*1 ENTERPRISES, MINNESOTA, SIOUX
Plaintiff/Appellant, Trust, CO., a REFINING
TRI-STATE Hoff,
and Robert Appellees. Johnson, Johnson, Davis, Defendants Rick Eklund & Gregory, plaintiff/appellant. for 16577. No. Helsper, Helsper, Richard Erickson & Supreme Court of South Dakota. P.C., Brookings, appel- for defendants and lees. Briefs Oct. Considered on
Decided June HENDERSON, Justice.
PROCEDURAL HISTORY This case concerns issues that were raised, raised, in Tri- or should have been Co., Refining Apa State and Inv. Inc. v. Co., (S.D.1988) (Tri- loosa 431 N.W.2d I). State It should be noted that after remand, in Tri- again case we heard this Co., Refining Apa and Inv. Inc. v. Co., loosa 452 N.W.2d was an action filed State, as the real interest after rights conveyed his it in Robert Hoff (Tri-State I, 313). complaint, at amended, alleged often that Lorentz (and Apaloosa, dahl a trust he had estab- lished) fraud, guilty of conversion of contract, a lease breach of will- proper- ful interference with use ty. prevailed, case Initially Tri-State appealed to this Court part, and thereafter affirmed reversed part. for redetermina- The reversal was damages for lease and recalculation of interest. days On nineteen November decided, after Sioux Enter- II), prises, (which dub Minnesota we of “Sioux Enter- to be successor (we I), prises” a trust denominate as Sioux established and identi- Lorentz such, p. fied in as court Lincoln in the circuit County. defendants in the com- Named as Co., Refining plaint were “Tri-State trust, Hoff”. and Robert Hoff and Linda (Robert) person is the same Robert Hoff involved in and Linda *2 plaint pleadings, II be dismissed on the based Sioux his wife. Said was grounds. judicata estoppel and entered a sales the defendants alleged that 3, and, January on with Sioux contract $275,000 1980, payable note a executed ISSUES 28, 1980, August by the I “after Sioux II appeals, alleging Sioux now 13,750troy ounces of raw silver delivery of regards: circuit court erred three (Sioux I), and that a Enterprises”
to Sioux jurisdiction 1. The trial court lacked be- $223,339 to be install- total cause motions notice of International’s 1, 1980, commencing September but ments Linda served on co-defendant pay due on the contract. failed to Hoff; Also, alleges not re- II that it had Sioux jurisdiction 2. The trial court lacked 13,750 ounces of silver. ceived judgment pleadings order on the when 8, 1988, Helsper, pleadings Richard were not closed On December /, a Sioux received no notice of conver- counsel in and, summary judgment; sion to In- for Intervention Von Hoff “Motion ternational, Inc.”, (International) a South in- Granting summary judgment 3. claiming to succes- corporation appropriate Dakota be and collateral (Tri-State estoppel had in interest of Tri-State decisions because Tri-State’s sor contractual debt to II was unad- incorporation, on amended its articles 17, judicated. 1988, changing name to Von March Inc.). International, doc- This same
Hoff —Holding— “MOTIONTO DISMISS a ument included 15-6-12(b)) (SDCL FOR AND MOTION We affirm. ON THE PLEADINGS JUDGMENT 15-6-12(c)),” (SDCL alleging every- FACTS Judge Riley decided thing had been gleaned of this case The facts be I. Connelly and this Court from Tri-State I. hearing on “Motions” was Notice of (Robert) Linda Hoff Hoff Robert document, on Sioux II’s coun- served (Opdahl’s daughter) married in 1973. Rob- from the sel. Extensive documentation Opdahl, managing a ert to work for went accompanied the mo- record Opdahl In products film owned. business tions. 1978, Opdahl put property his into three (now McCauliffe) filed Linda Hoff Linda (plaintiff Tri- trusts: Sioux Tri-State including to Sioux II’s an answer I), (defendant in State Apaloosa against co-defendant a cross-claim I). 1979, In November his duties as a Hoff had breached Robert corpus of the a farm which was the Tri-State, converting trust’s trustee of events, common Apaloosa trust. The next into incorporating its assets
property by case, are set and this both sought dis- Hoff International. She Von Tri-State I: out damages missal of Sioux IPs suit Opdahl approached Hoff in 1980 concern- Hoff. Robert purchase April ing the of Tri-State. (of held a which 1980, circuit court agreed upon Opdahl and Hoff provided to this transcript has been proposal, up by Opdahl, no for the drawn Court) January at which receive on of Tri-State. was to sale $275,- (McCauliffe) appear. 13,750 On Jan- did not ounces valued addition, agreed issued an order uary the court 000. In May It intervention. note before allowing International’s bank owed provided Finally, proposal motion International’s also ordered that monthly pay- make treated as a that Hoff was to judgment be on begin- years, period ments over a of ten judgment under summary motion proposal ning September 15-6-12(c), IPs com- and that Sioux public would cov- reviewed certified accountant who indicated that Tri-State, plus records, equity of claimed the er one-half the Tri-State’s financial equipment. by Opdahl greatly ex- certain other amount received he entitled to under the ceeded what was agreement, modeled sale purchase and A testimony contract. This indicated signed by proposal, was after the $1,000,000 in nearly dahl received silver. August 1980. The sales and Hoff *3 additionally provided that agreement Apaloosa Opdahl and in Tri-State sued per continue to $200 Hoff would alleged damages 1984. The Apaloosa of and for the lease month rent for breach of the lease contract and will- included each this rent was to be that ful use of interference with Tri-State’s years. ten monthly payment over property. In leased Tri-State much of Hoff moved amended its to include a claim In December In Falls. by Opdahl the Tri-State business to Sioux for conversion of silver and February incorporated agents. his After the close of the evi- trial, continued permitted Tri-State business. Tri-State dence at the trial court payments as monthly to make rental again complaint to Tri-State to amend its on the of the business remained some include an action for fraud and deceit. thereafter, Op- property. Shortly dam- trial court awarded Tri-State attempts several to evict $210,000 $544,682.14 dahl made ages fraud, of for Op- Apaloosa property. State from the interest, $13,400 for and purporting to termi- dahl sent a notice Apaloosa of the lease. The trial agreement engaged in nate the lease $5,500 imposed court also sanctions of physical the Tri- numerous interferences Opdahl. property. Op- State’s use of the When I, Tri-State 312-3. possession prop- of the dahl took 75% reduced erty in October Tri-State DECISION monthly payments by rental $100. jurisdiction I. The trial court had to Eventually, the re- Tri-State abandoned rulings on hear and enter its Von Hoff property in maining equipment on the motions, regardless International’s that the motions had not been served fact experienced financial difficul- on Linda Hoff. diffi- suspected ties in 1981. Hoff Hoff and Tri-State When Robert problems from internal culties stemmed Refining Company, brought Inc. their mo investigator. private This and hired intervene, dismiss, judg for tions to to investigation to a 1982 confession led pleadings, ment on the no notice of motions employee, Clary (Clary), that an Nathan upon pursuant to was served Linda from Tri-State. he had stolen silver ís-e-sía).1 Clary Op- that he assisted also admitted Although to there was a technical failure during removing silver dahl excessive statute, comply hold with the service we undisputed Opdahl It was that jurisdiction that the trial court did have from Tri-State several received silver rulings hear and enter its on these motions. during times the first six months of 1980. properly Sioux II was the no- However, conflicting served with testimo- there was is in no tice of motion of intervention and ny concerning of silver the amount position complain. attempting that he It is Opdahl dahl claimed received. Linda is present appeal this issue on when did the amount he was not even receive party standing to do so. agreement. only with entitled to under the sales contrast, Tri-State, right appeal “The is limited to a through In its wit- (East), aggrieved.” Snyder, Olesen v. Clary nesses and Paul East parte, 15-6-5(a) "every ex provides, part, er than one which be heard 1. SDCL demand, notice, every appearance, offer original Complaint pleading subsequent written to the papers judgment shall be served and similar unless the orders because court otherwise defendants, parties.” every each of the written Motion oth- numerous for Opdahl/Apaloosa, Sioux was by Linda underlying not and thus were aggrieved prejudiced not facts receiving notice of motions Yon Tri-State’s claim. The fraud matter of the record does not litigated, fully Hoff International. silver was as is obvious objected disputes to or I. reflect that by the any disposition trial manner As the and contract note were the fac- elected to she has further court and tual/legal of subjects they proceedings. participate appeal in these judicata. Liability should be barred Further, knowledge II had full between and Tri-State decided present and was motions and the circuit hearing through at the counsel. paid, court found the note that properly court treated The trial Von II. sup- this Court observed evidence judgment International’s motion for ported finding. that at 314. summary on the as one Further, argued in *4 judgment. Tri-State, alleging he still owned Moerke, sale contract was insufficient to transfer Schaub Schaub v. 338 ownership light August in 1980 sales (S.D.1983) govern appears to N.W.2d 109 contract, Schaub, here. The at issue trial court also plaintiffs filed a this issue. the I, found, Opdahl’s in Tri-State that claimed against City the of Aberdeen and rights transfer of his to his trusts a fire truck driver. The trial court treated various including the to dismiss I to be This defendants’ motions based Sioux fraudulent. sovereign finding immunity. appeal. doctrine of was not disturbed on Sioux the Schaub, in Tri- converted at 110. The court the II itself filed a motion to intervene motions for defendant’s motions into sum The trial but withdrew motion. providing mary judgment “without notice pertinent findings court entered as to Sioux present op word, material in opportunity alleged II and all trust entities. In a Id. position.” This held that this fraudulently Court As the trusts are conceived. 15-6-12(b), act in violation of SDCL resulted holdings was in that summary judg of requiring reversal the dahl had committed fraud and stolen silver driver, regarding the but affirmed ment what claimed was more than he valuable due, “successor,” the suit city, the as the as dismissal his so-called claim Here, sovereign immunity. II, it is barred he has Sioux is for funds silver apparent II, is a rehash of actuality, that Sioux II’s suit already Sioux received. issue, or matters which were at should independent has no existence. I. The pro raised in have been judicata as “The of res serves doctrine 15-6-12(b), under gaffe, cedural SDCL relitigation of preclusion prevent claim ignored sovereign the Schaub due to litigated could actually an issue or which too, ruling. Here, ig immunity we must raised and determined properly have been alleged procedural gaffe because any nore Hahne, 444 Hahne prior a action.” pertain no was made of the record (S.D.1989) 360, (quoting N.W.2d 362-3 summary judg ing a to the conversion to Jew- Jewelry Mfg. Black Co. v. Felco Hills Thus, meaningful is review ment status. Industries, Inc., 157 el 336 N.W.2d claiming error, precluded. party As the judi- (S.D.1983)). purposes res “For the of responsibility has the insure Appellant cata, comprised is a cause of action 15-26A-48; record was made. SDCL that a to, establish, give rise or facts which C.M., 417 887 Matter N.W.2d Hahne, rights to enforce.” seeks granted properly III. The trial court try- II is id. (Opdahl) contract Sioux judi- res summary judgment based Tri- ing subject to enforce was estoppel. collateral cata and against Opdahl/Apa- State’s fraud action (Tri-State I).2 pay- above, If loosa excerpts set facts out stopped, ments fraud is reason. that the note establish concurrence, specifically why judicata application" is Contrary special "how to the 778
SUMMARY 3.Finally, proposal provided monthly payments Hoff was to make legal As the claims here are a rehash period years, beginning over a of ten I, there is no chance that September proposal 1980. The in- prevail II can is settled. As Sioux II —all payments dicated that these would prevail, any supposed does not error under 15-6-12(b) equity cover one-half the of Tri- regarding notice which State, rejected hand, plus equipment. we have out of other cannot affect certain it. Co., Apa and Inv. Inc. v. Ref Co., loosa (S.D.1988) argument Sioux’s that failure to serve (Tri-State I). herring. specifically notice on Linda was error is ad a red appeal decision, any parts except She did dressed and resolved harm to her is II’s only irrelevant to Sioux for the remand for redetermination claim. Sioux has no interest in the mon- damages for lease and recalcula due, because ey allegedly or silver Id. at 317. interest. State I clearly Opdahl’s establishes that However, monthly payments required void, entity transfers to that were and that part litigated in Tri-State I. 3 were not Opdahl received more than that to which he Consequently, will a claim bar entitled. for the only due under if the claim properly should have been raised Lastly, judicial we take notice that this counterclaim as lawsuit was commenced as follows: Sum- 3, 1988; Complaint mons dated November On November after remand of dated 1988. Both of October (Sioux II) Seller’s successor *5 documents were filed with the Clerk Buyer Buyer’s sued part successors on County Lincoln on November ex- 3 “that a total of was to actly days 19 our decision was ren- after commencing be in installments Sep- proof dered in No service 1, 1980, [Buyer] pay tember but failed to can be found in the record so date the $121,060 due on the contract.” Sioux II Complaint Summons and were served is argues that this is not a compulsory coun- unknown. terclaim that should have been raised in because the installment pay- Affirmed. ments were current at the commencement WUEST, C.J., concurs. of that lawsuit. Sioux II is partially cor- I argument rect in its because MORGAN, MILLER, JJ., SABERS and was commenced in 1984 and the installment specially. concur payments stop did not until June of 1986. SABERS, (concurring specially). Justice 15-6-13(a) specifies SDCL that: Although agree with end result of A pleading shall state as a counterclaim how majority opinion, explain it fails to any claim which at serving the time of why judicata applies res in Issue III. pleading pleader against any has opposing party, continuing This is a battle between the buyer seller and the of the Tri-State busi- added). (emphasis interpreted We have Buyer agreed purchase ness. the Tri- this rule to mean that “a need not Státe pay things: business and three Seller assert a counterclaim that has not matured 13,750 1. Opdahl was to ounces receive the time he Staab pleading.” serves his $275,000. valued at Skoglund, v. 89 S.D. 234 (1975). Moreover, addition, agreed a claim compulsory bar that is not a bank note owed Tri-State before 1,May counterclaim because it arose after herein, i.e., history, Opdahl just decided, days set forth the note and contract were after Tri-State I was factual/legal subjects fully adju- phony heretofore used a new trust and filed a game By trying play complaint spawning litigation appeal. dicated. a shell with this trusts, seeking retry previ- special shell apparently require is A concurrence would ously procedural analysis lost battle. As set forth in the a further and useless of the obvious. served. Dillard Securi- were Brokers, Inc., (5th F.2d 607 ty Pacific Cir.1988).
Although I was commenced in
1984, we must look to the dates when the to determine
pleadings were served wheth-
er a counterclaim had matured and was
compulsory. complaint An answer to a is 15-6-7(a). pleadings. SDCL Enterprises and Sioux served an
answer to Tri-State’s amended September 3, 1986. Tri-State had making
ceased the installment earlier,
three months and the amended
complaint implied Tri-State had no inten- resuming payment. purchase
claim that Seller breached $150,- agreement by converting
sale over
000 of Tri-State’s silver was sufficient no- agreement
tice that the entire dis-
pute and Seller should raise all of its claims Therefore,
against Tri-State. the claim
against Tri-State had matured when the
answer to the amended
served, making compulsory the claim a judicata.
counterclaim now barred 15-6-13(a).
I am authorized to state that Justice join
MORGAN and Justice MILLER
special writing. *6 Dakota, Acting By
The STATE of South Through the DEPARTMENT OF and the Da
TRANSPORTATION South Commission, Transportation
kota Dakota, County,
Union South Plain
tiffs/Appellees, GARVIN,
Michael P.
Defendant/Appellant.
No. 16855.
Supreme Dakota. Court South April
Considered on Briefs 6, 1990.
Decided June