granted, though
reasonable, because the removal statute referenced in SDCL 60-11-24 had been
repealed. Goin appealed that decision. By notice of review, Houdashelt raised two
issues: whether the action was actually a wage claim; and whether the fees that
would have been awarded under SDCL 60-11-24 were unreasonable. We affirm.
Facts and Procedural History
[¶2.] In early 2018, Molly Goin learned that Keith Houdashelt was opening
a kombucha bar (Lone Pine Kombucha) in Rapid City. Goin called Houdashelt and
expressed interest in working at the bar, and Houdashelt offered her a position as a
tap server for $11.00 per hour. Goin and Houdashelt later met in person and
discussed Goin having a different position until the kombucha bar opened that
would include marketing, social media, and reaching out to potential partners.
Goin had worked on websites and social media before, both personally and for the
Society Pages in Minneapolis. Goin asked that the payment be increased to $13.00
per hour for the new responsibilities, and Houdashelt agreed. Goin worked her first
day with Houdashelt on March 3, 2018.
-1- #28971, #28986
[¶3.] Over the course of her work for Houdashelt, Goin worked on creating a
website and Facebook page for Lone Pine Kombucha, experimented with some
smoothie recipes which she introduced to Houdashelt, and went to local businesses
in Rapid City and Spearfish to discuss those businesses potentially adding a
kombucha tap to their bars. Goin worked in the kombucha bar, at home, and at the
potential partners’ businesses.
[¶4.] Houdashelt provided no formal method of tracking Goin’s hours
worked. Goin kept track of the hours she worked in her planner. Houdashelt knew
that Goin was doing so, and Goin stated that Houdashelt indicated that was
acceptable to him until the bar opened. When Goin was not in the shop, or when
Houdashelt was out of town, they maintained contact by phone and text message.
In late March, Houdashelt informed Goin for the first time that he would not be
paying her for work done outside of the bar.
[¶5.] Houdashelt fired Goin on April 2 or 3, 2018, due to dissatisfaction with
her work. At that time, he asked how many hours she had worked, and Goin
responded with 22 hours, though she did not have her planner with her.
Houdashelt told Goin he thought she worked more hours than that, and paid her in
cash for 40 hours of work. Goin later looked at her planner and found that she had
been undercompensated for the actual hours worked.
[¶6.] Goin sent a demand letter to Houdashelt on April 12, 2018, for
compensation for wages owed and damages suffered from withheld wages and loss
of her home mortgage, which she obtained conditioned upon her employment. Goin
then filed a small claims action in May 2018 to recover unpaid wages for her time
-2- #28971, #28986
working for Houdashelt and other damages. In total, she sought $10,947.20, made
up of unpaid wages, costs, reliance damages, filing fees, attorney fees and costs, and
punitive damages to be claimed if the matter proceeded to trial. Goin’s statement of
small claims identified that she sought recovery of “the wages she is owed and
damages suffered from withheld wages and termination of her mortgage.”
[¶7.] Houdashelt removed the action to circuit court because the action
involved “issues and questions of fact and law that are so complex and important
that the parties cannot be adequately protected without the procedure of a formal
trial.” Goin filed a formal complaint on three counts: (1) breach of contract; (2)
negligent misrepresentation; and (3) unjust enrichment. Houdashelt later made a
motion for summary judgment, asserting there was no contract that could have
been breached, Goin had no expectation of future employment, and that all
assertions were speculative so no factfinder could find that Goin was not fully
compensated. The circuit court granted Houdashelt’s motion on the breach of
contract and negligent misrepresentation claims, but allowed the unjust enrichment
claim and the issue of whether Goin was paid for her work to go to trial.
[¶8.] The circuit court held a bench trial in January 2019. Finding both
Goin’s and Houdashelt’s testimony credible, the circuit court found that Houdashelt
owed Goin for 15 hours of wages at $13.00 per hour plus interest ($215.00) and
ordered him to pay that amount, but ruled for Houdashelt in a directed verdict on
Goin’s claim for unjust enrichment. The court found that no testimony had been
presented on the unjust enrichment claim. After taking the issue under
advisement, the court also concluded that the attorney fees requested by Goin were
-3- #28971, #28986
appropriate and reasonable and awarded them under SDCL 60-11-24. SDCL 60-11-
24 provides: “In any action for wages brought in small claims court which is
removed to magistrate court or circuit court under § 15-39-59, the court may, in
addition to awarding judgment to the plaintiff, allow costs of the action including
reasonable attorney fees to be paid by the defendant.”
[¶9.] However, the circuit court later discovered that SDCL 15-39-59 1 had
been repealed in 2000 by this Court and asked the parties to brief the issue of
whether fees could still be awarded under SDCL 60-11-24 and whether the court
should reconsider its ruling on attorney fees. Goin argued that removal actions
brought after 15-39-59’s repeal were now allowed under SDCL 15-39-57, which
states in relevant part:
No party may appeal any decision entered under this procedure. In lieu thereof, defendant may, five days prior to the date upon which the defendant is notified to appear or answer, file in the court in which the action is pending, a petition to remove the action to the regular civil docket of the circuit court or magistrate court and state therein whether the defendant intends to proceed with a trial by jury or a trial to the court. Failure to make the request within the time provided shall be deemed an acceptance by the defendant to the jurisdiction of small claims court.
Goin argued that the substance of the removal process presented in SDCL 15-39-57
is unchanged from SDCL 15-39-59’s process, so SDCL 60-11-24 can now be used in
conjunction with SDCL 15-39-57. Houdashelt responded that allowing attorney fees
under SDCL 60-11-24 would violate its plain meaning, as well as the general rule
1. SDCL 15-39-59 as it existed before its repeal in 2000 provided, “A defendant may exercise the right of removal of cause for trial by jury. However, the presiding judge shall determine by order for each county within his circuit whether such trials shall take place in magistrate court or circuit court.”
-4- #28971, #28986
followed in South Dakota that attorney fees are disfavored absent specific
contractual or statutory provisions to the contrary. See Crisman v. Determan
Chiropractic, Inc., 2004 S.D. 103, ¶ 26, 687 N.W.2d 507, 513.
[¶10.] In an amended order on attorney fees, the court ultimately determined
that it could not award attorney fees because SDCL 15-39-59 was repealed.
However, the circuit court did still award Goin $377.68 in costs. Goin moved for
reconsideration, but was notified that reconsideration would not happen before the
time to appeal expired.
[¶11.] Goin now appeals raising the issue whether the circuit court erred in
deciding the repeal of SDCL 15-39-59 prevented it from awarding attorney fees that
were reasonable and warranted under SDCL 60-11-24. Houdashelt raises two
additional issues by notice of review: whether the circuit court erred in
characterizing Goin’s action as a wage dispute subject to SDCL 60-11-24; and
whether the circuit court erred in determining $10,850.09 was a reasonable award
of attorney fees for a recovery of $215.00.
Analysis and Decision
1. Whether the circuit court erred in deciding the repeal of SDCL 15-39-59 prevented it from awarding attorney fees that were reasonable and warranted under SDCL 60-11- 24.
[¶12.] The circuit court concluded that no legal basis existed to grant
attorney fees under SDCL 60-11-24 because the statute only applies to cases
removed under SDCL 15-39-59 and cases can no longer be removed under SDCL 15-
39-59 since its repeal in 2000. In doing so, the circuit court stated, “the [c]ourt
-5- #28971, #28986
cannot graft the right to fees into [SDCL 60-11-24 as it remains].” According to the
circuit court, only the Legislature can.
[¶13.] Questions of statutory interpretation and application are questions of
law reviewed de novo. S.D. Subsequent Injury Fund v. Federated Mut. Ins., Inc.,
2000 S.D. 11, ¶ 10, 605 N.W.2d 166, 168. “When the language of a statute is clear,
certain and unambiguous, there is no occasion for construction, and the court’s only
function is to declare the meaning of the statute as clearly expressed in the statute.”
Id. ¶ 17, 605 N.W.2d at 169 (quoting S.D. Subsequent Injury Fund v. Cas.
Reciprocal Exch., 1999 S.D. 2, ¶ 17, 589 N.W.2d 206, 209). “We read statutes as a
whole along with the enactments relating to the same subject.” Faircloth v. Raven
Indus., Inc., 2000 S.D. 158, ¶ 6, 620 N.W.2d 198, 201. We also assume that no
statute was meant to be “mere surplusage.” Id.
[¶14.] Goin argues that “[t]he only way to give effect to SDCL 60-11-24 is to
interpret the language referencing wage claims under the same title and chapter.”
Goin asserts that SDCL 60-11-24 should be given effect by referencing SDCL 15-39-
57, rather than SDCL 15-39-59. Goin relies on State v. Mundy-Geidd, claiming it is
instructive on situations where the repeal of one statute does not result in a statute
that referenced the repealed statute being unenforceable. 2014 S.D. 96, 857 N.W.2d
880.
[¶15.] In Mundy-Geidd, the appellant argued that a DUI statute could not be
enforced at the time of her DUI (2013) because the DUI exception to SDCL 34-20A-
93 (repealed 2014), which prohibited enforcement of laws that include “drinking,
drunkenness, or being found in an intoxicated condition as one of the elements of
-6- #28971, #28986
the offense,” had been repealed in 2012. 2 2014 S.D. 96, ¶ 3, 857 N.W.2d at 882.
Mundy-Geidd was convicted under SDCL 32-23-1, which states in relevant part:
“No person may drive or be in actual physical control of any vehicle while: . . . (2)
Under the influence of an alcoholic beverage[.]” Mundy-Geidd argued that SDCL
34-20A-93 prohibited enforcement of SDCL 32-23-1 because the “under the
influence” element included “drinking, drunkenness, or being found in an
intoxicated condition as one of the elements of the offense.” Mundy-Geidd, 2014
S.D. 96, ¶ 3, 857 N.W.2d at 882. This Court rejected that argument and examined
the legislative purpose and history of the 1947 and 2012 Acts affecting those
statutes because there was ambiguity in the statutes. The Court determined that
in repealing the DUI exception to SDCL 34-20A-93, the “Legislature did not intend
to end the enforcement of the DUI statute.” Id. ¶ 8, 857 N.W.2d at 884. Rather, the
Legislature was simply repealing outdated and unnecessary statutes. Id.
[¶16.] Goin uses Mundy-Geidd as the foundation for her argument that
repealing one statute does not affect other statutes’ enforcement. However, Mundy-
Geidd was based on analysis of the legislative history and purpose of ambiguous
statutes. Here, SDCL 60-11-24 is not ambiguous. It clearly states that reasonable
attorney fees are recoverable “[i]n any action for wages brought in small claims
2. The DUI exception was found in SDCL 34-20A-95 (repealed 2012):
Nothing in this chapter affects any law, ordinance, resolution, or rule against drunk driving, driving under the influence of alcohol, or other similar offense involving the operation of a vehicle, aircraft, boat, machinery, or other equipment, or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages at stated times and places or by a particular class of persons or possessing a loaded firearm while intoxicated.
-7- #28971, #28986
court which is removed . . . under § 15-39-59.” SDCL 60-11-24. There is no
ambiguity, as the statute specifically refers only to actions removed under SDCL 15-
39-59, and we cannot give SDCL 60-11-24 effect by referencing SDCL 15-39-57.
[¶17.] Goin further points out that this Court found that the requested
statutory interpretation in Mundy-Geidd would lead to “absurd and unreasonable
results.” 2014 S.D. 96, ¶ 11, 857 N.W.2d at 885. Goin goes on to argue the circuit
court’s ruling effectively repeals SDCL 60-11-24, contrary to the rule that “repeal by
implication is strongly disfavored.” Faircloth, 2000 S.D. 158, ¶ 10, 620 N.W.2d at
202. “Judges should refrain from negating a legislative act unless it is demanded by
manifest necessity.” Id. “Where conflicting statutes appear, it is the responsibility
of the court to give a reasonable construction to both, and to give effect, if possible,
to all provisions under consideration . . . .” Karlen v. Janklow, 339 N.W.2d 322, 323
(S.D. 1983). Here, the conflict between statutes arises because one statute no
longer exists. But despite this Court’s repeal of SDCL 15-39-59, the Legislature has
not repealed SDCL 60-11-24, and the Legislature’s policy allowing attorney fees
under that statute is unchanged. Its basic provisions are still in effect.
[¶18.] This Court’s repeal of SDCL 15-39-59 did not nullify the Legislature’s
allowance of attorney fees under SDCL 60-11-24 when a wage claim is removed
from small claims court for a jury trial. As Houdashelt argues, and Goin fails to
respond to the argument, even if SDCL 15-39-59 had not been repealed, Goin could
not rely on SDCL 60-11-24 to recover attorney fees. SDCL 15-39-59 referred only to
-8- #28971, #28986
actions removed from small claims for a jury trial. This action was removed for a
bench trial. 3
[¶19.] The Legislature adopted SDCL 60-11-24 in 1983. At the time, our
procedural rules for removal of a small claims action, codified in SDCL 15-39-56
through 15-39-59, only permitted a defendant to remove a small claims action for a
jury trial in magistrate court or circuit court. SDCL 15-39-59 provided, in part, “A
defendant may exercise the right of removal of cause for trial by jury.” 4 When this
Court repealed SDCL 15-39-59, it continued the procedural rules allowing the right
of removal of a small claims case for a jury trial. However, the amendment to SDCL
15-39-57 also expanded the right of removal of a small claims case to include “a trial
3. Although the dissent emphasizes that Houdashelt originally petitioned for removal for a jury trial, the case ultimately proceeded with a bench trial. Attorney fees are not recoverable until after the plaintiff has prevailed at trial, so the type of trial that actually occurred is the important consideration, not the type of trial requested in the petition. See SDCL 60- 11-24.
4. In addition to SDCL 15-39-59, the version of SDCL 15-39-57 in effect in 1983 provided as follows:
No party to an action under the procedure shall be entitled to an appeal to the circuit court. In lieu thereof, defendant may, two days prior to the date upon which he is notified to appear or answer, file in the court or with the magistrate in which the action is pending, a claim of trial by jury and his affidavit that there are issues and questions of fact being litigated that are so complex or important that the parties cannot be adequately protected without the procedure of a formal trial, with specifications of the same, and that such trial is intended in good faith. The sum of ten dollars for the entry of the action for trial by jury in the circuit or magistrate court as the case may be must accompany the claim and affidavit.
(Emphasis added.)
-9- #28971, #28986
to the court.” Our amendments to these procedural rules for removal of a small
claims case could neither expand nor diminish the Legislature’s expression of policy
allowing for the recovery of attorney fees under SDCL 60-11-24 when the case is
removed from small claims court for a jury trial. See Cedar v. Johnson, 2018 S.D.
80, ¶ 32, 921 N.W.2d 178, 187. (“[T]he Legislature’s sovereign power is expressed
through statutes.”).
[¶20.] The fees required to go to a jury trial on a claim originally brought as
small claims far exceed the amount plaintiffs seek to recover. It would be
unreasonable to put that burden on a prevailing plaintiff where the defendant is
responsible for removing the case to circuit court. While attorney fees are generally
disfavored, Crisman, 2004 S.D. 103, ¶ 26, 687 N.W.2d at 513, policy considerations
support allowing individuals meaningful access to the courts. It is important that
citizens who have been harmed have access to the courts to obtain a remedy. See
S.D. Const. art. VI, § 20. When a plaintiff is forced out of small claims court by the
defendant’s right to remove the case to magistrate or circuit court, the amount of
fees incurred in proceeding to a jury trial increases greatly from what otherwise
would have been incurred and certainly exceeds the amount a plaintiff is trying to
recover. That increase limits plaintiffs’ ability to access the court and obtain a
remedy, and attorney fees should be recoverable for a prevailing plaintiff in those
situations.
[¶21.] Goin elected to try the case to the court after removal from small
claims. Because the Legislature has not authorized attorney fees in wage claims
when a small claims action is removed for a trial to the court, Goin was not entitled
-10- #28971, #28986
to recover attorney fees under SDCL 60-11-24. Under our “American Rule” for
attorney fees, each party must bear its own attorney fees absent an agreement for
attorney fees between the parties or where “an award of attorney’s fees is
authorized by statute.” Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 32, 827 N.W.2d
55, 67 (quoting Toft v. Toft, 2006 S.D. 91, ¶ 17, 723 N.W.2d 546, 551).
[¶22.] Finally, Goin asserts that Houdashelt waived this issue by not raising
it below, and that it was improper for the circuit court to raise the issue of its own
volition. We have held that subject matter jurisdiction cannot be obtained through
waiver. Wells v. Wells, 2005 S.D. 67, ¶ 15, 698 N.W.2d 504, 508. “[Q]uestions of
jurisdiction can be raised at any time . . . . A judgment rendered without
jurisdiction is void.” Id. ¶ 11, 698 N.W.2d at 507. Without a valid statute providing
so, the circuit court had no jurisdiction to award attorney fees. Whether the circuit
court could award fees was an appropriate issue for the court to raise sua sponte
when it came up.
[¶23.] Because the circuit court did not err in determining it could not award
reasonable attorney fees under SDCL 60-11-24, there is no need to address
Houdashelt’s additional arguments.
2. Whether Goin can recover appellate attorney fees.
[¶24.] Goin has requested an award of appellate attorney fees in this case.
Appellate attorney fees are granted “only where such fees are permissible at the
trial level.” Eagle Ridge Estates Homeowners Ass’n, Inc., v. Anderson, 2013 S.D. 21,
¶ 38, 827 N.W.2d 859, 870 (quoting Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77, ¶
-11- #28971, #28986
33, 682 N.W.2d 317, 324). Because Goin could not recover fees at the trial level, she
does not prevail on appeal and cannot recover fees on appeal.
Conclusion
[¶25.] The circuit court properly concluded that it could not award reasonable
attorney fees under SDCL 60-11-24 due to SDCL 15-39-59’s repeal. While attorney
fees remain recoverable under SDCL 60-11-24 for small claims cases removed to
circuit court for a jury trial, this case was removed for a bench trial. SDCL 60-11-24
does not apply and Goin is not entitled to recover attorney fees. The circuit court’s
decision is affirmed.
[¶26.] JENSEN, Justice, concurs.
[¶27.] SALTER, Justice, concurs specially.
[¶28.] KERN and DEVANEY, Justices, dissent.
SALTER, Justice (concurring specially)
[¶29.] I agree with the Court that the Legislature’s policy determination to
abrogate the American Rule for attorney’s fee awards expressed in SDCL 60-11-24
extends only so far. The statute’s textual reference to a Supreme Court rule that
provided for removal of small claims cases solely for jury trials represents the limit
of a circuit court’s authority to award attorney’s fees to a prevailing plaintiff. The
fact that the Supreme Court rule was later revised and renumbered to also
contemplate court trials for removed cases may well state a better, more realistic
rule of procedure, but it had no impact on legislative intent. I join the Court’s
opinion to this extent.
-12- #28971, #28986
[¶30.] I would, however, use different principles to resolve Goin’s argument
that Houdashelt’s failure to raise the SDCL 60-11-24 issue deprived the circuit
court of authority to reconsider its earlier ruling. See supra ¶ 23. We have
recognized that “a trial court has the inherent power to reconsider and modify an
order any time prior to entry of judgment.” SBS Fin. Servs., Inc. v. Plouf Family
Trust, 2012 S.D. 67, ¶ 13, 821 N.W.2d 842, 845 (quoting Moore v. Michelin Tire Co.,
1999 S.D. 152, ¶ 46, 603 N.W.2d 513, 525). In this regard, our cases have justifiably
endorsed the idea that a trial court should “depart from an earlier holding if it is
convinced that the holding is incorrect.” Id. (quoting Moore, 1999 S.D. 152, ¶ 46,
603 N.W.2d at 525). Applying these essential rules—not principles of subject
matter jurisdiction—leads me to conclude that Goin’s argument is unconvincing.
DEVANEY, Justice (dissenting).
[¶31.] The purpose of statutory interpretation is to determine Legislative
intent. Therefore, I agree with the majority opinion to the extent it rejects the
circuit court’s holding that after the repeal of SDCL 15-39-59, a legal basis no longer
exists to award attorney fees under SDCL 60-11-24. It is well settled that this
Court cannot repeal a legislatively created remedy by implication unless “the
Legislature’s intent to do so [is] apparent.” Faircloth v. Raven Indus., Inc., 2000
S.D. 158, ¶ 10, 620 N.W.2d 198, 202 (emphasis added). Similarly, “[j]udges should
refrain from negating a legislative act unless it is demanded by manifest necessity.”
Id. (emphasis added); accord State v. Mundy-Geidd, 2014 S.D. 96, ¶ 10, 857 N.W.2d
880, 885. However, I disagree with the ultimate conclusion reached in the majority
-13- #28971, #28986
opinion because it effectively negates a legislative act—a conclusion that is neither
demanded by manifest necessity nor supported by apparent legislative intent.
[¶32.] Contrary to the interpretation espoused in the majority opinion,
nothing within the text of SDCL 60-11-24, either before or after this Court’s repeal
of SDCL 15-39-59, demonstrates a clear, certain, and unambiguous intent to limit
the attorney-fee remedy created by the Legislature in SDCL 60-11-24. After
acknowledging that the “basic provisions [in SDCL 60-11-24] are still in effect”
notwithstanding the repeal of SDCL 15-39-59, the majority opinion concludes the
Legislature intended to allow attorney fees only when a jury trial is held after a
wage claim is removed from small claims court. See supra Majority Opinion ¶ 17.
This conclusion purportedly rests upon the principle that this Court cannot, by
procedural rules, “expand [or] diminish the Legislature’s expression of policy.” See
supra Majority Opinion ¶ 19. While this principle is sound, the majority opinion
does precisely what it declares we cannot do—it diminishes the legislative policy
actually expressed in SDCL 60-11-24 by placing undue emphasis on select terms in
a procedural statute we repealed as unnecessary in the overall removal scheme in
SDCL chapter 15-39.
[¶33.] A review of SDCL chapter 60-11 as a whole, and in conjunction with
SDCL chapter 15-39, instead reveals a legislative policy to allow prevailing wage
claimants to recover attorney fees from employers after these cases are removed
from small claims court, regardless of whether the cases are ultimately determined
by a court or jury trial. Therefore, I respectfully dissent.
-14- #28971, #28986
[¶34.] There is no dispute that SDCL 60-11-24 affords wage claimants an
attorney-fee remedy when a defendant removes the case from small claims court.
But nothing in SDCL chapter 60-11 as a whole, or SDCL 60-11-24 on its face,
supports the majority opinion’s interpretation that the Legislature intended to
afford an attorney-fee remedy under SDCL 60-11-24 only when a wage claim is
removed for a jury trial. The statute certainly does not include such limiting
language. It refers only to removal and does not contain the phrase “for a jury
trial.” Notably, when SDCL 60-11-24 was enacted in 1983, there was no need to
specify whether attorney fees may be recovered only after removal for a jury trial as
opposed to a court trial because, at that time, the small claims procedural statutes
only allowed removals for jury trials. Therefore, we cannot, as the majority opinion
has done, presume that the Legislature intended to disallow an award of attorney
fees to a wage claimant when a removal results in a court trial.
[¶35.] Moreover, the majority opinion erroneously states that Goin’s small
claims action was removed for a bench trial. See supra Majority Opinion ¶ 18. It
then concedes in a footnote that Houdashelt actually petitioned for removal for a
jury trial, but concludes that because “attorney fees are not recoverable until after a
plaintiff has prevailed at trial, [ ] the type of trial that actually occurred is the
important consideration, not the type of trial requested in the petition.” Id. ¶ 18 n.3
(emphasis added). This assertion is completely untethered from the language in
SDCL 60-11-24, which refers only to a removal and contains no language suggesting
that a wage claimant must proceed to a trial after removal in order to recover
attorney fees, much less a specific type of trial.
-15- #28971, #28986
[¶36.] “The fundamental mission of a court in interpreting legislative acts is
to ascertain and give effect to the intention of the Legislature[.]” Breck v. Janklow,
2001 S.D. 28, ¶ 20, 623 N.W.2d 449, 457. “Intent must be determined from the
statute as a whole, as well as enactments relating to the same subject.” City of
Sioux Falls v. Ewoldt, 1997 S.D. 106, ¶ 14, 568 N.W.2d 764, 767 (quoting Wiersma v
Maple Leaf Farms, 1996 S.D. 16, ¶ 3, 543 N.W.2d 787, 789). Where, as here, we are
interpreting a statutory provision which cross-references a statute from another
chapter, “it is our responsibility to give reasonable construction to both, and if
possible, to give effect to all provisions under consideration, construing them
together to make them ‘harmonious and workable.’” See id. (quoting Whalen v.
Whalen, 490 N.W.2d 276, 280 (S.D. 1992)). In doing so, we “look to ‘the legislative
history, title, and the total content of the legislation.’” Mundy-Geidd, 2014 S.D. 96,
¶ 7, 857 N.W.2d at 884 (quoting In re Expungement of Oliver, 2012 S.D. 9, ¶ 15, 810
N.W.2d 350, 354 (quoting Zoss v. Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550,
552)). We “also reflect upon the purpose of the enactment, the matter sought to be
corrected and the goal to be attained.” Id. (quoting State v. Davis, 1999 S.D. 98, ¶ 7,
598 N.W.2d 535, 537).
[¶37.] In Mundy-Giedd, the Court looked to both contemporaneous and
subsequent legislation to interpret the interplay between statutes in different
chapters of the Code, each enacted with a different focus and purpose. Id. ¶ 9.
Doing so here requires a review of not only SDCL 60-11-24 in context with the
overall purpose of SDCL chapter 60-11, but also a review of the small claims
statutes in chapter 15-39 governing the removal process as they existed in their
-16- #28971, #28986
entirety at the time SDCL 60-11-24 was enacted. We must also assess how these
procedural statutes have since evolved. Such a review is the only way to give effect
to the intent actually expressed by the Legislature as reflected in the language
employed in SDCL 60-11-24.
[¶38.] We start with the purpose and context behind SDCL 60-11-24, a
statute that was enacted in 1983 and has not yet been amended. It exists in Title
60, which governs labor and employment, and within chapter 60-11, which pertains
to wages, hours, and conditions of employment. Chapter 60-11 includes provisions
dictating, among other things, when and at what amount wages are to be paid.
Chapter 60-11 also imposes penalties for violations. For example, under SDCL 60-
11-7, an employee is entitled to double damages “[i]n any action for the breach of an
obligation to pay wages” when “a private employer has been oppressive, fraudulent,
or malicious, in the employer’s refusal to pay wages due to the employee[.]”
Further, the Legislature made it a class 2 misdemeanor for an employer to
intentionally refuse to pay wages due and payable when demanded. SDCL 60-11-
15.
[¶39.] Like these other statutes within the same chapter, SDCL 60-11-24
provides protection for employees by affording them an attorney-fee remedy when
they are forced to incur greater litigation expenses after their wage claims are
removed from the expeditious small claims procedure. The statute provides: “In any
action for wages brought in small claims court which is removed to magistrate court
or circuit court under § 15-39-59, the court may, in addition to awarding judgment
to the plaintiff, allow costs of the action including reasonable attorney fees to be
-17- #28971, #28986
paid by the defendant.” SDCL 60-11-24. It is clear that the focus of this statute,
and chapter 60-11 as a whole, is the protection of employees, not small claims
procedure. Therefore, we cannot, from the mere reference to SDCL 15-39-59,
declare that the Legislature contemplated a distinction between court and jury
trials or made a determination that a jury trial must ultimately be held after
removal in order for a prevailing wage claimant to recover attorney fees under
SDCL 60-11-24.
[¶40.] An examination of the small claims removal statutes in SDCL chapter
15-39 in their totality further illustrates that the significance the majority opinion
attaches to the Legislature’s cross-reference to SDCL 15-39-59 within SDCL 60-11-
24 is unfounded. Shortly after SDCL 60-11-24 was enacted, this Court reviewed the
relevant statutes in the small claims chapter pertaining to removal. Kneeland v.
Matz, 388 N.W.2d 890, 892–93 (S.D. 1986) (reviewing SDCL 15-39-56 through 15-
39-63). Notably, the defendant in Kneeland had filed an affidavit for removal for a
jury trial under SDCL 15-39-57, but the circuit court denied the defendant’s
removal request because the court determined that the small claims process could
adequately address the legal and factual issues. On appeal, the defendant asserted
that the court did not have discretion to deny removal despite language in SDCL
15-39-57 suggesting otherwise. Id. at 893. We agreed, finding that the procedural
statutes within the small claims chapter must be read in their totality to preserve a
defendant’s right to a jury trial under South Dakota Constitution Article VI, § 6. Id.
The Court concluded that “[t]he only discretion the circuit court possesses is to
transfer on its own motion, a small claims action to the regular civil docket for
-18- #28971, #28986
formal hearing before a jury, SDCL 15-39-63.” Id. We further noted that SDCL 15-
39-59 provides the presiding judge discretion to decide if the trial after removal will
take place in magistrate or circuit court. Id.
[¶41.] Although this Court later repealed both SDCL 15-39-59 and SDCL 15-
39-63, a defendant’s right to a jury trial when a small claims case is removed was
nonetheless preserved and the remainder of chapter 15-39 still dictates the removal
process. Therefore, it is evident that SDCL 15-39-59 has no particular significance
in the overall removal scheme set forth in chapter 15-39. SDCL 15-39-59 was
initially adopted by Supreme Court rule in 1939, and notably, it has always
contained a reference to, and in that respect incorporates, SDCL 15-39-57. When
SDCL 60-11-24 was enacted in 1983, SDCL 15-39-59 provided:
A defendant may exercise the right of removal of cause for trial by jury. However, the presiding judge shall determine by order for each county within his circuit whether such trials shall take place in magistrate or circuit court.
The fee specified by § 15-39-57 for the entry of the action for trial by jury must be paid.
(Emphasis added.) All of the removal statutes at that time referred only to jury
trials, including SDCL 15-39-57 (1983):
No party to an action under the procedure shall be entitled to an appeal to the circuit court. In lieu thereof, defendant may, two days prior to the date upon which he is notified to appear or answer, file in the court or with the magistrate in which the action is pending, a claim of trial by jury and his affidavit that there are issues and questions of fact being litigated that are so complex or important that the parties cannot be adequately protected without the procedure of a formal trial, with specifications of the same, and that such trial is intended in good faith. The sum of ten dollars for the entry of the action for trial by jury in the circuit or magistrate court as the case may be must accompany the claim and affidavit.
-19- #28971, #28986
An additional ten dollars shall be paid when the case is ready for trial and before calling a jury.
[¶42.] After SDCL 60-11-24 was enacted, the Legislature amended SDCL 15-
39-57 in 1991, via an “Act to increase the fee for the transfer of a small claims
action to a formal trial and to eliminate the fee for calling the jury.” Along with
increasing the fee, the Legislature added the option of a court trial upon removal. 5
Some inconsistencies then arose because SDCL 15-39-59 was not simultaneously
amended in 1991. The cross-reference in SDCL 15-39-59 to the fee required by
SDCL 15-39-57 still referred to the fee as one “for trial by jury,” even though this
now-amended fee applied to any trial in the circuit or magistrate court.
[¶43.] Thereafter, in 1997, the Supreme Court made procedural amendments
to both SDCL 15-39-57 and -59. In SDCL 15-39-57, the Court included a
requirement that defendants file a petition to remove the action to the regular civil
docket of the circuit or magistrate court, and again increased the filing fee. In
addition, the Court repealed SDCL 15-39-60 and included its requirement of an
undertaking for costs (in a higher amount and to secure a plaintiff’s damages)
within the provisions of SDCL 15-39-57.
[¶44.] The Supreme Court amended SDCL 15-39-57 again in 2000, modifying
the language precluding appeals and the information required in the affidavit
supporting a petition to remove. The Court simultaneously repealed SDCL 15-39-
5. Contrary to the suggestion in the majority opinion that this Court expanded removals from small claims court to include court trials, see supra Majority Opinion ¶ 19, the Legislature enacted that amendment.
-20- #28971, #28986
59 in 2000, which contained duplicative language regarding the filing fee set forth
in SDCL 15-39-57. Although SDCL 15-39-59 had contained language directing
presiding judges to determine by county whether the trials would take place in
magistrate or circuit court after removal, after the 1997 amendment to SDCL 15-39-
57, the defendant must now petition to remove the action to the regular civil docket
of the circuit or magistrate court. 6
[¶45.] A review of this legislative history illustrates that the Supreme Court’s
repeal of SDCL 15-39-59 in 2000 was similar to its decision to repeal another
statute in chapter 15-39 in 1997, namely because the statute was no longer
necessary in light of the amendments to SDCL 15-39-57. The Legislature did not,
either in conjunction with or immediately after any of these amendments to chapter
15-39, amend or strike the reference to SDCL 15-39-59 in SDCL 60-11-24.
However, the lack of corresponding legislative action was more likely an oversight
rather than an indication of legislative intent to limit the attorney-fee remedy solely
to removals for a jury trial. 7 Moreover, it was not necessary for the Legislature to
6. Notably, in declaring the Legislature’s policy, the majority opinion’s quotation of SDCL 60-11-24 omits the words immediately preceding the reference to SDCL 15-39-59. See supra Majority Opinion ¶ 16. The full text of the statute refers to “any action for wages brought in small claims court which is removed to magistrate court or circuit court under §15-39-59[.]” (Emphasis added.) Considering that before its repeal, SDCL 15-39-59 was the procedural statute that required the presiding judge to determine whether the trial after removal would be in magistrate or circuit court, the reference to this statute in SDCL 60-11-24 may very well have pertained to this aspect of SDCL 15-39-59.
7. During the 2020 Legislative Session, the Code Commission proposed a bill to correct technical errors in statutory cross-references in numerous statutes throughout the Code, including an amendment to SDCL 60-11-24 removing (continued . . .) -21- #28971, #28986
modify the remaining terms of SDCL 60-11-24 to give effect to its intent to afford
additional protection to wage claimants because SDCL 60-11-24 says nothing about
what must occur after a removal to trigger a prevailing wage claimant’s right to
recover attorney fees. Notably, the majority opinion recognizes that the “basic
provisions” of SDCL 60-24-11 are still in effect after the repeal of SDCL 15-39-59.
The undeniable fact, as conceded in the majority opinion, is that the purpose behind
SDCL 60-11-24 can be accomplished without any cross-reference to a small claims
procedural statute.
[¶46.] To conclude otherwise ignores that, for various reasons, a removal to
the formal docket of the magistrate or circuit court increases the potential costs of
what was initially a small claims action regardless of whether the removal results
in a court trial or jury trial. As we recognized in Kneeland, a defendant’s reasons
for removal may very well include the “desire [to] adhere[ ] to the strict rules of
evidence and the advantage of formal discovery.” See 388 N.W.2d at 893. The
pretrial procedure itself will undoubtedly increase the costs and prolong the
timeframe of the litigation. First, a removal causes a delay because it requires
rescheduling in order to place the case on the magistrate or circuit court’s docket.
Second, the formal rules of civil procedure apply after removal; thus, the court may
________________________ (. . . continued) the reference to SDCL 15-39-59. The Legislature adopted the amendment, but the Governor vetoed the bill because of the constitutional provision requiring that no law embrace more than one subject. Nonetheless, the characterization of this amendment as a correction of a technical error, rather than a substantive change, supports a construction of this statute that reflects legislative intent to afford an attorney-fee remedy regardless of whether a removal results in a jury or court trial.
-22- #28971, #28986
require a formal complaint, triggering new deadlines for responsive pleadings. In
addition to new deadlines, formal discovery may ensue, and additional hearings
may be held as needed to resolve dispositive or other pretrial motions. Third, the
application of the formal rules of evidence may increase the likelihood of evidentiary
motions along with the number of witnesses and necessary foundational evidence.
In comparison, this formal procedure is most often abbreviated in small claims
actions. See SDCL 15-39-53 (allowing a small claims court to modify any or all
existing rules of pleading and practice); SDCL 15-39-71 (precluding depositions in
small claims actions without leave of court and authorizing the court to conduct the
hearing “in such order and form and with such methods of proof as it deems best
suited to discover the facts”).
[¶47.] Here, Goin’s attorney fees increased in conjunction with the formal
civil procedure that ensued following Houdashelt’s removal. The circuit court’s
removal order transferred Goin’s small claims case to the circuit court for a jury
trial, and the court entered a scheduling order which set a jury trial date in
January 2019 (a nine-month delay from the initiation of Goin’s small claims action).
It was not until after the parties engaged in discovery, took depositions, filed and
briefed summary judgment motions, and filed pretrial submissions (including
proposed jury instructions) that the parties agreed to a court trial. Therefore,
although no jury trial was ultimately held, the removal of Goin’s small claims action
to circuit court nonetheless resulted in significantly higher attorney fees. In fact,
the fees awarded by the court did not even include billings for the trial itself, but
-23- #28971, #28986
consisted instead of the attorney’s time spent from the initiation of the small claims
action through the discovery, pretrial briefing, and pretrial hearings.
[¶48.] Considering this reality, it is unreasonable to interpret SDCL 60-11-24
to allow attorney fees only when a jury trial is ultimately held. It is well settled
that we presume “the [L]egislature did not intend an absurd or unreasonable
result.” Dakota Plains AG Center, LLC v. Smithey, 2009 S.D. 78, ¶ 47, 772 N.W.2d
170, 186 (quoting State v. I–90 Truck Haven Serv., Inc., 2003 S.D. 51, ¶ 3, 662
N.W.2d 288, 290). The majority opinion’s suggestion—that the Legislature
intended to force wage claimants to play the hand out after removal by insisting on
jury trials over more cost-effective court trials or settlements to avoid forfeiting
their ability to recoup considerable costs already expended in discovery and pretrial
practice—is contrary to the overall purpose of SDCL chapter 60-11. Moreover, this
suggestion is clearly not tied to the express language in SDCL 60-11-24. As Goin
points out, were it not for the ability to recover attorney fees, employers would have
an incentive to litigate these claims out of existence, and wage claimants would be
unable to obtain legal counsel because it would be too cost prohibitive to litigate
cases that are unlikely to generate a recovery sufficient to cover the litigation costs.
[¶49.] This same rationale supports upholding the amount of attorney fees
initially awarded here. The circuit court did not abuse its discretion in awarding
Goin $10,850.09 in attorney fees, despite a recovery of only $215.00 on her wage
claim. The court entered a reasonable fee award after considering the relevant
factors as related in Crisman v. Determan Chiropractic, Inc., 2004 S.D. 103, ¶ 28,
687 N.W.2d 507, 514, and Houdashelt has not established that the court’s factual
-24- #28971, #28986
findings are clearly erroneous. While I would reverse the circuit court’s conclusion
that the repeal of SDCL 15-39-59 removed the court’s authority to award attorney
fees under SDCL 60-11-24, I would affirm the amount the court found to be
otherwise appropriate.
[¶50.] KERN, Justice, joins this dissent.
-25-