S.D. SC denies petition in case of accidental Russian roulette death

By Jessica M. Karmasek | May 10, 2012


PIERRE, S.D. (Legal Newsline) - The South Dakota Supreme Court last week upheld an order denying the petition of a man who says witnessing his friend's Russian roulette-style death lead to his post-traumatic stress disorder diagnosis.

Blair Hamilton was drinking in his home with his friend, Lyndon Hart, and another person on Oct. 19, 2009.

That night, in a simulated game of Russian roulette, Hamilton put a gun to his head and accidentally killed himself.

Hart, who lived on Hamilton's large ranch in Harding County and worked for Hamilton, alleges that he was diagnosed with PTSD in February 2011 after witnessing his friend's death.

Soon after, he consulted with an attorney and in May 2011, an intern in the attorney's office sent a letter to the attorney for Hamilton's estate, requesting information about the estate and the incident in order to assess a potential claim against the estate.

The personal representative filed a verified statement for informal closing of the estate on June 2, 2011.

Counsel for the estate responded to Hart's attorney on June 3, 2011 that all claims against the estate were barred under SDCL 29A-3-803.

In August 2011, Hart filed a petition to extend time to file a creditor's claim against the estate under SDCL 29A-3-804(c). Specifically, Hart wanted to file an "unliquidated claim against the estate of Blair Hamilton for the negligent and intentional infliction of emotional distress caused by the actions of Blair Hamilton on the night of October (10), 2009."

After a hearing, the Harding County Circuit Court denied the petition. Hart appeals the denial.

Also, after an appellate briefing, the estate submitted a motion to dismiss.

The estate argues that under a previous Court ruling, Geier, service of notice of appeal on all heirs is required and because not all heirs were served in this case, service was not completed.

Hart had served his notice of appeal only on the estate's attorney. However, he argues that Geier does not apply because he has not been permitted to file a claim against the estate.

Further, Hart argues that under SDCL 29A-3-804(a)(1) and (2), he is not required to serve notice of appeal on all heirs.

The state's high court, in its May 2 ruling, denied the estate's motion to dismiss for failure to serve notice of appeal.

"The appellant in Geier made the petition as an heir and as a party to the probate proceedings. Here, Hart petitioned to file a claim as a creditor of the estate. Hart is in a different position than the appellant in Geier," Chief Justice David Gilbertson wrote.

"As a potential creditor, Hart's petition is controlled by SDCL 29A-3-804(a)(1), which provides in part: 'Claims against a decedent's estate may be presented by either of the following methods... (t)he claimant may deliver or mail to the personal representative a written statement of the claim...'"

In this case, the Court noted, no claim was filed and Hart appealed from the denial of a petition to extend time.

"The personal representative was the only party that needed to be notified of an appeal," Gilbertson wrote.

As for whether the circuit court was wrong in denying Hart's motion to extend time to file a creditor's claim, the Court said it could not reach the merits of his appeal.

"The problem presented in this appeal is that no claim has ever been presented," the chief justice wrote in the nine-page ruling. "There is no sixty-day period to extend in this case."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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