Jacquot v. Rozum
2010 SD 84
S.D.2010Background
- Jacquots experienced chronic basement water problems in their Mitchell home, including mold and structural moisture intrusion tied to poorly installed drain tile and waterproofing; sellers were James and Karen Rozum and bundled agents Mitchell Realty and Peschong; disclosure statement regarding water problems was completed inconsistently and amended after buyers showed interest; purchase occurred December 26, 2006 with an “as is” sale and no inspection contingency; plaintiffs incurred over $60,000 in basement waterproofing after purchase; trial court granted summary judgment on fraud-based claims and punitive damages, proceeding to trial on failure-to-disclose and fiduciary-duty claims; Jacquots sought punitive damages against all defendants, which the court certified as final under Rule 54(b) but later concluded on appeal that jurisdiction was lacking for the punitive-damages issue due to timeliness; jury awarded damages to Jacquots against Rozums, but defense verdicts for Peschong and Mitchell Realty; on appeal, the remaining issues concern punitive damages certification, jury instructions on fiduciary duty, and failure to submit fraud claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the punitive damages summary-judgment issue was properly appealed | Jacquots argue timely appeal under 54(b) | Peschong asserts untimely appeal | No jurisdiction; appeal untimely via 54(b) certification |
| Whether Rule 54(b) certification was proper | Certification lacked a reasoned statement | Certification valid under Rule 54(b) | Certification improper; abuse of discretion |
| Whether the fiduciary-duty jury instructions were proper | Jacquots sought agent fiduciary duties; instruction error alleged | Court properly used existing SD case-law language | No reversible error; proper instructions used |
| Whether fraud/fraudulent-misrepresentation claims should have gone to the jury | Judicially added fraud claims against Peschong and Mitchell Realty | Fraud claims not raised by pleadings or consented to | Not error; no submission due to lack of consent and earlier summary judgments. |
Key Cases Cited
- Page v. Preisser, 585 F.2d 336 (8th Cir. 1978) (addressed Rule 54(b) final-judgment certification timing)
- Weisser v. Jackson Twp. of Charles Mix, 2009 S.D. 43 (S.D. 2009) (abuse-of-discretion review for Rule 54(b) certification)
- Davis v. Farmland Mut. Ins. Co., 2003 S.D. 111 (S.D. 2003) (citation regarding Rule 54(b) standards and final judgments)
- Allen v. Briggs, 2010 WL 3196218 (Ala. Ct. App. 2010) (support for Ninth Circuit approach on challenging 54(b) certification)