Harmon v. Christy Lumber, Inc.
402 N.W.2d 690
S.D.
1987
Check Treatment

*1 Joseph & HARMON Edith

Harmon, Plaintiffs, LUMBER, INC.,

CHRISTY a South Corporation,

Dakota Defendant Appellant. WARREN,

Dave d/b/a Group; Zarecky, and Mark d/b/a Construction, Defendants,

Midwest

EAGLE 2000 ENGINEERING &

DESIGN, INC., Party Third Appellee,

Defendant and Corporation, Foreign

Masonite

Corporation, Party Third

Defendant.

No. 15275.

Supreme Court of South Dakota.

Considered Briefs Nov.

Opinion Filed March

plan. In support his affidavit in of summa- ry judgment, LaFramboise stated: [Yjour affiant received a telephone call from Loren Christy Shantz of Lumber your who advised Christy affiant that Lumber had a customer who needed plans some drawn for a house he was Pierre; building your affiant advised firm, Eagle Shantz that his 2000 did not jobs work, do small type such as that of person working it, but that it had a Warren, namely, Dave who could do the job on time his own as Warren Group your and that affiant would advise Warren and that Warren recpest get Shantz; would in turn m contact with your Warren, affiant did then tell Dave employed by Eagle who was 2000 as an architect, request of Mr. Shantz your and further affiant told Warren type not do would this of Johnson, & Gustav K. Johnson Tidball he, Warren, work but could contact Pierre, appellant. for defendant and Shantz and do it on own for himself Riter, Mayer Mayer, Hofer Eugene D. and on his own time. Riter, Pierre, for third defendant & disputed, This affidavit was never al- appellee. and though deposition: Shantz testified WUEST, Chief Justice. Q got. Okay. you When yourself what was said between trial court’s appeal This is an from the Lyle? in favor of a grant the third- third-party defendant me that at that time he was He told party plaintiff. We affirm. of one of these Indian in the middle you that he projects and wouldn’t— Joseph and July plaintiffs, 1983 the In know, everything just drop couldn’t he begin (Harmons), decided Edith Harmon though in a do this we were even Pierre, of a new home construction he one of hurry for it. But he said The Harmons were anxious Dakota. South guys working for him who done possible so as soon as begin construction time or when he was spare this in his ready before winter. house would be up project he was work- caught with a representatives met The Harmons with he do it. ing on and that would Lumber, (Christy) to select Inc. point Q he indicate at that Okay. Did Christy on a bid from plan and obtain floor who was? a floor Harmons selected materials. necessary Christy ordered the plan and A Dave Warren. designing only to learn that the Q Okay. Lor- doing business. had ceased company Q you relying And so at that (Shantz), Christy employee, en Shantz Lyle’s advise? (La- telephoned Lyle LaFramboise then A Yes. Framboise), general owner of president and Q do the That could would (Eagle), a local architectural Eagle 2000 job? firm, Eagle could to see if engineering A Yes. floor prints the Harmons’

draw blue And, Q so, place claims, however, next? Did what took Lumber. Shantz you give Lyle plans, the house notice receive from Warren that work be done what? under the auspices of nor Eagle, did he receive the give rough A I him the sketch. *3 indicating bill the work by had been done Q Okay. Design From Products? Group Design Warren until after he had Right. A already given plans the to the Harmons. Q And he indicated Warren fall, The house was constructed the get you, back to or what was the a and number flaws developed of both dur- agreement? ing after construction. The Harmons A Yes. Christy seeking sued Warren and damages Q Okay. Was there an indication how negligence for and breach of contract in take? long that would preparation procurement the right present A Not at the time. blueprints. against Warren cross-claimed Joe, then, Q you get Did back to to let Eagle claiming project that he had the done they working him know that were on employee acting an scope within the of it? employment. Christy his cross-claimed A Joe No. called me. against for indemnity Warren and filed a A Yes. party complaint against Eagle. third Q you And what did tell him? Christy’s party complaint alleged third they A I informed him that were work- they justifably had believed that Warren ing on it. preparing plans employee was the as an of Q Okay. you Did tell him it was Therefore, Eagle. argued, it Eagle was 2000, Warren, Eagle or Dave or who asserting should be estopped from Warren you tell doing him was it? not an employee Eagle acting was of within Eagle A 2000. scope employment of pre- his when Q your was it At under- pared plans. standing doing that Warren was it as a Eagle granted was moved and separate enterprise, and distinct or judgment on Warren’s cross-claim and moonlight own, job his or that he Christy’s party Only Christy third claim. doing it Eagle was on behalf of 2000? appeals. The court Christy’s trial cited MR. MAYER: a Just moment. That’s in opposition brief to summary objected calling to as for a conclusion judicial of a evidence admission that War- opinion witness, and not employee Eagle was ren not an in pre- sufficient foundation. paring plans. Christy argues while go MR. BARNETT: You can ahead agency relationship there was no between and answer. Eagle and preparation Warren A impression I was under the that it blueprints, Eagle is estopped from as-

was serting those facts because led employee to Warren believe was an plans Shantz delivered the floor to War- Eagle. appeal On claims the Eagle’s ren at offices sometime before court trial misconstrued its admission. We August. 23rd of fin- After agree. blueprints picked ished up Shantz them and delivered them to the War- Harmons. An voluntary admission is a ac gave Christy ren for his which bill work knowledgment party of made the ex eventually paid to Warren or certain istence truth of facts are Group. While this occurred all sometime his claim in action inconsistent with August 24 between 23 and the record does proof to amounts therefore him. show whether de- judicial Am.Jur.2d 29 Evidence § livered Harmons either or before admission a formal act of a his court, after presented dispensing proof Warren had bill to with

693 true, is used as a the rule are fact claimed found in cases where the upon legal at the trial. facts relied petition, evidence set out substitute plaintiff or when the Casualty Corpora- opportuni has had no v. Bituminous Hofer 81, (1967); plea. tion, ty 148 to offer 260 Iowa N.W.2d 485 Bundick v. Denni son, Carr, 545, 480 So.2d 458 (La.App.1985); 167 Beane Neb. Johns Sturgeon City 112 Wis.2d (1958); Valley Bay, 334 Kuhlmann v. Platte 831 (1983); 235 District, Estoppel 28 89 Am.Jur.2d 166 Neb. Irrigation (1966); (1958); Am.Jur.2d., and Waiver 120 A.L.R. Evi- § N.W.2d 768 (1939). (1967). dence question arises whether suffi Ordinarily the of an admis whole *4 pleaded cient facts were which establish together. taken and construed sion is be estoppel. equitable complaint A which ade language party of a should be con The quately informs defendant of the facts on it purpose in for which strued view plaintiff rely which and intends contains used, is and in with the sur connection estoppel the essential elements of an is rounding and statements. circumstances Mere informality plead sufficient. in the subjected will not to a The statement deprive ing pleader will not the construction in order to deduce strained estoppel long the benefit of as as the facts admission, nor will it be so therefrom sufficiently pleaded. Estop- 31 C.J.S. as to include admissions of fact construed 156(1) (1966). Although pel meagerly § therefrom, reasonably inferable it be not plead, alleged hold we sufficient facts were susceptible ing only reasonably where it is party complaint in third the establish as involving of a construction an admission equitable estoppel. question. in Evi to the matter 31A C.J.S. (1964). dence However, summary judgment is any if there proper exists basis which Christy did no admit there was support ruling. the courts’ trial but, Eagle relationship; agency claimed 15-6-56(c); For Barger SDCL Wares v. it, estopped denying Eagle from as was Cox, (S.D.1985). 372 N.W.2d 161 In South Christy. mislead trial court’s decision Dakota, requires line one of cases that judicial both held the admission removed representations must be false or con there superior estoppel is respondeat and eq cealment of material facts to establish However, Christy sues. estoppel. line of cases uitable Another qualified recognize his admission and we merely requires party that to be qualification and the circumstances estopped must have in some manner misled surrounding the entire hold statement. We party raising estoppel to his detri part of the estoppel issue was not a 394 N.W.2d 896 Wright, ment. Sander Nor, judicial it admission. do we believe (S.D.1986). There facts in are no pleadings in was lost on the basis of the representa here that indicate a false record complaint sug party third as further facts. Un or concealment of material tion gested in the trial decision. court’s standard, are unable to der the second we third paragraph is clear in VIII of the As whereby LaF- say there was fact issue complaint, there mention of the is no Christy’s detri mislead Shantz to ramboise “estoppel”: word (LaFramboise’s affida ment. The record at all time hereto That relevant vit) undisputed did not is that LaFramboise Lumber, that the justifiably Inc. believed True, in said his Shantz mislead Shantz. Joseph plans it received behalf of impression Ea deposition he was under the under the Edith Harmon were drafted impres job, do his gle 2000 would but auspices 2000 ... not admissible. conclusion is sion is a Otherwise, nothing is in the record there Equitable estoppel, element of as an not, available, contradicting the affidavit action, rule, LaFramboise is cause of therefore, we exceptions affirm. specifically pleaded. The unless MORGAN, J., FOSHEIM, appellee’s on his own. Even counsel ad- J., “Although slight mits: is Retired concur. there some dif- opinion concerning ference of this conver- SABERS, JJ„ HENDERSON and [,].” view, sation In my ... there is a sub- dissent. opinion stantial difference testimony MILLER, J., having not been a concerning Summary this judg- matter. member of the Court at the time this improper ment if is even the differences Court, action was to the submitted substantial, only slight, and not as we participate. slight have here. Even differences testimony jury, are to be resolved HENDERSON, (dissenting). Justice finder, the fact after evidence. involving eq- Cases a state of mind and (2) deposition testimony Warren’s is usually uitable actions are suited highly suspect claiming at one summary disposition. Wilson v. Great testimony did this on his own. His 207, 212, Ry. Co., 83 Northern S.D. self-serving employer for himself and his (1968). seminal, per- true, If testimony his central, haps litigation issue in this be- why did he from it retreat later Lumber, Inc., and Eagle tween addition, deposition? In if testimony *5 2000 is: What was Loren Shantz’ state of true, why did Warren cross-claim impression mind or when he delivered the against Eagle claiming 2000 that he had plan floor to Dave Warren at the business project done the an employee acting as premise 2000? scope within the employment? of his It is exists, question As a state of mind obvious that neither Warren his coun- nor equitable pleaded, an action was sel self-serving believed his later inconsist- (sworn deposition testimony) because is testimony. way ent jury -Either it is for the subjugated quality proof in beneath an to determine. (witness opinion), majority by affidavit (3) in The evidence was not taken authority, virtue of above rationale and light nonmoving par- most favorable to the I respectfully dissent. Madera, ty. Trapp As in stated v. 390 Earnestly, I to call the attention of the (S.D.1986), judg- N.W.2d 558 Summary Judgment Bar and Bench that is ment, affidavits, pleadings, depositions remedy. Truly, severe extreme I every arising inference reasonable employment beyond scope, fear its lan- therefrom must be viewed most favorable guage, and intent of our holding Wilson. nonmoving party. toward the at 562. Id. recently, language: Most I reaffirmed this Moreover, appellate court is bound Summary judgment is an extreme reme- by findings the factual of the trial court. dy only should be awarded when the Instead, independent it must an conduct truth clear Locke, and reasonable doubts Hurney review of record. touching genuine 764, the existence of a (S.D.1981); issue 308 Trapp, N.W.2d 767 against be supra. should resolved the movant. Agricultural American Indian Credit Summary judgment is not a substitute Livestock, Inc., v. Fort Pierre 379 for trial are not when claims asserted (S.D.1985). 318 sham or frivolous. To surmise that a State, (S.D.

Aase 400 N.W.2d 274 prevail will not at trial is not a sufficient 1987) (Henderson, J., dissenting). grant summary judgment basis to on is- sham, sues not shown to be SABERS, (dissenting). Justice frivolous, or so it is unsubstantial that obvi- I dissent. try ous it would futile them. At least three fatal exist defects Railway Wilson v. Great Northern Com- granting summary judgment in this case: 207, 212, pany, 83 157 N.W.2d S.D. (1)A genuine (1968); material issue of fact ex- Trapp, 390 N.W.2d at 564. The ists drawing remedy only as to whether Warren was when the movant is authorized employee 2000 or is entitled to as a matter law no issues of material there are because Deering, Trapp, supra;

fact. Nemec v. (S.D.1984); Caneva v. Bank, 335 N.W.2d Merchants

Miners and (S.D.1983). opinion offsets defendant’s majority self-serving affidavit

inadmissible deposition testi-

conflicting but admissible the role of fact

mony. Then it assumes by furthers the error committed

finder and is a fact

the trial court. Since a trial court trials, court its error is under-

finder after Supreme

standable. Since the Court is finder, its error is not.

never a fact Wil-

son, supra. supposed

In Dakota we are South by affi- jury,

have trial defendant’s Therefore, neither the trial court

davit.1 Supreme get to

nor the Court should even questions concerning claimed

admissions, im- estoppel admissibility and remand

pressions. We should reverse jury the trial court for a trial. *6 PEERY, Ray Grievant and

C.

Appellant, AGRICULTURE,

DEPARTMENT OF Dakota, Respondent

State of South Appellee.

No. 15350. Dakota.

Supreme Court of South on Briefs Jan. 1987.

Considered

Decided March Gors, Braun, Carlon, E.

James Carlon Zastrow, Pierre, grievant Smith appellant. State, summary judgment respectfully has submit that my Aase v. 1. As stated in recent dissent in (1987), interesting jury improperly replaced "It is trials in this state civil Benchmark, (1985), VI., according to the note that despite of Art. the mandate report Unified the South Dakota the annual Constitution[.]” South Dakota System, jury trials were a mere 95 civil Judicial recently published 1986 Benchmark per reported to 2.7 cir- in 1985. This amounts making jury civil trials shows an increase of 23 county per judge per year; per 1.4 cuit court year; my premise for 1986. I submit a total of 118 per State of South and 1.8 week in the still stands. 38-39, I Id. at Tables 13 and Dakota.