HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF SIOUX FALLS, A Corporation, Plaintiff, v. THE FIRST NATIONAL BANK IN SIOUX FALLS, as Executor of the Estate of Cecil L. Anderson, and E. Jeanette Anderson, Defendant, Third Party Plaintiff and Appellant, and FIRST BANK OF SOUTH DAKOTA, N.A., Defendant and Appellee, v. THE FIRST NATIONAL BANK IN SIOUX FALLS, Third Party Defendant.
No. 15344.
Supreme Court of South Dakota.
Decided May 13, 1987.
Considered on Briefs Feb. 18, 1987.
Whether a parent has abandoned a child under
The trial court found that Claymore had abandoned his child. Danette, who will be ten later this year, although raised by her mother, knows and has had many contacts with her father and his parents. Considering the various contacts between the child and her paternal family, we cannot agree that she has been abandoned—although it is clear that the father has been totally neglectful and lacking in paternal responsibility, especially in the area of sup-port. However, to determine abandonment under the limited evidence and to totally terminate parental rights and to authorize adoption creates too harsh a result.
We believe this finding was not sup-ported by clear and convincing evidence. This court has defined “clear and convincing evidence” as follows:
The measure of proof required by this designation falls somewhere between the rule in ordinarily civil cases and the requirement of our criminal procedure, that is, it must be more than a mere preponderance but not beyond a reason-able doubt. It is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegation sought to be established. Evidence need not be voluminous or undisputed to accomplish this.
Brown v. Warner, 78 S.D. 647, 653, 107 N.W.2d 1, 4 (1961).
We affirm the trial court on the issue of retaining jurisdiction, but reverse and re-mand on the abandonment issue with di-rections to establish support obligations and visitation rights and consider Serr‘s request for maternity expenses.
All the Justices concur.
Donald N. Srstka, Sioux Falls, for appellee.
MILLER, Justice.
E. Jeanette Anderson (Jeanette) appeals from a summary judgment granted in favor of First Bank of South Dakota (First Bank). We affirm.
In 1973, Jeanette‘s husband Cecil L. Anderson (Cecil) mortgaged the couple‘s home. This mortgage, in the amount of $80,000, was given to First Federal Savings and Loan Association of Sioux Falls, South Dakota. Later, First Federal Savings and Loan merged with Home Federal Savings and Loan of Sioux Falls (Home Federal) whereunder Home Federal acquired all as-sets, including the Anderson mortgage. Although the property was titled in Cecil‘s name only, Jeanette also signed the mort-gage to evidence the waiver of her home-stead rights. This mortgage and waiver are not at issue here.
After Cecil‘s death in April, 1983, First National Bank of Sioux Falls (the executor) was named executor of his estate. Jean-ette alleges an accounting conducted some-time during 1983 valued the estate at ap-proximately $3.6 million. Nevertheless, the executor within a year thereafter be-gan having difficulty making payments on the Home Federal mortgage as well as other estate debts. In order to meet these
As part of this loan transaction with First Bank, Jeanette executed a document entitled “Consent to Mortgage and Waiver of Homestead Rights.” This document reads, in pertinent part:
WHEREAS, without the foregoing loan, the Executor would be unable to meet the financial and legal obligations of the estate, including the payment of the fam-ily allowance due and payable to [Jean-ette] in the monthly amount of $2,200.00 ... and without which loan the Executor will furthermore be unable to meet the monthly installments ... [of the Home Federal loan] ... secured by a first mort-gage ... [Jeanette] has agreed to con-sent to the mortgage required by [First] Bank ... and to waive her homestead rights under applicable South Dakota law; ... further subject to the right ... to continue to reside in the residence ... until [First] Bank shall have foreclosed any and all remedies available to it to proper-ly marshall and liquidate all other collat-eral held by [First] Bank to secure the loan or loans by [First] Bank to the es-tate of [Cecil] Anderson, deceased....
This second mortgage apparently was the only collateral First Bank received. Al-though the estate gave First Bank a $120,-000 note, the bank loaned the estate only $105,000, apparently because the estate owned only $105,000 worth of collateral.
Despite receiving the loan from First Bank, the estate was soon unable to contin-ue to make payments on the first mortgage held by Home Federal. In November, 1985, Home Federal brought suit to fore-close its mortgage, naming the executor, Jeanette, and First Bank as defendants. First Bank cross-claimed against the execu-tor and Jeanette for their failure to make any payments due under the note executed in its favor. In the cross-claim, First Bank prayed for foreclosure of its second mort-gage, judgment in the amount of $105,000, plus other items. Jeanette‘s reply to the cross-claim set forth various affirmative defenses.1
Home Federal and First Bank both moved for summary judgment. The trial court granted judgment of foreclosure in favor of Home Federal against the estate and against Jeanette on the first mortgage. This judgment of foreclosure is not appeal-ed. The court also entered judgment of foreclosure in favor of First Bank against the executor and Jeanette on the second mortgage. This is the judgment from which Jeanette appeals.
First Bank‘s summary judgment motion was supported by three affidavits and other evidence, including the note and mortgage signed by the executor and the consent/waiver signed by Jeanette. This evidence established a prima facie right to foreclosure. An affidavit of the vice-presi-dent of First Bank stated the consent to mortgage and waiver of homestead rights was not prepared by any attorney or repre-sentative of First Bank but “was prepared by request of the attorney for E. Jeanette Anderson.”2 Jeanette‘s only response to the summary judgment motion was by an affidavit which simply stated that the facts set forth in her pleadings were correct.
Jeanette argues on appeal that First Bank‘s summary judgment motion was im-properly granted because there were mate-rial facts in question regarding the exist-ence of the numerous defenses she assert-ed to enforcement of her homestead waiv-er.
The showing an adverse party must make to successfully resist a motion for
When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affida-vits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judg-ment, if appropriate, shall be entered against him.
Hughes-Johnson Co. v. Dakota Midland Hospital, 86 S.D. 361, 195 N.W.2d 519 (1972), is the seminal South Dakota case interpreting this statute. In this case we stated:
The burden, of course, is on the mov-ing party to show there are no genuine issues of material facts. However,
SDCL 15-6-56(e) requires the opposing party to be diligent in resisting a motion for summary judgment, and mere gener-al allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.
86 S.D. at 364, 195 N.W.2d at 521 (citations omitted). As we explained in Hughes-Johnson, “[t]o allow formal denials and conclusory pleadings to raise genuine is-sues against uncontradicted facts would nullify the utility of the [summary judg-ment] rule.” 86 S.D. at 364, 195 N.W.2d at 520-21.
In Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983), we held a court may consid-er allegations contained in a verified com-plaint to determine if the requirements of
Jeanette‘s pleadings contain a gen-eral denial of certain allegations essential to First Bank‘s prima facie case for fore-closure, such as First Bank‘s allegation that payments due under the note were delinquent. General denials are clearly in-sufficient to raise factual issues regarding the facts disputed. See, e.g., Laber v. Koch, 383 N.W.2d 490 (S.D.1986); Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100 (S.D.1985); Ruple, Hughes-Johnson, supra. She also alleged her “signature was obtained through duress, fraud, undue influence or mistake.” This is precisely the type of insufficient conclusory assertion re-ferred to in
Presumably, other allegations con-tained in Jeanette‘s pleadings were intend-ed to give factual support to the defenses she pleaded and relied upon to resist the summary judgment motion. These allega-tions refer only to the conduct of the execu-tor, however, not First Bank. For exam-ple, Jeanette alleged that the executor in-duced her to sign the homestead waiver by advising her that otherwise the estate would be unable to continue making her house and family allowance payments; that she was experiencing “significant mental problems” when she signed the waiver; that she resisted signing the waiver for several months and agreed to sign only when assured by the executor that the loan from First Bank would be used to continue making these payments; that she would not have signed had she believed the loan would not be so used; and that some of the loan money was not used for making the house and family allowance payments but instead was invested in a Colorado holding company which was foreclosed upon.
These allegations were insufficient to avoid summary judgment. Even assuming this alleged improper behavior on the part of the executor gave rise to any of the defenses asserted against First Bank, the allegations were unsupported by a shred of any factual evidence and were insufficient-ly specific to place facts into legitimate
The final allegation pleaded which may be considered as giving rise to a de-fense against First Bank is Jeanette‘s as-sertion that First Bank “failed to provide its part of the consideration that was the basis of the waiver of the homestead rights.” This apparently refers to the fact that First Bank loaned only $105,000 in-stead of the $120,000 as provided in the note. Jeanette claimed the executor would have been able to continue making the house and family allowance payments had the additional $15,000 been paid. Again, this conclusion was unsupported by any factual evidence. As we stated in Ruple, “[f]acts must be met by facts, not by mere conclusions or denials.” 328 N.W.2d at 861. See N.W. Pub. Serv. Co. v. Chicago & N.W. Railway Co., 84 S.D. 271, 170 N.W.2d 351 (1969) (Roberts, J., dissenting) (citing Advisory Committee comments on point with this case).
To summarize, First Bank introduced evi-dence at the summary judgment hearing which established a prima facie right to foreclosure of its second mortgage. Jean-ette failed to “set forth specific facts show-ing that there [was] a genuine issue for trial” as required by
Affirmed.
WUEST, C.J., and MORGAN and SABERS, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in re-sult).
A statute can be stretched like a rubber band, and, ultimately, you can stretch it only so far and then it breaks. The statute becomes no good. The rubber band be-comes no good. Too much stretching erodes the statute until its original intent is destroyed. I concur in the result of this case only because I am afraid that the stretching will break the rubber band, nay the intent of the statute.
Appellant‘s pleadings were three in num-ber and were all dated November 15, 1985. As the majority opinion points out, the pleadings were unverified. By affidavit of February 26, 1986, appellant supposedly “swears to the truth” of the November 15, 1985 pleadings. This is some type of a “retroactive swearing.” The swearing it-self is faulty because the affidavit says that the facts in the pleadings “are true and correct to the best of her knowledge, information and believe [sic].” This retro-active bootstrapping by the use of a 1986 so-called affidavit, to raise the pleadings back in 1985 to a level of being verified, is totally untenable as a matter of law.
This decision, although temporal in na-ture, does violence to our past holdings and to the intent of
It behooves a party who resists summary judgment to go to work. When I say, go to work, I mean commence the business of being a good workmanlike lawyer. Oppose a summary judgment by assembling and
Reference is made to a recent negligent representation case, Peterson v. Rogers, 347 N.W.2d 580 (S.D.1984), wherein this Court upheld summary judgment because the party opposing the motion filed no affi-davits and relied exclusively upon general allegations reflected in the pleadings. In Peterson, 347 N.W.2d at 581, we stated:
SDCL 15-6-56(e) requires the party op-posing a summary judgment motion to be diligent in resisting it; mere general allegations which do not set forth specif-ic facts will not prevent issuance of a summary judgment. Since appellants have failed to set forth any evidence on the essential element of the falsity of the representation, summary judgment was properly granted. (Citations omitted.)
I acknowledge the Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983), rule concerning the acceptability of verified complaints. Here, as the majority opinion points out, appellant simply did not verify the plead-ings. Appellant‘s affidavit is a backdoor attempt to verify a pleading. It is a weak affidavit, to say the least, because it is upon “information and believe [sic].” It is further ill because it refers to pleadings that do not fall within the rules of evidence and are conclusory in nature. Facts ad-vanced by a summary judgment cannot be met by denials, allegations and legal con-clusions. If the courts of this state permit-ted such type of procedure to raise genuine issues, against uncontradicted facts, it would nullify the utility of the rule itself. See Ruple, 328 N.W.2d at 861.
Therefore, although I agree with the general principle and citations set forth in the majority opinion, I do not agree that “[w]e therefore will consider whether the allegations contained in her pleadings were sufficient to raise a material factual issue.” I do appreciate the general tenor of the majority opinion, that this is not a pre-ferred practice and “may not in the future, after this warning, be acceptable or suffi-cient.”