*1
(1982),including
persistently
vehicle searches based
continued to detain Nemeti and
cause,
upon probable
Pfaff,
permission
456 seek
State
to search the car. Felt-
558,
v. Peter
absolutely
N.W.2d
State
man had
no facts to substantiate
son,
221,
(S.D.1987),
drugs
that Nemeti had either
or alcohol in
upon
searches based
consent. Schneck
only
the car. He
based this detention and
loth,
219,
2043-2044;
sary. Id. upon totality Based of these circum- proving state has the burden of court, stances I am convinced that the trial given freely consent to a search has been clearly who was troubled Feltman’s ac- voluntarily. Royer, Florida v. 460 tions, clearly was in finding erroneous 491, 497, 1324, 1319, U.S. 103 S.Ct. 75 consent voluntary. Accordingly, to search (1983). L.Ed.2d 229 is not met burden objects quashed. seized should be by showing “a mere submission to a claim authority.” of lawful Id. Voluntariness
must be established clear and convinc-
ing evidence that the search was the result free, intelligent, unequivocal spe-
of a any
cific consent without duress or coer-
cion, implied. Cody, actual or State v. (S.D.1980) I). (Cody Steven J. CLEMENTS and Pamela The voluntariness of a consent to search Clements, D. Plaintiffs and question is a of fact to be determined from Appellees, Schneckloth, all of the circumstances. su- pra; Kissner, State v. such, As the trial court’s reso- Raymond Erma R. GABRIEL and question upheld lution of the will be unless Gabriel, E. Defendants and evidence, our examination of the construed Appellants. light in a most favorable to the trial court’s No. 17025. finding, finding convinces us that the was Supreme Court of South clearly Zachodni, Dakota. supra. erroneous. case, In this the trial court found that Considered on Briefs Nov. 1990. per- Patrolman Feltman asked Nemeti for Decided June mission to search his car “for no other officiousness,” reason than but that Neme-
ti giving was not coerced into his consent
and that Feltman did not make a bad faith
threat to obtain Nemeti’s consent. It con-
cluded that Nemeti’s consent to search his given freely
car was voluntarily.
My review evidence convinces me properly
otherwise. stopped Nemeti speeding
because he passed as he a offense, however,
truck. The was so com-
mon and so minor that Nemeti was neither prosecuted;
arrested only warning nor
ticket was point issued. At this Feltman
did not return his driver’s license to Nemeti sitting
who was patrol in the him car or tell Rather,
he was free to leave. Feltman *2 Costello, A. Meyers Porter,
Patricia Hill, Bushnell, Heisterkamp Rapid & City, plaintiffs appellees. for Wayne Bangs, Johnson, F. Gilbert Johnson, Huffman, Rapid City, Colbath & appellants. for defendants and MILLER, Justice. Chief judgment from a appeal Defendants en- against jury tered them a verdict in a suit breach of contract. We affirm.
FACTS August 5, 1985, On the Clements and whereby into a contract Gabriels entered manage agreed the real Clements livestock, property, equipment personal exchange, property owned Gabriels. to run forty- the Clements authorized along they five head of cattle owned provided four hundred of cattle to be head upon ranch. Further- Gabriels Gabriels’ more, split the parties agreed pro- from of the combined herd ceeds the sale expenses after the sixty/forty on a basis operation were deducted. attorney, drafted Louis Gabriels’
Freiberg, after at Gabriels’ resi- dence. dispute developed
A
between
the Clem-
culminating in
suit wherein
this
allege
breached the
ents
that Gabriels
retaining more calves than
agreement by
to,
goods
by paying for
they were entitled
expenses,
ranch
which were not
refusing to
their share of
pay the Clements
October,
receipts
calves sold
they breached
denied that
1988. Gabriels
counterclaimed
agreement and further
moneys
the Clements
claimed
them.
owed
awarded the
(It
$50,853.00.
ruled
Ga-
also
counterclaim.) The trial
on their
briels
amount and entered
adjusted the
court
$48,562.00, prejudgment
in-
judgment for
$5,940.84,
amount
terest
followed.
appeal
costs.
question
“The
of whether a contract is
ISSUE I
ambiguous
question
is a
of law for the
THE TRIAL COURT
WHETHER
Bak,
court.” Buhl v.
THE
ERRED IN INSTRUCTING
JURY
writing
ambiguous
“A
when
A
OF THE
THAT
PORTION
AGREE-
reasonably capable
it is
under-
MENT
AMBIGUOUS.
WAS
stood in more than one sense.” Carr v.
*3
The trial court determined that the Benike, Inc.,
ambiguous
respect
contract was
with
to
Co.,
City
Henry
Sioux Falls v.
Carlson
heifers,
in
replacement
division of
and so
ment heifers from calves raised but these II ISSUE replacement only replace heifers will WHETHER THE COURT ERRED IN upon agreement stock cows sold of the INSTRUCTING THE JURY THAT AN during hereto the term of this AMBIGUOUS AGREEMENT IS CON- Agreement. STRUED AGAINST THE PARTY Furthermore: DRAFTING THE AGREEMENT. payment After the expenses of all earlier, the ranch provided, as herein As noted Attorney Freiberg, funds re- maining present from the sale of who was livestock of at the between year each calves shall be divided Clements and when Gabriels 60% agreement discussed, Gabriels and to Clements. Clements 40% drafted the provide agreement. shall at all times any one bull. Mr. represented If Ga- (In fact, of the initial cows of Clements are sold briels. he testified that before he they heifer, arrived, replaced by will be one Mrs. Gabriel had written an outline any agreement.) Later, ranch herd and if original of the the Clements (sic) agreement cows of Gabriel’s are sold had the shall reviewed their attor replaced by replacement ney Adam, heifer Thomas C. proposed who [a] from the changes ranch herd. Clements, to the including elimi nating a section on the prairie dog costs of argue The Clements that under eradication and a hold-harmless clause. agreement any replacement heifer retained Freiberg testified that he was not aware of replace a stock cow could be retained Adam’s involvement until in the year third only by agreement parties. of the The contract, of the when he first became Clements assert that under Gabriels’ inter- parties’ aware in interpreting trouble pretation agreement Gabriels could it. have sold all of the stock cows and retained every single replace heifer to them with or The trial court jury instructed the as without the consent of the Clements. follows: provides:
1. Instruction No. 20 promises understanding. written and oral portions The Court has may determined that oral the written ambiguous contract in evidence in this case is enforced and thereof, awarded for breach respect replacement just the division of though portions as those had agreement may heifers. The appeared consist agreement. of both in the written Where ambiguous, a contract is it is did not even seek a sum in money certain interpreted damages. strongly against most
party who drafted the contract during The Clements’ claim the trial was uncertainty caused the to exist. $69,236.75. That claim can be summarized as follows: appli Gabriels that this assert rule has no owing Agreement, $25,448.53 Amount cation to They argue this case. that the 5,277.97 Interest rule allowing ambiguous construction of an 1,258.39 expenses/ASCS Ranch agreement against the drafter- is intended Disputed expenses 10,371.86 adjust shortage inequality bargaining for an 10,400.00 Calf 16,480.00 Retained calves power which parties. existed between the Creamery Atwater Co. v. Western Nat’l. $69,236.75 Total (Minn. Mut. Ins. returned a verdict 1985). They suggest party that neither $50,853.00, amount of judgment any advantage power in bargaining ultimately $48,- entered in the amount of *4 over (especially the other re since Adam 562.00. The record why is silent as to Clements) viewed the document for the and trial court reduced this amount. The trial construing ambiguities thus the rule court then calculated prejudgment in- against party $5,940.87. who has drafted them no terest to be application. disagree.2 We argue damages Gabriels that the had no “Ambiguities arising in should a contract way being of calculated or determined until interpreted be against and construed They determined them. claim that Weber, scrivener.” Forester v. 298 damages Clements’ based esti- 96, (S.D.1980) added), (emphasis N.W.2d approximations. 97 mates and The Clements (citing Henry supra). respond, asserting they spe- Carlson that submitted applied is a cific for They rule of construction to claims the breach. be further allege against that the books reflecting one drafted an and records ambiguous who con- the amounts owed to 558, the Clements were in Kropuenske, tract. Weisser v. 55 S.D. possession only of Gabriels 561, 760, after dis- (1929). 226 N.W. 761 rule of The request covery production for of doc- change not construction does because these uments were records available to the attorney Clements’ reviewed the document. Clements order to them to calcu- enable Any arising from ambiguity doubts of damages. late their language in a contract should resolved be provides: SDCL 21-1-11 writer, speaker they or because person Every who is entitled to recover by expression can easily exactness more certain, being damages capable or prevent meaning mistakes than the one calculation, made certain and the dealing. with are whom Enchanted right recover which is vested in him Buskohl, World Doll Museum v. 398 particular upon day, also to is entitled 149, (S.D.1986); N.W.2d Henry 152 Carl- day, interest thereon from that recover Co., supra. correctly son The trial court during except such time as debtor is jury. instructed the law, prevented by or the act of the creditor, paying debt. III ISSUE America, Corp. v. In Beka Lithium WHETHER PREJUDGMENT INTER- (1958), wherein 77 S.D. N.W.2d EST WAS PROPERLY AWARDED TO upheld prejudgment we award of inter- THE CLEMENTS. est, we stated: argue in prejudgment Gabriels that denying interest on a The reason They terest improper person this case. that where the liable does claim is owes, he complaint note not what sum he cannot that the Clements’ amended know (Ga- "Freiberg advantage over Clements in that 2. The dissent states cannot advantage attorney) having present at characterized as taken briels’ However, contract. agree. Adam." had the scrivener of the We Gabriels was the actual jury returned a The fact that paying. not When be in default complaint is known indebtedness at of the verdict variance exact sum the reason readily ascertained trial is not determi or can be Clements’ claim at not exist. interest does prejudgment for the denial entitlement to native of their Amert, supra. interest. Fur- at 159-60. 92 N.W.2d 77 S.D. at breach, specific claims for the these submitted thermore, clear from seems “[i]t con possession which interest of books the instances and Gabriels cases that re- progressively taining denied have been held the information will be records which application by a liberal stricted concerning If Gabriels the amounts owed. 92 N.W.2d at at rule.” 77 S.D. to, they could have ascertained had wanted they owed to the Clements the amount is entitled to party prevailing merely looking Hageman at their records. if are only prejudgment interest Vorste, 403 N.W.2d v. Vander made certain capable certain or Thus, calculation; (S.D.1987).3 hold that the trial interest is not we prejudgment uncertain damages are allowing prejudgment awarded if the court did not err of fact. First by the trier until determined interest. Ranch, Minneapolis v. Kehn Nat. Bank of Affirmed. Inc., City Twin Smith, Lab., Eng’g Inc. Testing & MORGAN, Justice, concurs. Retired SABERS, J., specially. concurs State, 568-69 Heer (concurring in (S.D.1988), WUEST, J., part Justice Sabers concurs and dissents *5 dissenting part) in noted part and part. “[t]he in interest under SDCL right prejudgment HENDERSON, J., dissents. by the amount 21-1-11 not determined is AMUNDSON, J., having not been a complaint, in the amended com- claimed the at the time this case member Court in determined
plaint, or even the amount considered, participate. did not was omitted.) Further, (Citation the verdict.” unliqui- though damages may “even concurring). SABERS, (specially Justice dated, exist readily if ascertainable values destroyed property, ‘the damaged or language in some of the I take issue with rule is to general and better considered dissent, folly,” including: “conceptual the interest, in at least the absence allow conclusion,” “academic vio- “preposterous ” (cita- contrary.’ strong equities to the Id. prejudicial.” “highly Such lence” and omitted). Finally, unnecessary is tions “[i]t exaggerated. phrases seem actually know that the defendant “this Specifically, the dissent claims that If the defendant can com- amount owed. by both of these approved contract was ‘reasonably available pute the amount from ambiguous, both lawyers; if the contract is information,’ pre- should award the court creating an ambi- lawyers were involved (citations omitted). judgment interest.” Id. implies that This statement guity.” Co., 400 In Amert v. Ziebarth Constr. joint effort ambiguity the result of a was (S.D.1987), brought Amert suit simply That is not true. by lawyers. both $95,505.00 damages. The com- seeking admits that Even the dissent “[d]ue shortly trial to plaint amended before was Adam, provi- Attorney ... two input of then, trial, $141,543.09, day on the and The fact were deleted.” sions of the draft $95,505.00. Therein we back to amended nothing have the two deletions is that that the amount of determined ambiguity. The to do with whatsoever being determined even capable of was in the contract remained ambiguity, which before, though Amert’s claim fluctuated deletions, by the was created after during, trial. The same situation and even draftsman, attorney Freiberg, and the trial exists here. Dakota, (1988). Comment, S.D.L.Rev. 484 Prejudgment Interest in South See Dakota, to follow the in South required court law and 33 S.D.L.Rev. (1988). ambiguity instruct the that should “interpreted strongly against most WUEST, Justice (concurring part and party drafted the contract and who caused dissenting part). See Forester v. exist.” uncertainty
Weber, I would reverse hereby join and that portion of Justice writing Henderson’s dissent Secondly, the claims that “SDCL which holds the trial giving court erred in 21-1-11 has been ... shattered “[wjhere the instruction a contract is am- Hageman decisions,” Amert that biguous, interpreted it is strongly most “Beka ... has been torn asunder Amert ” party who drafted the contract Hageman Amert that de- “[t]he and caused uncertainty to exist.” Amert v. Ziebarth cision law.” ... bad Const. (S.D.1987), issues, On the other two I agree with the written then Chief Justice Wuest. Both majority opinion. Hageman
Amert
unanimous,
were
ex-
HENDERSON, Justice (dissenting).
cept for Justice Henderson’s dissents and
my special concurrence in Amert concern-
Both the Clements and the Gabriels were
ing
continuing problem
applying
“the
represented by counsel when the contract
law,
21-1-11,
prejudgment
interest
SDCL
was written. Counsel for
party
each
(Sabers,
to the facts.”
tender to part, on their defendants contract, drafted the but accordance should not be to claim able are with the information he received from the prevented by plaintiff or law cred- Clements and input Gabriels. Due to the paying. itor from Thirdly, right Adam, Attorney who reviewed the con- *6 damages capable being recover of made tract, provisions two of the draft were de- certain calculation was not vested in type procedure very leted. This of is com- plaintiff September the in this case until practice conceptual mon in the of law. It is 1982, 28, $95,- and then in the amount of folly to therefore assume that there existed though building 505. This is so even the inequality bargaining power an of between in was built 1977 and 1978 and rust the parties. suggest these To otherwise is to early spring was noticed as the as of totally Attorney partic- discount Adam's time, plaintiffs 1979. At damages ipation drafting agreement, which is capable of made certain preposterous pur- a The entire conclusion. prevailing calculation reference to pose construing ambiguous agree- an markets for labor and All materials. against ment a drafter thereof is intended above is line with the letter and adjust bargaining inequality for an Dixon, of Meyer v. spirit 369 N.W.2d power existing. Creamery Atwater Co. v. (S.D.1985). 658 Co., Insurance Western National Mutual 271, (Minn.1985). 277 Id. Finally, prejudgment majority interest law as states: “The rule of con applied accomplishes pur- change this case its struction does not because the pose “provide compensation attorney full for an reviewed the doc injured party” place strongly disagree I lan and to the defendants ument.” with this position paid guage, in “the same as if as does a vast number of other damages jurisdictions at time encountered this is oc- who have See, Homac, Comment, Prejudgment Inc. v. DSA Financial Interest curred.” sue. 486 (E.D.Mich.1987) lawyers Bar Examinations. Both of these 776 F.Supp. 661
Corp.,
graded essay ques-
many years
rule
have
applying such a
(The justification for
they are
an tions so it can be assumed that
the terms of
in a
where
pales
situation
highly
Again, I re-
competent attorneys.1
negoti
a series
from
agreement resulted
drafters);
peat,
approved by
both of
this contract
experienced
between
ations
ambigu-
lawyers;
these
if the
is
Nascone,
F.Supp. 352
contract
368
v.
Spatz
ous,
creating
lawyers were
Company
Ice
both
involved
(W.D.Pa.1973); Consumers
ambiguity.
States,
F.2d
201 Ct.Cl.
475
v. United
(1973);
Aluminum & Chemi
116
Kaiser
There is not one scintilla of evidence
States, 388 F.2d
Corporation v. United
cal
suggest
this con-
that the Gabriels offered
(1967);
Carter v. Cer
any given does not know what sum he owes; plaintiff or if a figures has variant trial, of claimed during before the SJOMELING, William L. Defendant trial, the trial and after the can how it be Appellant. responsible reasoned that is defendant on a No. 17236. date, given certain money amount of upon which fixed interest would bear? It Supreme Court of South Dakota. simple: is this if the indebtedness is not on Briefs March 1991. Considered ascertained, readily known or cannot be interest, date, affixation of as of a certain Decided June pure conjecture. Rosebud Sioux Tribe Steel, Inc., (8th v. A P & F.2d 550 Cir.1989); Inters., Dyke Van Cobum
Inc.,
(8th Cir.1989);