#31073, #31084, #31085-a-MES
2026 S.D. 43
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
MICHAEL A. GIBSON, Plaintiff and Appellant,
v.
GREG GIBSON, Individually,
JOAN GIBSON, Individually,
GIBSON FAMILY LIMITED
PARTNERSHIP, a South Dakota
Limited Partnership, ROBERT M.
RONAYNE, and RONAYNE LAW
OFFICE, P.C., Defendants and Appellees.
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE CARMEN MEANS
Judge
JONATHAN A. HEBER
ABIGALE M. FARLEY of
Cutler Law Firm, LLP
Sioux Falls, South Dakota
Attorneys for plaintiff and
appellant.
EDWIN E. EVANS
RYAN W. W. REDD of
Evans, Haigh & Arndt, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Gibson Family Limited
Partnership.
ARGUED
FEBRUARY 11, 2026
OPINION FILED 07/01/26
ZACHARY W. PETERSON
JACK H. HIEB of
Richardson, Wyly, Wise,
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for defendants and
appellees Robert Ronayne and
Ronayne Law Office, P.C.
SANDER J. MOREHEAD
JACOB R. SCHNEIDER of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for defendants and
appellees Greg Gibson and Joan
Gibson.
#31073, #31084, #31085
SALTER, Justice
[¶1.] Michael Gibson appeals the circuit court’s decision dismissing his
lawsuit as a sanction for violating the subpoena rules set out in SDCL 15-6-45(b).
Among a series of less serious violations, Michael’s counsel obtained his mother’s
medical records through a subpoena while a motion to quash was pending, later
offering an unsustainable legal argument, refusing to acknowledge any wrongdoing,
and shifting blame to others. Michael’s arguments on appeal are much the same.
We affirm.
Factual and Procedural History
GFLP and the current action
[¶2.] Delores Gibson established the Gibson Family Limited Partnership
(GFLP) in 2002 as an estate planning tool, largely to distribute 2,060 acres of
farmland located in Codington and Deuel counties to her children. Delores
contributed the farmland and acts as GFLP’s general partner with sole authority
over partnership decisions. Her sons, Michael and Greg Gibson, are equal limited
partners.
[¶3.] Prior to this current action, Michael has twice unsuccessfully sued
Greg, or Delores, or both for claims relating to GFLP. In the more recent of the two,
Michael sued GFLP and Delores, alleging she had breached fiduciary duties as the
general partner. We affirmed a jury’s defense verdict and the circuit court’s denial
of Michael’s request to disassociate from GFLP in Gibson v. Gibson Family Ltd.
Partnership, 2016 S.D. 26, 877 N.W.2d 597. And in the older, first action, a jury
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rejected Michael’s claims against Greg and Delores, which also included an
allegation that she had breached her fiduciary duties. Id. ¶ 3, 877 N.W.2d at 599.
[¶4.] Michael commenced this third action in October 2023 claiming that
Delores has been unduly influenced by Greg and his wife, Joan. The case involves
an underlying land transaction in which Greg purchased land from GFLP. Michael
claims the terms were too favorable and preempted his own efforts to acquire the
land. Michael also named as a defendant Robert Ronayne, an attorney who
previously represented GFLP and assisted with the land sale to Greg.
[¶5.] At the heart of the dispute is Michael’s overarching theory that Delores
lacks capacity to make decisions for GFLP. He claims that Greg is acting as GFLP’s
de facto general partner and has violated various fiduciary duties in concert with
Ronayne. Michael also alleges that Greg and Joan tortiously interfered with his
existing and prospective business relationship with GFLP.
[¶6.] Delores is not a defendant in this action. Through his lawyers, Michael
embarked on a sustained effort to use subpoenas issued pursuant to SDCL 15-6-45
(Rule 45) to obtain Delores’s personal financial and medical records, as well as
information relating to Greg and Joan, and to GFLP. Michael was represented by
attorney Paul Sortland of Minneapolis, and, although Sortland associated with local
counsel, the subpoenas he issued often failed to conform to Rule 45.
[¶7.] For instance, in May 2024, Sortland and local counsel issued several
subpoenas to non-parties, including banks and Schwan Financial Group, which
provided tax and financial planning for GFLP. After Schwan was served, its lawyer
contacted Michael’s attorneys and informed them that the subpoena failed to
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conform with Rule 45 because there had been no compliance with Rule 45(b)’s preservice notice requirement.1 Local counsel also noted that all of the previously
issued subpoenas failed to state that they were issued in the name of the presiding
judicial officer—a specific requirement of Rule 45(a). Michael’s attorneys corrected
the errors and issued a belated “notice” for the already-served subpoenas.
[¶8.] In August 2024, Michael sought to depose Delores, but GFLP resisted
and submitted letters from psychologist Dr. Lee Hendricks and Dr. Sarah
Reiffenberger, a medical doctor. Both doctors had experience treating Delores and
opined that a deposition would be stressful for her and would detrimentally impact
her mental state. In a letter contained in the record, Dr. Reiffenberger stated that
Delores had been taking medication to treat “moderate Alzheimer’s dementia” since
2021. In the end, Delores was not deposed.
[¶9.] Later, in September 2024, Sortland issued notice of depositions for Dr.
Hendricks and Dr. Reiffenberger, seeking information regarding Delores’s health
and mental condition. A month later, Sortland subpoenaed Dr. Reiffenberger,
requesting documents used in the preparation of her earlier letter. The subpoena
was issued in the name of the presiding judicial officer, but the mandatory language
from Rule 45(a), though included, was not directly above the signature line as
1. Rule 45(b) states, “Before a subpoena commanding the production of
documentary evidence is served on the person to whom it is directed, a notice
and copy of the subpoena must be served on each party to the matter
pending.” SDCL 15-6-45(b).
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required by the rule.2
The November 15 subpoenas
[¶10.] But these areas of noncompliance with Rule 45, though not optimal,
became secondary to a larger problem related to several subpoenas issued on
November 15, 2024, to Prairie Lakes Hospital in Watertown, as well as several
other Prairie Lakes clinics, seeking Delores’s medical information. The subpoenas
required compliance by December 6, 2024, and, despite being filed electronically,
they were unaccompanied by a separate notice of intent to serve.
[¶11.] On the following Monday, November 18, GFLP, after seeing copies of
the electronically filed November 15 subpoenas, moved to quash the subpoenas and
for a protective order concerning Delores’s medical records and bills. GFLP argued
the records were privileged and the subpoenas did not comply with the Health
2. Rule 45(a) states in part:
A subpoena shall also include the following text in bold,
capitalized type immediately above the signature of the
individual signing the subpoena:
YOU SHOULD TREAT THIS DOCUMENT AS YOU WOULD A
COURT ORDER. IF YOU FAIL TO COMPLY WITH THE
COMMAND(S) IN THIS DOCUMENT WITHOUT ADEQUATE
EXCUSE, THE COURT MAY FIND YOU IN CONTEMPT AND
ASSESS MONETARY OR OTHER SANCTIONS AGAINST
YOU.
YOU HAVE CERTAIN OBLIGATIONS AND RIGHTS AS IT
CONCERNS THIS DOCUMENT, INCLUDING THOSE SET
FORTH IN SDCL § 15-6-45(b)-(g).
YOU SHOULD CONSIDER CONTACTING AN ATTORNEY
REGARDING YOUR OBLIGATIONS AND RIGHTS.
SDCL 15-6-45(a).
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Insurance Portability and Accountability Act (HIPAA). Initially unknown to
GFLP’s attorneys, the subpoenas were served the same day as GFLP’s motion to
quash. Neither GFLP, nor any other party, immediately scheduled a hearing on the
motion to quash.
[¶12.] Also unknown to GFLP, was the fact that Prairie Lakes Healthcare
System complied with the November 15 subpoenas on December 3 by furnishing
Delores’s medical information. In an affidavit, Prairie Lakes’s health information
specialist Jodi LeBlanc stated that she received Sortland’s subpoena by service on
November 18, and on December 2, she contacted Sortland’s secretary. According to
LeBlanc, “[Sortland’s secretary] informed me that all parties would have access to
the records because they were working together.” LeBlanc sent Delores’s medical
records to Sortland’s office the next day. LeBlanc stated she had no knowledge of
the ongoing discovery dispute and followed the subpoena’s instructions to treat it as
a court order.
[¶13.] Prior to any resolution on the subpoena disputes, Michael moved for
leave to amend his complaint. Among other changes, Michael alleged additional
facts to support his undue influence claims, some of which came from the medical
records that had been disclosed by LeBlanc to Sortland. Although Sortland’s office
received the medical records on December 3, he did not disclose his possession or
share the records with GFLP until December 26 when he emailed GFLP’s attorneys
regarding the proposed amended complaint.3
3. On January 6, 2025, Sortland issued an additional subpoena to Dr.
Hendricks commanding the release of Delores’s medical information.
(continued . . .)
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[¶14.] In January 2025, GFLP moved for sanctions in the form of dismissal
for “gross violation of discovery rules and procedure.” Greg and Joan joined in the
motion. In the alternative, GFLP proposed other sanctions including a protective
order for Delores’s medical history, revocation of Sortland’s pro hac vice status, and
attorney fees and costs incurred in bringing the motion to quash. In its
accompanying brief, GFLP outlined an alleged history of discovery abuse by
Sortland, focusing on his non-compliance with Rule 45 generally, and, more
specifically, his use of subpoenas to obtain Delores’s medical records after GFLP
filed its motion to quash.
[¶15.] In response, Sortland argued GFLP’s sanction request was “heavyhanded” and aimed at restricting Michael’s access to outcome-determinative
evidence, which, in his view, he was “rightfully entitled to” obtain. According to
Sortland, the requested sanction and motion to quash reflected GFLP’s dilatory
conduct. Further, Michael argued that Delores’s attorney—who also represented
GFLP—waived her medical privilege when he submitted letters from her doctors
concerning her mental state.
[¶16.] Particularly relevant to this appeal is Sortland’s interpretation of Rule
45(b). The text of the rule allows a court to quash a subpoena “upon motion made
promptly,” and Sortland argued that this meant the circuit court must act on
GFLP’s motion to quash prior to the subpoena’s stated time of compliance. Under
(. . . continued)
According to his affidavit, GFLP’s attorney stated he only learned of the
subpoena on January 8 when Dr. Hendricks informed his office.
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Sortland’s legal theory, if the court did not act prior to the time of compliance it “no
longer has jurisdiction[.]”4
[¶17.] The circuit court considered GFLP’s motion to dismiss at a March 2025
hearing. In his argument, counsel for GFLP recounted the history of noncompliance
with Rule 45 by “a pro hac vice” attorney, culminating with the Prairie Lakes
subpoenas:
What is the more important problem and really why we’re here
today is because it was the plaintiff’s counsel’s use of this
[c]ourt’s authority in order to wrongfully obtain [Delores]
Gibson’s privileged medical records from her healthcare
providers. . . . [A]t the heart[,] subpoenas were issued to medical
providers for records, objections were made, those objections
were ignored, records were obtained and those records were
reviewed, information from those privileged records was
incorporated into an amended complaint and then it was
published in a public filing with this [c]ourt.
[¶18.] In his rejoinder, Sortland justified obtaining Delores’s medical records
from Prairie Lakes despite the objection and motion through the same dubious
textual reading of Rule 45(b) he had made in his written submissions. According to
Sortland, the rule “requires not only that the objection be brought immediately, but
also that the motion be heard by the [c]ourt no later than the time for production.”
[¶19.] Beyond this, Sortland stated that “we have been following the rules”
and shifted the blame to counsel for GFLP and Prairie Lakes:
4. Sortland soft-pedaled Rule 45(b)’s separate notice requirement, asserting it
“hardly seems rational” to believe that Rule 45(b) required service of more
than a copy of the subpoena. Although this argument does not determine the
outcome here, we note that the text of Rule 45(b) requires, by its plain terms,
service on each party of both “a notice and copy of the subpoena.” (Emphasis
added.)
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[T]hey took advantage of that notice by filing an objection but
they didn’t do anything beyond that. The rules I would assume
that the objecting party would contact the witness to make sure
that they don’t provide anything and that was not done in this
instance. And that’s another reason to believe what we were
doing was correct.
***
We gave them these medical records a little bit later and so
there’s nothing wrong with what we did. And let’s go back to the
duties of Prairie Lakes. I never received any call from Prairie
Lakes. I never spoke with this Jodi [LeBlanc]. My secretary
didn’t speak with Jodi about any specifics to do with in [sic]
case.
[¶20.] Even on the cold record, it is apparent that the circuit court was
disappointed by Sortland’s response:
Mr. Sortland, I have to say that your response to the motion to
dismiss moves the needle closer to dismissal than further away
from it. Your cavalier disregard of the procedures that
happened on a repeated basis concerns this [c]ourt to no end.
[¶21.] Sortland eventually invoked relativism and offered something of an
indifferent apology:
I mean there’s a lot of people who don’t follow the rules with
respect to subpoenas, I think the [c]ourt knows that. We tried
our best to follow them as we – as we read the rules and so I
apologize if anything wrong happened[.]
[¶22.] The circuit court was unmoved and dismissed Michael’s case as a
sanction. In its oral decision, the court characterized Sortland’s conduct both as a
lack of “professional courtesy” and a violation of the applicable rules. The transcript
makes clear that the court was genuinely troubled with what it viewed as a lack of
acceptance of responsibility:
I look at this case as you blatantly and in bad faith disregarded
the rules and the statutes that are in place to protect the
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privileged and private medical records and that after you did so
you did take a no harm no foul approach to it. Doesn’t matter
that they objected, I just assumed everything was okay and I got
these records anyway. I’m just astonished at your response and
as I say when I listen to your response and I listen to the abuse
of discovery that has occurred here I can’t think of any way to be
assured that you aren’t going to engage in this kind of conduct
again other than to dismiss this case because you have no
remorse for what you did[.]
The motion to reconsider
[¶23.] In April 2025, Michael’s local counsel filed a motion to reconsider. In
his supporting brief, Michael argued the following: (1) dismissal without prior
warning was disproportionate to the alleged discovery violation; (2) the subpoenas
complied with Rule 45 and there was not a court order prohibiting discovery of the
records; (3) Michael had no reason to know the healthcare organizations did not
comply with HIPAA prior to releasing Delores’s medical records; (4) even if Rule 45
was violated, it was not due to the willfulness, bad faith, or fault of Michael, as the
client; (5) the circuit court, potentially, impermissibly considered the parties’
litigation history; and (6) the court should have addressed other pending motions at
the previous hearing.
[¶24.] Regarding compliance with Rule 45 and the Prairie Lakes subpoena,
Michael’s local counsel justified obtaining Delores’s medical records despite the
pending motion to quash with the rewarmed argument that GFLP failed to schedule
a hearing:
There’s nothing in the South Dakota Rules of Civil Procedure or
clearly established case law in South Dakota or otherwise or
South Dakota statute that mandates that when a party serves
or files an objection to or a motion to quash or for protective
order regarding documents or healthcare records that that
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automatically stays the discovery and production by a third
party subpoenaed[.]
[¶25.] In a reflective ruling from the bench, the circuit court declined to
change its earlier decision to grant the motion to dismiss as a sanction for
Sortland’s conduct:
[I] want[] to be sure that I haven’t acted with emotion as
opposed to with reason and so while I’ve been waiting for this
hearing, as I’ve been anticipating this hearing, I thought about
the findings that I made and I thought about the importance I
think of attorneys not to lose the forest for the trees and I think
that’s what happened here and in doing so important privileged
information was gained in a way that I continue to feel was
dishonest and egregious and so I granted this motion to
reconsider primarily because I didn’t want my displeasure at
Mr. Sortland to be unfairly reflected on his client[.]
[¶26.] Now with the assistance of substitute counsel, Michael appeals raising
three issues which we have consolidated and restated as follows:
1. Whether the circuit court erred by concluding that
Sortland’s conduct constituted a failure to “comply with
this chapter” as required by Rule 41(b)’s provisions
authorizing involuntary dismissal.
2. Whether the circuit court abused its discretion when it
dismissed the action as a sanction.5
Analysis and Decision
Asserted jurisdictional challenges
[¶27.] GFLP and Ronayne each challenge our appellate jurisdiction. First,
GFLP asserts that Michael failed to satisfy SDCL 15-26A-23’s bond requirements to
5. By notice of review, Greg and Joan, and Ronayne have challenged a decision
by the circuit court denying their motions to dismiss Michael’s fiduciary duty
claims. However, given our disposition of Michael’s issues, we do not need to
describe the decision further or reach the merits of the notice of review
question.
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perfect his appeal, which GFLP incorrectly identifies as a jurisdictional
impediment. See Bison Tp. v. Perkins Cnty., 2002 S.D. 22, ¶ 13, 640 N.W.2d 503,
506 (stating the failure to satisfy bond requirements does not deprive the Court of
jurisdiction). Regardless, Michael has confirmed that he obtained a bond in the
sufficient amount.
[¶28.] Next, Ronayne argues we lack jurisdiction to review the circuit court’s
taxation of costs. This argument is wide of the mark for several reasons, the first of
which is that Michael is not seeking discrete review of the taxation of costs. In his
reply brief, Michael acknowledges that “[i]f the judgment is affirmed, so is the
taxation of costs.” But, he asserts, “if the judgment is reversed, the taxation of costs
is automatically vacated” under SDCL 15-17-56, which provides that
“[d]isbursements taxed by a party, in the trial court, who did not prevail on appeal,
are void.”
[¶29.] And, in any event, there is no jurisdictional barrier to reviewing the
circuit court’s taxation of costs if Michael had elected to challenge it. After the
court’s order taxing costs, Michael timely appealed the court’s amended order. See
Picardi v. Zimmiond, 2005 S.D. 24, ¶ 18, 693 N.W.2d 656, 662 (“When [the order for
costs] is made subsequent to the entry of a judgment the order may not be reviewed
upon appeal from the judgment, but only by a direct appeal from the order.”
(alteration in original) (citation omitted)).
Violating the rules of civil procedure
[¶30.] A circuit court may involuntarily dismiss a civil matter “[f]or failure of
the plaintiff to prosecute or to comply with [the rules of civil procedure contained in
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Chapter 15-6] or any order of court[.]” SDCL 15-6-41(b). The relevant portion of
the rule permits dismissal for a party’s failure to comply with our rules of civil
procedure contained in Chapter 15-6.6
[¶31.] Here, of course, the operative rule of civil procedure for our inquiry is
Rule 45(b) which governs the procedure for objecting to subpoenas. In its entirety,
the rule states:
A subpoena may command the person to whom it is directed to
produce the books, papers, documents, or tangible things
designated therein, regardless of whether the attorney also
notices the person’s deposition or commands the presence of the
person to which it is directed to give testimony at a hearing or
trial. Before a subpoena commanding the production of
documentary evidence is served on the person to whom it is
directed, a notice and copy of the subpoena must be served on
each party to the matter pending. The court, upon motion made
promptly and in any event at or before the time specified in the
subpoena for compliance therewith, may:
(1) Quash or modify the subpoena if it is unreasonable and
oppressive; or
(2) Condition denial of the motion upon the advancement by the
person in whose behalf the subpoena is issued of the
reasonable cost of producing the books, papers, documents, or
tangible things.
SDCL 15-6-45(b) (emphasis added).
[¶32.] The straightforward order of operations provided in Rule 45(b) allows
other parties the opportunity to object to a subpoena’s request prior to the time of
6. On appeal, GFLP argues that Sortland’s conduct violated HIPAA, Delores’s
privacy under South Dakota law, and the rules of professional conduct.
Michael disputes each of these arguments and asserts that he would have
eventually obtained Delores’s medical records. But we see the merits of these
claims as somewhat beside the point in this appeal because Rule 41(b) only
authorizes involuntary dismissal for a violation of Chapter 15-6.
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compliance. SDCL 15-6-45(b); see also Fed. R. Civ. P. 45 advisory committee’s notes
to 1991 amendments (“The purpose of such notice is to afford other parties an
opportunity to object to the production or inspection, or to serve a demand for
additional documents or things.”). But the rule imposes a timeliness obligation on
objecting parties to act by filing a motion to quash “promptly and in any event at or
before the time specified in the subpoena for compliance.” SDCL 15-6-45(b).
[¶33.] Rule 45(b) does not explicitly require the court to rule on a motion to
quash before the time specified in the subpoena for compliance. It does, however,
contemplate the court’s ability to “quash or modify the subpoena,” and, logically, a
court could not regulate the issuance of subpoenas in this way if a subpoenaed party
complied before the court could act, rendering the issue moot and subverting the
court’s supervisory role.
[¶34.] As indicated, Sortland’s submissions to the circuit court and his
comments at the March 2025 hearing reflect a self-serving textual interpretation of
Rule 45(b) under which the rule, in his view, “requires not only that the objection be
brought immediately, but also that the motion be heard by the [c]ourt no later than
the time for production.” From this, Sortland reasoned that because GFLP did not
immediately seek a hearing on their motion to quash and the circuit court did not
rule, he could simply “disregard[]” the challenge to the subpoenas.
[¶35.] This argument is brazen, and we unequivocally reject it. Rule 45(b)
does not require a court to rule on the motion before the time designated in the
subpoena for compliance, and, instead, the plain design of the rule contemplates the
opposite—forestalling compliance until the court has acted. The contrary rule that
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Sortland proposed to the circuit court would allow the party issuing the subpoena to
unilaterally control the court’s calendar and preempt the court’s judicial supervision
by compressing the time set out in the subpoena for compliance.
[¶36.] On appeal, Michael’s principal argument is that the circuit court did
not adequately articulate a violation of Chapter 15-6 through its findings. But after
reviewing the circuit court’s written order and judgment incorporating its earlier
oral decision, we have no difficulty understanding that the violation upon which the
court relied was Sortland’s conduct based on the inaccurate legal interpretation of
Rule 45(b) set out above. See Repp v. Van Someren, 2015 S.D. 53, ¶ 10, 866 N.W.2d
122, 126 (“Findings must be entered ‘with sufficient specificity to permit meaningful
review.’” (citation omitted)). With this record before us, we hold the court’s findings
of fact and conclusions of law are sufficient to allow meaningful appellate review.
Involuntary dismissal under Rule 41(b)
[¶37.] Although we have a stated “institutional preference for resolving cases
on the merits,” Rule 41(b) operates as a “tool for sanctioning a party for delay or
disobedience in the processing of a case.” Arrowsmith v. Odle, 2025 S.D. 70, ¶ 15,
30 N.W.3d 15, 21 (citation modified). The rule provides broad authority for a circuit
court to dismiss a case, but as we have explained, the rule prescribes dismissal with
prejudice and should only be applied where it is proportionate to a party’s
transgressions. See Smith v. Gold Dust Casino, 526 F.3d 402, 405 (8th Cir. 2008)
(citation omitted) (“We have repeatedly stressed that the [41(b)] sanction imposed
by the district court must be proportionate to the litigant’s transgression[.]”
(citation modified)). To affirm a dismissal for failure to comply with the rules of
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civil procedure, there should be a clear record of an egregious rule violation. See
Arrowsmith, 2025 S.D. 70, ¶ 24, 30 N.W.3d at 23 (reviewing the record for egregious
conduct in a Rule 41(b) failure to prosecute case).
[¶38.] Using this egregious standard, we have reviewed Rule 41(b) dismissals
in several decisions involving a party’s failure to prosecute a claim, and we recently
identified a series of five factors to assist circuit courts determining motions to
dismiss for failure to prosecute. We see no principled reason why these factors
could not be just as helpful to courts considering a motion for dismissal as a
sanction:
(1) [W]hether the plaintiff had received notice that further
delays would result in dismissal; (2) whether the judge
adequately assessed the efficacy of lesser sanctions before
dismissal was ordered; (3) whether the conduct of the party or
the attorney was willful or in bad faith; (4) the degree of actual
prejudice to the opposing side or the substantial likelihood of
future prejudice in the event of further delay; and (5) the merits
of the plaintiff’s claim for relief.
Olson v. Huron Reg’l Med. Ctr. Inc., 2025 S.D. 34, ¶ 40, 24 N.W.3d 405, 417 (citation
omitted).7
[¶39.] Although these factors are not expressly referenced in the circuit
court’s analysis, many of its findings implicate the factors. For instance, the court
7. We use three standards to review a Rule 41(b) dismissal. Arrowsmith, 2025
S.D. 70, ¶ 12, 30 N.W.3d at 20 (citing Olson, 2025 S.D. 34, ¶ 17, 24 N.W.3d at
412). “[W]e review the circuit court’s findings of fact under the clearly
erroneous standard, while we apply the de novo standard when reviewing its
conclusions of law.” Id. (alteration in original). “We then evaluate ‘the circuit
court’s ultimate decision to dismiss’” for failure to comply with Chapter 15-6
for “‘an abuse of discretion.’” Id. (citation omitted). “An abuse of discretion is
a fundamental error of judgment, a choice outside the range of permissible
choices, a decision, which, on full consideration, is arbitrary or unreasonable.”
Id. (citation omitted).
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made specific findings that Sortland had violated Rule 45 on multiple occasions and
that he had “blatantly and in bad faith disregarded” the rules. These findings are
supported by the record, particularly given Sortland’s outright failure to
acknowledge and take responsibility for his actions, paired with an implausible
textual interpretation of Rule 45(b) that would have allowed him to bypass judicial
supervision of the court’s subpoena power.
[¶40.] And though it is true that the circuit court had not addressed the prior
alleged Rule 45 violations, Sortland had been advised of multiple instances of
noncompliance and even corrected some subpoenas. And these were not isolated
instances, but rather occurred throughout the pendency of the case to varying
degrees.
[¶41.] The circuit court expressly recognized the prejudice to opposing
counsel and to Delores—a nonparty—caused by Sortland’s decision to disregard the
motion to quash and proceed to surreptitiously obtain her privileged documents.
The court did not, however, consider the efficacy of other, less-drastic sanctions, and
its specific determination that dismissal was necessary to prevent further abuses by
Sortland overlooked the option of simply revoking his pro hac vice status and
ending his involvement in the case. Interestingly, GFLP’s motion to dismiss sought
less-serious sanctions as an alternative remedy, but Sortland, himself, did not seek
alternate, less-drastic sanctions, at least not initially.
[¶42.] Instead, in what appears to have been an all-or-nothing strategy,
Sortland categorically denied doing anything wrong. The idea that the remedy of
dismissal is too harsh because it unfairly punishes Michael for Sortland’s conduct
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was first introduced in the motion to reconsider, but the arguments offered at the
April 2025 hearing again focused on claims that Sortland had not violated any rules
and that Michael was entitled to Delores’s medical records in any event.
[¶43.] The arguments by substitute counsel on appeal are similarly focused
on claims of insufficient findings under Rule 41(b), GFLP’s lack of standing for the
motion to quash, and Sortland’s lack of culpability. The lesser-alternatives
argument is most developed in Michael’s appellate reply brief. Even though the
argument was not initially presented to the court and was slow to develop, the
circuit court should have considered other, less-drastic alternatives to dismissal
with prejudice.
[¶44.] But this does not necessarily mean that the circuit court abused its
discretion. In this regard, the court’s decision to select the exceptional sanction of
dismissal must be viewed in the context of this particular case which is, itself,
exceptional.
[¶45.] To begin, it is difficult to overstate the significance of Sortland’s
conduct as he attempted to obtain Delores’s medical records. An attorney issuing
subpoenas does so in the name of the court. SDCL 15-6-45(a). As one court astutely
observed, the injury occurring from “misuse of the subpoena power is not limited to
the harm it inflicts upon the parties.” Coleman-Hill v. Governor Mifflin Sch. Dist.,
271 F.R.D. 549, 552 (E.D. P.A. 2010) (citation omitted). Rather, misuse of the
subpoena power also “compromises the integrity of the court’s processes.” Id.
(citation omitted). Indeed, the subpoena must inform the recipient that they should
“treat this document as [they] would a court order” in bold, capitalized typeface.
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SDCL 15-6-45(a). Along with the authority to act in the name of the court, comes
the court’s power to judicially enforce the attorney’s request through contempt. See
SDCL 15-6-45(f).
[¶46.] Here, Sortland misused this authority and overlooked the solemn
responsibility accompanying it. But perhaps even more problematic, he refused to
accept responsibility. Indeed, when confronted, Sortland presented poorly
constructed arguments that marginalized his misconduct by stressing his client’s
strategic need for discovery, the medical records’ relevance, and his view that others
failed to properly contest the subpoenas. Acting under the auspices of the court, he
issued subpoenas for Delores’s private medical information and obtained it without
advising the other parties (including the party who had specifically objected and
moved to quash), and without telling the custodian of the records that there was an
objection—in fact, LeBlanc’s affidavit stated Sortland’s office related the opposite.
Viewed in its totality, Sortland’s conduct satisfies Rule 41(b)’s egregious standard.
[¶47.] The circuit court noted its reluctance “to dismiss actions and strip
parties of their right to have things litigated because of errors by their counsel” but
it also considered its aversion in the particular context of this case:
[B]ut when I weigh that risk against the idea that there have
already been previous litigations with this family and with these
exact same people, I have less of a concern that I am stripping
Michael Gibson of some inherent right that he has to move this
case forward.
[¶48.] Michael argues the circuit court should not have considered his prior
litigation because “[n]o evidence was submitted . . . concerning such litigation, the
last of which was terminated in 2016.” But this assertion is not entirely accurate.
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While it is true that the court did not receive evidence at either the March or April
hearing, counsel for Greg and Joan submitted an affidavit that explained the prior
litigation, which was also described in our 2016 published opinion. See Gibson,
2016 S.D. 26, 877 N.W.2d 597. And, beyond this, we note that despite Michael
engaging substitute counsel on appeal, his arguments remain largely unchanged
and detached from a candid acceptance of responsibility.
[¶49.] But the full range of the circuit court’s careful exercise of discretion
extended into the subsequent motion for reconsideration. Though the court was not
required to hold a hearing on Michael’s motion to reconsider, it did so because it
“didn’t want [its] displeasure at Mr. Sortland to be unfairly reflected on his client[.]”
The court stated it wanted to assure itself that it had not “acted with emotion as
opposed to with reason[.]” After hearing the parties’ argument, the court offered a
transparent view of its introspection:
The [c]ourt granted a hearing on a motion to reconsider because
the [c]ourt had felt a large amount of anger at Mr. Sortland for
his manner in conducting the hearing on March 11, to his
response to the [c]ourt, to his cavalier attitude, and for the
things that [the court] added when [the court] supplemented the
record here today which is the idea that Mr. Sortland seems to
blame everybody else in the world for conspiring with the
defendant here Greg Gibson[.]
[¶50.] And with the benefit of the passage of time following the March
hearing and further reflection, the circuit court concluded it had made the correct
decision to dismiss the case. The court explained that Sortland’s conduct “was
dishonest, it was egregious, and then on top of all of that Mr. Sortland came to court
and said it was everybody else’s problem and everybody else’s mistake[.]” In our
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view, the decision to dismiss the case as a sanction was within the range of
permissible choices.
Conclusion
[¶51.] Based on the severity and bad faith violation of the solemn authority
granted to an attorney by Rule 45, dismissal under Rule 41(b) was not an abuse of
discretion. We affirm the circuit court’s dismissal and denial of the motion to
reconsider.
[¶52.] JENSEN, Chief Justice, and DEVANEY, MYREN, and GUSINSKY,
Justices, concur.
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