Todd J. OWENS, Plaintiff and Appellant, v. Elizabeth M. MOYES, Defendant and Appellee.
No. 18785.
Supreme Court of South Dakota.
Decided April 26, 1995.
Considered on Briefs Jan. 11, 1995.
530 N.W.2d 663
We agree that to hold an abstractor liable in tort to a third party there must be some reliance on the part of the third party and find the Florida Supreme Court‘s analysis of the scope of an abstractor‘s duty and negligence liability persuasive:
[W]hen an abstract is prepared in the knowledge or under conditions in which an abstracter should reasonably expect that the employer is to provide it to third persons for purposes of inducing those persons to rely on the abstract as evidence of title, the abstracter‘s contractual duty to perform the service skillfully and diligently runs to the benefit of such known third parties.
1st American Title Ins., 457 So.2d at 472.
We think that analysis equally applies to a title insurance policy issued by an Abstractor. Here the trial court found that Muhlenkort had not relied on the title policies and we agree. Muhlenkort has not established that she relied on or was a beneficiary of the abstract of title or title insurance policies. The parties stipulated that the title policies were not supplied to Muhlenkort, that she did not communicate with representatives of the Abstractor or Insurer prior to the issuance of the policies and that she was not a named insured on the policies. Even more important is that the omission of Muhlenkort‘s judgment lien from the title insurance policy did not extinguish her lien on the property. Muhlenkort knew on July 22, 1986 of the omission of her lien on the title policy but did not seek to foreclose on it.
Furthermore, there is no evidence that Abstractor had knowledge of or should have known that Muhlenkort, as a third party creditor, would be supplied with or relied on the title policy issued to the Trust and the bank. In addition, it simply was not foreseeable that Muhlenkort would let her lien expire even though her judgment lien was valid four more years after she learned of the omission in the title policy.
Therefore, Abstractor owed no duty to Muhlenkort and is not liable to her under a negligence theory. We conclude that the trial court erred as a matter of law and reverse its decision on this issue. Because we conclude that the defendants are not liable to Muhlenkort under the theory of negligence we need not address issues four, five and six.
MILLER, C.J., SABERS and KONENKAMP, JJ., and WUEST, Retired Justice, concur.
TRANDAHL, Circuit Judge, for AMUNDSON, J., disqualified.
GILBERTSON, J., not having been a member of the Court at the time this case was submitted, did not participate.
Rodney C. Lefholz, Rapid City, for plaintiff and appellant.
Thomas G. Fritz of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee.
Todd J. Owens (“Owens“) appeals from a judgment granting a motion for a directed verdict. We affirm.
FACTS
Owens filed his complaint claiming that Elizabeth M. Moyes (“Moyes“) owed him $11,780 for loans he claims he made to Moyes during the course of their ill-fated relationship. The scant record discloses that following the close of Owens’ case in chief, the trial court directed a verdict of $654.01 for Owens, the sum of money that Moyes agreed that she owed Owens and which was evidenced by written “IOUs.” The trial court concluded that since there was no writing signed by the parties representing the balance of the amount Owens claimed he had loaned to Moyes, the statute of frauds,
It appears from the record, however, that Moyes disputed that the amounts over $654.01 were ever loaned to her by Owens. Accordingly, the trial court‘s directed verdict was not without support in the record.
In Baltodano, this Court was faced with a similar situation. A verdict was directed in favor of North Central. Baltodano appealed but did not obtain a transcript. We held:
Thus, Baltodano is faced with two presumptions—the first being that on a directed verdict motion, we presume that the trial court acted correctly. [Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D.1985)]. Second, when we are confronted with incomplete records—in this case, the lack of a trial transcript showing the testimony heard by the trial court—we presume that the circuit court acted properly. [In re C.M., 417 N.W.2d 887, 889 (S.D.1988)]. Baltodano must overcome both of these presumptions before we can reverse the judgment of the trial court. We believe that Baltodano‘s inability to overcome these presumptions is dispositive of this case, and affirm the trial court on this basis alone.
The appellant has the burden of going forward in an appeal, and providing this Court with an adequate record upon which to do so. If appellant chooses to dispense with a full transcript, he must be prepared to overcome the strong presumptions in favor of the trial court‘s decision. Id. Thus, we review Owens’ appeal based on the scant record before us, keeping in mind these presumptions.
Here, we are asked to review the trial court‘s ruling on Owens’ claim that there existed a contract with Moyes for the lending and repayment of money. The case of Werner v. Norwest Bank, 499 N.W.2d 138 (S.D. 1993), controls this issue. The existence of a valid express contract is a question of law to be determined by the court, not a jury; an express contract exists only when the parties mutually express an intent to be bound by specific terms and conditions. Id. Where there is no showing that the terms of an alleged oral agreement were ever settled or agreed upon, it is proper for the trial court to make a summary finding against the existence of a contract. Id. Thus, in Werner,2 “[w]here there was no understanding as to the exact amount of money, interest rate, time and method of repayment, and no exchange of documents, no enforceable contract can be said to exist.” Id. at 142 (emphasis added).
Further, since Baltodano compels us to presume the trial court‘s determination is proper when we are not provided with a trial transcript and to presume the trial court acted properly in granting the directed verdict, we may affirm the decision on any basis, regardless of whether it is the identical rationale employed by the lower court. We note that we have previously held that a party to an oral agreement may be prevented by estoppel from invoking the statute of frauds where a misrepresentation is made as to a past or present fact. Shaw v. George, 82 S.D. 62, 141 N.W.2d 405 (1966). See Restatement of the Law of Contracts, § 90 (“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce
The dissent claims Owens was entitled to judgment for $5,000 because Moyes admitted this amount in her answer. His complaint sought a judgment for $11,780 as repayment for the alleged loans. In paragraph IV of her answer, Moyes specifically “denies owing Plaintiff the sum of $11,780.00 and puts Plaintiff to his strict proof of the same.” The following paragraph of her answer is that quoted by the dissent, where she alleges a separate $5,000 loan and the terms of repayment, which had not matured. It is entirely possible that given Owens’ evidence the trial court determined that this separate loan agreement including Moyes’ agreement to repay the sum, had not matured, and he was not entitled to judgment until such time as Moyes defaulted on her repayment obligation. Admittedly, this requires some degree of speculation regarding the record before the trial court. However, that is precisely why the rule in Baltodano requires that we presume the correctness of the trial court‘s ruling. A full transcript would eliminate such uncertainty and might provide a better opportunity for Owens to overcome these presumptions. Without one, however, we are bound to presume the correctness of the trial court‘s decision and construe all facts consistent with such presumptions.
The partial transcript that Owens has provided contains a statement of the trial judge made after the completion of the trial and adjournment. He thanked the jury for their service and apologized for having to take the decision out of their hands by directing a verdict. He said:
The law—I‘ll let you know what happened. The law in this case is if a person—and keep this in mind. It may come to your benefit later on.
No promises to pay money, no loans that are provided—can be enforced in court unless there is a subscription, a writing, that confirms the essence of that loan.
So if someone—if you walk up and say “hey, can I borrow 20 bucks until next week,” you give him 20 bucks, you can never sue him to collect it. So there has got to be a subscription, a writing confirming the existence of some agreement to pay back the money at some point in time....
This statement was purely gratuitous, rendered after adjournment of the proceedings. We do not consider such language to be part of the court‘s decision and we do not express an opinion as to the accuracy of such a statement.
Based upon the posture in which Owens has presented this appeal and the foregoing analysis, we conclude that Owens has failed to overcome the strong presumptions set out in Baltodano.
We affirm.
AMUNDSON and KONENKAMP, JJ., concur.
SABERS, J., dissents.
GILBERTSON, J., not having been a member of the Court at the time this case was submitted did not participate.
SABERS, Justice (dissenting).
The trial court erred in directing a verdict that plaintiff could not recover monies lent to defendant that were not evidenced by a written document.
The trial court said “you give him 20 bucks, you can never sue him to collect it.” This is nonsense. The statute of frauds prohibits enforcement of:
An agreement for a loan of money or for an extension of credit[.]
Plaintiff has loaned to defendant the sum of $5,000.00 and defendant has offered to repay plaintiff that amount according to their agreement. (Emphasis added).
“[N]o evidence is required to establish a fact conceded by answer.” Simons v. Kidd, 73 S.D. 306, 309, 42 N.W.2d 307, 308 (1950). This is an admission against interest and eliminates plaintiff‘s burden of proof to at least $5,000.00, not just the $654.00 found by the trial court. See Id. Since the burden of proof as to $5,000 is eliminated, the majority opinion‘s strained justifications and the presumptions from Baltodano are not even relevant.
We should reverse this case because the trial court went against settled South Dakota Law at least twice.
Accordingly, I would reverse and remand to the trial court to enter judgment consistent with this dissent.