Seventh Judicial Circuit Court 906 N. River St. Hot Springs, SD 57747 (608) 745-5131 CIRCUIT JUDGES MAGISTRATE JUDGES FALL RIVER COUNTY Presiding Judge Craig Preifle Scott M. Bogue CLERK OF COURTS Matthew M, Brown ‘Todd J. Hyronimus Tammy Grapentine Jeffrey R. Connelly Sarah Morrison Robert Gusinsky anki Sharma Joshua K, Hendrickson Heidi Linngren Stacy L. Wickre Jane Wipt-Pfeifle March 11, 2024 Mr. N, Drew Skjoldal, Esq. P.O. Box 759 Spearfish, SD 57783 Ms. Leah Ceranski Dakota Plains Legal Services 202 B. St. Joseph St. Rapid City, SD 57701 Mr. J. Scott James, Esq 40N. St St Custer, SD $7730 Gerda Flyte, by Black Hills Advocate, LLC, v. Jay Monfore and Matthew Monfore, 23C1V24-05; Findings of Fact and Conclusions of Law. Greetings: ‘The plaintiff in this matter, Ms. Gerda Flyte, acting through her appointed guardian and conservator, Black Hills Advocate, LLC, filed an unlawful detainer complaint against Jay Monfore and Matthew Monfore. Counsel for Matthew Monfore, Mr. James, filed an answer disputing the complaint. He also notified the Court that Jay Monfore was currently not represented by counsel, and that Mr. Monfore suffers from dementia and would be unable to understand and participate in the legal proceedings. The Court then appointed Ms, Ceranski as guardian ad litem for Jay Monfore. Ms. Ceranski then filed an answer denying the complaint. Among other things, the denials included an assertion that the plaintiff had failed to serve the respective defendants a 30-day notice to terminate, which is required for a tenaney at will. Page 1 of 8A hearing was held, at which Mr, Skjodal appeared, accompanied by Jenny ‘Schmidt, a representative of Black Hills Advocate. Ms. Flyte did not appear. Ms, Ceranski appeared, but Jay Monfore did not. Mr. James and Matthew Monfore appeared. At the start of the hearing, counsel for Jay Monfore informed the Court that, based ‘on knowledge that she had obtained, she would no longer dispute the plaintiff's claim, and she only sought to have the Court appoint a “physical guardian” to help Jay Monfore move his belongings, as he is physically incapable of doing so. After a short recess to allow counsel for Matthew Monfore to review evidence from the plaintiff that both defendants had received a 30-day notice to terminate, he stipulated that he no longer would be asserting lack of notice as a defense. And the parties agreed that the defendants both were tenants-at-will But counsel for Matthew Monfore continued to assert that the plaintiff bore the burden of proving, in accordance with paragraph 3 of the complaint, that Ms. Flyte no longer wished to have the defendants reside on her property. Matthew Monfore asserted that the plaintiff could only establish such in accordance with the rules of evidence. The plaintiff vigorously contested the defendant's argument. While reserving ruling on the issue of whether the plaintiff bore the burden of establishing Ms. Flyte’ wishes, the Court took brief testimony from Ms. Schmidt and from Matthew Monfore regarding Ms. Flyte’s mental state and whether she desired the removal of the defendants. At the close of that testimony, the ease was taken under advisement. Having reviewed the parties’ arguments and stipulations, and the applicable law, the Court hereby issues its findings of fact and conclusions of law. The plaintiff may present a proposed judgment and writ of possession consistent with the findings and conclusions. Findings Of Fact 1. The parties do not dispute that the premises in question is located in Fall River County, and is owned by Gerda Flyte. 2, The parties stipulated that both defendants had lived in the premises with the permission of Gerda Flyte, for no set term, and had not been required to pay rent. 3. The plaintiff was named guardian of Ms. Flyte and conservator of her estate, pursuant to an order issued by Circuit Court Judge Jeffrey Connelly, on June 2, 2023. 4. The Court takes judicial notice that paragraph 5 of Judge Connelly’s order provides that the plaintiff “shall have the authority regarding the protected person's property and financial affairs.” Page 2 of 85. The parties stipulated that on October 27, 2023, the plaintiff provided the defendants with a 30-day notice for them to remove themselves from the pret in question. 6. The parties also stipulated that on December 14, 2023, the defendants were provided with a 3-day notice-to-quit the subject premises. 7. Paragraph 3 of the unlawful detainer complaint filed against the defendants states, in part, that “Gerda Flyte no longer wishes to have the Defendants reside on the subject property.” 8. Both defendants continued to reside at the subject property as of the date of the hearing in this matter. 9. Jay Monfore suffers from dementia related to Pat care for himself. ‘on’s disease, and is unable to Conclusions Of Law Burden of proof and general elements of claim 1. Ifeny of the Court’s findings of fact are more appropriately described as conclusions of law, or vice versa, the appropriate categorization shall control. 2. The plaintiff, through Black Hills Advocate, bore the burden of proving the clements of her claim by the “greater convincing force of the evidence”. In other words, it had to establish that the facts necessary to support the claim for relief more likely than not occurred. 3, SDCL 21-16-1(4) provides that an action of “detainer” (eviction) is maintainable “if a lessee holds over after the termination of his lease or expiration of his term...” 4, Accordingly, the plaintiff bore the burden of establishing that the defendants ‘occupied the premises in question under a tenancy at will, but that the defendant stayed afier the expiration of the term of the tenancy. Jurisdiction and venue 5. The Court has jurisdiction over the subject matter of this dispute under SDCL ch. 21-16. 6. Additionally, the defendants were sufficiently served with the jurisdictional “notice to quit”, pursuant to SDCI. 21-16-2 Page 3 of 87. Venue is properly located with County. Court, as the leased property is in Fall River Whether the plaintiff bore the burden of establishing Gerda Flyte’s intent to evict. 8. Matthew Monfore first argues that the plaintiff must prove all allegations contained in the complaint, including the assertion that Ms. Flyte desired the removal of the defendants; but “[tJhe plaintiff in a civil proceeding bears the burden of proving every material allegation in his or her complaint.” Midzak v. Midzak, 2005 SD 58, 419, 697 N.W.2d 773 (italics added). 9. In turn, a “material allegation” is, “in a pleading, an assertion that is essential to the claim, charge or defense.” Black's Law Dictionary, p. 82 (8" Ed, 2004). 10. The statement in paragraph 3 of the complaint, that “Gerda Flyte no longer wishes to have the Defendant’ reside on the subject property”, is not essential to the plaintifi’s claim, and accordingly, is not a material allegation, for the following reasons. First, Black Hills Advocate did not need to prove that it was acting under agency delegated by Ms. Flyte. “A ward may not select, instruct, terminate, or otherwise control [her] guardian.” Seaboard Sur. Co. v. Boney, 761 A.2d 985, 992 (Md. App. 2000). The South Dakota Supreme Court illustrated this distinction by comparing the role of a guardian with that of an attomey-in-fact: IA] guardian and an attomey-in-fact are two separate and distinct entities. A guardian may be appointed without the ward’s consent or capacity and is “substituted by law.” Conversely, an attorney-in-fact is appointed by the individual, not the court, and the individual may modify or abrogate the attomey-in-fact’s duties and powers. In re Guardianship of Blare, 1999 SD 3, 15, 589 N.W.2d 211 (citations omitted, and emphasis added). In other words, Guardians are not agents of...their wards...because guardians are not subject to their control. See Restatement (Second) of Agency, § 14F cmt. b. Rather...the true guardian of every guardianship estate is the court itself, and that individuals who are appointed as guardians serve a unique role as agents of the court. Boney, 761 A.2d at 992, The same logic obviously applies to conservators. 1. Further, the South Dakota Legislature has shown intent to apply a presumption that an appointed guardian/conservator is properly authorized to act Page 4 of 812, 13. Any individual or entity that in good faith deals with a guardian or conservator as to any matter or transaction is entitled to presume that the guardian or conservator is properly authorized to act. The fact that an individual or entity deals with a guardian or conservator with knowledge of the representative capacity does not alone require an inquiry into the guardian's or conservator’s authority, except that any such individual or entity shall be charged with knowledge of restrictions that may appear on the letters of guardianship or conservatorship. SDCL 29A-5-417. Consequently, the Court concludes that if'a plaintiff has established that it has been appointed as a guardiarveonservator, and if that appointment generally authorizes legal action to protect the interests of the ward, the Court will presume that guardian is properly authorized to file the claim before the Court, and does not bear the burden of establishing such authorization as an element of such claim or action. Granted, in executing its duties, A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and if feasible, shall encourage the protected person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence. SDCL 29A-5-402. But in light of the foregoing law, the Court construes this provision to mean that the guardian/conservator may exercise its discretion and judgment regarding how any desires expressed by the protected person may relate to the best interests of such person. And the approval of the ward is not a sine qua non of the guardian’s authority to act in accordance with those best interests, Moreover, requiring that a guardian/conservator, as a prerequisite to initiating any legal action on behalf of the ward, must either demonstrate that the protected person knowingly and intelligently requests such, or if not, that the ward is not competent to make her own decision, would defeat the purpose of the guardianship/conservatorship appointment provisions. A conservator may be appointed for an individual whose ability to respond to people, events and environments is impaired to such an extent that the individual lacks the capacity to manage property or financial affairs or to provide for his support or the support of legal dependents without the assistance or protection of a conservator. Page 5 of 8SDCL 29A-5-303. There would be litte point to authorizing a court to appoint a conservator to represent a ward in legal matters, after litigation regarding the competency of a ward to manage her property or affairs, if that question would have to be relitigated each time the guardian secks legal relief regarding such property in some form or another. Sec, People, ex.rel., Dept, of Social Serviees, in interest of LR, 2014 SD 95, §8, 857 N.W.2d 886 (avoiding interpretations of a statute that would defeat its purpose). 14, Accordingly, whether Ms. Flyte had given the guardian/conservator permission to commence an action against the defendants was not a material issue that had to be proved by the plain 15. A “tenancy at will” is: ‘A tenaney in which the tenant holds possession with the landlord’s consent but without fixed terms (as for duration or rent); specif., a tenancy that is terminable at the will of either the transferor or the transferee and that has no designated period or duration, Black’s Law Dictionary, p. 1506 (8" Ed, 2004). 16. The defendants occupied the subject property under a tenancy at will. 17. A tenaney-at-will may be terminated by the “landlord’s giving notice to the tenant...of not less than one month.” SDCL 43-8-8, 18. The plaintiff satisfied this 30-day notice requirement, and consequently, the defendants’ tenaney terminated prior to the plaintiff serving the defendants with a 3-day notice to quit. 19. Consequently, the plaintiff is entitled to have both defendants removed from the subject property. 20. SDCL 21-16-10 describes the nature of a judgment for a plaintiff in an unlawful detainer action: Ifthe finding of the court...be in favor of the plaintiff, the judgment shall be for the delivery of possession to the plaintiff... This statute does not expressly address when possession must be delivered 21. Other provisions in SDCL ch. 21-16 envision expedited proceedings. SDCL 21-16- 7, for example, requires a defendant to appear and plead within 4 days of service of a complaint, and also requires that a continuance for a defendant of over 14 days is Page 6 of 82. 23. 24. 25, 26. 21. allowable if the defendant provides an undertaking to the plaintiff. This would indicate a general intent to have removal of a tenant expedited. But in construing a statute, the Court presumes “that the Legislature did not intend an absurd or unreasonable result’ from the application of the statute.” Argus Leader v. Hagen, 2007 96, 415, 739 N.W.24 475. In determining the bounds of reasonableness, the Court notes that the South Dakota Legislature has demonstrated concern for the care of aged and indigent persons unable to care for themselves. For example, in SDCL 28-8-23, it authorizes the Department of Social Services to qualify for funds under the federal Social Security Act, as well as to administer federal or other funds “and to direct all such public services of the department toward the goals of....preventing....neglect...of, ..adults unable to protect their own interests,” and to provide for “community-based care,” or to secure “referral or admission for institutional care.” SDCL 28-8-23(3)-(5). Accordingly, in the absence of an express timeline for the return of property to a prevailing plaintiff, the Court construes SDCL 21-16-10 to allow a court to exercise reasonable discretion to attempt to act in a manner that avoids an unreasonable result in which a defendant/tenant who is physically and mentally unable to care for himself is removed from a home with no alternative housing and no one to care for his needs and welfare. Consequently, because Jay Monfore currently suffers from dementia, is unable to care for himself, is not physically able to move himself and his belongings from the subject property, and is unable to seek alternative housing: before signing a writ of possession in this matter regarding him, I must be informed by Jay Monfore’s guardian ad litem, and by counsel for the prevailing plaintiff, that assistance has been secured to physically remove him and his belongings from the subject property, and to move them to an alternative residence, Additionally, the Court must receive sufficient indication that such residence, whether a private home or nursing facility, has adequate resources for his care and welfare. If necessary, Mr. Montfore’s guardian ad litem (or counsel for the plaintiff) may contact any appropriate state of local agencies, including but not limited to the South Dakota Department of Social Services, to facilitate access to resources for his care, health, and welfare. Jay Monfore’s guardian ad litem requested that this Court appoint a physical guardian to assist in this process. But magistrate court is a court of limited jurisdiction, and does not have authority to appoint a guardian under SDCL 29A-5. If counsel for Jay Monfore believes it to be necessary, she is authorized to petition the circuit court for such action. Counsel for the plaintiff may submit a proposed judgment and writ of possession consistent with the Courts findings and conclusions. Page 7 of 8Hon, Scott Bogue F 7 Cir. Magistrate riLeD 7 JUDICIAL GIRCUIT COURT ‘AT HOT SPRINGS, SD. MAR 11 2004 By:_________ Page 8 of 8 BCI -BSTATE OF SOUTH DAKOTA IN CIRCUIT COURT ss. COUNTY OF FALL RIVER SEVENTH JUDICIAL CIRCUIT GERDA FLYTE, by her Black Hills 23C1V24-000005 Advocate, LLC, Guardian and Conservator, JUDGMENT FOR Plaintiff, FORCIBLE ENTRY AND DETAINER vs. JAY MONFORE, and MATTHEW MONFORE, Defendants THE ABOVE-ENTITLED MATTER coming on for hearing on March 6, 2024 at 4:00 P.M. in the Courtroom of the Fall River County Courthouse in Hot Springs, South Dakota, upon the Summons and Complaint For Forcible Entry and Detainer of the Plaintiff. Plaintiff Black Hills Advocate, LLC, as Guardian and Conservator of Gerda Flyte appeared by and through its attomey N. Drew Skjoldal, Nies Karras & Skjoldal, P.C., and Jenny Schmidt, CEO of Black Hills Advocate, LLC, also appeared. Defendant Matthew Monfore appeared personally and also through counsel, J. Scott James. Jay Monfore was represented at the hearing by Leah Ceranski as Guardian ad Litem for Jay Monfore. The Court having reviewed the entire Court file, considered the testimony given at the hearing, and good cause appearing, it is hereby ORDERED, ADJUDGED, AND DECREED as follows: 4. On March 11, 2024, the Court issued Findings of Fact and Conclusions of Law. which are fully incorporated herein by reference. 2. Defendant Matthew Monfore shall surrender possession of 27886 W. Oral Road, Oral, SD 57766, effective immediately. The Court will sign a Writ of Possession instructing the Fall River Sheriff's Office to remove Matthew Monfore from the subject property 3. Defendant Jay Monfore shall surrender possession of 27886 W. Oral Road, Oral, SD 57766. Due to Jay Monfore’s disability and limitations, counsel for Plaintiff is instructed to work with counsel for Defendant Jay Monfore to ensure Jay Monfore has secure placement prior to the Court's execution of a Writ of Possession. Attest: Law, Rebecca BY THE COURT: Clerk/Deputy Honorable Scott Bogue Seventh Circuit Magistrate Judge 3/19/2024 5:24:09 PM Filed on:3/19/2024 Fall River County, South Dakota 23C1V24-000005STATE OF SOUTH DAKOTA IN CIRCUIT COURT ss. COUNTY OF FALL RIVER SEVENTH JUDICIAL CIRCUIT GERDA FLYTE, by her Black Hills 23C1V24-000005 Advocate, LLC, Guardian and Conservator, WRIT OF POSSESSION Plaintiff, vs. JAY MONFORE, and MATTHEW MONFORE, Defendants TO: THE SHERIFF OF FALL RIVER COUNTY, SOUTH DAKOTA: By the authority of the State of South Dakota, Seventh Judicial District Court, you are commanded to give the Plaintiff immediate possession of the premises below, by putting Defendant Matthew Monfore out of possession; if the Defendant has not removed all his Possessions and personal effects then you may authorize Plaintiff or their designated agent to remove said personal property of Defendant and occupants). This Writ of Possession may only be served during the daytime. This Writ of Possession shall be effective immediately, ADDRESS OF PREMISES: 27886 W. Oral Road, Oral, SD 57766 A copy of the Judgment For Forcible Entry and Detainer, is attached BY THE COURT. Attest Law, Rebecca /, : y . Honorable Scott Bogue Seventh Circuit Magistrate Judge 3/19/2024 5:24:17 PM Filed on:3/19/2024 Fall River County, South Dakota 23C1V24-000005STATE OF SOUTH DAKOTA IN CIRCUIT COURT ss COUNTY OF FALL RIVER : SEVENTH JUDICIAL CIRCUIT 23GDN22-000004 Guardianship and Conservatorship of Gerda Flyte ORDER APPOINTING PERMANENT afkla Gerda Mueller GUARDIAN AND CONSERVATOR A protected person. Pursuant to a Memorandum Order entered by Honorable Judge Jeffrey Robert Connolly and filed with the Fall River County Clerk of Courts on May 24, 2023, the Court hereby enters this Order as follows: The Court reviewed the documents on file and finds that notice has been given to all interested persons as required by law and order of this Court. The Court has duly considered Gerda Fiyte’s ability to respond to people, events, and environments and finds that Gerda Flyte is impaired to such an extent that she lacks the capacity to meet the essential requirements of health, care, safety, habilitation, or therapeutic needs as well as financial needs without the assistance and protection of a guardian and conservator. The Court heard testimony from the physician who prepared the evaluation report for the protected person. The Court specifically finds that Gerda Flyte is in need of a permanent Guardian and Conservator. Pursuant to SDCL § 29A-5-110, Black Hills Advocate, LLC will complete the Interstate Identification Index criminal history record check and a record check of South Dakola state court civil judgments for abuse, neglect, or exploitation of an elder or adult with a disability, which will be filed in this matter. Upon the Cours review the Court finds Black Hills Advocate, LLC is suitable and qualified to serve as Guardian and Conservator for Gerda Flyte. Pursuant to SDCL 29A-5-179 any person appointed guardian and/or conservator shall complete the training curricula offered through the State Bar of South Dakota within four months after appointment as guardian or conservator. The Court finds that Black Hills Advocate, LLC will complete the Guardianship and Conservatorship training program for persons appointed as guardians and conservators through the State Bar of South Dakota. Therefore, good cause appearing, it is hereby ORDERED 1. Black Hills Advocate, LLC is appointed as Permanent Guardian for Gerda Flyte.2. Black Hills Advocate, LLCis appointed as Permanent Conservator for Gerda Flyte to serve without bond. 3. __ Letters of Permanent Guardianship and Permanent Conservatorship shall be issued to Black Hills Advocate, LLC. 4, Black Hills Advocate, LLC shall have the authority as Permanent Guardian to make decisions regarding the protected person's support, care, health, habilitation, therapeutic treatment, and, if not inconsistent with an order of commitment or custody, determine the protected person's residence upon advance notice to the parties and counsel herein. 5. _ BlackHiills Advocate, LLC as Permanent Conservator shalllhave the authority regarding the protected person's property and financial affairs, and shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation or therapeutic needs. Additionally, the Permanent Conservator shall have the authority to sell and otherwise transfer interests in real property owned by the protected person. 6. The Permanent Guardian and Conservator shall maintain sufficient contact with the protected person to know of protected person's capabilities, limitations, needs, and opportunities. The Permanent Guardian and Conservator shall exercise authority only to the extent necessitated by the protected person's limitations, and if feasible, shall ‘encourage the protected person to participate in decisions, to act on her own behalf, and to develop or regain the capacity to manage personal affairs. The Permanent Guardian and Conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, shall act as a fiduciary in managing the estate, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence. 7. The Permanent Guardian shall file an annual report to the Court within sixty (60) days following the anniversary of the appointment, annually thereafter, or on a calendar-year basis. Within fourteen days after filing the annual report a copy of the annual report shall be mailed to all individuals and entities listed in the petition or as required by law. The report shall state a. The current mental, physical, and social condition of the protected person; b. The living arrangements during the reporting period; c. _The medical, educational, vocational, and other professional services provided to the protected person and the Guardian's evaluation as to the adequacy of the care; d. A summary of the Guardian's visits with and activities on the protected person's behalf; e. The Guardian's opinion of the current treatment or habitation plan; f. The Guardian's recommendation as to the need for continued Guardianship and recommended changes in the scope of the Guardianship; and 2g. _ The compensation requested and reasonable and necessary expenses incurred by the Guardian 8 The Permanent Conservator shall file an inventory of the real and personal estate of the protected person within ninety (90) days following the appointment. The inventory shall, with reasonable detail, list each item of the estate, its approximate fair market value and the type and amount of encumbrance to which it is subject. Within fourteen days after filing the inventory a copy of the inventory shall be mailed to all individuals and entities listed in the petition or as required by law. 9. The Permanent Conservator shall file an accounting with the Court within sixty (60) days following the first anniversary of the appointment, annually thereafter, or on acalendar-year basis. Within fourteen days after filing the annual accounting a copy of the annual accounting shall be mailed to all individuals and entities listed in the pefition or as required by law. The annual accounting shall stat a. __Allisting of the receipts, disbursements and distributions from the estate under the Permanent Conservator's control during the period covered by the account; b. listing of the estate; c. The compensation requested and the reasonable and necessary expenses incurred by Permanent Conservator. 6/2/2023 3:40:08 PM BY THE COURT: Voag Te Honorabié Jeffrey Robege@onnolly Circuit Court Judge Attest Grapentine, Tammy Cierk/Deputy TEESE OU ER, : ORPHOT SPRINGS, SD . fae original av the same appears on file in my office: Filed on:06/02/2023. Fall River County, South Dakota 236DN22-000004STATE OF SOUTH DAKOTA: ss COUNTY OF FALL RIVER IN CIRCUIT COURT ‘SEVENTH JUDICIAL CIRCUIT Guardianship and Conservatorship of Gorda Flyte alk/a Gerda Mueller A protected person. ‘23GDN22-000004 LETTERS OF GUARDIANSHIP AND CONSERVATORSHIP By Order of the Court, Black Hills Advocate, LLC was appointed permanent Guardian and Conservator of Gerda Flyte, a protected person, on_06/02/2023, 2023. The Letters are issued as evidence of the appointment, qualification and authority of Black Hills Advocate, LLC to do and perform all acts authorized by law. The Letters are effective immediately Attest: Grapentine, Tammy ClenuDeputy @ 6/2/2023 3:39:57 PM BY THE COURT: i oe to Circuit Court Judge ete or cours T™ JUDICIAL GI SUT eSTA “ATHOT SPRINGS, SOURT wtp arentan 38 esc tcoaah 29 ine: fle in my oica JUN 07 2023 BE Filed on:06/02/2023 Fall River County, South Dakota 236DN22-000004