South Dakota Building Authority v. Geiger-Berger Associates, P.C.

owner, Bork, who was not entitled surface

to them. SOUTH DAKOTA BUILDING AUTHORITY, Plaintiff and Allison, granted the court also Appellant, accounting the mineral owner v. payments though specific even bonus ASSOCIATES, P.C., GEIGER-BERGER requested. relief was not Because the min Foreign Corporation; Billy Beck, A R. petition prayed owner’s eral such relief H. Blake Kroeger, Holman and R. Jean necessary proper”, prayer “as II, Kroeger, Fritzel d/b/a Griffin & was sufficient to entitle the mineral owner Berg, Partnership, A Defendants and accounting statute, to an for bonuses. Our Appellees. 15-6-54(c), provides, “[E]very final 15141, 15158, 15162, 15173, Nos. judgment grant shall the relief to which party in 15178. whose favor is rendered is entitled, the party even if has not demand Supreme Court South Dakota. pleadings.” ed such relief his See also Argued Sept. 16, 1986. (S.D. Unverzagt, Maresh 304 N.W.2d 712 1981); North River Ins. Co. v. Golden Decided Oct. Inc., Const., (S.D.

Rule 296 N.W.2d 910 4,1987. Rehearing Denied Dec. 1980); Scholten, Miller v. (S.D.1979). though Even Tvedt did not re

quest accounting specific recovery or a rentals, delay

for the bonus and

specific request general and a

request “for further relief as the just equitable.”

court deem Con

sequently, he was entitled to recover the delay though

bonus and the rentals even

they specifically requested.

CONCLUSION incorrectly

The trial court concluded that payments

Bork entitled to the based possession. However, affidavit

Tvedt, as the record mineral owner was

entitled to both the bonus the rentals.

Therefore, reversed

remanded for determination of entitled to recover. Tvedt bidding,

ture. After it was found proposed steel closed structure would cost more than the available funds. These bids rejected. Architect then recom- mended a conventional field house with an open field. Regents,

The Board of anxious to obtain structure, requested an enclosed Ar- that Associates, Geiger-Berger chitect hire P.C. (Engineer defendants) prelimi- do a Gary Thomas J. and J. of Pashby, Welk nary study air supported design. of an roof Greenfield, Boyce, Murphy, McDowell & Ultimately, Authority and con- Architect Falls, appellant. Sioux for and design tracted for building and of an Doyle Harold C. and A. of Hurley, John supported air system. roof Architect then Johnson, Becker, May, Doyle & Siоux Engineer contracted with design for the of Falls, for appellee Geiger- defendant and supported air system. roof Associates, Berger P.C. During construction, the course of the Simko, Woods, Fuller, John of Shultz & roof failed once. After construction Smith, P.C., Falls, Sioux for defendant and ‍​​‌​​‌​‌‌​‌‌​‌‌​‌​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌‌‌​​‍completed and Dome was turned Fritzel, appellee Kroeger, Berg; Griffin & Authority collapsed over the roof or tore Timothy Fuller, Bjorkman, Woods, J. of on three occasions. ap- These failures Smith, P.C., Shultz & on the brief. peared to be the direct result of the inabili- ty melt system adequately of snow TICE, Judge. Circuit remove the snow accumulations. JURISDICTIONAL STATEMENT Statement the Case of Appellant, Au- Building South Dakota Authority against commenced this action thority, appeals from denying pre- an order Engineer and Architect based breach Appellee Fritzel, Kroe- implied warranty, misrepre- of negligent ger, Berg Griffin and filed notice of re- sentation, contract, neg- of breach common appealing view the trial court’s refusal to ligence, implied and breach of contract. grant judgment notwithstanding the ver- Engineer allegations alleged denied indemnity dict on the issue of and on contributory negligence, assumption of grounds estoppel. We affirm. risk, mitigate damages. and failure to Ar- allegations chitect likewise denied the FACTS alleged contributory negligence, assump- University risk, estoppel, South Dakota liability, tion vicarious began the physical creation a new satisfactory performance edu- in the contract. facility ultimately further, crossclaim, cation known as the Da- by way Architect (Dome). Dome sought kota The South Dakota indemnity both contribution Building Authority (Authority) legal Engineer. Authority supervised

owner of the Dome. Authority’s original complaint recited no its construction into and entered contracts damage figure. January On in an building. for its interrogatory concerning answer to an Fritzel, outset, damages, Authority Authority At the asked itemized (Architect $461,464.26, Kroeger, Berg Griffin and the amount of but indicated defendants) opinion damage figure. for as to not a their the best final 8, 1985, facility April Authority an manner which enclosed field On moved stating designed. initially complaint could be rec- its Architect amend against supported unascertained, ommended air dome still would be ultimately, arranged $500,000.00. system, May excess On trial, days prior issuance bids on enclosed steel struc- five amended interrogatories, ISSUES original its answer $461,- figure from changing damage its I. $454,760.64. During course 464.26 to DE- DID THE TRIAL COURT ERR IN еxhibits, trial, set Authority, through MOTION FOR NYING AUTHORITY’S $464,- in the amount forth AN- INTEREST? WE PREJUDGMENT dispute was significant No factual 160.64. NO. SWER or the concerning the existence raised damages set line items of amounts II. damage exhib- Authority’s primary

forth $325,- it. awarded IN DE- DID THE TRIAL COURT ERR $46,920.00 past damages 261.44 FOR NYING ARCHITECT’S MOTION damages. future FROM THE INDEMNITY ENGINEER? ANSWER NO. WE trial, Authority, subsequent to moved on prejudgment interest the verdict III. five

past damages. suggested determining inter- alternative methods DE- DID THE TRIAL COURT ERR IN est: NYING THE ARCHITECT’S MOTION 1) after commence- interest accrued A ES- FOR DIRECTED VERDICT ON court of ment of the action circuit ANSWER TOPPEL? WE NO. judg- of eighteen percent day to the

ment; DECISION 2) subrogation accrued after the interest I. 24,1983, October action commenced THE DE- DID TRIAL COURT ERR IN per- judgment eighteen the date of at FOR NYING AUTHORITY’S MOTION cent; PREJUDGMENT INTEREST? 3) the amount interest accrued on prejudgment issue of is a The interest past damages of allocated to 70.07% start complex one. To consider one must recovery of the total and attributed origin. pro- at its The Civil Code of 1877 damage to each item proportionately prejudgment un- vided for interest awards future; past or codified as 21-1-11 der two sections now 4) first item of interest accrued 1877, 1887, 1943, 21-1-13. CL CivC § damages each subse- sustained and today The exist in es- provisions § quent up incurred item thereafter origi sentially they form as did same damages equal to the an amount nally. Chicago, St.P.Ry. See Uhe v. M. & verdict; 505, (1894); Co., 4 484 v. S.D. 57 N.W. Uhe 5) of accrued the last item interest 563, 3 54 Chicago, St.P.Ry. M. & S.D. damage previous item ac- and each (1893); Halloran, v. 20 N.W. 601 Corcoran up crued to an amount (1906). S.D. N.W. equal to the verdict. provides SDCL 21-1-11 that: $464,- Authority argued that of Every person is entitled to recover who trial and 160.64 were ascertainable before certain, capable being or Authority’s damages exhibit. evidenced calculation, certain and the Authority’s motion The triаl court denied right is in him to recover which vested being for interest as uncertain under SDCL upon particular day, is entitled also to court interest 21-1-11. The trial did allow day, from recover interest thereon amount from the date on the verdict except during such time the debtor judgment. verdict the date law, act of the prevented by creditor, paying from the debt. for a notwith- Architect moved hand, 21-1-13, pro- standing indem- on the other the verdict issue of motion. that: “In an action the breach nity. The court denied the vides trial contract, obligation arising Varilek, (inter (S.D.1985) N.W.2d 200 fraud, oppression, every case of mal- est awarded on costs by quan determined ice, meruit). given, be in the discretion tum jury.” The certainty relating to day of vest- ing and amount under contract actions applying these statutes we generally not difficult to emphаsized establish. As continually their funda applied statute types to other do ac- purpose justice mental is to to one who tions, however, these issues hazy became has suffered a loss hands of another. our efforts to enact Howard, principles v. es- County Clark 58 S.D. due, poused. part, This (1931). words, N.W. 561 In other when liberal interpretation person by failing retains money attempt rules in an causes, to honor a loss he should be party to the moneys receive charged justly due sum he refuses from another. Corp. Beka v. Lithium injured to tender to party. Gearhart v. America, S.D. Hyde, (1917). N.W.2d 156 39 S.D. 164 N.W. 58 (1958); Gearhart, supra. payment ought The of such sum to become due at the time of injury or loss and clearly case before us displays the wrongful failure to do so is then a deten conflict that exists in the relating law injured person’s tion of the money. Bunk vigorous- Guernsey, ers 170 N.W. 632 ly asserts that it is entitled (1919). The prejudgment interest award interest under of five theories which it compensate seeks to the injured party for asserts obligation establishes the owed to it wrongful money this detention of owed. the requisite degree to of certainty needed Id. by statute. of pro- Each the five theories duce very interest, different of amounts general rule under SDCL 21-1- yet each of the theories has some provides 11 an for award of validity through previous decisions. when the payable interest amount can be readily calculation, ascertained with ref Authority damages asserts that are erence to well-known standards custom Authority’s certain because listing exhibit ary Gearhart, market supra. values. specific damages the items of was uncon- This rule is based the princiрle that a tested and was they derived from bills damages who causes to another pay repair were to damage forced to required cannot pay money be to where he ‍​​‌​​‌​‌‌​‌‌​‌‌​‌​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌‌‌​​‍of, done on part by, account or at in least cannot ascertain ought how much he to pay the defendants. Two Authority’s theo- with reasonable exactness. Id. Alterna ries are that since the specific are tively, under SDCL 21-1-13 the amount, and uncontested either the date determine whether complaint ($51,008.12) filing or the so, awarded, should be and if how subrogation ($104,261.89) much. date of the claim Uhe, supra, also 54 See N.W. at 602. ticking starts the since one date or the other constitutes demand SDCL 21-1-11 and SDCL 21-1-13 were premise defendants. We have utilized apply intended to to different actions. Bunkers, past. supra; Clark Originally, strictly SDCL 21-1-11 relatеd supra; County, Amer Ins. Co. Safeco Janis, to contract actions. v. Bethel 597 Watertown, Dakota, ica v. City South (D.S.D.1984). F.Supp. 56 SDCL 21-1-13 (D.S.D.1982). 538 F.Supp. 49 also Hol See applied to actions proper. Donahoe, lister v. 92 N.W. 12 16 S.D. Corcoran, Nevertheless, supra. (1902); Corcoran, 210; supra at v. Roberts 21-1-11 has recently applied been to ac- (1916). Shaffer, 36 S.D. 156 N.W. 67 Cert, Ques- tions other than contract. Meyer tion From U.S. Dist. Court re: Alternatively, v. under its third and fourth Dixon, (S.D.1985)(interest theory, 369 N.W.2d 658 com- Authority asks that interest pecuniary in personal Authority recoverable loss mence either from the date that action); injury Masonry, obligation pay Barton Inc. an to v. first had out costs 20 paid money he when hold onto the owes another date of the last

($131,901.66), or the damages. reasonably amount ascertainable on ($103,733.22) on their that out costs Gearhart, supra. recognized valid Assum- as a date certain. been dates have Such pre- ing liability applying a certain amount. the sake of vesting of dates of County, interest, McKenna v. Roberts expect one would (date (1948) pocket of disburse- reach in obligor to effect his 32 N.W.2d Plastics, v. Industries Polaris ments); obligee he can hand over Inc., (Minn.1980) (date ultimately reasonably anticipate 299 N.W.2d he will be incurred). Fullerton expense item of pay compensate each for the loss held to Reindl, Co. v. Lumber v. Hanson Funk other. sustained Int’l, (when (S.D.1983) plaintiff should (S.D. 1985); Seeds Honey v. Melvin, damages); mitigated (D.S.D. his Cole P.Supp. Shaffer well, (S.D.1976) (upon the 1977) (test is, assuming liability, whether itself). injury ascertainable). happening of the reasonably are negli- Authority’s comparative But hand, However, at neither case reasonably been gence, this could have would is rеasonable. Neither solution done. the loss compensate Authority for properly by the were owed of use of funds which Authority obligated was At time Authority found was Dome, defendants. Since repaired the the cost pay those who by the partially responsible for its losses Also, reasonably be repair certain. at in- Authority jury, time, award question no that there was real that paid expense they terest from the date repairs related to roof’s fail- receiving Authority in total would result ure, question nor was there money it was not entitled repairs and cost thereof were reason- This would result Therefore, receive. Authority’s loss became able. expense at the reaping a windfall receiving liquidated upon billing for the obligated defendants were defendant repairs. repairs, upon pаying for such portion of the losses sus- It was time denied token, it By the at the time. same tained it money use of due from defendants. principle with the not be consistent liqui- would Authority’s clearly If claim was not restitution, principle is the if that sole injury, dated at the time of the it became so involved, interest award billing repairs the time for the at all have been only after submitted. by Authority. Defendant would

incurred required Authority is not to make a fairly incur a and would not then windfall repairs upon for payment demand in- it compensate Authority expenses requirement defendants. The demand is expense. final prior to the curred person liable can only essential where suggests Authority The last alternative he reasonably not know what sum owes. each grant prejudgment interest on is to Jenkins, Beka, supra at 159. Jones v. 277 to Au- damage when it was billed item of supra; Safeco, (Wis.1979); 815 N.W.2d ($111,284.92). thority at rate of 70.07% Sons, (8th Aetna v. Studer & F.2d 997 365 total percentage is derived from the This Cir.1966). or The issue is not whether not less a reduction based liable, person knew liable was verdict, appar- jury accountable assuming liability he knew with whether findings Authority’s ently jury to the certainty phys reasonable the extent of approach This is comparative fault. v. ical loss. Amert Ziebarth Constr. past. dealt in the one we have which (S.D.1987). Potter v. 400 N.W.2d 888 Inc., Propeller, Authority’s proposals, other Hartzell Minn. 291 In all of ex. rel. State (1971); solution, vest- 189 N.W.2d 499 the date of than 70.07% Son, v. inextrica- Farmers State Bank Ed Cox ing certainty of amount are (S.D.1965); 132 N.W.2d 282 Prejudgment 81 S.D. bly intertwined. Fullerton, supra. should not principle one based knowledge may though or This be constructive the trial court originally denied Williams, actions, In contract a demand is аctual. interest. we awarded generally necessary person because interest after we reversed trial knowledge is deemed to have court its finding liable there was contrib- Haskins, Beka, supra; Garber v. utory negligence, breach. which presumably was 459, 172 (S.D.1969); N.W.2d 721 its of prejudgment basis denial Estate, 88 S.D. re La Fleur’s following year, while we denied a Lien, Lien v. (S.D.1974); N.W.2d 658 278 request interest where the Proper (S.D.1979); American N.W.2d 436 interest claim made against greater was Services, ‍​​‌​​‌​‌‌​‌‌​‌‌​‌​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌‌‌​​‍ty Barringer, v. Inc. liquidated damages, amount of none- we (S.D.1977). Pecuniary loss incurred in position theless reiterated our that interest personal injury actions also deemed precluded should not “be the fact that Question, supra. known. Certification of against the party whom is asserted cases, In these we not toll did put unliquidated forward an setoff during the time no demand was made. Subsurfco, Inc. v. B-Y counterclaim.” Dist., Water (S.D. required Demand been N.W.2d only 1985). Under circumstances where the set- liable would not otherwise know off cases, adequate liquidate is more than of the loss. In these interest ac- items loss, crues after notification of the requested, there is “no unlawful detention

presentation payment demand for of money” money and “no improperly re- (date County, supra made. Clark demand tained, detained or withheld.” Id. at 131. North River Ins. benefits); for insurance Constr., Inc., Co. v. Golden Rule recently We have from diverted these (S.D.1980)(date insurance cov- Triple In Hepper Enter U decisions. erage refused); Bunkers, supra (mistake Inc., prises, (S.D.1986), contract, per- in sale interest accrued date against $286,000, unliquidated award son if liable notified thereof and no requested defendant prеjudgment interest filed). Amert, notification, su- date action $202,000. liquidated pra (date an objective measurement of loss elaboration, simply Without we said de- defendant). submitted “damages arising Heppers’ fendant’s breach of contract were not certain ... Unfortunately, pro- these cases do not returned its verdict.” Id. jury until the vide an answer for the case before us. denied interest We without further Defendants asserted that Pri- underlying discussion issues. contributorily negligent, and the clear- upon Hepper, we relying again de- marily ly that portion found bore a liqui- nied prejudgment interest where a blame since there was clear reduction $7,222,530 by an dated claim of was set off damages obligated of the defendants were $300,- unliquidated of counterclaim award pay. to We can find no similar in situation Ranch, Inc. v. Milbank Mutu- Kehn law, thе our case nor case law of other Co., (S.D.1986). al Ins. jurisdiction. decisions, past, appli- In the have considered the In these recent as well as we they previous as in cation setoffs and counterclaims our decisions we have held that jury prejudgment damages relate to are until a uncertain decision, discussion, has prejudgment with little we found the amount reached a inter Amert, Fullerton, supra; claim est although certain there cannot lie. Nebraska, supra. slight premiums for Our was a setoff allowed sister state of River, supra. North party. dealing parallels due other law which our with case statute, Agency Ins. inter Williams years against prejudgment Pour later decided jury Contrasting v. Dee-Bee est in 358 N.W.2d a car/bus accident where part (S.D.1984), pre- negligence on recovery contributory allowed fоund we plaintiff plaintiff. stated interest to both The court “[T]he claims, unliquidated and liquidated damages al- claimed were defendant sponsible prejudgement under with refer- incapable of determination were standards, as ordinary to the ence 21-1-11. value. There was and market calculation clearly It that the issue should be noted liability could be from which the no data counterclaim, here setoff or but is not a Na judicial intervention.” fixed without contributory verdict, negligence rather a Ins. v. Evert Fire Co. tional Hartford is no for a defend- way and as such there son, N.W.2d 157 Neb. reasonably percent know what ant also, Enterprises (1953); Inc. See Muller is, therefore, It fault a would find. Gerber, Neb. impossible what for a defendant to know (1965). uncertainty lies not dam The damages pay plaintiff should a even themselves, propor rather ages though damages themselves are clear. damages those defendant tion of Beka, 159; Son, supra Ed supra at Cox & caused, jury can decide. only which Fullerton, Therefore, 291; supra. trial court’s denial must is a balance be struck There which Authority is affirmed. our interest stat- applying accepted ute. While South Dakota II. ap- principle that DE- DID THE TRIAL ERR IN COURT compensation an propriate to insure full MOTION FOR NYING ARCHITECT’S pre- injured plaintiff, that collect FROM THE ENGINEER? INDEMNITY 21-1-11 limited ’judgment interest under a defendant can to circumstances where case, Authority sought develop certainty with reasonable what ascertain arena, capable housing enclosed damages damages are. Those are those football field. The funds available were damages respon- defendant for which the to creatе traditional struc- adequate goes saying without the de- sible. It Thus, the ture. chose build responsible cannot be fendant supported system, unique air roof is, therefore, It he has not caused. which only alternative other than was the question in this case of what losses not a open field traditional football and a field sustain, plaintiff did the but rather what against initially house. Architect advised plaintiff the defendant owe the for the does supported the air dome. Funds were not which the sustained. We alternately proposed for the en- available very structure, recently stated that “When the closed steel however. does not supported who liable know what then that an air struc- insisted owes, however, requested pro- or cannot sum he ascertain ture Architect be built ought Engineer develop the amоunt with reason ceed to with work exactness, supported he cannot be in air dome. Architect did so. At able then default added) Engi- Architect paying.” (emphasis Arcon time contracted neer, Plant, there domes of an air two v. S.D. Cement world, also, Amert, supported in the (S.D.1987). supra; nature both built See Aet Gearhart, na, Beka, supra; Engineer. ultimate failure supra; su Dome the result of a failure perhaps 21-1-11 could more structure was pra. SDCL Engi- read, designed by part, system melt specifically be follows: snow from the roof “Every person is entitled to neer to remove snow who recover (caused another) certain, collapse the three occa- or which caused being question. certain sions capable of ...”. If the of caused another are extent asserts that it is without Architect certain, then not plans being ade for the not personal fault lie under this statute. should not Engineer that quate. Architect contends cannot, expertise and with de- had the sole and exclusive any a defendant Since responsibility preparation for the of those an gree certainty, tender simply plans, the Architect was a jury until a sets the and that to a Authority. fault, be re- conduit of that information proportionate he cannot held Fritzel, recognize building facility Kroeger, the of such ant Berg We Griffin & is recognize unique. only We that Archi- liable was because of acts or omissions of originally type Geiger-Berger, not recommend this tect did and is otherwise without facility, facility was jury and that fault?” The basical- no. answered Because ly by Authority only jury as the question mandated answered the nega- tive, to create enclosed football means an field. the issue for the court is whether us, however, what The issue before there was basis in the record for jury responsibility in fact the and activities of to find that Architect atwas fault in some through Architect. manner other than Engineer. It is guess not for this court to second the find- Bagman, Degen v. ings jury, of the to determine (1972), if 200 N.W.2d 134 we stated that adequate whether not or some evidence fault, personal he individual without exists from which could draw that indemnity. per entitled to One is “without Sharkey Washington conclusion. Nat’l participated sonal fault he has not when (S.D.1985). Ins. his liability the commission of tort and by operation Pelkey of law. expert arises v. State Authority, Han Dr. D.C.Mich., Sales, Inc., F.Supp. son, 924.” testified that “The architect has the If, however, at 137. Degen, “a first order or of responsibility front line indemnity seeking рersonally partic particular owner for this building.” He ipates negligence, an affirmative responsibility act of has “a to review their work physically or is connected with act of to see their is in opinion that work his by knowledge acquiescence omission satisfactory, questions ... to ask that the part, perform it on duty his or fails to some owner should be concerned about be in connection with the which omission he sure those that concerns are raised and undertaken, deprived of the Architect, properly through resolved.” Brothers, indemnity. Cahill Inc. v. agent, LeRoy Bean, letter of its dated Feb Company, Cal.App.2d Clementina 10, 1976, that, ruary stated 301; 367, Cal.Rptr. Pearson Ford Com prime Since are we architects on this pany v. Ford Company, Motor Cal. project Geiger/Berger and the firm has Apр.2d Cal.Rptr. Degen 279.” designing been hired us to assist structure, supported this air we im- feel pelled clarify the fact that we case, will Architect had contract responsible be decisions made at required with Architect to any meetings during any phone calls design prepare plans. studies and The Ar- represented. firm is our chitect was also authorized thereunder to specialists, if “employ necessary, to evalu- Architect, letter, suggests in that En- study special ate and considerations of the gineer assisting Architect and not ex- if project, expertise is not available in responsible clusively preparation for the added.) organization.” (Emphasis his Ar- plans. those Engineer chitect contracted requires 36-18-27.1 that all preparations plans by Engineer of signature, stamp plans final shall “bear the systеm. All roof snow melt of the architect, professional engi or seal of the plans by Engineer submitted to Architect respon surveyor neer or land who was in were reviewed with the Architect charge preparation sible thereof.” being placed thereupon. Architect’s seal thereto, When affixed its seal Architect originally against Architect crossclaimed re stating that it was individual Engineer indemnity for both and contribu- sponsible those preparation trial, tion. At the of the Architect time suggested plans. Architect has dropped choosing its claim for contribution action, simply in stamp was a mechanical go exclusively indemnity. basis of deed, stamp plans literally a rubber However, Engineer. clearly special interrogatory A was submitted to statute you requires rea- jury stating, stamp the “Do find defеnd- be affixed for a that that position it did not that It is Architect’s that Surely did intend the statute son. approve meaningless, duty rather intended not to and review it be affixing stamp his was Engineer’s plans Architect in because Architect did not the obligation to acknowledging affirmative so, an expertise to do the air have the since plans ap- the and insure that review unique. position supported roof was This architecturally sound. and propriate contract Archi contrary is to the between Authority. hire tect and Architect could circumstances, these Architect Under special specialists study “to evaluate and through Engi- whom simply agent an project,” ulti of the but the considerations Rather, pursuant passed. to plans neer’s contract, responsibility mate was Architect to stamp, and evidenсe the record, design plans. If Architect felt and submit Architect had presented area, create, expertise obligation prepare, develop to and it did not have the in this one, architecturally plans. Archi- sound While had choices: withdraw as three may architect; two, have felt that it did have the expertise tect obtain additional plans, these expertise properly to review quality to check from other sources therefore, passive in a ca- only acted three, Engineer’s notify preparations; or pacity, Degen, as we S.D. at stated Authority of the fact that it did not have 137, “An act omis- 200 N.W.2d at expertise appropriate sufficient obtain sion as well as one of commission on available, waivers or as Architect felt as joint contributing to part of а tortfeasor necessary. injury negligence constitute active briefs, Throughout its Architect asserts recovery indemnity his precluding continuing project that it to was duty under to act. he is an affirmative “protect reputation try to its choose to Painting Bernstein v. El Mar and Deco- situation, make of a bad rather the best rating N.Y.2d N.Y.S.2d project.” If Archi- than withdraw from Am.Jur.2d, 195 N.E.2d expertise tect did it had to not feel Indemnity, 21.” Under these circum- § to properly prepare plans and submit stances, jury may have found that sufficiently adequately and review duty Archi- there was affirmative which plans Engineer, duty it had a to with- submitting comply failed to with in tect remaining project, Archi- By draw. plans Authority. to roof’s having expertise, tect held itself out as addition, in the there evidence expertise, ability or the to obtain sufficient inadequate opеrat record that there were proper plans specifications submit ing provided Authority instructions Indeed, recognizing limita- Authority. its operation Dome. While there tions, higher duty had a to more Architect Operation report entitled “Dome Pro plans Engineer scrupulously review prepared Company cedure” the Weiner expertise. Upon limited ac- because of its paid obtained situation, cepting they are no this difficult by Authority, in the there evidence appropriate less held to an architectural report record that the itself was not ade standard. quate properly advise is, therefore, opinion It of this court procedure. operating There evidence evidence the record which there was obligation generally that it is an architect’s indemnity supрort jury denying would that information from the con to obtain Engineer. Architect from of this tractors. a case nature where operation there is an need which overall developed,

must be such should have been III. Thus, done and was not done Architect. DID IN DE- THE TRIAL COURT ERR in the again, there is evidence record that THE MOTION NYING ARCHITECT'S affirmatively carry Architect failed out FOR NOTWITHSTAND- obligations Au JUDGMENT under the contract with ING ON ESTOPPEL? thority. THE VERDICT HENDERSON, Architect moved for directed ver (concurring Justice specially). dict at the close of the evidence based estoppel, grounds. as well as other How Beginning my special writing in ever, preserved the motion must be after Eng’r Northwestern v. Thunderbolt En motion for the verdict rendered a 421, terprises, (S.D.1981) 301 N.W.2d judgment notwithstanding as the verdict (Henderson, J., concurring part, dissent requesting as a directed in the well verdict ing part), through my most recent dis- movant’s favor. Architect filed its motion sent in Hageman Vorste, v. Vander judgment notwithstanding only (S.D.1987), N.W.2d I have consist indemnity. issue ently position taken a on the determination prejudgment interest. Two of my writ raised, proper, To be the motion be must ings majority involving have been decisions not at the close of evidence before legal subject, namely, Hanson v. Funk verdict, verdict, also after before (S.D.1985), Seeds 373 N.W.2d 30 Int'l essence, appellate review. the trial Dixon, Meyer (S.D. court is deemed to have its reserved deci- 1985). on receiving sion the motion until after verdict; otherwise, Throughout the trial court has not my writings, various as the finally ruled on the motion. It so do storm on the sea of only upon raged, timely motion was not has I have to grasp tried the rudder Corp. America, here of Beka Architect. v. Lithium 159-60 Only if miscarriage justice will occur (1958), I hoping safely could come to shore. plain present may error is the court Judge scholarly Circuit Merton Tice’s despite improper entertain such motion admired, be treatise is to now tendered as Westegaard, nature. Limmer v. majority opinion, join. which I How- (S.D.1977), 680-81 15- ever, therein contained are references 6-50(b). properly Such motion here is not certain cases this Court—some re- is, therefore, this court before denied. obliquely viewed—some criticized—some critiqued to, necessary thus —and CONCLUSION least, my previous navigation mention 1) court denying, The trial did not err in special waters. This con- Authority’s motion for inter- currence, my I myself, vouchsafe unto est; 2) indemnity Architect’s motion for writings previous positions prejudg- 3) Engineer; and Architect’s motion understood; cumulatively ment interest be judgment notwithstanding on estoppel and, further, Judge because Tice’s criticism properly not before the court and deni- inconsistency might very well strike an of the motion not We al erroneous. undeserving target. say, pre- Needless to affirm. occupied interest has an inordi- my writing time in majority

nate amount opinions, authoring researching, minority FOSHEIM, J., Retired concurs. opinions, attempting distinguish HENDERSON, J., easy differences in cases. It is not task. specially. concurs understood, deep Let it be I no MORGAN, SABERS, JJ., concur conceptual Judge difference with Tice’s ba part part. and dissent in mooring sic affirmance of Honor Judge Court Hertz. able ‍​​‌​​‌​‌‌​‌‌​‌‌​‌​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌‌‌​​‍Circuit E.W. TICE, Judge, sitting Circuit fact, Judge precise question, Tice WUEST, C.J., disqualified. us, precisely been instructs never be MILLER, J., having majority opinion, us. I been fore His which take be, simply member of court at the time this that a understand court, cаse was submitted to the did defendant over to a cannot participate. proportionate until sets the legal An this involving contributory authority eminent makes jury in fault a trial general in- he, defendant, prejudgment observation about can the negligence because “Actually, terest: the been decisions have certainty, the not, degree of know any with moving greater willingness toward he would damages which owe.* amount of time, for a long interest but award such opinion, is the Beka, majority cited in the very this movement left a certain going upon the light to avoid beacon cases, this, in the and amount of conflict writing Judge is anchored Tice’s shoals. together the influence of local stat- with Son, 165, 132 81 S.D. v. Ed & on State Cox utes, impossible sin- makes it state Beka, 370, (1965), 77 282 S.D. N.W.2d gle accuracy.” rule set of rules with D. author, on This behalf 92 N.W.2d 156. Dobbs, Handbook on Law Remedies 36, Hanson, majority 373 N.W.2d at in 3.5, (1973). at If this has been 165 Court § writing likewise bottomed his Ed Cox & confusion, caught in up with is not alone Hanson, 373 In N.W.2d at and Beka. Son jurisdictions of this Union. It should 36, we wrote: deep not bear the brunt of censure. prejudgment interest To be awarded struggling throughout Courts the land are statute, exact under this prejudgment interest. with Court declara- readily known or ascer- must be subject tions on have been an academic this Son, v. Ed Cox & 81 tainable. State pilgrimage. particular Each set of facts 282, 165, 180, 132 N.W.2d 290-91 great seems to create a new hazard. This (1965); Corp. Beka v. Lithium Amer- concern interest has over 375, ica, 370, 156, 77 S.D. 92 N.W.2d 160 rates, higher mushroomed due to (1958). Prejudgment interest is not to be foreclosures, bankruptcies, general ec- if are awarded uncertain in- onomic conditions—not mention an by trier until determined of faсt. dependency upon easy crease of credit and v. S.D. Arcon Constr. Co. Cement currency credit rather than of the Realm. Plant, 407, (S.D.1984). 349 416 N.W.2d Prejudgment interest is in unascertainable “Thus, awarding test par- comparative cases fault of the clear, liability not whether by jury. ties must determined See be (assuming liability) whether Ranch, 394 First Nat’l Bank v. Kehn reasonably ascertainable refer- 709, (S.D.1986); Hanson, N.W.2d 373 717 prevailing ence to markets.” Cole v. 36; N.W.2d Arcon at Constr. Co. South 193, Melvin, (D.S.D. F.Supp. 441 210 Plant, 407, 349 Dakota N.W.2d Cement 1977). (S.D.1984). Hageman 416 v. Vander 420, Vorste, (S.D.1987) Lawyers Judges interpret advocate. 403 N.W.2d We, (Henderson, J., dissenting), in judi- Juries find facts. and Amert v. decide. Co., 888, ciary, duty jury’s owe to honor find- Ziebarth N.W.2d Constr. J., great legal (S.D.1987) (Henderson, dissenting), are ings, absent some substantive error, highly jury tampering, improper my cases I tried to maintain core wherein (extra- thoughts Hope- or outside jury conduсt forces forces) dissents, brought fully, expres- in neous to bear of those both consistently majori- jury quest my which alters the sions with truth. followed Court; case, Authority partially ty writings in this I jury, found this believe conceptually step responsible say, for its losses. Suffice it to them with be not, any degree accomplished by majority deci- defendant could with of which Amert, 400 certainty, damage my amount of sion herein. dissent in tender an way possible I plaintiff. spiritually no for N.W.2d at followed There was I reasonably my Hageman, camped down the defendant know what dissent premise teaching percent would that the of Beka fault a find. * (S.D. thought my Compare platform Ziebarth basic with Constr. minority writings Hageman 1987) (Henderson, J., dissenting), amplified two most recent be- Vorste, (S.D. v. Vander 403 N.W.2d low. (Henderson, J., 1987) dissenting), and Amert v. ble of being instructed us the defendant-Ziebarth made certain calculation charged should not reference prevailing be markets for labor it, debtor, as a could not because 21-1-11, materials. Under SDCL reasonably plaintiff entitled,” know or ascertain exact “is and the to re- Hanson, support, owing. sum I cited cover was vested on par- 36, Meyer, 373 N.W.2d 369 N.W.2d i.e., at date, ticular repair date the costs Subsurfco, B-Y Inc. v. Water were fixed. Dist., (S.D.1985). The plaintiff fact that the did not treat Amert, N.W.2d In quoting 400 at 893. damages these as certain until late in the Beka, at 77 S.D. 92 at I N.W.2d relevant, game is but not determinative. “ tethered to this settled law: ‘When the Likewise, the fact jury that the verdict did exact sum of indebtedness is known or not treat them as such is not issue readily can be ascertained reason for under right the statute. The prejudg- ” not the denial interest does exist.’ ment interest under SDCL 21-1-11 is not Amert, In Hageman, 400 N.W.2d at 893. by determined in claimed April as as N.W.2d at recent complaint, complaint, the amended or even year, hinged my this on language I dissent the amount determined in the It verdict. Amert, I in quoted have N.W.2d at question proof of whether the reflects the Hageman, I majority dissented from the elements of SDCL proof 21-1-11. If the “ opinion I because believed it was not ‘clear does, then the court should mathematically plaintiff that the entitled recover a compute prejudgment certain, damages sum or sought that the Here, prejudgment required interest was capable being are by made certain calcu- lation_’” because it certain capable being or 403 N.W.2d 425 (quoting at made certain calculation Amert, and 892) (Henderson, J., at recover plaintiff was vested in the Thus, on a dissenting). jury setting where a particular date. Intеrest is allowed proportionate trial, on jury fault in a damages if there exists established or rea- damages defendant cannot over to a sonably prices ascertainable market or proportion- val- until sets the matter, fault, here, subject ues on the ate reference to we have and the cannot, which degree the amount due defendant with of cer- be determined Amert tainty, by computation. v. Ziebarth damages the amount of know Constr. (S.D.1987); he would owe. Basic is the rationale of N.W.2d 888 Beka, Varilek, Masonry, Barton 159-60, Inc. v. 77 S.D. at Hageman quoted my dissent, (S.D.1985); which I in Dougherty v. Beck N.W.2d 200 “ man, deny- (S.D.1984); 424: ‘The Beka v. N.W.2d at reason America, ing Corp. the Lithium interest on a claim is where 77 S.D. does not what sum (1958). liable know he N.W.2d 156 Where the amount owes, he cannot be in for not pay- sought, though default unliquidated, even is based ” ing.’ thinking in Paramоunt out must be upon readily ascertainable of ser value certainty uncertainty. vis-á-vis If it is not property, general vices or rule is to certain, capable it must be made of certain- strong allow interest in the eq absence of ty by must also vest as of and it calculation Amert, supra; Aet contrary. uities to the particular day. that, in Master the final na Casualty Surety and v. United Co. analysis, ship your safely will come to States, (8th Cir.1966). 365 F.2d 997 Pre port. should be allowed even offset, where there is an or counterclaim SABERS, (concurring part in Justice contributory negligence. I claim of submit part). in dissenting this is intent of 21-1-11 for the clear SDCL contract, agree opinion respects arising

I all claims from such as we in not except say I would trial have here. 21-1-11 one. reverse the court SDCL does prejudg prejudgment every person its dеnial is entitled be- certain, offset, unless there is an damages interest, capa- cause these ment contract, negli- summary, plaintiff contributory sued counterclaim or claim two, negligence. damages are specifies Plaintiffs gence. The statute contract, supported negligence. i.e., two, exceptions, prevent- debtor where contrib- 1) law, 2) paying the To extent that defendant’s creditor ed successful, utory negligence claim was debt. both interest on purports deny majority opinion The already those been denied. a “contrib- interest because second deny prejudgment To interest a negligence” impossi- “makes utory claim contrary time sustainable reasonably know for a defendant ble spirit 21-1-11. letter and As pay plaintiff. should stated what it difficulty and Much of this fuss would Amert, should be able to defendant if exist interest rate were argument himself unless he avail of this 2) 1) reasonable, and either lower or the payment or an of- has tendered fact post-judgment same rate. as the language of payment. the stat- fer Legislative lacking common sense is during “except such time as provides, ute pre higher interest rate is 3% law, by by prevented the debtor -judgment than interest. post See creditor, paying act of the from the debt.” (prejudgment SDCL 54-3-4 and 54-3-5 §§ case, In this does even claim the debtor interest), interest), (post-judgment 54-3-5.1 law, prevented by he the act that was (state rates). and 54-3-16 interest creditor, paying the of the from debt. MORGAN, I am authorized to state that fact, continually vigorously per- and he has J., joins part this concurrence right in his resist the debt. Obvi- sisted part. dissent in right ously, a debtor has the to resist the meantime, debt, but had the pay should money

use of the interest obligation in accordance with SDCL

21-1-11, Brothers, Inc., Meyer Dixon v. (S.D.1985),Amert, supra, others. 21-1-11 to the reference ‍​​‌​​‌​‌‌​‌‌​‌‌​‌​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌‌‌​​‍SDCL EWALT, upon particular day. As to recover Pat and Yvonne Plaintiffs or capable Appellees,

soon as are certain being calculation refer- certain prevailing markets for ence labor MEREEN-JOHNSON MACHINE materials, then are vested and COMPANY, corporation, begins to run. Interest should be Appellant. Defendant and each item ex- awarded the date Nos. 15567. pense was incurred. The trial court denied because it believed it Supreme of South Dakota. Court definite could ascertain a date when April 24, began There on Briefs 1987. to accrue. Considered difficulty, certainly it was been some Decided Oct. possible here. The time is a there tolling period in- before reasonable to

terest runs is if tried the debtor accept. creditor 21- refused to above, question is a

1-11. As stated proof

whether reflects elements does, proof If and it

SDCL 21-1-11. case,

does in this then the court should

mathematically compute

Case Details

Case Name: South Dakota Building Authority v. Geiger-Berger Associates, P.C.

Court Name: South Dakota Supreme Court

Date Published: Oct 14, 1987

Citation: 414 N.W.2d 15

Docket Number: 15141, 15158, 15162, 15173, 15175, 15178

Court Abbreviation: S.D.