*1 CO., ARCON CONSTRUCTION Plaintiff,
INC.,
and Appellee, Inc.,
Hardrives, Plaintiff PLANT DAKOTA CEMENT
SOUTH Commission, Plant and Cement Appellants.
Defendants
No. 15514. of South Dakota.
Supreme Court 21,
Argued May 1987. Sept. 1987.
Decided Schmidt, Schroyer,
Gary F. Colwill Barnett, P.C., Pierre, Colwill, plain- & appellee. tiff Johnson, Banks, Wayne F. Gilbert of Johnson, Huffman, Monserud, & Colbath P.C., appel- Rapid City, for defendants and lants.
SABERS, (on reassignment). Justice (Cement Plant The South Dakota Cement Plant) appeals judgment from a for Har- drives, (Hardrives), highway con- Inc. general con- struction subcontractor (Ar- tractor, Inc. Arcon Construction con). We affirm.
FACTS of contract Arcon commenced a breach April Plant on upon This action was based 1980. timely delivery of failure to make re- quantities of cement Arcon had certain projects quired highway paving on two season. for the 1978construction scheduled cement, Arcon was supply Without projects perform work on unable sea- and 1980 construction until the 1979 sons. Hardrives, subcontractor, like
Arcon’s due to the costs suffered increased Although did not use delays. work, Hardrives’ for its bituminous cement *2 peals interlocutory from the delayed because it could not order of the work was again until Arcon fin- trial court. This court asphalt the shoulder remanded for build paving roadway. a new trial on and also ished the directed complaint Arcon be allowed to amend its During period construction was de- claim items. Arcon additional by layed, prices for materials used Har- Constr. Inc. v. South Dakota Cement In substantially. increased a letter drives Plant, (S.D.1986) (Arcon 382 668 N.W.2d 5, 1980, May to Arcon dated Hardrives II).1 requested be amended that its subcontract clearly requires Our initial decision expected the increased to cover costs damage on question.” “retrial We responded delays. due to the Arcon incur interpret this to mean a retrial of all of 28, 1980, May in by letter dated which the elements claimed Ar- pay offered Hardrives an addi- Arcon con, including provided those for in the change order to the tional complaint. amended addition, requested Arcon subcontract. In reverse with directions to allow [W]e that furnish evidence of the Hardrives complaint amendment of the as embodied projected cost of materials so increased upon retrial, in Arcon’s motion.... all could make a claim for that Arcon those the elements of claimed Ar- change provided: costs. The order further including provided con those for in the partic- If the Subcontractor chooses to complaint, may properly amended con- ipate claim the Contractor makes sidered. against Department the South Dakota II, 382 Arcon N.W.2d at 672. Transportation or the Dakota Ce- South Plant, ment and if the Contractor does Thereafter, 14, 1986, on March Arcon recover, $12,500 will be retained filed another motion to amend the com- Contractor consideration this plaint among things again which other change order. sought to add party plain- Hardrives as a court, construing tiff. The trial our deci- By change order, virtue of this sion in Arcon stated: assigned its claim the Cement Plant Supreme Court ... has made it $12,500) Arcon, (damages exceeding [T]he included, clear ... that Hardrives is bring Arcon that claim on behalf they essentially liability have directed 4, 1982, of Hardrives. On October Arcon my opinion they clearly ... have allowed moved to amend its to include party through Hardrives to become a subcontractor, of its Har- Supreme Arcon ... Court has direct- drives. The trial court denied the motion. liability ed in favor of Hardrives and jury The case to trial and the the Cement Plant. found in appeal, favor of Arcon. On this liability affirmed the determination (Pretrial Proceedings of March 1986 at but reversed and remanded for retrial on pp. 15 and damage issues. Arcon Constr. v.Co. granted The trial court Arcon’s motion as Plant, South Dakota 349 N.W.2d addition, April on 1986. In (S.D.1984) (Arcon I). the trial court in essence directed
Thereafter, 9, 1984, August on in favor of Hardrives without consideration assigned moved the claim be included of the statute of limitations and allowing Hardrives as a defenses asserted Cement Plant. Ce- part This motion argued of Arcon’s motion to ment Plant that Hardrives had no complaint, Arcon, further amend the assign which includ- cause of action to valid ed claims assuming assignment for certain other even some had been caused to Arcon. ap- Prior to retrial there were made. (Arcon III), subject
1. Dept.
deals with this
matter and
Constr.
South Dakota
(S.D.1985),
Transp.,
jury awarded wrongfully Cement Plant’s actions $33,042.05increased was the cost burner *3 delayed Arcon, which caused Hardrives $12,500 asphalt fuel less the $33,042.05 damages Arcon, just from not already from This had received $12,500. must Since Arcon Har- (Arcon IV) appeal court’s follows the trial drives, all of Arcon can claim these dam judg- Plant’s for denial of Cement motion ages ($33,042.05)against Plant, Cement notwithstanding pertain- the verdict ment just the already which was includ $20,542.05 ing award Hardrives. to ed. Cement Claims simply The allowed trial court Arcon, prove against directly its claim Plant claims that it is immune Cement against wrongdoer, the brought by suit one the Cement Plant. delay from a This buyer simply and not a was another method of who is not a U.C.C., presenting under the and that the balance of claim contract Arcon’s applicable Essentially, claim barred U.C.C. the Cement Plant. statute of limitations. this was more like a bifurcated on this damages. issue of No these harm was
Decision
done.
received a
Cement Plant
fair trial.
Now,
asking
it
is
be relieved of
I,
sovereign
In
we held
Arcon
that
despite
result of that fair trial
the fact that
immunity does not bar a breach of contract
parties
rights
substantial
the U.C.C.
under
15-6-61. We refuse that
SDCL
II indicated
Plant. Arcon
the trial
affected.
request;
produce
to do otherwise would
court should allow Arcon to amend its
$20,542.05
gross
take
injustice.
It would
pleadings to include other
dam
additional
give
from
it to
Hardrives and
the Cement
ages
by Arcon.
The trial court
Plant.
be an undeserved
This would
ruled that Arcon II entitled Arcon to add
“windfall”
the Cement Plant at the ex-
party.
as a
The
dis
trial court
posed
pense
damaged party.
of
Cement Plant’s
and statute
arguments
of limitation
based on its under
Judgment affirmed.
II,
standing of Arcon which was that Har-
name,
in its
drives had a claim
own
which
JJ.,
MILLER,
MORGAN and
concur.
very beginning
claim related
back
Although
lawsuit.
not clear that
HERTZ,
WUEST, C.J., and
Circuit
II intended to have
added
Arcon
Judge, dissent.
party,
as a
it is clear that
it intended
HERTZ,
Judge, sitting
Circuit
“of all of the
retrial
elements of
J.,
HENDERSON,
disqualified.
including
provided
claimed
those
complaint.”
for in the amended
Arcon
WUEST,
(dissenting).
Chief Justice
supra
at 672. This was
retrial on dam
holding
The
misconstrued
trial court
our
ages only
upheld
because
had been
opinion
majority
The
furthers
Arcon II.
Supreme
Court in
This
that error.
of the case2
became the law
and eliminates
immunity, privity,
by Judge
The
statute
limita
Arcon II decision authored
urged by
tion
Hertz
court’s
defenses
reversed the trial
interlocu-
445,
(8th Cir.),
denied,
2. See Dakota Block Co. v.
Cas. & Sur.
F.2d
934,
cert.
464 U.S.
Western
450
Co.,
339,
(1967);
(1983);
82 S.D.
Our delay join claim for dam- While joinder of Hardrives’ “[H]ar- not, may not be an in the ages. also as stated the trial drives intervenor It did particular court, essentially strict sense of the word in this direct position damages against (p. Plant. “Hardrives’ action[.]” that, remand, merely may compared on this lawsuit well be to that II indicated retrial, seeking permissively purposes the trial of an intervenor existing joint Arcon to amend its enter an lawsuit because of court should allow *4 questions (p. of fact and law.” pleadings to include other additional dam- On Except page Arcon cites ages by Arcon. Sweetman Construc- suffered State, $12,500 pay as tion Inc. mobilization, (S.D.1980) “[Wjhile delay and states: the facts increased analogous damages damages by may directly not be to the situa- were not case, tion before the Court this it is Arcon. certainly expression an of this Court’s ra- recog- trial did was first What the court parties tionale to allow the real in interest nize that Arcon’s motion to amend the litigate a cause of action.” request amended included a simply procedural no join party It is clear there was Hardrives be allowed allowing Hardrives in as a direct plaintiff. Since Arcon’s amended com- basis damages plaint damages party to the retrial. The trial outlined Hardrives’ and reading being solely on of damages thus court relied a flawed since these were Hardrives,” of Arcon II and did not consider Cement “claimed Arcon on behalf defense mandating Plant’s statute of limitations the court reasoned that we party plain- joinder as a joinder of Hardrives’ claim virtue of our procedural a basis on language in The trial court re- tiff or determine join. Plant’s statute of which Hardrives could fused to hear Cement limitations defense to admit opinion in Arcon II Similarly, this court’s damages re- party Hardrives as a a directed verdict for Har- did not mandate trial. of The trial court’s determination drives. liability to Hardrives result- liability Plant’s to Arcon had al- Cement Plant’s Cement application litigated solely from a misconstrued ready been and had been affirmed ed II, in fact no only holding of the in Arcon in Arcon I. What remained was a holding Plant di- retrial on basis exists for reasonable fact, rectly to Hardrives. due Arcon. Confronted with this liable appar- we reasoned since had Arcon sued Cement Plant ently joinder mandated of Hardrives’ claim resulting from the breach of their sales II, “essentially” in Arcon we had therefore however, Hardrives, has never contract. liability directed for Hardrives it theory recovery on which established a against Ce- could maintain a direct action Clearly, of contract is ment Plant. breach issue cause of action available to not a litigated. Relying Hardrives was never privity of contract be- drives. There is solely reading on its at Plant and Hardrives. tween Cement conclusion of 1986 retrial on obligations arising out jury Ordinarily, trial court instructed the that the question only to those with of Cement Plant’s to Har- of a contract are due made; cannot
whom it is a contract be incentive Hardrives to tender person party performance enforced a who is a under the subcontract. Nei- it, privity except to it or in under a ther or this other document in the or, party real interest statute under professes record circumstances, by third-party certain $33,042.55 for all of the in increased costs rule, general beneficiary. As a whenev- performance that Hardrives would incur wrong upon is founded er a breach subcontract, by performing under the contract, plaintiff suing respect Arcon has asserted never that there was an party privy thereof must or be agreement concerning oral indemnification contract, and none but a to a con- by Finally, proof there is no in the right recover tract has assignment record of an of a cause of against any parties for its breach action Hardrives to Arcon. Arcon tacit- thereto. It has been said that he alone ly page admits this fact on 7 of its brief promise to whom a is made or in whom (Trial agreement “The Ex- when states: legal its interest vested can enforce 132) might compared hibit even an performance complain or of its breach. assignment of a cause of action because it Am.Jur.2d, Contracts, (1964). § many assign- has of the attributes of an Even the trial court indicated it believed occur, assignment if ment.” Even an did defense, privity Cement Plant had a valid (which Cement Plant’s defense but the Court indicated it would not be able litigated) preempts never a valid cause of seemingly to reach the issue since Arcon II directly Hardrives whether made called for a directed verdict in favor of assignment or Arcon on from Har- Hardrives. *5 drives. appeal, On Hardrives addresses the mer- The trial allowed the Hardrives’ its of defense raised damages claim at Arcon’s retrial mak- argues Plant. Hardrives that Sweetman ing party plaintiff a direct- Construction, supra, authority for the ing majority a for verdict Hardrives. The proposition privity requirement ruling yet affirms the trial court’s offers apply should not in this case. In Sweet- explanation no as to how it can allow the man, specifically we held SDCL 31-2-34 trial court make Hardrives a direct gives standing a subcontractor to sue the damages give retrial and a directed Department Transporta- Dakota South merely verdict on our decision in based performed pursuant tion for work to a con- Arcon II. expressly approved struction subcontract Sweetman, however, the State. did not majority opinion posi- rests its on the goods involve contract for the sale of or a tion that it form to will allow rule over stranger lawsuit to that contract. majority substance. The first declares that agreed indemnify only Not is there no basis for Hardrives $12,500. increased costs above This court proceeding directly against Cement Plant then reasons since Arcon could therefore (which here), was allowed to occur there is behalf, seek these on its own recovering also no basis for Arcon Har- there was harm the trial court allow- Arcon cannot recover ing by admitting the Hardrives claim Hardrives’ for itself ex- because drives as a cept payment, Hardrives’ were not finding There was no the trial court all, that Arcon First of Hardrives never fact, damage any judgment or all a matter received from Ar- —as Yet, agree clearly con. Nor did Arcon ever evidence shows otherwise. to indem- nify majority pins Hardrives for all of the its decision on that state- subcontrac- majority by stating tor’s increased costs. Trial ment. The Exhibit 132 concludes change merely origi- was order from the Cement Plant received a “fair trial” when nal promised subcontract that reality an additional there was never trial on the merits between Cement Plant and Har-
drives. despite
The court affirms in this case leading appeal
remarkable events to this
and maintains that to do otherwise would
result in an underserved “windfall” Simply pointing out that supply breach of its con- eventually stranger
tract affected a
contract, however, does not establish the
stranger’s right as a matter of injected
law. Hardrives into the re- from a decision based not on» law, on a determination of the facts and the solely
but from a decision based on an interpretation
erroneous of our decision in I would reverse. hereby
I am authorized to state that HERTZ, Judge, Circuit joins Court Gormley, Grant E. Gen., Atty. Asst. this dissent. Pierre, plaintiff appellee; Roger A.
Tellinghuisen, Atty. Gen., Pierre, on brief. Richard Braithwaite of Braithwaite Law Offices, Falls, Sioux ap- for defendant and pellant.
HENDERSON, Justice. Dakota, STATE of South Plaintiff PROCEDURAL BACKGROUND Appellee, *6 charged Defendant was for the third time, Driving While Under the Influ- Beverage (DWI). ence of an Alcoholic He ASPEN, William Frances Defendant was convicted via enhancement of a class Appellant. felony. Thereafter, six he filed a state No. 15612. corpus alleging habeas that one of underlying charges DWI was constitu- Supreme Court of South Dakota. tionally infirm charge as the record of that Considered on May Briefs 1987. pleaded guilty reflected he without benefit of counsel. The granted habeas court De- Sept. Decided 1987. fendant’s Writ of Corpus Habeas and re-
manded the case to the trial court for re- sentencing. alleges Defendant the trial judicially court erred when it noticed the corresponding criminal file to Defendant’s earlier DWI conviction from which the presence counsel, thereof, or waiver issue comes. judicially Included noticed doc- of Counsel was a Waiver criminal file signed by ument Defendant. We reverse on the basis of a violation of the double jeopardy clause.