September 30th, 2025 — By — In Articles
South Dakota Supreme Court to Consider Attorney Fee Award in Condemnation Case
OCA member Clint Sargent of Sioux Falls, South Dakota will be arguing on behalf of his landowner client before the South Dakota Supreme Court on October 9, 2025, during the Court’s October term being held at the University of South Dakota Knudson School of Law.
The case, City of Sioux Falls v. Johnson Properties LLC, was tried to a jury in November 2024. The City had instituted a condemnation action against Johnson Properties to acquire a small parcel of land for the reconstruction of an arterial street intersection. The landowner operated a neighborhood dive bar and grill on the corner lot with access to both arterial streets. The City’s project completely eliminated access to one of the abutting streets and rerouted the other arterial street such that the bar’s only access point was at the end of a cul-de-sac.
The City claimed the landowner’s damage as a result of the City’s project was $51,674. The landowner’s appraiser testified the damage was $405,000. The jury awarded $382,600 plus pre-judgment interest of $44,556. Sargent asked the trial court to award the landowner a reasonable attorney’s fee under SDCL § 21–35–23, which requires the court to award a reasonable attorney fee if the final judgment obtained is 20% greater than the condemnor‘s final offer. The trial court concluded that a reasonable attorney fee could not be determined simply by looking at the number of hours worked by Mr. Sargent on the case. The court stated:
“While the case may have appeared simple, it was not. It involved a very particular and specialized area of the law in which very few lawyers regularly practice. Landowner bore the burden of proof in a case where the spread of values between the parties was approximately $700,000.00, making the possible outcome unpredictable and selecting an effective strategy crucial. It is evident that a great deal of strategy and skill was employed in securing experts and other witnesses prior to trial and then presenting their testimony at trial in the best way to buttress Landowner’s theory of the case, while not overburdening or boring the jury. The exhibits selected for trial were used in an effective manner that indicates a great deal of thought, strategy and skill. Meierhenry Sargent LLP spent 137.2 hours working on this case. However, the time expended is not – standing alone – a fair gauge of the work put into the case. It is evident that counsel’s skill and experience has led to significant efficiency in preparing for and presenting a case at trial.”
The trial court ordered the City pay attorney’s fees in the amount of $139,724.60 based on a finding that a contingent fee based on a percentage of the “lift” – the amount awarded at trial above the condemnor’s offer – was the most common fee arrangement for condemnation cases in South Dakota and the surrounding region.
The City has appealed the attorney fee award arguing that the trial court abused its discretion by not simply awarding an hourly fee.
