*1 and Katherine Jim C. SCHLOSSER Schlosser, Plaintiffs
M.
Appellants, DAKOTA, BANK SOUTH
NORWEST
N.A., Trustee of the Estate of Borchgrevink, as Executor of the Phyllis Borchgrevink,
Estate of Appellees.
Defendants
No. 18081.
Supreme of South Dakota.
Sept.
Rehearing Denied Oct. *2 First, the
allege
grounds
for relief.
two
Borchgrevinks had the
under
upon
the now
contract to maintain
Second,
dwelling.
regardless of
destroyed
statutory
law
common and
Borchgre-
placed the risk of loss with
successors).
(now
legal
vinks
relief a reduction in the
seek as
Schlossers
Schmidt,
plaintiffs
Spearfish, for
A.
Harlan
corresponding to the value
contract amount
appellants.
replacement upon the
of the structure or its
McCullen,
Clabaugh
Bangs,
E.
Ronald
Montana land.
Butler,
Simmons,
City, for
Rapid
Foye &
summons and com
After service of the
Norwest Bank South
appellee
defendant
filed,
plaint
an answer was
and before
Dakota, N.A.
(Norwest
Valley Na
Bank and
defendants
Heisterkamp
L.
and William
Kenneth
Bank
trustee of Otto’s estate and
tional
Costello, Porter,
Heisterkamp
Hill
&
May of
respectively) sepa
Phyllis’ estate
executor of
Bushnell,
ap-
City, for defendant
Rapid
un
rately
judgment of dismissal
moved for
Bank.
pellee
Nat.
6—12(b)asserting
com
der SDCL 15—
upon which relief
plaint failed to state a claim
KEAN,
Judge.
Circuit
separate hearing upon
A
granted.
can be
(Borchgre-
Phyllis Borchgrevink
Otto
motion,
held on each
but
the motion was
vinks)
large
of a
ranch which
were owners
hearings.
no record of those
therе was
Wyoming and Montana state
straddled
opinions the trial court concluded
separate
fifty-five
one hundred
line. Three thousand
granted.
In so
should be
that each motion
County, Wyoming, and
in
acres were
Crook
(1)
Borchgre-
ruling the court concluded:
County, Montana.
in Carter
4002 acres were
dwelling;
had
a life estate
vinks
contract for
in 1979 on a
The ranch was sold
(2)
require
the Bor-
the contract did
Katherine M. Schlosser
deed
Jim C.
on the
maintain insurance
ehgrevinks
(Schlossers).
pay-
Annual installments were
(3)
and,
case law
Montana
dwelling;
A clause in the contract
through 1994.
able
buyer
once
of loss is with
the risk
joint
Borchgrevinks to reserve a
allowed
citing
of Shar
signed
the decision
contract is
(and
dwelling house
in the brick
life interest
Darden,
715 P.2d
220 Mont.
bono
area)
house was
surrounding
which
other
also made a
The trial count
property.
on the Montana
located
Bank, Otto
ruling as to Norwest
separate
trustee,
in 1982.
Borchgrevink
upon
died
holding
that
Borchgrevink’s
possession
in
of the
Borchgrevink remained
ter
might have had
any obligation he
death
16,1988, when
dwelling until December
obligation of the trustee.
brick
minated
destroyed by a fire. Nei-
was
Press,
Viking
Janklow
In the case
the Schlossers
Borchgrevinks nor
ther
(S.D.1985),
the fire
to cover
purchased insurance
12(b)(5)
Rule
under a
ruling upon a dismissal
Phyllis Borchgrevink’s death
loss. Prior
held:
mоtion
upon
made demand
the Schlossers
granting
on
the issue
examine
We first
Dakota,
Bank of South
Norwest
her and
15-6-12(b)(5)
A motion un-
motion.
SDCL
Borchgrevink’s
to Otto
had succeeded
15-6-12(b)(5)
identical
der SDCL
under his
contract as trustee
interest
12(b)(6).
conve-
For
FRPC
motion under
will,
balance due
for a reduction
hereafter,
will
motions
defendants’
nience
of the
the value
commensurate with
12(b)(5) motions.
Rule
to as
be referred
refused.
dwelling.
request
That
was
brick
judge did err
the trial
hold
We
death, Valley
Phyllis Borchgrevink’s
After
it.
granting
her executor.
Bank became
correctly
decision,
trial court
brought
In its
adjust
the contract
The refusal
motion,
that,
purposes
noted
The Schlossеrs
legal proceeding.
on this
sufficiency
light
appraising
of the com-
complaint is construed
follow,
course,
accepted
pleading party,
plaint we
facts
most favorable
rule that a
should not be dis-
pled” and not mere conclusions
“well
it
true and
are re-
missed for failure to state a claim unless
accepted as
doubts
be
appears beyond
plaintiff
doubt that the
can
pleader.
It is also
in favor
solved
*3
noted,
prove
support
no set of facts in
of his claim
“pleadings should not be dismissed
court entertains doubts
which would entitle him to relief.
merely
the
because
pleader
prevail
will
as to whether
question
light
The
is whether in the
most
proof,
as this is a matter of
the action
plaintiff,
with
favorable to the
and
doubt
procedure
favor
pleadings. The rules
behalf,
complaint
in his or her
resolved
upon
of cases
the merits
resolution
any
states
valid claim of relief. The court
summary judgment
trial or
rather than on
go beyоnd
allegations
must
for relief and
Citing
failed or inartful accusations.”
5 C.
complaint
if
“examine the
to determine
Miller,
Wright & A.
Federal Practice and
any
allegations provide
possible
for relief on
(1971).
Procedure, §
trial
1357
The
court
Miller,
theory.”
Wright
supra.
5 C.
and
exception
points
then
out the
noted in
dispute
The
this case as found
traditionally
Wright & Miller for
disfa-
contract,
an
the com
exhibit to
action such as libel.
vored causes of
plaint,
upon
ap
centers
two clauses which
concurring opinion
In
Henderson
Justice
pear
parties agree
In
4
therein.
Clause
opined:
Borehgrevinks
right
have a
to use
appeal
deciding
This
is not a ease
whether
dwelling during
respective
each of their
wrong
right
publisher,
or
or the
Janklow
lives. This clause also states:
author,
right wrong;
or
sellers are
or
book
pay
property
Sellers to sustain and
all
libeled;
or whether Janklow was or was not
utilities,
dwelling
taxes on said
and all
law,
decide,
complaint
if
it is
insurance,
repairs
maintenance and
rela-
states a cause of action for libel.
dwelling
tive to said
and access thereto.
n
n
n
n
n
n
In Clause 6 this document reflects:
“A motion to
...
dismiss
tests the law of a
Property
dwelling
insurance on the
occu-
plaintiffs claim and not the facts which
lives,
pied by
during their
as
SELLERS
Hunt,
support it.” Hunt v.
state,
respоnsibility
heretofore
shall be the
(S.D.1981).
818, 820
SELLERS and SELLERS shall sustain
accord,
Kreiser’s,
SELLERS,
expense thereof;
during
Id. at 882. In
Johnson
(S.D.1988) (a
225,
during
lifetimes or
their continued residen-
Inc. 433 N.W.2d
226
case
dwelling,
tial
involving wrongful
use
said
shall be entitled to
termination under
public policy exception
arising
receive insurance benefits
from in-
employ-
to the at-will
6(M-4)
payable
or
ment doctrine under
Ak-
sured loss
destruction
SDCL
Charlson,
251,
property
policy.
Savings
ron
SELLERS’
Bank v.
83 S.D.
(1968).
Nothing
preclude
prevent
ing the Schlossers’ a life estate in Borehgrevink hаd ed that Otto result). SABERS, (concurring in Justice he in 1982. When dwelling. He died I concur in result on the basis of South died, terminated. There was his life estate in view of the fact that Dakota law pass on to his trust- which could no interest parties have not briefed issues property in real not an estate ee. It was law. Montana will or devised cоuld be devised Glaser, 217 any fashion. In re Estate of WUEST, (concurring part Justice (1984); 127, Re- Neb. dissenting part). Thus, statement, assuming § Property, Borehgrevink obligation my opinion, the trial court was correct legal theory insurance on whatever granting Valley maintain motion to National Bank’s therefore, prop- dismiss; to maintain might apply, рortion I to that dissent period erty opinion limited to a of time that holds otherwise. insurance was died, *5 “during their lives.” When Otto language am Whether the of a contract is obligation purchasing of ceased to exist. biguous a of law. American is usually is an annual event. Otto insurance Adkins, 807, State Bank v. obligated buy during was not insurance (S.D.1990)(citing Enchanted World Doll Mu contract, only “during term the their Buskohl, (S.D. 149, 398 N.W.2d seum Bank, trustee, had no lives.” The Norwest 1986)). Questions fully of law are reviewable except convey interest the real estate by Depart de novo this court. Permann v. any may have real estate which Otto been (S.D. Labor, 411 N.W.2d ment of convey prior bound to to his deаth. SDCL 1987). language ambiguous or “Unless the is occur, 30-19-1. If a breach of contract did it manifested, language a different intent is really could not have occurred until 1988 given plain in a contract is to be its when there was no insurance and when ordinary meaning.” American State destroyed dwelling. possible fire This (Sec (citing N.W.2d at 809 Restatemеnt breach, however, went as to ond) 202(3) (1981)). § There is Contracts executor, Borehgrevink, present and her not presumption writing accurately against Borchgrevink’s as his Otto trustee parties. Enchanted reflects the intent obligation buy extinguished insurance was Museum, at 152. destroyed years six fire the dwell- before the Borchgrevinks provid- and Schlossers ing. Norwest’s sole is to deed respective ed for insurance of their interests whatever interest it has the contract as paragraph six of the contract for deed. Borchgrevink’s successor law to the Although Borchgrevinks responsi- were paid in full. Schlossers once the contract is dwelling maintaining insurance on the ble during tenancy, specifi- their life the contract part, The case is affirmed in reversed in they any pro- cally provided were to receive part part and remanded in back to the trial ceeds. proceedings court for further after the order Sellers, during during for dismissal is vacated. The cоurt should their lifetimes or require continued residential use of said an answer to be filed within a reason- their dwelling, shall be entitled to receive insur- able time after the remittitur made to the arising from or ance benefits insured loss circuit clerk of courts. payable proper- Sellers’ destruction ty policyf.] insurance J., HENDERSON, concurs. Therefore, Borchgrevinks even if the insurance, SABERS, J., purchased the clear terms of concurs result. Sehlossers, would they, not the the contract Dakota, By Through policy benefits. received the
have of South STATE DEPARTMENT OF SOCIAL SER duty for the no contractual There was DOTSON, VICES, destroyed ex rel. Gail A. her replace the Borchgrevinks J.D., Had any proceeds. dwelling behalf of a mi with own behalf and on so, right they have had no would they child, Appellee, done Plaintiff and house. Under replacement live in the right paragraph four house: in the live SERR, Meryl D. Defendant dwelling present restricted [I]s Appellant. thereto made improvements or additions No. 18058. them, and does or either Sellers’ dwelling or any replacement extend to Supreme Dakota. South (in of the destruction the event structures dwelling)[.] present on Briefs on March 1993. Considered Additionally, paragraph six of the contract Reassigned June insure could provided that Sehlossers dwelling: interest in the their own Decided Oct. prеvent Nothing preclude nor herein shall maintaining Buyers obtaining from property insurance
such
Buyers may elect to obtain. insurance on did not obtain
The Sehlossers dwelling.
their interest unambiguous.
The contract is clear clear, it should be the contract
Where *6 written.
enforced as may parties not be re- rights they might have included in
solved what the court have
a contract nor what fairness; in other
regarded as abstract
words, for cannot make a contract a court they not make for parties that did impose upon party
themselves
obligation not assumed. Schlottman, 184, 190-91,
Roben v. S.D. parties Where N.W.2d they con the freedom to contract loss, they must to allocate the risk
tracted Accord, Azcon by their contract. abide Resort, 498 Hills Co. Golden Const (S.D.1993); Foy L.R. N.W.2d Dist., 341 Syearfish Sch. Constr. Co. (Henderson, (S.D.1983) J. party contracted concurring). Each
specially interest, party neither ob its own
to insure party must and now each
tained insurance consequences.
bear the
MILLER, C.J., writing. joins special Pierre, Gen., D. Barnett, Atty. John
Mark Atty., County Jacobsen, State’s Gregory appellee. Burke, plaintiff and