Centrol, Inc. v. Morrow

CENTROL, INC., Dakota, of South Appellee,

Plaintiff and MORROW, Parker, Lynn Kevin Keith Maass, Inc., Agronomics, Pro, Crop

Inc., Patrol, Inc., Crop Inc., Agritech, AG, Inc., Pro Doe John and XYZ Com- pany, Appellants. Defendants and

No. 17417. Supreme Court of South Dakota.

Argued Dec. 1991. Aug. Decided 1992. Rehearing Sept. Denied Fox, Paul, Minn., F. St.

Edward Thomas Watertown, Burns, plain- co-counsel for F. appellee. tiff and Coester, Milbank, E. for defen- William appellants. dants and SABERS, Justice. challenge non-competi- provisions non-disclosure of their

tion and award- employment contracts same. ed breach of

FACTS (Centrol)

Centrol, Dakota is Inc. of South consisting cooperative Dakota a South custom- cooperatives. provides It member consulting crop services ized soil through employees known as farmers crop consul- “crop These consultants.” develop variety valuable wide tants protect To information. and confidential will, good and customer this information to ex- required crop consultants Centrol with non- employment ecute provisions competition and non-disclosure Centrol Cen- restricting competition with Responsibility Primary Area of trol’s period year. (APR) for a one Kevin Mor- September Prior (Defen- row, Keith Parker Maass and Lynn crop as dants) employed by Centrol simultaneously- through consultants. Defendants former Centrol customers obtained September 6, resigned from Centrol on agreements. breach of the period approximately For five On October the trial court date, they to that prior regularly months granted enjoined Centrol’s motion and De- disparaged Centrol to their customers and continuing any competition. fendants from of their intent to form informed them com- order, Upon issuance of this Defendants peting companies. resigning Before from of compet- transferred all their stock the Centrol, they solicited Centrol’s customers ing corporations businesses to either the advantage. for their own Defendants also spouses. to their This resulted in the proprietary used Centrol’s confidential and records, lists, business spouses being shareholders, customer revenue the sole offi- reports, patron financial statements and corporations. cers and directors of these survey financing forms to obtain bank to knowledge These had no experi- women competing start and run their businesses. crop ence in consulting the business and They continued to use this information in employed were full jobs time in unrelated operation the of their businesses after re- corporations. Following to these these signing. resigning, Prior to Defendants transfers, Defendants, through the their Platz, consulted with Bill former a Centrol spouses corporations, and the continued to employee had who evaded Centrol’s non- service of prelim- customers violation the competition agreement injunction and court inary injunction. In supplemental proceed- use proxies. of third This consul- 30, ings, 1989, on October court found tation with Platz was to obtain the same these stock transfers and related activities legal in hopes using a counsel of similar transparent attempts to be to evade the strategy. part evasion As this strategy, of preliminary injunction. The court found each separate corpora- Defendants formed contempt injunc- Defendants in of first September tions after tion, obey ordered them to the mandates of Defendants were three seven preliminary injunction and warned crop employed by consultants Centrol. any activity them that further such would They agreed simultaneously resign with- result sanctions. fact, and, out notice to Centrol affirma- tively Centrol misled as to their intention to Despite Preliminary Injunction of Oc- stay. departure Their from Centrol came Supplemental tober 13 and Order for at a consulting critical time—when con- Preliminary Injunction of October De- tracts about to be renewed for the provide testing, fendants continued to soil following crop year. This reduced Cen- consulting crop and other related services. by nearly trol’s consultant staff one half. They attempted conceal this misconduct Immediately following resignations, their by providing incomplete respons- false and consulting Defendants obtained contracts discovery requests by es to Centrol. with majority prior of their customers. The case was tried to court and a September On Centrol sued judgment was entered in of Centrol. favor claiming them breach of non-disclosure and compensatory The court Centrol awarded agreements, non-competition misappropria- $201,073.76; secrets, punitive damages tion of fiduciary trade breach duties, conversion, punitive $91,848.18; and $156,- for dam- of attorneys fees date, ages. same On the Centrol also filed injunctive permanent 054.88 and relief.1 seeking temporary injunction motion claim the court erred in: directly restrain Defendants from or indi- (1) concluding non-competition it, rectly competing using with from Cen- agreements and non-disclosure were val- trol’s confidential business informa- id, contacting any tion/trade secrets and from secrets; enjoined compet-

1. The court fidential business information/trade ing September immediately with in the return Centrol APR until ordered Defendants to releasing using Centrol. and from Centrol’s con- such records to punitive Centrol, (2) began working dants awarding were lim- misappropriation period year trade ited to a of one following termi- secrets, nation to the APR. Defendants do not restriction, the time challenge claim (3) determining the amount of that the fail for lack of consid- (a) compensatory damages, eration and the APR does not meet the (b) damages, punitive “specified area” requirement of SDCL 53- (c) fees, attorney incapable it is 9-11 as of determination (4) jointly severally lia- holding them agreements. from the ble, Brake, In American Rim & Inc. v. (5) preliminary injunction, issuing the Zoellner, (S.D.1986), 382 N.W.2d 421 this supplemental preliminary injunction and upheld non-competition a agreement. court permanent injunction, and in agreement The American met the time (6) pretrial denying their motion for a and area restrictions of SDCL In 53-9-11. jury trial. American, argued the employees that the court must also non-competition find the 1. VALIDITY OF NON-COMPETITION agreement reasonable before it could be AND NON-DISCLOSURE rejected argument enforced. We that stat- AGREEMENTS. ing: in claim the court erred Defendants employers 53-9-11 em- SDCL allows concluding non-competition and that the ployees exactly of to make the kind supported agreements were non-disclosure agreement entered into between Ameri- by and valid under SDCL 53- consideration defendants, can and without a further of law are reviewed de 9-11. Conclusions showing of reasonableness. to determine if there is a mistake of novo argue The the Id. at 424. Defendants that by given no deference this law “are APR out- is undefined and undefinable and Dept. appeal.” v. court Permann of statutory language of 53-9- side the SDCL D., Labor, Unemp. Ins. exception the to reason- American (S.D.1987). The found that the ableness. trial court non-competi enforceability The of and known to APR was not defined governed by agreements is SDCL 53- tion Defendants, them- that Defendants 9-11, which preparation in the of participated selves an employee agree An with em- maps used to define it. employment at time of at ployer above, non-competition As noted not to any during employment time his agreements were executed after Defen- indirectly in the engage directly or same These began working for Centrol. dants profession as that of his em- business versions of simi- agreements updated were exceeding ployer any period not two agreements lar between of years from the date termination American, Centrol, In Inc. of Webster.2 existing to cus- agreement and not solicit non-compe- signing of new we held that specified employer a tomers of the within already employed agreements tition while county, city specified or other area light did fail for lack of consideration not years any period exceeding two not 424. at of SDCL 53-8-7.3 Id. agreement, the date of termination of the carry employer if the continues to on a specific' argu no Defendants make therein. like business contesting the any authority ment cite nor portion of added). non-competition the non-disclosure validity (emphasis These not argument agreements. issue after Defen- agreements were executed “[A]n Centrol, Centrol, part: provides in merged 53-8-7 Webster with 2. Inc. of Centrol, Brookings writing may Inc. of S.D. be altered Inc. of to form A contract agreements signed writing consider- early were without new these contract 1987 and Centrol, of S.D. ation[.] Defendants with Inc. supported by authority briefed and is con tracts with Centrol. In. Sys 1st American tems, Rezatto, (S.D. sidered abandoned.” Drier v. Great Inc. v. 311 N.W.2d 51 1981), Co., prior American Ins. a case adoption decided (S.D. 1987); Act, Honeywell, this see also court stated: Shaffer Inc., N.W.2d if protects Even the contract information duration, Since the area and consideration secret, is technically which not a trade it 53-9-11, are valid under SDCL 53-8-7 and clearly parties reveals the intent of the non-competi the court’s conclusion that the create a relationship. confidential A tion and non-disclosure relationship breach this is actionable valid was not error. even if glean Rezatto could some of the public information from sources.... We

2. AWARD OF DAMAGES. expiration hold and renewal dates, personal claim the erred customer court data and cus- tomer names and concluding they misappropriated appel- addresses within together lant’s files taken Centrol’s trade secrets in and construed violation of light (Act), express the contract’s Uniform creation Trade Secrets Act confidentiality 37-29-11, comprise a trade awarding 37-29-1 secret dam though separately even above, each item ages for such violation. As stated not rise to that level. conclusions of law are reviewed de novo.

Permann, However, 411 N.W.2d at 117. Id. at 58-59. generally, See Mid-America findings support the court’s of fact must Industries, Mktg. v. Dakota 281 N.W.2d the conclusions of law. Knodel v. Bd. (S.D.1979), reh’g rev’d on 289 N.W.2d Com’rs., etc., Cty. (S.D.1980). Although Rezatto is not (S.D.1978); Renaas, Kirkeby v. 85 S.D. precedent Act, under the it is consistent (1971). with the Act. case, 37-29-1(4) In this the court

SDCL found that Defen- only signed non-competi- dants not information, ‘Trade secret’ means includ- agreements, they tion/non-disclosure also formula, ing pattern, compilation, pro- they fully certified that had “read and [un- device, method, gram, technique pro- Manual, Policy Centrol’s which derstood]” cess, that: provides part: (i) independent Derives economic val- Two Basic Rules: ue, potential, being actual or from not 1. Don’t use confidential information to, generally being known and not personal gain. your for readily by proper ascertainable means pass along 2. Don’t such by, persons other information to who can obtain eco- someone else use; who has no work-related nomic value from its disclosure or need to know. (ii) subject Therefore, Is the are efforts that express there was an confiden- reasonable under the relationship circumstances to tial between Defendants and secrecy. maintain its Centrol. The court also found confidential and trade secret information lists, Defendants claim Centrol’s customer independent being derived not value from statements, reports, pa- revenue financial ascertainable, readily known or and that forms, survey tron soil test results and employed Centrol reasonable measures to crop consulting data do not rise to the level protect through this information use of the of trade secrets due to Centrol’s release of Policy non-competi- Manual and the crop monitoring soil test results and re- agreements. tion/non-disclosure ports cooperatives. to its member Howev- er, Act, any admit that general defendants such information Under the dissemina- proprietary was confidential and and their tion of “confidential” information would negate finding use of such information to obtain that such information con- bank However, financing competing for their businesses stituted a trade secret. was a breach of their non-disclosure con- dissemination Centrol of the confidential misappropriator’s to its unauthorized disclo- proprietary information was Therefore, under cooperatives. sure or use of a trade member secret. Rezatto, occurred general no dissemination The court did not limit the award of com- constituted a information here and the pensatory damages misappropriation to the Thus, findings the court’s trade secret. of trade It found secrets. and included of law that support its conclusions fact fiduciary duty, competi- breach of unfair misappropriated Centrol’s tion and related misconduct the award. of the Act. Un- secrets violation trade Therefore, although 37-29-3 controls as to Act, damages could be awarded to der the misappropriation for of trade se- 37-29-3. Centrol. SDCL crets, 21-3-1 is for the available remaining torts.5 THE AMOUNT OF DAMAGES. The court found that Central’s (a) Damages. Compensatory and, high, customer retention rate was erred in Defendants claim the court misconduct, for Defendants’ these custom determining the amount of would have remained with ers Centrol. mistakenly damages. Defendants assume also The court found that: 21-2-1 controls the determina that SDCL [Djespite Central’s reasonable efforts to case;4 however, in this tion clientele, the retrieve its record is clear damages for provides 37-29-3 sub- 1989-1990 Centrol suffered misappropriation of trade secrets: (See, profits. stantial lost revenues and (a) Damages ... can include both example, Plaintiff’s Exhibits 103 and by misappropriation actual loss caused 104). by mis- unjust enrichment caused Therefore, multiplied each defen- into ac- the court appropriation that is not taken against rate their re- computing actual loss. In lieu dant’s 1989 retention count spective gross 1989 revenues to determine damages by any measured other meth- method, ods, the court by misappropri- damages. Under this damages caused $201,- damages compensatory at by imposition of measured ation be measured year 073.76 for one as follows: liability royalty for a reasonable for a Compensatory 1989 Damages Revenue Name Retention Rate 76,954.75 $86,758.45 $ Morrow OO OO 65,273.84 $81,592.30 $ Maass OO ® O 58,845.17 $79,628.11 $ Parker t- CO $201,073.76 $95,000 following Defen- ing year in the computa- accept this method of We do not fail to account tion. Gross revenues it The court found dants’ actions.6 However, appears to expenses. evidence next two “at least the would take Centrol a loss exceed- that Centrol suffered show provides: breach of an For the 5. SDCL 21-3-1 4.SDCL 21-2-1 contract, arising the mea- obligation from not obligation arising from of an For the breach damages, except ex- where otherwise sure of contract, damages, except where the measure of code, by amount pressly provided is the this code, expressly provided by this is otherwise compensate all the detriment will which ag- compensate which will amount grieved thereby, could proximately whether it caused proximately caused for all the detriment anticipated or not. been have which, ordinary thereby, course of or in the likely No things, to result therefrom. would be 104, to above as referred 103 and 6. Exhibits breach of con- damages be recovered for a can court, during losses document Centrol’s the trial clearly in both are not ascertainable tract which origin. 1989-1990. their their nature and years, longer” relationship through if established not recover. Given such a findings, damages appear non-disclosure/non-competition these substantial supported manual, 29—3(b) to be in the record under policy SDCL and the is 37— 37-29-3(a). Although court erred dispositive. measuring year’s damages and in one The court found Centrol established $201,073.76, reaching its award of there convincing clear and evidence that Defen appears proof to be of a reasonable basis dants’ actions were willful and malicious damages from can which substantial be misappropriation of its confidential in inferred. Walling Big Chemical Co. v. formation and trade secrets. After deter ner, 647, 349 N.W.2d 651-52 mining culpability, relative the court con Since the measurement of is for cluded that Centrol was entitled to recover court, the trial we reverse and remand for $58,- punitive damages one-eighth redetermination from the rec $7,335.65 Pro; Parker/Crop 845.17 or from ord, rehearing, or on the trial court’s $76,954.75 $19,238.69 one-quarter of discretion. M M Contracting & v. Mid Morrow/Agronomics; from 100% Homes, Inc., 223, western 334 N.W.2d 225- $65,273.84 Maass/Crop Patrol. These (S.D.1983); SDCL 15-30-14. $91,848.18 amounts and the total amount of (b) Damages. imposed by Punitive were within the limits 37-29-3(b). However, punitive damages The Defendants claim the court relationship bear a dam awarding exemplary punitive erred in ages, which we reversed and remanded above, damages to As noted Centrol. 3(a). part Therefore, these amounts must damage trial court did not limit the award light be reconsidered of the factors bear secrets, misappropriation of trade ing upon punitive damages. Flockhart v. fiduciary duty, included breach of unfair Wyant, 467 N.W.2d (S.D.1991) competition related misconduct. Tenneco, Inc., (citing Groseth Int’l Inc. v. Therefore, provisions of SDCL 21-3-27 (S.D.1989); Wangen v. 37-29-3(b)8 apply. Generally, exem Knudson, (S.D.1988)). plary punitive damages are not recovera This reconsideration should done from be ble for breach of contract. SDCL 21-3-2. the record. However, Dreyfus v. Louis Hoffman Corp., (S.D.1989) we stat (c) $156,054.88. Attorney Fees of ed: merely is a of Conduct which breach attorney The trial court awarded Centrol tort, contract is not a the contract 37-29-4(iii), fees under SDCL SDCL 15-6- may relationship demanding establish a 37(c) and because of Defendants’ violation proper the exercise care and acts of and Supplemental Preliminary Injunc- performance give in may omissions rise 29—4(iii)provides tion.9 SDCL a suffi- 37— liability. to tort attorney cient basis for the award of fees quoting Id. at 214 Kunkel v. in this it United Secu- case since allows “reasonable at- Co., rity Ins. torney’s prevailing party” fees to the when S.D. N.W.2d (1969). Although misappropriation this contract “willful and malicious ex- provides: misappropriation 7. SDCL 21-3-2 If willful and malicious ists, ex- exemplary damages the court award any obligation In action for the breach of an exceeding any in an amount not twice award contract, arising not where the defendant (a). made under subsection fraud, malice, guilty oppression, has been of or added). (emphasis presumed, any wrongful or in actual case of animals, injury being subjects property, to 15-6-37(c) attorney fees re- 9.SDCL allows for intentionally and committed willful wan- sulting opposing party’s failure to ad- from an misconduct, disregard humanity, ton in any pursuant matter to a re- mit the truth of jury, damage, may give to the actual addition quest for under SDCL 15-6-36. The admissions example, by way for the sake of and supplemental preliminary injunction allowed punishing the defendant. fees, sanctions, including attorney for viola- 29—3(b) injunction. 8. SDCL tions of the 37— Although claim the 5.PRELIMINARY AND ists.” Defendants PERMANENT attorney error due to a award of fees was INJUNCTIONS. misappropria- and malicious lack of “willful Defendants claim the court The 3(a) tion,” already parts we have ruled erred in issuing preliminary, supple (b) misappropriation existed. that such preliminary permanent mental injunc However, mistakenly tions. objected to Centrol’s 21-8-2(5) base this claim on SDCL which The trial attorney fees the trial court. provides part: objections, these court sustained some of injunction An granted: cannot be attor majority of Centrol’s but found the Centrol claims ney fees reasonable.10 by Affi adequately supported award was (5) contract, prevent To the breach of a billing records. On davits and time and performance of which would not be specific appeal, briefs and defendants’ specifically enforced. the three error relate to claims of 21-9-2(1), obligations Under SDCL “to ren- the trial court liability used

bases personal der specifical- service” will not be above, attorney As noted we impose fees. ly enforced. The in this case already adversely this issue have decided obligations personal are not to render ser- appeal, defendants do the defendants. On obligations restricting competi- vice but specific any error as to items or not claim tion, 53-9-11, permitted under SDCL any such claim is waived amounts after personal termination of Addition- service. See, 15-26A-60(6); Nielsen appeal. ally, injunctive expressly relief is autho- McCabe, 37-29-2(a) rized under when actual attorney fees. affirm this award for We misappropriation or threatened occurs and may be continued for “an additional reason- AND LIABILITY. 4.JOINT SEVERAL period able of time order eliminate the court The Defendants claim Therefore, advantage[.]” De- commercial concluding erred in the Defendants argument is without merit and fendants’ for com jointly severally liable injunctions issuance of the was the court’s attorneys fees. pensatory error. not findings made and conclusions The court TRIAL. conspired to accom 6.DENIAL OF JURY the Defendants competition plish their unfair with Centrol. is that Defendants’ final claim The Under SDCL 15-8-11: denying jury the court erred them 15-6-38(b) provides: or more trial. SDCL “[Jjoint tort-feasors” means two persons jointly severally liable tort by jury Any party may demand a trial person proper- or injury the same to for by jury by any right issue triable of a judgment has been ty, whether or not serving upon parties a demand the other against all or some of them. recovered writing any at time after the therefor commencement of the action and not la- damages in- Although measured the court days ter than ten the service of judgment after dividually, received one Centrol pleading directed to such issue. the last for the same against all of the Defendants upon a demand endorsed Such be Therefore, the injury to its business. pleading party. making the conclusion and order court’s added). (emphasis Defendants served the severally liable for jointly and Defendants Amended damages pleading, last an Answer to First compensatory the entire award of Counterclaim, 4, April Complaint and on SDCL 15- attorneys fees is not error. request jury for trial was made 1990. No 8-11. ground hearing reversal on request on at- er of such as a basis for did not a 10. Defendants Kuhn, a torney appeal. 248, raised the lack of fees and have not Matter Estate 470 N.W.2d of of properly place hearing a as error. Failure to 253 a waiv- trial court constitutes matter before the 898 WUEST, pleading. (concurring part Justice any prior

in this answer or dissenting part). 15-6-38(b), could Defendants Under SDCL until jury trial served a demand for have majority opinion wrongly disposes The a 14, Assuming served April 1990. Centrol damages damages issue. The award counterclaim response to Defendants’ should be in toto with directions reversed allowed, could day the last damages. to The authori redetermine as late jury trial for have served demand ty by majority support cited does not no 14, made May as 1990. requiring to rede decision the trial court 10, August jury trial until demand for a termine on the current based 15-6-38(d) part: provides 1990. SDCL In M & M Contract state of the record. serve a de- ing, party to majority, The failure of a cited we held we were consti- 15-6-38 required mand as unable to make a determination what § by jury. trial by him of tutes a waiver from the record and should be remanded to the trial court with directions timely Therefore, failure Defendants’ to make the did not determination. We jury trial within the for a serve a demand direct the redetermination be made 15-6-38(b) imposed by SDCL time limits Id., from the record. 334 N.W.2d at 225- See, Spear Day v. waiver.” “constitutes a instances, simply In most we have (8th Cir.1985); ton’s, 1140, 1144 F.2d 771 remanded to trial court to redetermine Dodge Messenger, 614 v. Fort Littlefield Kauker, damages. See, e.g., Rusch v. 479 denied, (8th Cir.1980), cert. 581, 585 F.2d Man v. 496, (S.D.1991); White N.W.2d 501 1342, 945, 100 63 L.Ed.2d 779 445 U.S. S.Ct. Gunnick, 148, (S.D.1991); 151 473 N.W.2d (1980). McCabe, 477, Nielsen v. 442 N.W.2d showing from Defen- There has been no Sully Minor v. Buttes School (S.D.1989); delay. losing After justify dants to their Dist., M & M (S.D.1984); 345 N.W.2d preliminary injunctions and several on the Contracting, 334 N.W.2d at 225-26. For motions, Defendants obtained new other hereafter, given that is the all the reasons trial, jury demand for counsel. He made a I would follow here. course strategy. apparently as trial Such a move majority opinion, explained As analogous losing pre-trial motions be- is found lost revenues and trial court Centrol judge deciding particular fore a and then Yet, compensatory dam profits. he based judge preferable. a new would be failing gross revenues to account ages on attempt: prohibits 15-12-24 such an In order to expenses. That was error. for magis- judge The to a or submission profits, he should have de lost ascertain argument proof support trate of or Int’l., Inc. v. Groseth expenses. ducted trial, application, upon a motion is a Inc., (S.D. Tenneco right thereafter to file an waiver of Co., Moyle Petro. Regan also v. 1989). See change judge affidavit for such Band, Big (S.D.1984); magistrate by any or his counsel Williams, 87 S.D. N.W.2d Inc. the same who submitted [.] (1972). punitive damages bear Since Therefore, the court’s denial of Defen- damages, the relationship untimely jury for trial was dants’ demand punitive damages must also be award (cid:127) of discretion. not an abuse 37-29-3(b). See also reversed. 3(a) (b), except parts We affirm 473, Wyant, N.W.2d 479 Flockhart redeter- reverse and remand for which we Int’l., at Groseth (S.D.1991); 440 N.W.2d damages consistent with this mination of opinion. $156,- the award of I also reverse would 29—4(iii) attorney fees. SDCL 054.88 in 37— AMUNDSON, J., MILLER, C.J., and party to recover “rea- permits prevailing a concur. and sonable attorney’s fees” when “willful (Em- HENDERSON, JJ., misappropriation exists.” malicious concur WUEST and added). rea- stipulation, a phasis Absent part. in part in and dissent attorney’s ing injunctive equitable relief, and, fees should be sonableness of for thus, testimony produced on at trial jury established a trial was not warranted. Not distinguished using affi- hearing as so. Trial court awarded blush, appear At first the fees davits.1 damages, punitive damages, attorney’s hearing and unreasonable. A exorbitant judgment fees. A against ap- was entered proper provide would the vehicle to deter- pellants $400,000 in excess of and it includ- they or not are mine whether reasonable.2 injunctive ed relief. Trial court should granted jury have a trial under these cir- issue, jury In its discussion of the trial cumstances. I will concede An- that the claiming majority the cites SDCL 15-12-24 swer Answer and Counterclaim did not bearing my the In it has some on issue. However, request jury a trial. there was 15-6-38(d) it opinion is not relevant. SDCL August the motion which should majority opinion in the is the control- cited controlling. be Said motion was denied ling statute. September 7, the trial court on 1990. The major- I concur with the remainder of 30, trial date was October 1990. Another ity opinion. appellants repre- salient fact is that were sented other counsel when an Answer HENDERSON, (dissenting Justice under interposed. Counterclaim When I; dissenting Theory concurring part case, attorney Coester took over this he II). part Theory on by jury moved the court for a trial under provisions 15-6-39(b). A of SDCL me- I THEORY tamorphosis has evolved the decisional This case was tried to court. It See, Bank, law this state. First W jury. Appel tried to a should have been Yards, Sturgis v. Livestock 466 N.W.2d jury lants were entitled to a trial under (S.D.1991). Hertz, Acting Justice writ- VI, Article section 6 Constitution Court, ing if for this reflected a counter- Dakota which State South relief, legal raising party claim seeks a right by jury “The of trial shall remain legal jury claim is entitled to a trial as a and shall extend to all cases at inviolate right. examining matter of “In the devel- regard the amount in law without con rule, opment of this we note that however also, troversy.” See Nizielski v. Tvinner Supreme has abol- United State’s Court eim, (S.D.1990). In 453 N.W.2d 831 re this, requirement legal ished the that a claim case, viewing appears it that certain (Citations omit- must not be incidental.” pretrial made to the trial motions were ted). Bank, Certainly, at 856. First W. court, by jury. August to include trial On primary action contains 13 when the 29, 1989, appellants’ jury motion for trial counts, nature, legal are of which case, appellee In this amended was denied. asking damages, legal relief re- counts, complaint which contained majori- quested jury mandates a trial. The monetary prayed and 11 of these counts ty opinion violates the State Constitution began Equity, it damages, action //'this jury technicality trial and vaults over into an At Law “... turned lawsuit. indeed, If, this substance and fairness. law, the action is at either [w]hen correct, we, on this conceptualization is right jury (Emphasis trial.” has a a Court, reverse in its entire- mine). (citations should this case supplied at 832-33 Id. A omitted). ty permit appellants jury trial. When the trial court denied the refusing gigantic by jury, it error of law attends motion for trial indicated appellants jury juris trial. “Error nocet. primarily an action sound- this action was Hansen, (S.D.1988); attorney N.W.2d Estate 1. We allow fees in divorce cases on appeal supported by 855-56 affidavit. See Malcolm v. Malcolm, (S.D. 1985). 865-66 assertion, But, majority’s Contrary the defen- proceeding. to the this is not a divorce As an 2. court, objections propounded specific prefer twelve appellate to review the records dants we Attorney Application plaintiffs Fees. of the trial court and do not take evidence Schuldt, appeal. preserved for except by The was therefore reference. Estate issue injures. A mistake of law Error of law has effect; is, injurious

an com- BRAZONES, Special E. Gerald Adminis mitting consequences.” it must suffer the Joseph trator of the Estate of Karl Bra Edition, Dictionary, page Black’s Law 5th zones, Martin, Larry Martin, Irene Al Here, appellee. Appellee 487. should not Hansen, lan D. and Charlotte L. Han wrongfully lament a retrial for it took sen, Appellants, and Plaintiffs right jury away appellants’ to a trial. v. Therefore, I would not reach the other is- Special as the Jean PROTHE Administra sues. Prothe, trix of the Estate of Willard H. Danny Thornburg,

and B. II THEORY Appellees. and I I Theory posited incorrectly, If is con- Snyder, James SNYDER and Sunshine aspect majority opinion cur Appellants, Plaintiffs and liability against the which affirms defen- v. dants, as their conduct and actions reflect a Special Jean PROTHE as the Administra pattern of sustained misconduct. Howev- Prothe, trix of the Estate of Willard H. er, absolutely I am convinced that the affi- Danny Thornburg, and B. attorney’s xation of fees are Appellees. to, unsupported simply, due an error determining damages trial court in based MAGER, Special Joan as Administratrix upon theory gross revenues. This Mager, of the Estate of Ronald L. requiring a trickle outfall creates down capacity; Jay in her individual E. compensatory damages, puni- reversal on Mager, Appellants, Plaintiffs and damages, attorney’s tive fees. pages On 1239 and of the Settled Special Jean PROTHE as the Administra Record, signed by there is a document at- Prothe, trix Estate of Willard H. torney William E. Coester on behalf of Danny Thornburg, Ship B. and Robert specific objections defendants wherein 12 man, Appellees. Defendants and attorney’s were set forth to fees for the plaintiff. objections specific These are No. 17448. pointing

nature out the trial court the Supreme Court of South Dakota. item, why, attorney’s reasons item for fees Argued proper. Dec. 1991. would not be of these items One $32,564.35. was in the amount of For the Aug. Decided 1992. majority opinion express that defendants Rehearing Sept. Denied attorney’s waived an award for fees is in- Furthermore, attorney correct. Coester preserved

further the issue of an award of attorney’s by briefing fees this issue in his reply initial brief and brief.

Case Details

Case Name: Centrol, Inc. v. Morrow

Court Name: South Dakota Supreme Court

Date Published: Aug 5, 1992

Citation: 489 N.W.2d 890

Docket Number: 17417

Court Abbreviation: S.D.