Swenson v. Sanborn County Farmers Union Oil Co.

еstate, i.e., tive of that the executor or 21-1-13.1. Charles Fritzel and the trust Johnson, 102 argue administrator.” N.Y.S.2d that the damage day occurred the system, Johnson installed the drain tile 870. July figured 1993. The trial court Unquestionably, the cause of ac interest from the date the damage was against Virginia Johnson survived discovered. We concur with the trial an intangible Fritzel’s death and became day may сourt’s date. The of installation asset of the estate. For the trust or occurred, negligence have been when the party Fritzel to a real in inter Charles be but no one knows for certain when the est, then, the estate had to transfer owner Therefore, seepage began. non- ship of the action to one or of them. both speculative date from which compute The Bank acted as administrator and both day discovery. interest was the trustee. the Bank required Was exe showing cute some that it document trans [¶ Affirmed.

ferred the cause of action from the estate

to the think not. “A trust? We transfer MILLER, Justice, Chief writing every be made without case SABERS, AMUNDSON, and writing in which a is not re expressly GILBERTSON, Justices, concur. quired by statute.” 43-4-5. SDCL No

statute or Dakota requires case South transfer

“documented” these circum Champion

stances. Accord Home Build Sipes, Cal.App.3d

ers Co. v.

Cal.Rptr. (1990)(deeiding under assignment

identical statute that of choses in action need not in writing). be As affidavit, evidеnced the trust officer’s Doug Swenson, SWENSON and Dan necessary act and the intent to trans Appellants, Plaintiffs and legally fer existed. Because the transfer passed right of action from the Bank trustee, as administrator to the Bank as SANBORN COUNTY UN FARMERS COMPANY, denying the trial court was correct ION OIL a South Dakota Corporation, summary judgment Johnson’s motion. O’Lakes Cenex/Land

Agronomy Company, a Minnesоta Prejudgment 2. Interest Corporation, Appel Defendants lees,

[¶ 12.] Johnson contends the trial awarding any prejudgment court erred in damages interest because could not have Miles, Inc., Corporation, an Indiana reasonably been ascertained before the Mobay, Corp., Pary Third f/k/a Decker, jury’s verdict. He cites Colton v. Defendants. Colton inter No. 20444. 21-1-11, preted applies July lawsuits commenced before Supreme Dakota. Court South here, however, pertinent The statute 21-1-13.1, which for cases com Considered on Briefs Jan. July menced after abrogated the May Decided prejudgment rule that interest cannot be damages obtained if remained uncertain

until pre determined a court. Now

judgment day from interest is allowed “the damage the loss or оccurred.” SDCL eventually

discussed Swensons decid- application ed on a dual of Treflan/Sen- core. ‍‌‌​‌‌​‌‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌​‌​‌​‍purchased the chemicals employees from Sanborn and Sanborn fields, applications made two on Swensons’ planting soybeans one before the and one following planting. soybeans emerged

[¶ 3.] Once and grew, Swensons noticed that eockleburs grow сontinued some areas of the field. arranged Sanborn for an aerial spraying of portions the infected of the with the Basagram field chemical order continuing prob- to alleviate the cocklebur lem. Following application when the harvested, fields were were un- Swensons Firm, B. of Law Samp Chan. Masselink yield satisfied with the of crop and Falls, plaintiffs aрpellants. Sioux for and alleged ineffectively the herbicides were applied to exterminate cocklebur infes- Woods, Fuller, L. Kristine Kreiter of tation. Smith, Falls, Shultz & Sioux for defen- appellees. dants and April [¶ 4.] On Swensons brought against sup- suit Sanborn and the DOBBERPUHL, Judge. Circuit herbicides, plier of Cenex/Land (Cenex), Agronomy by filing O’Lakes Co. This matter arose 1994 as an complaint summons and in circuit court. (Swen- by Doug and Dan Swenson The complaint .alleging negligence, breach sons) seeking damages from Sanborn warranties, of express implied and and County Company Farmers Union Oil and negligence part Companies strict on the Agronomy Company O’Lakes Cenex/Land respective handling appli- due to their and (Companies) alleged applica- inеffective cation of the herbicides to Swensons’ tions of Af- herbicide Swensons’ fields. Companies denying fields. filed an answer period discovery, Companies ter a of initial affirma- allegations asserting and prose- moved for dismissal for failure to negligence, tive contributory defenses of 15-6-41(b) pursuant cute to SDCL and risk, mitigate assumption of the failure to granted SDCL 15-11-11. The trial court law, damages, by federal and preemption disnjissed mat- Companies’ motion and beyond of weather conditions their effects ter. We reverse and remand. control.

FACTS of inter- served set rogatories request production Swensons contacted Sanborn (San- County their an- Company Farmers Union documents and Swensons filed born) 27, spring regarding party of 1991 her- swers on June 1994. A third defendant, Inc., Miles, application briefly brought bicide to 630 acres of their was this soybean heavily party fields which were infested into the action but is not a options appeal.1 with eockleburs. Various were filed, parties stipulated bringing August party a third

1. The to the in of and it 1995, Miles, Inc., June after a time exten- which the trial court allowed answer on brought August granted. then ordеr dated 1994. Miles was the sion was declaratory against separate judgment action manufacturer of the chemical Sencore used party in relation to an on Swensons’ fields. A third summons Miles on signed complaint upon indemnity agreement were served Miles on Swensons had Honda, (citing substitutions of Annett v. American Several Swensons’ during of 1996 counsel were made the course Nieuwsma, Opp September Mi- action. On (S.D.1990); replaced Mfg. T. Du-Al Co. v. Sioux Buffington Douglas

chael L. Falls Co., (S.D.1989); Loen, Law Firm in Constr. Samp of the Sioux both Co., Falls, July Schwartzle v. Austin Dakota. On South Reuss, (S.D.1988); Engberg, also of Law Holmoe Harry Samp A. (S.D.1987); Firm, Buffington Duncan v. Mr. as Swen- Pen replaced Auth., nington County Hous. sons’ of record. counsel (S.D.1986)). 425, 426 When the decision deposition tak- [¶ Dan Swenson’s was justified by, clearly against, “is not 31, 1995, and Douglas en on August Swen- evidence,” reason and the standard met is 28, on deposition occurred November son’s and the trial court’s dismissal must fail. January 1995. On Swensons ¶ London, 12, 41, 578 at 1998 SD N.W.2d admissions, filed which were request ¶ 148; Devitt, 1996 SD 551 N.W.2d by Companies filing on answered Feb- Gors, (citing Dacy at 300 v. 471 N.W.2d 14, ruary 1996. This was last record 576, (S.D.1991); Herndon, 580 v. Herndon 10, file until the case November 917, (S.D.1981); 305 918 N.W.2d Root v. During period interim various 120, Bingham, 118, 132, 26 S.D. 128 N.W. discovery and communications oc- forms of (1910)). 133 trial will let the We court’s parties curred between the and will be judicial decision if stand “we believe detailed below. mind, in view of the ‍‌‌​‌‌​‌‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌​‌​‌​‍law and the circum 10, 1997, Companies [¶ On November stances, reasonably could have reached prosecution to dismiss for lack of moved Inc., Rosen’s, Juhnke, that conclusion.” 15-6-41(b). under 15-11-11 and A (S.D.1994) 575, (citing 513 N.W.2d My on heаring was held December Coil, ron v. 82 S.D. 143 N.W.2d granted the trial court the motion on (1966) (other 738, omitted)). citations 7, January 1998. Swensons moved for re- consideration, but the court took no princi There are several action the motion. appeal on Swensons of law ples guide our review aof dismissal, raising the following issues: prosecute: dismissal for failure to the trial court Did abuse its discre- First, ordinarily will this Court not in- by granting Companies’ motion terfere with the trial court’s rulings to dismiss? Duncan, these matters. 382 N.W.2d at 427; Bechtol, 187, Did the trial court err as a matter of Simkins 86 S.D. (1971). issuing findings

law not of fact and conclusions of law? Second, a dismissal of an for fail- prosecute ure is an extreme remedy STANDARD OF REVIEW should be used when there is of a an unexplained [¶ 9.] “Review trial court’s delay. unreasonable 356; Sсhwartzle, of a claim for failure Opp, dismissal at 71; Holmoe, performed under the abuse of discretion 429 N.W.2d at 403 N.W.2d Adams, 31; Duncan, 427; standard.” London v. at 1998 SD 382 N.W.2d 145, 148; Simkins, 732; 578 N.W.2d Devitt v. Chicago & ¶71, 7, Hayes, R. v. Bradbury, Northwestern Co. during application. Miles paid with herbicide dated 1997. Miles (Fourth Circuit, County, $500 Judicial into a Sanborn and entered release on 95-06). complaint August agreed Civ. The # in that action in which Swensons indemnify was latеr amended to include as Miles was Miles if found liable in parties. ultimately subject was That action dismissed the main action which is the of this .Thus, by stipulation appeal. part this appeal. of the and order of the Miles is not DECISION S.D.

(1964). An and unex- unreasonable The trial court its abused dis- delay has been defined as plained by granting Companies’ cretion motion something “which the omission to do prosecution. want of to dismiss for might reasonably be party might do and record, According to Compa- towards vindication or expected to do nies moved for dismissal for failure to Bradbury, rights.” of his enforcement prosecute under SDCL 15-11-11 and (citation omitted). 129 N.W.2d at 542 granted The trial court Companies’ motion with blanket order Third, passage the mere of time is not statutory not cite the did basis proper test to determine whether grant. must assume that since We Com- warrants dis delay prosecution panies’ motion moved for dismissal under 356; 458 N.W.2d at Opp, missal. granted both statutes the trial court also Schwartzle, 71; Holmoe, 429 N.W.2d at the dismissal under both statutes.2 Duncan, 403 N.W.2d at a. Dismissal under SDCL 15-11-11 427; Bradbury, 129 N.W.2d at 542. applicable Under the law at the Fourth, has the burden ‍‌‌​‌‌​‌‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌​‌​‌​‍to action, time the trial court dismissed Mfg., the action. Du-Al proceed with SDCL 15-11-11 allowed a court to dismiss 56; Schwartzle, 444 N.W.2d at (a) failure when: prosecute action for to Duncan, 71; at at N.W.2d N.W.2d activity year, there has no for one been 427; Simkins, 732; Potts, 192 N.W.2d at (b) showing good and there is no of cause 72 N.W.2d at 925. The defendant need inactivity.3 which excuses step by step. meet the plaintiff “Activity,” in previous as used Holmoe, 403 at 31. N.W.2d version has been de- of SDCL 15-11-11 Finally, dismissal of the cause of action Annett, activity,” fined as “record 1996 SD prosecute grant- for failure to should be 803; 58 at 548 N.W.2d at “last activi- when, considering ed after all the facts file,” in the v. ty as reflected Holmoe case, plain- and circumstances of the Reuss, record,” 32; 403 N.W.2d at “settled charged tiff can be with lack of due Holmoe, 32; 403 N.W.2d at and “court diligence failing proceed in to with rea- record,” Mfg. Du-Al Falls Co. Sioux promptitude. Opp, sonable 458 N.W.2d Co., (Sabers, at con- Const. N.W.2d 356; Holmoe, 31-32; at 403 N.W.2d at curring). Duncan, 427; Bradbury, 382 N.W.2d at good aspect The cause of SDCL at 542. using 15-11-11 has been evaluated the fol- factors; Cheese, Taylor, the circum- lowing light Dakota Inc. of Annett, case, surrounding 715-16 stances ¶ London, Companies althоugh they prosecute.” claim that moved statutes, briefs for dismissal under both at hearing arguments and before the trial court year activity pro- centered on the one record July effective 3. SDCL 15-11-11 was amended vision of SDCL 15-11-11 and thus the trial include a second sentence which 1998 to granted the that court must have motion on states: However, basis. trial court's order does "reсord,” purposes term of estab- [t]he decision; statutory not cite a basis for the it cause, include, lishing good by shall but not merely Companies' states that motion was limitation, way negotiations of settlement granted. counsel, parties between the or their formal 15-6-41(b) SDCL 15-11-11 and SDCL optional. are discovery proceedings, or informal the ex- "may court dismiss” The trial change аny pleadings, and written evi- Correspondingly, under SDCL 15-11-11. agreements between the or dence of "a defendant file for dismissal” under justifiably delays result in counsel which "There absolute is no plaintiff's prosecution. right to to dismissal for failure ¶ 804; at from preju- October Swensons’ counsel SD 58 activity necessary, lack of is not dice Companies’ requesting stipula- to counsel Id.; duty simply “a has а to defendant scheduling Companies tion to a order. step-by-step,” Dakota plaintiffs meet the response issued no to that letter. Jan- On Cheese, 716; “[g]ood 525 N.W.2d at an- uary Swensons’ counsel sent with delay requires cause for contact Companies’ regard- other letter to counsel opposing party and some form of excusa- ing scheduling change ordеr and oth- happening ble conduct or arises Rollyn counsel. The letter stated that by negligence er than or inattention to Samp taking and John Burke were over as Holmoe, deadlines,” pleading /«¡.(citing Companies replied by counsel. Swensons’ 32). stating letter on sched- following We have found the uling discovery necessary would be delay: not communica- good bе cause prepare Companies order to for trial. among plaintiffs they anticipated filing also stated of sub- counsel, counsel, opposing but not with expected stitution of counsel and contact Holmoe, 32; letters and from counsel regarding Swensons’ the parties settlement between preparation. respond Swensons did not dismissal, Id; years prior two massive regarding letter these matters until investiga- amount of documentation and pro- November when a letter and tion, Cheese, Dakota 525 N.W.2d at posed scheduling order were sent to Com- plaintiffs failure to file a summons and panies’ counsel. did not re- complaint circuit fourteen letter, spond to this but filed a motion to being months after instructed to do so dismiss for failure to on Novem- court, transferring small claims A hearing ber 1997. was held on that Devitt, 298; the serious na- motion on December and trial the Annett, injuries plaintiff, ture of to granted motion to dismiss on in difficulty finding N.W.2d at an January activity and expert witness settlement dismissal, expired year prior February From 1996 until [¶ 19.] Id; and illness and death of defendants’ November when the motion to original by counsel and further inaсtion filed, parties actively dismiss was were firm, defendants’ counsel’s law Reed preparing by trying for trial to conduct Heath, discovery organize scheduling and orders.4 previous assert that our deci passage The mere of time is [¶ 17.] Honda, sion in Annett v. American held not the test to determine if an action discovery that informal and settlement Opp, should be dismissed. ne Despite activity gotiations of good absence on do not constitute cause year, Annett, the court record for over a we be under SDCL 15-11-11. lieve the interaction and communications 58, 548 N.W.2d 798. This is an overstate parties between the in this case constitut holding ment of our in that case. In An- good delay. ed cause for the nett, rejected plaintiffs argument we discovery thаt informal and settlement ac activity 18.] The last record in this

[¶ tivity good were cause because of the fol filing request case was the of for admis- lowing discovery facts: the informal oc and response January sions on and during curred a federal court action which negotia- 1996. Settlement case; predated filing tions of the state court place betweеn took later in as evidenced a letter dated and the non-record settlement exchanged separate 4. There were also some letters re- dence was under a case file number garding separate declaratory judgment ac- and action and cannot be considered as activ- Miles, involving correspon- ity Inc. That this case. in trial, ery scheduling they the dismissal. 1996 for and were year ended a before ¶ 17, 18, 19, occupied proceedings at 803. with the of the 58 at also SD declaratory judgment action as on offshoot addition, factually In Annett is [¶ 20.] Again, may of this matter. it be said that case: it distinguishable present from the persistent could have been more discovery clear from the record that trial, in of pursuit their but wе believe being pursued were preparation trial their actions did not rise to the level of bar, including during the matter egregiousness preclude which should this year prior to the dismissal motion. While proceeding, matter from as is the test prompt- demonstrating epitome not of 15-6-41(b). Devitt, under SDCL ness, the evidence shows Swensons were ¶71, 16, 551 trying pro- acting diligence with due case, jus- аction under the circum- Under facts of this ceed with this tice that the action remedy requires continue. The stances. Dismissal is a serious trial court abused its discretion dismiss- which these facts do not merit. The trial ing under granting court abused its discretion Companies’ motion under 15-11-11. on [¶ Because our decision issue 15-6-41(b) b. Dismissal under SDCL one, there is no need to address the second issue. A may trial сourt also prosecute an action for failure to dismiss [¶ 25.] We reverse the court’s dis- motion for dis granting defendant’s action pro- missal this and remand for 6—41(b): missal under SDCL ceedings consistent with opinion. this 15— failure of the For [¶ 26.] KONENKAMP comply chapter any or to with this or GILBERTSON, Justices, concur. court, order of defendant move any an or of claim dismissal of MILLER, Justice, and Chief against him .... a dismissal undеr AMUNDSON, Justice, dissent. adjudication ... operates section as DOBBERPUHL, Judge, Circuit upon the merits. SABERS, Justice, disqualified. The test under this statute is whether the Devitt, plaintiffs egregious. AMUNDSON, conduct was (dissenting). Justice ¶ 71, 16, 1996 551 at 301. SD N.W.2d A trial respectfully I dissent. [¶ 29.] Also, year provision the one unlike cases, may dismiss civil “where there 15-11-11, period there no time SDCL year, has been no for one unless mandate under SDCL How- good contrary.” cause is shown to the ever, passage the mere of time is still not 15-11-11; Hayes, 1996 Devitt v. SD London, the test for dismissal. 1998 SD ¶ 298, 300; 71, 12, 551 see also N.W.2d ¶ Holmoe, 41, 12, 148; at 578 N.W.2d 403 Co., Motor Annett v. American Honda N.W.2d at 31. 58, 798, Inc., ¶ 14, 548 N.W.2d 1996 SD addition, pursuant of an action 803. In to SDCL 15—6— [¶ 22.] Dismissal “ 41(b), may file for dismissal for failure to is an extreme rem ‘a defendant him’ if only any against of an or of claim edy and should be used when there is Devitt, unexplained dеlay plaintiff prosecute.” fails to unreasonable ¶ (the 71, 12, something party (quot to do 551 N.W.2d at 301 failure 1996 SD 15-6-41(b)). In ing reviewing might reasonably expected be to do case.) dismissal of a claim for failure proceeding Opp, with his 458 court’s 356; court determines wheth Bradbury, prosecute, at 129 at this expect acted would be er the trial court abused its discretion. 542. Swensons as ¶ 300; Devitt, N.W.2d at plaintiff trying proceed of a with a 1996 ‍‌‌​‌‌​‌‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌​‌​‌​‍SD 551 ed ¶ Annett, N.W.2d at they trying to conduct discov- 1996 SD case: were Co., granting v. Austin 429 N.W.2d abused its discretion in the mo- Schwartzle 69, 71 of discretion is a I Abuse tion and would affirm. justified by, and decision which is not I am authorized to state that clearly against, reason and evidence. Dev joins in Chief Justice Miller this dissent. ¶

itt, 551 N.W.2d at 300 SD (citations omitted). Employing this stan

dard, if “we will not reverse a decision “we mind, judicial

believe view of the law circumstances, reasonably

and the could Devitt, reached that conclusion.’”

have (quot 551 N.W.2d at 300 Rosen’s, Juhnke,

ing Inc. v. 513 N.W.2d 1999 SD 65 (other (S.D.1994)) 575, 576 omit citatiоns Mary HUGHES, Appellant, ted). It is well established that it is the plaintiffs proceed burden to with the ac- STANLEY COUNTY SCHOOL ¶ Devitt, tion. 1996 SD 551 N.W.2d BOARD, Appellee. ¶ 301; Annett, 1996 SD No. 20272. (citations omitted). “A de- plaintiff fendant need meet the step Supreme Court South Dakota. ¶ Annett, by step.” Considered on Briefs June Reuss, (citing N.W.2d at 802-03 Holmoe v. (S.D.1987)). Reassigned April It is bring true the defendant May Decided case, about a trial of the but he is under legal duty no presence to do so. His involuntary,

the case is and his attitude quite

toward it is different from that of

the plaintiff, put .only, he is to a defense charged neglect

and can with no be

failing plaintiff to do more than meet the

step by step[.]

Holmoe, 403 (quoting Fox v. Co.,

Perpetual Nat. Ins. Life (1978)). case, In question there is no proceed

that the failed to with this year. for more than one The law-

suit was commenced in 1994. The last

deposition was conducted in November of years prior which was two to the

filing of presently the motion to dismiss Negotiations

before the court. had not year. During

been conducted in over a

this time these were involved action,

separate declaratory judgment

however, this does not provide basis for obligation to avoid its pros- Therefore, present

ecute the action. on record, ‍‌‌​‌‌​‌‌‌​‌​​‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌​‌​‌​‍I cannot find the trial court

Case Details

Case Name: Swenson v. Sanborn County Farmers Union Oil Co.

Court Name: South Dakota Supreme Court

Date Published: May 19, 1999

Citation: 594 N.W.2d 339

Docket Number: None

Court Abbreviation: S.D.