REEDE CONSTRUCTION, INC., Plaintiff, Counterclaim Defendant and Appellee, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant, Counterclaimant and Appellant.
27863
Supreme Court of South Dakota.
11/01/2017
2017 S.D. 63
CONSIDERED ON BRIEFS ON FEBRUARY 13, 2017
was Mother‘s actions—not Father‘s alleged intent to abandon—that caused Father‘s minimal contact.
[¶17.] In sum, this is not a case involving a parent‘s unexplained failure to maintain contact with their child. Cf. Z.N.F., 2013 S.D. 97, ¶ 20, 841 N.W.2d at 466-67 (upholding finding of abandonment, even though mother deliberately concealed her whereabouts, because father obtained mother‘s address and knew her phone number but never attempted to contact the child). In this case, Father was recovering from a severe injury. He did not have the means to support himself, and he had to move away from J.Q.P. to obtain the financial and emotional support he needed. And during this time, Mother actively prevented Father from contacting her by threatening to report him to law enforcement and blocking his phone number. Once he recovered, Father still tried to indirectly contact Mother, and each time she turned him away. After these repeated rejections, Father lost hope that Mother would ever let him see his child. Nevertheless, he continued to support J.Q.P. by paying child support. And when he most recently attempted to force visitation by retaining an attorney, Petitioners proceeded with this adoption. Ultimately, this is a case where Father was trying to have a relationship with J.Q.P. but was thwarted by Mother. On this record, the circuit court did not err in determining that Petitioners failed to show clear and convincing evidence that Father had given up or totally deserted J.Q.P.
[¶18.] Affirmed.
[¶19.] GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices, and WILBUR, Retired Justice, concur.
RONALD G. SCHMIDT of Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for plaintiff, counter claim defendant and appellee.
JUSTIN T. CLARKE of Davenport, Evans, Hurwitz & Smith LLP, Sioux Falls, South Dakota and EDWIN E. EVANS of Evans, Haigh & Hinton, LLP, Sioux Falls, South Dakota, Attorneys for defendant, counterclaimant and appellant.
[¶1.] The South Dakota Department of Transportation (DOT) contracted with Reede Construction Inc. (Reede) to perform highway construction work in Sioux Falls. DOT refused to issue a letter of acceptance after requesting numerous repairs, many of which Reede never performed. Reede eventually left the job and demanded payment for the repairs it had completed. Reede sued, and DOT counterclaimed. At trial, the jury returned a verdict awarding no damages to either party. DOT filed a motion for a new trial, arguing insufficient evidence supported the jury‘s verdict. The circuit court denied the motion, and DOT appeals. We affirm.
Facts and Procedural History
[¶2.] In March 2006, DOT contracted with Reede to perform work on a portion of Interstate 29 and Highway 42 in Minnehaha County, South Dakota. DOT set June 29, 2007, as the completion date. On April 12, 2006, Reede sent a letter to DOT proposing a modified concrete mix design. DOT approved, appending a special provision to the contract allowing for a contractor-furnished mix design “sufficiently workable and finishable for all uses intended[.]” Use of the new mix design would “not relieve [Reede] from the responsibility for furnishing a concrete mix that meets specification and workability requirements.”
[¶3.] In late 2006 and early 2007, DOT identified various defects in the pavement and concrete. On February 1, 2007, DOT sent a preliminary punch list of items requiring repairs to Reede. The punch list identified numerous instances of cracking and joint spalling.1 In late April 2007, DOT observed additional cracking and distress
[¶4.] In June 2007, concerns arose regarding surface finish, transverse and longitudinal cracking, joint spalling, and other “spider web like cracking.” In late June, DOT contacted Reede to again request repairs while denying that “acts of God or others contributed to the pavement failure.” DOT also contacted Reede in July regarding the need to remove panels on I-29 “due to poor consolidation and unacceptable finish.” DOT further requested Reede provide DOT “a written position on the cause of the above noted conditions and the course proposed to correct these issues.”
[¶5.] In November 2007, Reede sent DOT a letter containing the observations of James LaFrenz, a concrete expert Reede had hired, regarding the condition of the project. DOT reviewed LaFrenz‘s letter and determined it needed to conduct further analysis. DOT informed Reede that once it finished its examination, DOT would issue a work order detailing repairs that needed completing before Reede could receive final acceptance.
[¶6.] On February 28, 2008, DOT sent Reede a letter listing issues still outstanding on the project, including the need for concrete pavement repairs. Reede responded it would make additional inspections of the concrete. In July 2008, DOT sent Reede a work order requesting pavement repairs. DOT received no response. In September, DOT requested a written statement detailing what Reede intended to do. On February 6, 2009, Reede wrote back that it “recogniz[ed] the request to complete the concrete repairs” and “intend[ed] . . . to execute the work needed to complete the work requested.” However, Reede again requested reimbursement for any such repairs. DOT responded that Reede would need to file a formal claim, and DOT reiterated its position that any costs for repairs should be borne by Reede.
[¶7.] In March 2009, Reede sued DOT, claiming breach of contract, quantum meruit, and unjust enrichment. DOT counterclaimed for breach of contract and breach of implied warranty of workmanship. The parties conducted extensive discovery. On November 9, 2015, a ten-day jury trial commenced. Both sides offered numerous exhibits, and the jury heard extensive testimony, including from experts. The jury returned a verdict awarding no damages to either party. On February 17, 2016, DOT filed a motion for a new trial. On April 11, the circuit court indicated orally that it would deny the motion. On April 13, the court issued its order denying DOT‘s motion for a new trial.
[¶8.] DOT appeals, arguing the circuit court abused its discretion by not granting DOT‘s motion for a new trial. Reede responds that DOT failed to preserve the
Analysis and Decision
[¶9.] At issue is whether a motion for a judgment as a matter of law must be made before a motion for a new trial based on insufficient evidence to justify the verdict. See generally 9B Arthur R. Miller, Federal Practice and Procedure § 2531 (3d ed.), Westlaw (database updated April 2017). DOT argued in its motion for a new trial that insufficient evidence supported the jury‘s verdict. DOT again makes this argument on appeal. However, Reede contends DOT failed to preserve its right to appeal on this issue, citing
A motion for a new trial shall not be necessary as a prerequisite to obtain appellate review as to matters specified in subdivisions 15-6-59(a)(6) and (7), and all such matters may be reviewed on an appeal from the judgment, regardless of whether a motion for a new trial has been made, provided such matter has been submitted to the trial court as prescribed in
§ 15-26A-8 .
[¶10.] Reede argues that to preserve appellate review,
[¶11.] However, this argument misconstrues the purpose of
[¶12.] Nevertheless, under the facts of this case, DOT‘s failure to make a motion for a judgment as a matter of law forecloses our review of DOT‘s claims on appeal. DOT argues that the evidence was insufficient to support the jury‘s verdict because the “overwhelming evidence presented at trial proved Reede breached the parties’ contract” and that such breach caused at least some of DOT‘s damages. DOT‘s insufficiency claim thus requires us to make a judgment as a matter of law on issues of contract interpretation, breach, and causation. However, when asked at trial whether it wished to make a motion for a judgment as a matter of law, DOT declined. It claimed issues of fact existed on the question of breach.
[¶13.] Having gambled on the verdict and lost, DOT now attempts to fashion its request for a judgment as a matter of law as a motion for a new trial. See ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 96-97 (2d Cir. 2014) (finding that a party‘s Rule 59(e) motion to alter or amend the judgment “was substantively identical to judgment as a matter of law under Rule 50, as it sought to have the jury‘s verdict on attorney‘s fees set aside and to have judgment entered in its favor on that issue“); Pediatrix Screening, Inc. v. TeleChem Int‘l, Inc., 602 F.3d 541, 552 (3d Cir. 2010) (Jordan, J., dissenting) (“[Appellant] cannot circumvent its obligation to file a Rule 50 motion by styling its post-trial motion as a [Rule 59] motion to amend . . . when what it really argues for is judgment as a matter of law due to insufficient evidence.“). Further, none of the exceptions to foreclosure of sufficiency questions applied by courts elsewhere apply in this case. See Yohannon v. Keene Corp., 924 F.2d 1255, 1262 n.7 (3d Cir. 1991) (observing that courts excuse the failure to make a proper motion for a judgment as a matter of law when it would prevent a manifest injustice, when no evidence supports the jury‘s verdict, or when the motion can be reinterpreted as a different motion).
[¶14.] Both DOT and Reede testified as to their interpretations of the contract, and both parties presented expert
[¶15.] Affirmed.
[¶16.] ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired Justice, concur.
Laura COLONI, Plaintiff and Appellant, v. John COLONI and Bryan Springer, Defendants and Appellees.
28048
Supreme Court of South Dakota.
11/01/2017
2017 S.D. 66
CONSIDERED ON BRIEFS ON OCTOBER 2, 2017