Block v. Drake , 2004 S.D. LEXIS 80 ( 2004 )

SABERS, Justice

(concurring in result).

[¶ 30.] It is neither necessary nor wise to reach Issue 1 because, in reality, this is an action to enforce the 1998 judgment, not to “open” or “re-open” it.

[¶ 31.] Even the majority opinion acknowledges that “the current factual situation rendered the Drakes in non-compliance with the 1998 judgment” and “the tribal survey determined the actual location of the improvement was on tribal land, essentially establishing the Drake’s noncompliance with the 1998 judgment.” This is an action to enforce the 1998 judgment, not to “open”, nor to “re-open” it. Since the Drake’s actions are out of compliance with the judgment, it is their actions which need to conform to the judgment, not vice versa.

[¶ 32.] We should not bend the law out of shape just because the parties misstate the issues. Therefore, I concur on the merits on Issues 2 and 3 only.