Hermanek-Peck v. Spry

#29649-MES
2022 S.D. 60

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

In the Matter of the CERTIFICATION OF A QUESTION OF LAW FROM THE
UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA,
SOUTHERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and
Concerning Federal Action Civ. 4:21-cv-04034-LLP, Titled as Follows:

****

BARBARA HERMANEK-PECK,
in her capacity as
Personal Representative of the
Estate of Richard Hermanek, Plaintiff,

v.

RICHARD SPRY and
SUSAN SPRY, Defendant.

****

ORIGINAL PROCEEDING

****

JEFFREY L. BRATKIEWICZ
KATHRYN J. HOSKINS of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Sioux Falls, South Dakota

SARAH BARON HOUY of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Rapid City, South Dakota

Attorneys for defendants.

****

ARGUED
JANUARY 11, 2022
OPINION FILED 10/12/22
****

REECE M. ALMOND
ANTHONY M. HOHN
ALAYNA A. HOLMSTOM of
Davenport, Evans, Hurwitz
& Smith, LLP
Sioux Falls, South Dakota Attorneys for plaintiff.
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SALTER, Justice

[¶1.] In this case, we consider three certified questions from the United

States District Court for the District of South Dakota, 1 all relating to rights and

remedies available to the estate of a vulnerable adult for conduct alleged to have

been committed during the vulnerable adult’s life. In essence, the questions ask

whether SDCL chapter 21-65 creates a private right of action that survives a

vulnerable adult’s death and whether a criminal conviction for theft by exploitation

is required for a cause of action under SDCL 22-46-13. We answer the questions by

holding that the right to commence an action under chapter 21-65 does not survive

the death of the vulnerable adult, though the ability to seek relief in a separate

action when there has been financial exploitation may still be available after death.

We further conclude that a predicate theft conviction is not required to maintain an

action authorized under SDCL 22-46-13.

Background

[¶2.] Richard Hermanek died intestate on March 14, 2019, at the age of 89.

A probate proceeding, captioned In the Matter of the Estate of Richard Hermanek,

04PR019-13, is currently pending in State court in Bon Homme County. Barbara

Hermanek-Peck was appointed as the personal representative of Richard

Hermanek’s estate. 2 Richard Spry is Richard Hermanek’s nephew, and he and his

1. The Honorable Lawrence L. Piersol, United States District Judge.

2. The record does not indicate whether or how Barbara and Richard Hermanek
are related.

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wife, Susan Spry, previously served as Richard Hermanek’s attorneys-in-fact

pursuant to a durable power of attorney (POA) signed July 25, 2018.

[¶3.] The POA gave the Sprys the power to, among other things, “give any

property belonging to [Richard Hermanek] to any person [his] attorney in fact shall

deem proper without consideration.” The POA did not, however, explicitly grant the

Sprys the authority to self-deal.

[¶4.] Barbara brought this action against the Sprys on behalf of Richard

Hermanek’s estate, claiming they had breached their fiduciary duties under the

POA and converted Richard Hermanek’s property to their own use. The Sprys

removed the case to federal court, citing diversity of citizenship as the basis for

federal subject matter jurisdiction. 3 See 28 U.S.C. § 1332.

[¶5.] In her detailed complaint, Barbara asserts Richard Hermanek had

various assets when he signed the POA, including real estate located in Bon

Homme County, vehicles, guns, personal property, and approximately $131,650 in a

checking account at Security State Bank in Tyndall. He also received monthly

payments for retirement and social security.

[¶6.] Barbara alleges the Sprys auctioned off some of Richard Hermanek’s

personal property shortly after he entered an assisted living facility and kept the

money. She also alleges the Sprys sold Richard Hermanek’s real estate and

deposited the proceeds into a newly opened bank account, only to later transfer the

money to the Sprys’ separate account five days after Richard Hermanek’s death.

3. The Sprys reside in Texas. Their notice of removal stated that Barbara “and
Richard Hermanek were and/or are residents of the State of South Dakota.”

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Finally, Barbara claims that the Sprys, between July 2018 and March 2019, wrote

numerous checks to themselves and their children which did not benefit Richard

Hermanek and instead covered the Sprys’ personal expenditures for items such as

lodging, gas, and meals.

[¶7.] Barbara’s complaint on behalf of Richard Hermanek’s estate alleges

four theories of recovery against the Sprys. Count 1 alleges a breach of fiduciary

duty and Count 2 asserts a conversion claim. Neither is at issue here.

[¶8.] Counts 3 and 4 of the complaint invoke specific statutory bases for

relief. Count 3 seeks damages under SDCL chapter 21-65, alleging that Richard

Hermanek was a victim of vulnerable adult abuse. And Count 4 claims a civil right

of action under SDCL 22-46-13 for exploitation of an elder.

[¶9.] The Sprys moved to dismiss the complaint, arguing that Barbara failed

to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). As

to Count 3, the district court concluded that Barbara’s complaint sufficiently alleged

Richard Hermanek was a vulnerable adult. However, the district court noted a

paucity of South Dakota decisional law addressing the Sprys’ claim that an action

alleging abuse of a vulnerable adult does not survive the death of the adult at issue.

Opting not to make an “Erie-educated guess” 4 on this issue of state law, the district

4. Where a federal district court’s subject matter jurisdiction is founded upon
diversity of citizenship, “the district court applies the substantive law of the
forum state.” White v. Lavigne, 741 F.2d 229, 230 (8th Cir. 1984) (citing Erie
R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)). If the
district court does not certify the question to the state supreme court, as the
district court did here, the district court must “predict how the state supreme
court would rule if faced with the [same issue][.]” Blankenship v. USA Truck,
(continued . . .)
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court elected to certify the question to this Court. 5 The district court made a

similar determination regarding Count 4 of the complaint, indicating its inclination

to certify a different question presented by the Sprys, namely, whether a criminal

conviction under SDCL 22-46-3 is required before a plaintiff has a cause of action

for theft by exploitation under SDCL 22-46-13. The district court formulated the

questions as follows:

1. Does South Dakota recognize a private right of action for
a violation of SDCL chapter 21-65 after the death of the
vulnerable adult?

2. For a civil claim to be brought under SDCL 22-46-3 and
SDCL 22-46-13, must the person against whom the claim
is brought have been criminally convicted of theft by
exploitation under SDCL 22-46-3?

3. Can a civil claim be brought for violation of SDCL 22-46-1
and SDCL 22-46-13 with no requirement for a preceding
criminal conviction given the “or” between SDCL 22-46-1
and SDCL 22-46-3 in SDCL 22-46-13?

[¶10.] In her submissions to this Court, Barbara argues that the first and

third questions should be answered in the affirmative while the second should be

answered in the negative. As to the first question, she argues that SDCL chapter

21-65 creates a private right of action and allows the court to grant any relief that

the court deems necessary to remedy the financial exploitation of vulnerable adults,

without restriction. She also argues that the cause of action survives the death of

________________________
(. . . continued)
Inc., 601 F.3d 852, 856 (8th Cir. 2010) (first alteration in original) (quoting
Northland Cas. Co. v. Meeks, 540 F.3d 869, 874 (8th Cir. 2008)).

5. We are specifically authorized to “answer questions of law certified . . . by the
Supreme Court of the United States, a court of appeals of the United States,
or a United States district court[.]” SDCL 15-24A-1.

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the vulnerable adult because nothing in chapter 21-65 expressly prohibits the

personal representative of a vulnerable adult’s estate from seeking statutory relief.

To conclude otherwise and condition chapter 21-65 relief upon a vulnerable adult

being alive would, in Barbara’s view, effectively grant immunity to abusers whose

victims pass away.

[¶11.] By contrast, the Sprys express the view that SDCL chapter 21-65 does

not create a private right of action beyond the ability to seek an order of protection

during the life of a vulnerable adult, citing the use of present-tense verbs within the

text of certain chapter 21-65 statutes. The Sprys also note that a personal

representative is not listed among the enumerated “substitute petitioner[s]”

authorized to seek relief on behalf of a vulnerable adult under SDCL 21-65-1(14).

In these instances involving substitute petitioners, the Sprys emphasize certain

statutory rights that a vulnerable adult “retains” and argue by inference that only a

living vulnerable victim could invoke these rights. See SDCL 21-65-4 (“If a

substitute petitioner files . . . on behalf of a vulnerable adult, the vulnerable adult

retains the right to all of the following . . . .”).

[¶12.] Regarding the second certified question, Barbara asserts that the plain

language of SDCL 22-46-13 authorizes a civil action for exploitation of an elder

without regard to the existence of a corresponding predicate criminal conviction. 6

Though the statute includes a reference to a court’s “find[ing] that an elder or adult

with a disability has been exploited as defined in § 22-46-1 or 22-46-3[,]” Barbara

argues the text of the statute does not use words like “conviction,” “violation,” or

6. The Sprys have not been charged with exploiting Richard Hermanek.

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“prosecution.” See SDCL 22-46-13. In this regard, she draws a comparison to our

statutes authorizing domestic abuse protection orders, which we have held may be

issued without a predicate criminal conviction. See Trumm v. Cleaver, 2013 S.D.

85, 841 N.W.2d 22 (holding that the phrase in SDCL 25-10-1(1) defining “domestic

abuse” as any “violation of” the criminal stalking provisions of chapter 22-19A does

not require a stalking conviction as a predicate to a domestic abuse protection

order).

[¶13.] The Sprys’ contrary view concerning the second certified question

relies principally upon a report and recommendation issued by a federal magistrate

judge who concluded that SDCL 22-46-13 requires a criminal conviction as a

predicate to a civil claim for theft by exploitation. See Wetch v. Crum & Forster

Com. Ins., No. 5:17-CV-05033-JLV, 2018 WL 10812341, at *20 (D.S.D. Dec. 6, 2018)

(stating that a civil cause of action did not exist under SDCL 22-46-13 in the

absence of a conviction under SDCL 22-46-3).

[¶14.] Finally, Barbara urges this Court to answer the third certified

question in the affirmative. She maintains that the question is improperly phrased,

but in any event, SDCL 22-46-13’s reference to SDCL 22-46-1 and SDCL 22-46-3 in

its description of a civil action for exploitation does not suggest a prerequisite

conviction. In her view, they merely provide alternate statutory definitions for

exploitation, only one of which (SDCL 22-46-3) criminalizes theft.

[¶15.] The Sprys propose a different interpretation, claiming that their

analysis in question two also applies to the third certified question. They allege

that SDCL 22-46-1 defines “exploitation” while SDCL 22-46-3 describes and

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criminalizes prohibited conduct. Thus, they allege that a conviction is required

under SDCL 22-46-3 to bring a cause of action under SDCL 22-46-13.

Analysis and Decision

[¶16.] The certified questions before us present issues of statutory

construction which are, of course, questions of law. Zoss v. Schaefers, 1999 S.D.

105, ¶ 6, 598 N.W.2d 550, 552 (stating that statutory interpretation is a question of

law). “Statutory construction is an exercise to determine legislative intent.” In re

W. River Elec. Ass’n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222, 226.

[W]e adhere to two primary rules of statutory construction. The
first rule is that the language expressed in the statute is the
paramount consideration. The second rule is that if the words
and phrases in the statute have plain meaning and effect, we
should simply declare their meaning and not resort to statutory
construction.

Winslow v. Fall River Cnty., 2018 S.D. 25, ¶ 12, 909 N.W.2d 713, 717 (alteration in

original) (citation omitted); see also Matter of Appeal by Implicated Individual, 2021

S.D. 61, ¶ 28, 966 N.W.2d 578, 586 (noting the “cardinal rule of statutory

interpretation” is to “simply read the text and apply it”).

Whether the Legislature created a private right of action under SDCL
chapter 21-65 that can be commenced after the death of a vulnerable adult.

[¶17.] We begin with several statutory definitions that are central to our

examination of the procedure that allows relief from vulnerable adult abuse. As is

relevant here, a “vulnerable adult” is “a person sixty-five years of age or older who

is unable to protect himself or herself from abuse as a result of age or a mental or

physical condition . . . .” SDCL 21-65-1(15). “Vulnerable adult abuse” can occur in

one of four ways: 1) physical abuse; 2) emotional or psychological abuse; 3) neglect;

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or 4) financial exploitation. SDCL 21-65-1(4). “Financial exploitation,” for purposes

of chapter 21-65, occurs when “a person who stands in position of trust or confidence

[to the vulnerable adult],” see SDCL 21-65-1(7), wrongfully takes or exercises

“control over property of an elder or adult with a disability with intent to defraud

the elder or adult with a disability[,]” see SDCL 22-46-1(5).

[¶18.] The provisions of SDCL chapter 21-65 allow an individual to “seek

relief from vulnerable adult abuse,” including financial exploitation, through a

petition filed either by the vulnerable adult or by a “substitute petitioner.” SDCL

21-65-2. A “substitute petitioner” is defined as “a family or household member,

guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable adult,

or other interested person who files a petition pursuant to this chapter[.]” SDCL

21-65-1(14).

[¶19.] As it relates to financial exploitation, the text of SDCL 21-65-12

provides a court with broad authority when fashioning relief:

If the court finds that the vulnerable adult has been the victim
of financial exploitation, the court may order the relief the court
considers necessary to prevent or remedy the financial
exploitation, including any of the following:

(1) Directing the respondent to refrain from exercising
control over the funds, benefits, property, resources,
belongings, or assets of the vulnerable adult;

(2) Requiring the respondent to return custody or control of
the funds, benefits, property, resources, belongings, or
assets to the vulnerable adult;

(3) Requiring the respondent to follow the instructions of the
guardian, conservator, or attorney-in-fact of the
vulnerable adult; and

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(4) Prohibiting the respondent from transferring the funds,
benefits, property, resources, belongings, or assets of the
vulnerable adult to any person other than the vulnerable
adult.

See also SDCL 21-65-15 (authorizing the court to order the respondent to pay the

vulnerable adult’s or substitute petitioner’s attorney fees). Without question, the

provisions of chapter 21-65 create a private right of action for vulnerable adults to

seek relief from, among other things, financial exploitation.

[¶20.] The district court appears to have read the operative statutes of

chapter 21-65 as we do and, in its first certified question, poses a more specific

inquiry—whether a private right of action for relief from vulnerable adult abuse can

be commenced after the death of the vulnerable adult. Of course, a deceased

vulnerable adult can no longer be subject, in a corporeal sense, to the first three

types of vulnerable adult abuse found in SDCL 21-65-1(4), which include physical

abuse, emotional and psychological abuse, and neglect. Consequently, the relief

afforded under SDCL 21-65-11 to address the immediate safety and welfare

concerns would no longer be necessary after a vulnerable adult’s death.

[¶21.] The same cannot be so easily said in cases where a vulnerable adult

was the victim of the fourth type of vulnerable adult abuse listed in SDCL 21-65-

1(4)—financial exploitation—because the impact of financial exploitation may well

extend beyond a vulnerable adult’s life. The critical legal issue prompted by the

certified question in this regard is whether the personal representative of a

deceased vulnerable adult’s estate may seek remedial relief to recover assets or to

preserve and protect assets by commencing an action under SDCL chapter 21-65.

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[¶22.] A review of SDCL chapter 21-65 in its totality suggests that the

Legislature did not intend for this chapter to create a private right of action that

can be commenced by a personal representative after the death of the vulnerable

adult. Personal representatives are not included among SDCL 21-65-1(14)’s list of

specific people who can serve as substitute petitioners—i.e., “a family or household

member, guardian, conservator, attorney in fact, or guardian ad litem for a

vulnerable adult[.]” And although SDCL 21-65-1(14) also allows “other interested

person[s]” to serve as substitute petitioners, other provisions in chapter 21-65 do

not support the contention that this catchall designation includes personal

representatives, like Barbara, who are serving after a vulnerable adult has passed

away and no longer owns property.

[¶23.] Notably, the temporal limits for other fiduciaries specifically

authorized to serve as a substitute petitioner under SDCL 21-65-1(14) are different.

Guardians, conservators, and attorneys-in-fact serve before the death of the

vulnerable adult they are assisting. See SDCL 29A-5-507 (“A guardianship or

conservatorship of a protected person shall terminate upon the death of the

protected person . . . .”); SDCL 59-12-9 (“A power of attorney terminates when . . .

[t]he principal dies . . . .”). 7

[¶24.] Further, the nature of the expedited proceedings described by the

Legislature in chapter 21-65 makes clear that this cause of action cannot be

7. The fact a person is designated as a prospective personal representative for a
vulnerable adult’s estate does not mean the person could not act as a
substitute petitioner for a living vulnerable adult under the theory the would-
be personal representative was an “other interested person.” But here, that
situation is not presented.

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commenced after the death of the vulnerable adult. For instance, SDCL 21-65-4

lists certain participatory rights that a vulnerable adult “retains” in cases

prosecuted by a substitute petitioner, including the right to counsel, the right to

access personal records, the right to “file objections to the protection order[,]” the

right to request a hearing, and the right “[t]o present evidence and cross-examine

witnesses at the hearing.” The fact that the Legislature explicitly contemplated a

vulnerable adult’s direct participation in a proceeding brought under chapter 21-65

strongly suggests that the remedies were created for vulnerable adults who are

alive. See also SDCL 21-65-7 (requiring the court to “exercise its discretion [at the

hearing] in a manner that protects the vulnerable adult from traumatic

confrontation with the respondent”).

[¶25.] In addition, the relief authorized upon a finding of financial

exploitation is oriented toward the property of a living vulnerable adult. The

provisions of SDCL 21-65-12(1), (2), and (4) allow a circuit court to order the

respondent to refrain from exercising control over a vulnerable adult’s property or

from transferring such property to any person “other than the vulnerable adult” and

to return a vulnerable adult’s property “to the vulnerable adult.” The specific text

of SDCL 21-65-12(3) also authorizes a circuit court to order the respondent to

“follow the instructions of the guardian, conservator, or attorney-in-fact of the

vulnerable adult[,]” but, as indicated above, the authority of these fiduciaries

generally expires upon the death of the vulnerable adult.

[¶26.] Although an action cannot be commenced on behalf of a deceased

vulnerable adult under SDCL chapter 21-65, this does not foreclose relief to address

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the financial exploitation that occurred during the vulnerable adult’s lifetime. 8

When the Legislature enacted SDCL chapter 21-65 in 2016 as a means to obtain

prompt, expeditious relief for vulnerable adults, it also enacted complementary

cross-referencing provisions in SDCL chapter 22-46, which broaden protections

against financial exploitation for elderly or vulnerable adults. These sections reflect

an apparent and concerted expression of legislative intent to afford remedies both

before and after the death of a vulnerable adult to address financial exploitation.

See SDCL 22-46-18 (“The remedies provided in §§ 22-46-13 to 22-46-17, inclusive,

are in addition to and cumulative with other legal and administrative remedies

available to an elder or adult with a disability.”).

[¶27.] The additional provisions enacted in SDCL chapter 22-46, although

located in what is often described as our criminal code, allow for a more traditional

civil cause of action. As explained further below, this chapter contains a statute

that provides for a civil action to recover damages for exploitation of an “elder”

brought by, among other potential plaintiffs, a “personal representative.” SDCL 22-

46-13. For “violations under . . . 22-46-13[,]” a “court may authorize remedies

provided in § 21-65-12[.]” SDCL 22-46-17 (emphasis added). The fact that personal

representatives are specifically listed in this statute, along with guardians and

conservators, as persons who may bring a cause of action under SDCL 22-46-13,

supports our conclusion that the statutory schemes in chapters 21-65 and 22-46

8. Given the limited scope of the district court’s certified questions, we leave for
another day any consideration relating to the impact, if any, of a vulnerable
adult’s death upon relief previously ordered in a SDCL chapter 21-65
proceeding commenced while the vulnerable adult was still alive.

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were intended to work in tandem to cover all scenarios relating to financial

exploitation of vulnerable adults.

[¶28.] We conclude, therefore, that chapter 21-65 creates a private right of

action. However, the private right of action may not be commenced under this

chapter after the death of a vulnerable adult, and we answer the first certified

question in the negative.

Whether a criminal conviction under SDCL 22-46-3 is a predicate to a civil
claim brought under SDCL 22-46-13.

[¶29.] The same rules of statutory interpretation set out above apply to our

examination of the text contained in SDCL 22-46-13 and SDCL 22-46-3, leading us

to conclude that both statutes are clear and unambiguous. The relevant portion of

SDCL 22-46-13 provides:

A court may find that an elder . . . has been exploited as defined
in § 22-46-1 or 22-46-3. If a court finds exploitation occurred,
the elder . . . has a cause of action against the perpetrator and
may recover actual and punitive damages for the exploitation.

[¶30.] We note at the outset that the text of SDCL 22-46-13 does not

expressly condition a court’s finding of exploitation upon a conviction. Though it

may not be dispositive of the answer to the certified question, it is at least telling

that the Legislature elected to not include an express requirement of a criminal

conviction as a predicate to civil liability. Cf. SDCL 22-13-18 (authorizing a circuit

court to order injunctive relief or “damages, including attorney fees, or other

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appropriate relief against any person who is repeatedly found guilty” of committing

certain unlawful picketing offenses). 9

[¶31.] Beyond this, neither of the two statutes designated in SDCL 22-46-

13—SDCL 22-46-1 and SDCL 22-46-3—contain an embedded conviction

requirement. The provisions of SDCL 22-46-1(5) simply define “[e]xploitation” as

“the wrongful taking or exercising of control over property of an elder with intent to

defraud the elder or adult with a disability[.]” The text of SDCL 22-46-3 sets out

the criminal offense of theft by exploitation, describing exploitation in narrower

terms by requiring the state to prove the theft was committed by a person who

“assumed [a] duty . . . to provide for the support of an elder” and had been entrusted

with the elder’s property. 10

9. In a footnote included in her brief, Barbara suggests that if a defendant in a
civil action alleging exploitation has, in fact, been convicted of the same
conduct, there is no need for a court to find the same facts. The argument
lacks citation to supporting authority and perhaps for good reason. See W. E.
Shipley, Annotation, Conviction or Acquittal As Evidence of the Facts On
Which It Was Based In Civil Action, 18 A.L.R.2d 1287 § 1(b) (1951) (stating
that traditionally “a judgment in a criminal case, whether of conviction or
acquittal, was incompetent when offered in a civil case to prove the facts
upon which it was based”). Though the more current trend is to analyze the
impact of criminal judgments individually, see id., our cases reflect the
general rule. See, e.g., Berlin v. Berens, 76 S.D. 429, 436, 80 N.W.2d 79, 83
(1956) (“Where a plea of guilty is admitted as substantive evidence in civil
litigation involving the same occurrence it is not conclusive and may be
explained.”).

10. In Trumm, this Court emphasized the fact that the word “conviction” was not
found within SDCL 25-10-1(1)’s definition of domestic abuse, but “conviction”
was used in other related statutes throughout SDCL chapter 25-10. 2013
S.D. 85, ¶ 10, 841 N.W.2d at 24–25. We noted this significance, stating that
“the Legislature required the conviction of a crime in many sections of
chapter 25-10, but it excluded that requirement from SDCL 25-10-1(1).” Id.
¶ 10, 841 N.W.2d at 25.

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[¶32.] In either event, these two statutes simply define and describe

alternative types of exploitation. They do not support the claim that the existence

of exploitation referenced in SDCL 22-46-13 necessarily means a conviction. 11

[¶33.] The Sprys support their argument to the contrary, as indicated above,

with the report and recommendation in Wetch, which in turn, relied principally

upon our 1983 decision in K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529

(S.D. 1983). 12 In our view, however, this reliance was misplaced.

[¶34.] The statute at issue in K & E was the now-repealed SDCL 22-34-2,

which provided that “[a]ny person who violates § 22-34-1 [criminalizing damage to

property], in addition to the punishment prescribed therefor, is liable in treble

damages for the injury done, to be recovered in a civil action by the owner of the

property or public officer having charge thereof.” (Emphasis added). The question

presented was whether an award of treble damages, under SDCL 22-34-2, and

punitive damages, under SDCL 21-3-2, created “a duplication of penal damages.” K

& E, 330 N.W.2d at 531. We held that it did but diverted from a direct analytical

course to note a “[t]hreshold problem . . . with the application of SDCL 22-34-1 and

11. Neither the district court’s certified questions nor the parties’ submissions
address whether the finding of exploitation must be made by a court, as the
statute suggests, or a jury, as would ordinarily be authorized for “cases at
law.” See S.D. Const. art. VI, § 6 (“The right of trial by jury shall remain
inviolate and shall extend to all cases at law without regard to the amount in
controversy . . . .”).

12. In addition, the magistrate judge in Wetch relied upon a District of South
Dakota decision in Christensen v. Quinn, 45 F. Supp. 3d 1043 (D.S.D. 2014).
However, Quinn also relied heavily on K & E, and so, whatever persuasive
value Wetch and Quinn may possess depends upon whether K & E assists
with our analysis here.

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SDCL 22-34-2[.]” Id. at 532. Because the defendant had not been prosecuted and

convicted of violating SDCL 22-34-1, he was not “also liable . . . in a civil action.” Id.

(emphasis added).

[¶35.] Though the result in K & E may bear upon a more general discussion

of whether a criminal conviction must precede a civil action based on the same

conduct, the rules governing our analysis of statutory text lead us to conclude that

the holding in K & E has little or no utility here. Central to our conclusion in K & E

was the fact that SDCL 22-34-2 provided for aggregated criminal and civil

punishment—i.e., an action for civil damages was cognizable “in addition to the

punishment prescribed” by the underlying criminal statute, SDCL 22-34-1.

[¶36.] The text of SDCL 22-46-13 is much different. The statute does not

restrict civil recovery to treble damages, and more to the point, it does not

contemplate aggregated remedies after a “violation” of the criminal statute. 13

Instead, SDCL 22-46-13 authorizes a generic civil “cause of action” in which the

plaintiff “may recover actual and punitive damages” upon a court’s finding of

exploitation. Unlike the text of SDCL 22-34-2, as we interpreted it in K & E, SDCL

22-46-13 contains no textual indication of the Legislature’s intent to combine the

civil remedy with the criminal punishment. 14

13. Treble damages may not be categorically punitive in nature, and we make no
determination in this regard. See Webb v. Shull, 270 P.3d 1266, 1269–71
(Nev. 2012) (discussing punitive and remedial aspects of treble damages). It
is sufficient for our analysis here to simply observe that we regarded the
treble damages authorized by the former SDCL 22-34-2 as punitive in K & E.

14. Barbara distinguishes K & E by equating the “violation” text of the former
SDCL 22-34-2 with a conviction. But this argument seems somewhat at odds
(continued . . .)
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[¶37.] However, even if a conviction is not required prior to a court’s finding

of exploitation, we still must determine if SDCL 22-46-13 requires that a court’s

finding of exploitation precedes the plaintiff’s civil cause of action, given its second

sentence which states, “[i]f a court finds exploitation occurred, the elder or adult

with a disability has a cause of action against the perpetrator . . . .” On this

question, we conclude that the existence of a cause of action under SDCL 22-46-13

does not depend upon a prior finding, either civilly or criminally, of exploitation. 15

To hold otherwise would create a circular paradigm in which a plaintiff would have

to prove liability before acquiring a cause of action. See Trumm, 2013 S.D. 85, ¶ 13,

841 N.W.2d at 25 (noting that requiring a stalking conviction as a predicate to the

issuance of a protection order would contravene “the Legislature’s purpose in

authorizing domestic abuse protection orders” to allow victims relief “without

________________________
(. . . continued)
with her reliance on Trumm where we held that the textual term referring to
“any violation” of the criminal stalking chapter did not mean a stalking
conviction based upon reasons particular to the relevant statutory framework
of SDCL chapter 25-10. 2013 S.D. 85, ¶ 12, 841 N.W.2d at 25. More than
anything, however, the efforts to reconcile K & E, Trumm, and this case
highlight the difficulty of forging comparative arguments from holdings
involving dissimilar statutory text.

15. Though the finding of exploitation does not have to precede a cause of action
for damages, we can envision circumstances in which it might. For instance,
it is possible that a court, during the course of determining a petition seeking
relief from vulnerable adult abuse under the provisions of chapter 21-65, may
make a finding of exploitation before any effort to pursue an action under
SDCL 22-46-13. See SDCL 21-65-1(7) (defining financial exploitation as
“exploitation as defined in subdivision 22-46-1(5) when committed by a
person who stands in a position of trust or confidence”).

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having to meet the higher beyond-a-reasonable-doubt standard of proof”). 16 Though

“our standard for relative absurdity should be high[,]” the Legislature surely did not

intend to create a cause of action only to condition its existence on antecedent

liability. See Implicated Individual, 2021 S.D. 61, ¶ 25, 966 N.W.2d at 585 (citation

omitted); see also People ex rel. J.L., 2011 S.D. 36, ¶ 9 n.2, 800 N.W.2d 720, 723 n.2

(listing cases finding the application of statutes to be absurd).

[¶38.] We answer the second certified question in the negative.

Whether the “or” between SDCL 22-46-1 and SDCL 22-46-3 suggests that a
preceding criminal conviction is not required to commence a civil claim
under SDCL 22-46-13.

[¶39.] Based upon the analysis relating to the second certified question, a

civil cause of action under SDCL 22-46-13 is not predicated upon a criminal

conviction of exploitation under either of the alternative theories described in SDCL

22-46-1 or SDCL 22-46-3. As indicated above, only SDCL 22-46-3—not SDCL 22-

46-1(5)—states a criminal offense. In fact, the definition of exploitation contained

in SDCL 22-46-1(5) does not appear to be used again in chapter 22-46. Therefore,

the fact that SDCL 22-46-13 allows relief in a civil cause of action upon a finding of

abuse under either SDCL 22-46-1 (which does not include the additional elements

required for a criminal conviction) “or” SDCL 22-46-3 further supports our

16. Barbara cites our decision in State v. Hauge, 2019 S.D. 45, 932 N.W.2d 165 as
support for her argument that preventing the exploitation of vulnerable
adults has a strong basis in public policy. While we agree with the
proposition generally, we do not believe the passage from Hauge upon which
she relies directly supports her view. Rather, our statement in Hauge
declaring criminal conduct to be “insidious [where] it involves the
manipulation of disabled or elderly adults” was made in the context of our
Eighth Amendment analysis to determine whether the defendant’s sentence
was grossly disproportionate. 2019 S.D. 45, ¶ 35, 932 N.W.2d at 175.

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conclusion that a preceding criminal conviction is not required to pursue relief

under this statute. We therefore answer the third certified question in the

affirmative.

Conclusion

[¶40.] The statutes presented in the first certified question are clear and

unambiguous. A vulnerable adult or substitute petitioner has a private right of

action for the financial exploitation of a vulnerable adult. However, the private

right of action cannot be commenced under SDCL chapter 21-65 after the

vulnerable adult’s death, though financial exploitation remains actionable after a

person’s death under SDCL 22-46-13. This latter statute and the provisions cited in

its text also contain plain and unambiguous language, none of which require a

criminal conviction as a predicate to a civil cause of action for exploitation. For

these reasons, we answer the first two certified questions in the negative and the

third in the affirmative.

[¶41.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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