Estes v. Millea

Timmons, ESTES, Doyle F.M. Tom D.

Timmons, Thomas G. Timmons, Ap

Craig Plaintiffs and M.

pellees,

Roger Prudence Mil P. MILLEA and S. wife; Williams;

lea, Reese husband and Realty, a Dakota Inc. South

Corporation; Black Norwest Bank N.A.; Federal Sav

Hills First Western Association;

ings Can Loan South

yon Apartments, Townhouse South Partnership; and Pat

Dakota General Development Corporation, a

rick-Lewis Corporation, Defendants Dakota

South Appellants.

No. 16958.

Supreme Dakota. Court South

Argued Sept. Dec.

Decided Crawford,

Anthony Rapid City, plain- appellees. tiffs and LaFleur, LaFleur & LaFleur of Jon J. LaFleur, Rapid City, for defendants appellants.

GILBERTSON, Judge. Circuit ISSUE IN ERR DID THE TRIAL COURT SUMMARY JUDGMENT GRANTING BA- IN TIMMONS ON THE FAVOR ESTOPPEL? SIS OF COLLATERAL HISTORY PROCEDURAL aspects of this case are procedural to the issue complex and not relevant 617 Nevertheless, Williams, appeal. granted vendee, brief review will a contract for position party’s inform the reader each to repurchase realty. deed The con- litigation. tract called for pay Williams to Matheison Rypkema in by 20, and October 1981. Company The Traveler’s Insurance initi- ated this suit to foreclose a real estate 2, February 1981, On Williams entered mortgage. Defendant Reese Williams agreement pur- into with Timmons to (Williams) against cross-claimed defendants liquor chase shares of stock in their retail Timmons, Timmons, Tom F.M. Thomas G. establishment. When Williams could not Timmons, Craig (collectively, Timmons Tim- secure the necessary cash to pay- make the mons) (Estes) Doyle and D. Estes set agreement, ments on agree- a second portion aside deeds their name for a of ment was drafted where Timmons would the real estate. Williams claimed that cer- portion receive a Tim- 320 acres. tain transactions were loans rather than attorney, Estes, mons’ learned about conveyances of the realty and that Tim- Rypkema Williams’ transactions with guilty mons and Estes were of deceit. De- through Matheison a title search. fendant Security Realty (Security) Inc. Williams and agreed Timmons to trade cross-claimed for foreclosure of its mort- Timmons’ stock for 160 realty. acres of the gage payment to secure of a real estate Williams required claims that Estes commission. Timmons and Estes then Williams deed entire acres to bought out Traveler’s interest and were by quitclaim Timmons deed. Timmons assigned position its and interest. The cir- granted option Williams an repurchase granted cuit court Estes’ Timmons’ the property. financially Williams was un- partial summary judgment motion for on able to option prior exercise this to its Williams’ cross-claim to set aside the deeds 10, expiration on March claim of deceit. The basis On December Matheison and ruling was collateral Rypkema quitclaimed their title in the real property exchange Timmons for the FACTS balance due them from original their ad- This case involves numerous real estate vance to Williams. transactions. concerns 320 acres land Security, the realtor which handled the Rapid City located near which Williams original Millea, trade between Williams and once owned. became aware the later transactions 1980, In acquired October of Williams Matheison, Rypkema Timmons. by trading the 320 acres real estate with agreement Based its with Williams that Roger by Millea. This trade was handled its commission would due when Security, a real estate firm. Since this was realty, Security Williams sold filed suit mainly transaction, a noncash (Civ. 82-919) against on December $43,875.00 signed a note for in favor of 15, 1982, to collect its commission for the Security for the balance of its commission original trade. arranging this transaction. The note 1983, April conveyed 1985, payable upon October or realty acres to Estes. acres, Williams’ sale of the 320 whichever occurred first. In order for com- collect its Williams, suit mission its

When Williams later faced financial diffi- prove realty that Williams sold culties, he secured funds from Richard Ma- Rypkema January Matheison and (Matheison) Lloyd Rypkema theison responded interrog- 1981. Williams (Rypkema). In consideration for this trans- atory Security upon served him: required Matheison and convey by warranty that Williams to them INTERROGATORY Did NUMBER 7: deed, sell, transfer, you convey any his title to the 320 acres. This was or all or day part done on real prom- estate listed Rypkema, vendors, issory you Matheison and A? If note marked Exhibit inappropri summary judgment prop- make you would so, to whom sold did state sale, Railway and the amount Northern erty, date of the ate. v. Great Wilson cash, way property, you received 83 S.D. Company, whatsoever. consideration other one (1968). as the Land transactions such Yes, 15, 1981, January prop- complex a nature. often of ANSWER: in this case are Rypkema and Lloyd to erty was SOLD not the existence of the issue is re- L. Consideration Richard Matheison. the land disputes, whether factual but Twenty-Seven Five Thousand ceived was of facts in the existence results transaction ($27,500.00). (emphasis Dollars Hundred appropri question of the to the material added). Staab, judgment. su summary ateness (Henderson, J. con pra, then 351 N.W.2d at proceeding, Williams’ Later in the argue to the court attempted curring). attorney1 to the admission in by brief that the letter estoppel does not While collateral and that had been a mistake interrogatory relit- cause of it does bar How- bar a actually place.2 had taken no sale in ever fact issue ever, igation answer was of an essential supplemental no any Melbourn, interrogatory nor other the suit. su filed to the earlier volved testimony under oath. four-part a adopted form pra. This court has the doctrine must be met before test which answer, the interrogatory Based on this (1) applied: Was the issue decided can be held that a sale in Civ. 82-919 circuit court the one adjudication identical with prior the Williams and occurred between (2) question? presented in the action never That decision was and Matheison. judgment on the merits? Was there a final appealed. (3) plea is party against the whom the Was on this court currently In case before party a privity a or in asserted to aside seeks set appeal, Williams (4) Did the prior adjudication? to the al- on and Estes based deeds to Timmons is have a plea asserted whom were leged the transactions “deceit since litigate fair to mortgages secured intended loans prior adjudication? su issue in The conveyances.” rather than absolute Staab, pra; supra. summary judgment granted circuit court of collat- the basis Timmons and Estes on court decided The issue the circuit held that estoppel. The circuit court eral Williams sold 82-919 was whether Civ. in Civ. by the decision Williams was bound 15, 1981, prior realty January had taken and that an actual sale 82-919 For dealings with Timmons and Estes. illegal “shylock” loan place rather than he establish that prevail must alleged. as Williams in the land at

he or had an interest owned LEGAL ANALYSIS Oth of the Timmons transaction. time erwise, that he Williams cannot establish estoppel as a basis The issue damaged by Timmons' actions toward transaction summary judgment land Thus, or not a for this court. him. the issue whether question not a novel eases is Benham, is 292 N.W.2d sale occurred Melbourn Rezek, (S.D.1980); part Cook v. first in both cases and the Cameron, Staab v. estoppel is met. test (S.D. 1984). is underlying issue addition, judg- a final there was material facts which whether there remain previous attempt repre- his admis- does not recant employed different counsel 1. Williams interrogatory sale than he has answer that a sent him in Civ. and 82-920 in his 82-919 sion case, that employed represent the case disposition himself in our Based on occurred. appeal. interpret now before us on necessary us to doc- not point. to decide this ument reading argue that a fair 2. Estes and Timmons attorney to the court of the letter of Williams’ on the merits.3 Therefore second Williams that ment claims he was denied this right criteria has been established. since his attorney attempted then recant, by brief, letter interrog- Williams’ argues that the third criteria atory admission that a sale had been made met, Security prosecuted been since has not on January 1981. Williams claims litigation plaintiff the 1982 circuit unfairly ignored court this addition- parties to that and Estes were action. al “evidence.” estoppel This court has held applied in a civil when new action exceptions With which are inapplica affirmatively here, defendant raises defense attorney ble testify cannot on be plaintiff reasserting from bar issues 19-1-3, half of his client. SDCL Jones v. plaintiff actually previously litigat- the has Soc., S.D. Children’s Home 126, 90 S.D. against ed and lost on the merits another (1976).4 Further, 238 N.W.2d 677 the com Staab, supra. “Permitting re- defendant. munication with the circuit court in was not peated litigation long of the issue as the of form an affidavit nor under oath. supply as of the unrelated defendants holds merely was argument in a trial brief. This gaming the out reflects ... aura of the clearly and, thus, is not evidence Williams’ ‘hardly worthy table ... a or wise basis for interrogatory answer stands uncontradict- ” fashioning procedure.’ of Black rules Oratory arguments counsel, ed. of Jewelry Ind., v.Mfg. Hills Felco Jewel eloquent, will escape however not a sum 153, (1983) (citations N.W.2d 158-159 omit- mary judgment absent to facts avoid such ted). disposition such, a the of case. As the circuit court accept was correct in the determining ap- The final criteria in the terrogatory as a answer basis for its deci plicability estoppel of collateral is whether sion. party against the whom plea the is asserted litigate had a and fair argues Williams estop- that if collateral prior adjudication. the issue in the pel applied sale will grievous is he suffer finan- like, against 3. At the time filed its suit an the instrument or he shall not further 1981, participate in it a also filed second suit trial. such This section shall apply attorney’s alleging testimony him that it due its not such was commis- when sion based on the offered in answer to evidence December deed received (Civ. 82-920). appear behalf of the other shall between Williams Although attorney the satisfaction court that such court entered a memorandum anticipate necessity no opinion reason of matter never taken to a final being his a witness. Neither shall this judgment section appropriate and therefore is not an attorneys apply attorney to state’s and the application for the basis general deputies engaged and their when Civ. in the 82-920 discharge official duties. apparently by alleging defended himself that prohibition A violation of this can result December 15th deed could not constitute a sale attorney consequences serious for the and his previously property since he had sold disquali- unfortunate client. It can in the result Matheison and attorney partic- fication from further position clearly This inconsistent with his alternative, ipation in the case. the attor- present argument purport to this court and his ney’s testimony incompetent is considered argument ed circuit court Civ. 82-919. Jones, supra. is stricken from the record. Fur- may voluntary partyA to an action amake ther, may attorney inadvertently his attack proceed subsequent in a decision inconsistent credibility by testifying own client’s in a man- they manner when find themselves an unde testimony. ner which conflicts the client’s position legal posture. as a result sirable See South Rules of Professional Dakota Con- estoppel gamesmanship.” "Judicial bars such duct, (Comment). "Lawyer Rule 3.7 as Witness” Solem, Gregory v. 449 N.W.2d 832 n. Thus, it becomes a matter of evidence and not (S.D.1989) citing Federal Land Bank Omaha Jones, simply supra. a matter ethics. Johnson, v. Warren attorney’s re- As a violation Rule 3.7 of an Duerr, Dev., Pliley, Supply v. Thorsheim conduct, quired professional in- ethics is also (S.D. 1984). N.W.2d 838 volved and a violation result in an unwant- appearance grievance ed before the committee. 4. SDCL 19-1-3 states: We not view counsel’s letter brief to do attorney argu- anything legal is a When witness his client court as more than circuit Therefore, upon except merely prohibition trial as to was not vio- formal ment. custody such matters attestation lated. rospect appear he to have been bad bar- of individuals at the hands cial loss at 733. gain.” He cites au- “shylocks.” characterizes proposition for the thority from Minnesota is af- of the circuit court decision is a flexible doctrine estoppel collateral firmed. application its focus on whether will which on the injustice would work WUEST, SABERS, and MORGAN and urged. estoppel is Johnson against whom JJ., concur. Inc., 420 Freightways, v. Consolidated HENDERSON, J., in result. concurs (MN.1988). view of the This N.W.2d 608 is consistent with estoppel use GILBERTSON, Judge, Circuit implementa- for its requirement fourth MILLER, C.J., disqualified. tion, party against whom the whether the HENDERSON, (concurring re- Justice opportu- fair had a full and is asserted plea sult). prior adjudi- litigate the issue nity cation. against the ex This Court has cautioned judicata. res use of Lewton cessive for the use of such doc- The rationale (S.D.1990)(Sa N.W.2d McCauley, 460 judica- estoppel and res trines as bers, J., concurring specially); Bruntz v. parties of the goes beyond the interests ta (S.D.1990)(Sa Rutherford, 451 N.W.2d 290 underlying rationale litigation. bers, J., concurring specially joined public poli- implementation is that their for Miller). I also believe we Justice Chief orderliness, economy judicial judicial of cy, against the excessive use of caution should time, well as litigants of interest is so estoppel. Since each case collateral society require of all peace and order determinative, agree do with the end fact I judg- stability be accorded should Here, present case. we hold result in once decided ments. Controversies collaterally estopped; this that Williams is in repose, remain their merits should Williams, reasserting from party, is barred judicial should not be inconsistent decisions actually previously litigat that were issues of There must made on the same set facts. the merits another ed and lost on which, litigation without an end be previ was a defendant. Williams doctrines, Adam v. be endless. would (and litigation who had ous (S.D.1977). Adam, lost) sought on an issue to be raised now may a case where the facts There well be litigation. the instant nature that the compelling of are such estop- the doctrine justi- estoppel cannot be of collateral use should not im pel is not inalterable. We additional limitation fied. Whether this it, in all Bank v. pose instances. recog- use the doctrine will be upon the of Hoven (S.D.1989); Rausch, 449 N.W.2d 263 Dow not be decided nized in Dakota need South Noble, Ar v. clearly not this is by us at this time since Plant, 412 Dakota Cement can South a case. such (S.D.1987). legal merely N.W.2d 876 litigation. But which seeks end principle CONCLUSION set forth the four factors transactions for Persons enter into land Staab, progenitors later cases A common induce- a multitude of reasons. Court, applied to must be dissected hope such a course of action is ment for mind, the this in facts. With past decade gain. financial As the should not be invoked estoppel doctrine demonstrated, hope often the state has regard to factual situa dissimilar without reality of an invest- gain into the fades tions. At a loss incurred. gone ment sour and relating Broad, sweeping statements function of the point, it is not the such a orderliness, and econ policy, judicial public not re- require a third judiciary be the omy judicial time should not result, to rescue dis- sponsible required use polestar ret- from “what appointed investor rights Private should not be adjectives. shunted aside name professorial

As textbook writers have ex

pressed: “Achieving efficiency often process imperatives appel

threatens terms, justice. general

late Stated efficiency appellate sys

risk of that the prevented proper

tem giving will from particulars

heed to the cases.” Justice Appeal, by Carrington, On Professors Mea Rosenberg, page

dor & West Publish Co., mine).

ing (emphasis supplied 1976.* previously

haveWe established the four test

criteria and we should use it as a

polestar, in each case. Gayle NELSON, Appellee,

Dr. V.

SOUTH DAKOTA STATE BOARD OF

DENTISTRY, Appellant. 16848, 16859.

Nos.

Supreme Court of South Dakota.

Argued May

Decided Jan. * J., Henderson, (S.D.1982), The Bench and Bar busi- N.W.2d dis- should realize the economy, expediency senting. ness of efficiency courts McComsey, justice. State v. —it

Case Details

Case Name: Estes v. Millea

Court Name: South Dakota Supreme Court

Date Published: Dec 19, 1990

Citation: 464 N.W.2d 616

Docket Number: 16958

Court Abbreviation: S.D.