The CITY OF MITCHELL, Davison County, South Dakota, a Municipal Corporation, Plaintiff and Appellee, v. Arlyne W. BEAUREGARD and Dale Knox, Defendants and Appellants.
No. 15807.
Supreme Court of South Dakota.
Decided Oct. 26, 1988.
704
Considered on Briefs Feb. 17, 1988.
Let us scope these, mentally, to see if what Sullivans say is true. One, Sullivans admitted at trial that they were ultimately liable to pay the 1985 real estate taxes. Two, Sullivans (by the record) did not obtain the release of the FmHA mortgage until about three months after FLB refused to honor the settlement negotiated by its attorney. Three, Sullivans failed to obtain any bin lien release until eighteen days after the FLB refused to honor the settlement agreement. Four, no evidence appears in the record to establish that the Sullivans ever removed the grain bin. The last argument is particularly hollow since the Sullivans had to remove the grain bin, in any event, because the FLB had no ownership interest in the bin.
Primary thrust of appellants’ position is simply this: Appellee should be equitably estopped from being entitled to a judgment against the defendants, or from foreclosing its mortgages upon the mortgaged property, because of a settlement of the controversy. To prevail in their appeal, the Sullivans must establish equitable estoppel. This record does not establish equitable estoppel. Sullivans, as I have pointed out in the four matters above, failed to suffer prejudice or injury. I quote from Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780-81 (1965), wherein this Court, in a landmark case, expressed:
In order to constitute an equitable estoppel, or estoppel in pais, false representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; that representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury.
In addition, the Cromwell Court held: “There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.” Cromwell, 81 S.D. at 329, 134 N.W.2d at 781. Note that the degree of proof is “clear and convincing evidence.” The majority opinion skirts all precedent in this Court to achieve a result by disregarding the rule in Hobelsberger, Cromwell, and Northwest Realty. Therefore, I cannot join the majority opinion and I also express that my academic sentiments are with Justice Morgan, who has likewise dissented in this case.
Carl J. Koch, Mitchell, for plaintiff and appellee.
Don E. Petersen and E. Steeves Smith and James A. Miskimins, Legal Intern of Tinan, Smith & Taylor, Mitchell, for defendants and appellants.
TALBOTT, Circuit Judge.
Defendants appeal from a jury verdict and judgment given in their favor in a condemnation proceeding. We affirm.
City of Mitchell (City) commenced a condemnation proceeding against Stanley N. Beauregard (Stanley) and Arlyne W. Beauregard (Arlyne) in 1973. In view of pending negotiations, City proceeded to make the improvements on the condemned easement. Trial was not held until January 1987.
Stanley died after the commencement of the proceedings. Stanley and Arlyne‘s attorney suggested that Arlyne and Dale Knox (Knox) were proper parties defendant. After a February 22, 1984 hearing, the trial court substituted Arlyne and Knox as the proper parties defendant.
ISSUE I
WHETHER PUNITIVE DAMAGES MAY BE RECOVERED AGAINST A MUNICIPAL CORPORATION IN CASES INVOLVING THE EXERCISE OF EMINENT DOMAIN.
Defendants counterclaimed for punitive damages. In a pretrial motion, City moved to strike defendants’ claim for punitive damages because 1) punitive damages against municipalities are against public policy, and 2) defendants failed to comply with
In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.
The trial court ruled that there is no authority to authorize punitive damages against a municipal corporation. The record before us is void of any attempts to effect compliance with
ISSUE II
WHETHER JOINDER OF KNOX AS A PARTY DEFENDANT AFTER THE ENACTMENT OF SDCL 21-35-23 ENTITLES HIM TO ATTORNEY FEES.
Knox seeks to bring himself within the purview of
If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff‘s final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court.
At the time defendants Arlyne and Stanley applied to have Knox substituted as a party defendant, their attorney‘s affidavit represented that after Stanley‘s death Knox acquired an interest in the realty sought to be condemned. We are aware that trial testimony indicated Knox‘s title interest pre-dated the commencement of the action; however, the trial court authorized substitution of Knox as a party based upon the representation in the affidavit.
Substitution of parties is provided for by statute.
Knox became a substituted party defendant on February 22, 1984. The effective date of
ISSUES III AND IV
WHETHER THE JURY VERDICT MUST BE SET ASIDE DUE TO UTILIZATION OF AN IMPROPER MEASURE OF DAMAGES (III) AND WHETHER THE JURY VERDICT MUST BE SET ASIDE AS NOT SUPPORTED BY THE EVIDENCE (IV).
Defendants contend that the evidence offered by City was not probative of the correct measure of damages and that the jury‘s verdict was not within the scope of the evidence. We hold that defendants did not preserve these matters on the record so as to enable this court to engage in appellate review of these issues.
A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
*
*
*
*
*
*
(6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law;
Such of the matters specified in subdivisions (6) and (7) of § 15-6-59(a) as may have been timely presented to the trial court by motion for directed verdict, re-
quest for findings, or other apt motion, offer, or objection may be reviewed on appeal from the judgment without necessity for an application for new trial.
The record does not reflect any motion for directed verdict or any other apt motion, offer, or objection to any pertinent jury instruction that would preserve defendants’ right to appeal on this issue. We may not review this contention in this case. Insufficiency of the evidence may not be reviewed unless it has been timely presented to the trial court by a proper motion for a directed verdict, request for findings, or other apt motion, offer, objection, or exception.
The judgment is affirmed.
MORGAN, SABERS and MILLER, JJ., concur.
HENDERSON, J., concurs specially.
TALBOTT, Circuit Judge, sitting for WUEST, C.J., disqualified.
HENDERSON, Justice (specially concurring).
To those facts, cited in the majority, these facts are noted for further understanding in this case: Between August 1973 and August 1975, the City constructed a sewer line across the would-be easement. Settlement negotiations apparently went on from the filing of the summons and complaint on December 10, 1973, through February 7, 1984.* If settlement negotiations were unfruitful, it would appear to any reasonable person, schooled in the law, or layperson, that this matter should have been resolved in far less than fourteen years. However, as noted in the footnote, an Answer and Counterclaim triggered some action in this case. This consisted of a motion for a change of venue and a motion to substitute parties. Then, about three more years of delay set in and the case was finally tried to a jury on January 12 and 13, 1987.
A verdict of $3,800 was granted for the taking (easement) and $625 “for use of the easement” since 1974. Below, the $625 award was struck as being a duplication, but the trial court held that appellants were entitled to interest. It was the trial court‘s rationale that the $625 award be set aside, due to the trial court‘s allowance of prejudgment interest. The trial court did not want to award a monetary amount for the same damage. A claim for attorneys fees, expenses, sales tax, and expert witness fees were all denied by the trial court. A judgment for $3,800 was awarded below, together with an accumulated interest of $6,479, plus allowable taxable costs of $166.42. Interest was to accumulate on the judgment from its entry date of February 1, 1987.
We are confronted with the issues as set forth by the majority opinion. I agree with the result of the majority opinion and concur in it, subject to the substantive legal position I specially write upon.
It is my opinion that the trial court‘s ruling on denying punitive damages against a municipal corporation per se, namely, Mitchell, South Dakota, is correct. Overwhelming authority, throughout the United States, substantiates the trial court‘s decision. Annot., 1 A.L.R. 4th 448, 454-59 (1980).
Punitive damages are established for the purposes of setting a public example. Were the taxpayers required to bear the burden of a punitive award, the law would be self-defeating. Taxpayers should not bear the burden of a punitive award, for they are the identical group (the people) who are expected to benefit from the public example which the punishment births as a result of the wrongdoers’ acts. Chappell v. City of Springfield, 423 S.W.2d 810 (Mo. 1968); Nixon v. Oklahoma City, 555 P.2d 1283 (Okla.1976).
There seems to be no social benefit derived from an imposition of exemplary damages against the general public. In 18 E. McQuillin, The Law of Municipal Cor-