Jessie I. SCHULTZ, Plaintiff and Appellee, v. Daryl L. JIBBEN and Becky J. Jibben, Defendants, and Audrey Jibben, Defendant and Appellant.
No. 18367
Supreme Court of South Dakota
March 30, 1994
513 N.W.2d 923
Considered on Briefs Jan. 11, 1994.
(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein[.]
When Benning signed the guaranty, he “contracted away” any right he may have had to the affirmative defense of res judicata.* See generally First Fed. Sav. and Loan Assoc. v. Clark Inv. Co., 322 N.W.2d 258 (S.D.1982). (“[T]his Court held that a mortgagor can contract away its right to rents and profits.” Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 191 (S.D.1985) (citing First Fed., 322 N.W.2d 258).) The guaranty provided in part:
The undersigned does hereby consent that without affecting the liability of the undersigned under this guaranty and without notice to the undersigned, ... the Landlord may avail itself of or exercise any or all of the rights and/or remedies against the Tenant provided by law or by said lease, and may proceed either against the Tenant alone or jointly against the Tenant and the undersigned or against the undersigned alone without proceeding against the Tenant.
Clearly, under the terms of the guaranty, Benning waived his right to assert the defense of res judicata by agreeing to allow Wintersteens to proceed against the tenant, DLF, alone, without affecting his liability. This court should respect the agreement and affirm the trial court‘s determination that Benning cannot assert the affirmative defense of res judicata against Wintersteens’ action for attorneys’ fees.
Ronald K. Roehr, Milbank, for plaintiff and appellee.
William E. Coester, Milbank, for defendant and appellant.
SABERS, Justice.
Seller forecloses on buyers, who had defaulted on their contract for deed, and their assignee. Assignee attempts to assert the statutory remedy of equitable adjustment after its repeal. Circuit court held for seller. We affirm.
FACTS
On October 8, 1982, Jessie Schultz (Schultz) and her now deceased husband, as sellers, entered into a Contract for Deed with Daryl Jibben and his then wife, Becky Jibben, as buyers, for the purchase of certain farm property in Grant County, South Dakota. Daryl and Becky borrowed $25,000.00 from Daryl‘s parents, Audrey and Arnold Jibben, to assist in purchasing the property and making improvements. Daryl and Becky executed a promissory note to Daryl‘s parents and an Assignment of Contract for Deed as security. Arnold is now deceased.
Schultz commenced an action to foreclose all of their interests in the property. Jibben counterclaimed against Schultz for equitable adjustment of the contract under
Whether an assignee of contract for deed buyers may assert the statutory remedy of equitable adjustment after its repeal.
On October 8, 1982, when Daryl and Becky borrowed $25,000.00 and executed an Assignment of Contract for Deed,
The court in such actions shall have the power to equitably adjust the rights of all the parties thereto, but it shall not be necessary in such actions, to entitle the plaintiff to a judgment, that proof be made on the trial of an offer or tender of performance, where such offer is made in the complaint and the proof shows that the plaintiff is able and willing to fully perform the terms of the contract sought to be foreclosed at the time of trial. (Emphasis added.)
It is general basic law that the effect of the repeal of a statute, where neither a saving clause within the repealing statute itself nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the stat-
....
Thus, it can be said that the general rule is that the repeal of a statute cancels an action brought pursuant to that statute unless the action is permitted to survive by the operation of a saving clause or by the vesting of a right under the statute. State Highway Comm‘n v. Wieczorek, 248 N.W.2d 369, 372-73 (S.D.1976) (citation omitted); Vail v. Denver Bldg. & Const. Trades Council, 108 Colo. 206, 115 P.2d 389, 391 (1941). See also 82 C.J.S. § 437 (“As a general rule the repeal of a statute imposing a liability, by a subsequent act containing no saving clause, operates to release all liabilities incurred under the repealed statute where no proceedings have been commenced to enforce such liability ... unless vested rights have been acquired under the statute prior to its repeal.“)
Since no saving clause is included in this repealing act, we must determine whether South Dakota‘s general saving statute,
The repeal of any statute by the Legislature shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. (Emphasis added).
According to this saving statute, the repeal of
Jibben also argues that the repeal of
MILLER, C.J., and WUEST and AMUNDSON, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
Although I agree with the result of this case, there contains a dissertation of law therein which appears to be totally unnecessary as the holding of the opinion is over.
I am referring to the last two paragraphs of this opinion beginning with the words “Jibben also argues that the repeal of
These last two paragraphs take the opinion “off course” and head it into an irrelevant discussion which muddies the legal water. In the end, the muddying of the water creates a “retroactive” quagmire.
In the Lyons v. Lederle Labs. cite near the close of the opinion, it is written, “Statutes which merely affect a remedy or procedure however, as opposed to substantive [law], are given retroactive effect.” Note the word “law” has been substituted for the word “rights“—the original term used in Lyons.
Footnote 3, which immediately follows, proclaims, “This is a difficult area of law unless one distinguishes substantive law from substantive rights.” Per this footnote, rights and law are not interchangeable terms. The quote from Justice Sabers’ “concur in result” in West v. John Morrell & Co. emphasizes the same: “The test is whether the change in the statute constitutes a change in substantive law ... and not whether a change in the statute affects the substantive rights of the parties.” (Emphasis added.)
Overall, it strikingly appears: the Lyons and West cites are, in truth, contradictory. At a minimum, they are not compatible. As I previously noted, they are irrelevant and unnecessary. State of Minn. ex rel. Hove v. Doese, 501 N.W.2d 366 (S.D.1993), discussed retroactive application of statutes when compared to Lyons v. Lederle. The 3-2 decision in Hove held that a cause of action previously barred by the statute of limitations cannot be retroactively applied by subsequent legislation unless retroactivity is plainly intended and expressed by the Legislature. State ex rel. Dotson v. Serr, 506 N.W.2d 421 (S.D.1993), completely relied on Hove. On March 7, 1994, the United States Supreme Court seemingly approved our holding by denying certiorari in Dotson. The case before us does not concern a statute of limitations, but does concern subsequent legislation, i.e., repeal of a statute. The instant case, perforce, does not erode Hove. Rather, it unnecessarily strengthens Lyons, which does not concern the repeal of a statute, but, concerns newly enacted statutes.
In Hove, 501 N.W.2d at 369, we expressed:
Where a statute limits the time during which a cause of action can arise, it abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992).
We seemingly held contrary in Lyons v. Lederle Laboratories, 440 N.W.2d 769 (S.D.1989), when we cited authority from other jurisdictions for the proposition that statutes of limitation are remedial, not substantive. However, this Court has not abandoned the rule cited earlier in this writing that laws will have a retroactive effect only when such intention plainly appears.
The majority decision holds that the cause of action is not affected by the savings clause.