LBM, Inc. v. Rushmore State Bank

GILBERTSON, Justice

(concurring).

[¶ 37] I fully concur with the majority opinion. I write only to clarify my disagreement •with the thesis of the dissent.

[¶38] The dissent argues the trial court overlooked the fact that LBM had leasehold rights in the property, even if it no longer had title or ownership rights. The dissent then relies upon SDCL 43-32-14 as a basis to continue LBM’s property rights up to the time of the sale of the realty and personal property from First Interstate to Plummer.

[¶ 39] We have consistently held that failure to cite supporting authority waives an issue. SDCL 15-26A-60(6); see Werner v. Norwest Bank South Dakota, 499 N.W.2d 138, 141 (S.D.1993). LBM never cited to SDCL 43-32-14 as a basis for a property interest. However here, LBM must be forgiven as it never argued it had any property interest based on its lease. LBM consistently argued that its property rights arose from the security interest it gave Rushmore State Bank. LBM defined the scope of its appeal as follows:

LBM agrees that the single issue for the Court is whether LBM had a financial interest in the release of the valid and legally binding security interest that RSB held in the personal property located on the LBM premises. (LBM’s Reply Brief at 1, emphasis added).

[¶40] In addition, it is clear that SDCL 43-32-14 cannot apply as it deals exclusively with leases of real property. Herein, the subject matter of this appeal is personal property.