Tucek v. Mueller

addition, 25-7-6.13 allows for the In SDCL support TUCEK, entered of all orders

modification Michelle Mueller Plaintiff 1, 1989, July prior to without a Appellant, in effect change of circumstances. showing of a v. contends that his full com also Cool MUELLER, Maynard Hieb, First Garlan 1977 order terminated his

pliance with the Bank, Wayne Kinonen, Crawford State age Danielle reached the obligation when Economy Company and Fire & & Casu not, however, completely had sixteen. Cool alty Company, Appel Defendants and obligation when Baxa institut performed his lees. They proceedings. were in ed modification prior months to Danielle’s six stituted two No. 18122. birthday and asked increased child

teenth Supreme Dakota. Court South just equitable support as well as other relief. 19, Argued April 1993. Grohs, supra, a Conway In 1977 court Reassigned Sept. 1993. sup- for child approved agreement provided Decided Feb. eighteen. port reached until the children adopted providing SDCL 25-5-18.1 legal duty support parents with the their eighteen age until the or until the

children age they if are full-time second- of nineteen petition

ary The mother did not students. support until for a of child after modification birthday. eighteenth her childrens’ This did not Court held that SDCL 25-5-18.1 modify outstanding support automatically all Rather, obligations. legal it created a vehi- parent court modification of cle for a to seek support obligations. The mother child prior petitioned should have for modification eighteenth birthday to her childrens’ they graduate would she determined that eighteen. high from after were school In this Baxa followed the dictates of case Conway. for modification of petitioned She support prior the 1977 order Danielle’s birthday. sixteenth In accordance with Conway, the trial court SDCL 25-5-18.1 and support allowed until Danielle turned child eighteen secondary or nineteen if a full-time proper. agree student. We the award was Affirmed. WUEST,

MILLER, C.J., and HENDERSON, SABERS AMUNDSON, JJ., participating. (on

HENDERSON, reassignment). Justice PROCEDURAL HISTORY/ISSUES a civil Michelle Mueller This is lawsuit. (Tucek) father, charged her Garlan Tucek Mueller, conversion, with fraud and deceit May- concerning an settlement. insurance Hieb, Bank, Wayne nard First Kino- State nen, Economy Company, & and Crawford Casualty (collectively Company re- Fire & appellees) to as were also named as ferred alleged in the defendants for their roles and deceit. judgment was entered Default on November 1990 due to his Mueller Complaint. re- failure to answer the The maining defendants thereafter filed for sum- 8, 1992, mary judgment. July the trial On court informed Tucek she would have summary remedy or elect rescission as granted be to the defen- would that rem- dants. When she declined to elect edy, summary judgment granted. Tu- appeals raising following issues: cek requiring in I. Did the trial court-err monetary dam- Tucek to elect either remedy? ages as her or rescission granting II. Did the trial court err summary judgment in favor of Hieb and Bank? granting court err in

III. Did the trial Kino- summary judgment favor of nen, Adjusting Company & Insurer? reverse treat each issue seriatim. We We authority set remand for the reasons and in each issue. forth

FACTS July accident on

As a result of one-car 18, 1987, passenger, Tu- she was a injuries leaving her numerous cek sustained Burke, Allen, Haverly Hagen, E. Rita John days hospitalized for eight for a coma Archer, Falls, Wilka, for Schreier & Sioux Hoffman, driver of six weeks. Renae appellant. plaintiff and car, policy with was covered Boyce, Murphy, McKnight, Michael S. (Insur- Casualty Economy Company Fire & Falls, Greenfield, Sioux McDowell er). Company & retained Crawford Insurer Bank. appellees and First State investigate the acci- (Adjusting Company) to Adjuster negotiate the settlement. dent Cadwell, Deibert, Sanford and Douglas M. assigned to the case. Wayne Kinonen was Kinonen, Deibert, Falls, appellees Sioux where Tucek Co., Kinonen arrived Economy Fire & Cas. When & Crawford Mueller Garlan hospitalized, he encountered Co. him that he was Tucek’s father DECISION who informed Although claim. handle the and would grant of review for a Our standard majority, years legal and of Kino- was 19 old summary judgment denial of was established throughout only with Mueller nen dealt Ry. in the seminal case of Wilson v. N. Great Despite policy up process. a settlement (1968): Co., S.D. N.W.2d bills, $100,000.00, ongoing Muel- plus medical reviewing grant summary In a denial quick a ler and Kinonen reached 15-6-56(c), judgment under SDCL we $70,000.00. while, un- All the Tucek was moving party must determine whether the aware of these events. any genuine demonstrated the absence of material fact claim, issue of and showed entitle- To finalize the Kinonen sent a re- judgment a ment to on the merits as a signature. lease form to Mueller for Tucek’s matter of law. The evidence must be unsigned Mueller took the release form to (Bank) favorably nonmoving viewed most Maynard Hieb at First Bank in State party Dakota, and reasonable doubt should be re- Tripp, South to be notarized. Hieb against moving party. solved The non- sign that Tucek needed to the form in stated however, moving party, present spe- must presence. that his Mueller indicated showing genuine cific that a facts material daughter was outside the van. Moments appeal for trial later, issue exists. Our task on is signed copy Mueller handed a of the only genuine to determine whether a issue Although release to Hieb. Hieb did not wit- form, material fact exists and whether the law signing the he ness Tucek nevertheless correctly applied. If there exists signature notarized it. Tucek claims that the supports ruling which trial basis of the forgery. is a court, summary judgment affirmance of a Mueller later took Tucek and the release proper. office in to Kinonen’s Sioux Falls where the Bank, Dewey County Waddell v. 471 N.W.2d ($70,- exchanged release was for two drafts (S.D.1991); BankWest, Garrett v. 000.00 settlement and $825.87 (S.D.1990). Inc., 836-37 We expenses) payable medical both to Tucek. light principles examine the issues in of these Bank, She returned to the endorsed holdings. checks, deposited them into individual cheeking savings accounts her name Tucek was an innocent victim in an auto- permitted money but Mueller to transfer be- inju- mobile accident. She suffered severe tween accounts. Unbeknownst to being eight ries which include in a coma for up joint per- accounts were set as accounts days, impaired functioning, memory brain mitting Mueller to write on her ac- checks loss, inability conceptualize and an Although imprinted count. the checks were state, verbally communicate. While this Mueller, only, with her name without Tucek’s father, Mueller, settled her cause of ac- knowledge, repeatedly spent thousands of $30,000.00 policy tion for under the limit checks, money, dollars of her via counter result, forging her name on a release. As a question. Bank cashed without daughter’s money. A stole his default against was taken Mueller for deposited, After the checks were Tucek’s Although ap- fraud and deceit. he has not mother discovered that Mueller had settled pealed, his name remains on the title of this policy the claim for less than the limits and appeal. signature on the release form awas case, forgery. reviewing abundantly When confronted with the claim of this it is Hieb, Bank, forgery, Kinonen, Adjusting Kinonen contacted who clear that reas- signature Company sured him par- that the was authentic. and Insurer either assisted or adjudicated ticipated Kinonen also informed the Insurer of the with Mueller in this charge Below, but Insurer instructed Kinonen to do fraud and deceit. the trial court Thereafter, nothing. brought granted summary judgment this in favor of suit. developed parties plaintiff, Other facts will be where these an necessary. shenanigans innocent victim to all of these Habeeb, Annotation, is, Release Induced It as W.R. judgment victors. by the committed (1958) Person, 58 A.L.R.2d 500 justice. by Third now, miscarriage of legal it stands added). (emphasis is an summary judgment We note mon- she must return the Appellees insist be awarded remedy which should extreme damages. Let us review ey sue for to now all reasonable is clear and only when truth light of these justice of that remark of a material touching the existence doubts facts: movant. against the be resolved fact should (a) $70,000.00paid, over theOf Hieb, case, encompass that would In this bills; spent on medical Kinonen, Company, and In- Bank, Adjusting (b) money from her father Furthermore, must be Bank obtained the evidence surer. non-moving pay off her who stole it from her —to favbrably the most viewed bowling delinquent on his followed the father’s loan edict was not party. This old carry alley; appellees the bur- These trial court. no dearly that there is proof to show of den (c) Mueller, money using the settlement they fact and that of material genuine issue negotiated, purchased a new he alone law. a matter of to as are entitled funds, van, stolen and with those same Pierre, v. Fort Agr. Indian Credit

American Florida; grand to took a vacation (S.D.1985). They did 379 N.W.2d 318 (d) Insurer, Kino- Adjusting Company and genuine are issues burden. There meet said $30,000.00less than the settled for nen of all regarding the conduct fact of material estab- policy limits or the “reserves” springing liability appellees and their five during, And to settle the claim. lished Therefore, summary judg the therefrom. time, in neurolo- Tucek was a all of this is reversed. by the trial court granted ment ward, mentally inca- physically and gy what was

pacitated, and did not know restricting Mueller’s erred in actually transpiring. 1. Trial court choice remedies. prac either Apparently, those who therein upon participated her or ticed damages sue for Tucek is entitled to therefrom, knowingly the fruits received or Appellees argue that deceit. for fraud and of the proceeds the have Tucek return would chap. 53-11. under SDCL must rescind she facts, a set of such Under this settlement. v. our decisions O’Connor By virtue of outrageous. the thought is Consider tenet of (S.D.1991), v. Holmes King, 479 N.W.2d 162 following: (S.D.1990), Couturier, 135 452 N.W.2d N.W. 156 Staufer, 59 S.D. 238 sug- v. good

Kerr can be no reason believe [W]e remedy of her (1931), right to the injured she has the upon or placing the gested for trial court’s ultimatum— undoing choice. With or party burden defrauded deprived of go or home—Tucek wrong practiced rescind undo the attempting to jurisdictions held: have right a choice. Other may to upon him he have before resulting therefrom. damages for the sue a or com- has executed release One who Bailey London (citing A.L.R.2d at 504 action sometimes 58 promise of a cause of Co., Ind.App. 72 Accident unduly pushed fraudu- Guarantee & or that he feels (1918)). Although Tucek did 121 N.E. 128 making agreement. lently induced into checks, prove that such does not endorse two are several courses In this situation there Recall, did she accepted the settlement. may original she him. He sue on open to release, be it cannot and, sign the therefore release is action when the cause of final constituted defense, invalidity. that the two checks assumed assert its tendered as however, op- an had Appellees, equity to set aside settlement." may begin an action He fraud; yet, this compromise portunity to undo release or reform the settlement on their favorable agree- camped down may agreement. Or affirm Malakul thereby ratified the fraud. See bring deceit to an action ment and Arkansas, Inc., Ark. v. Altech damages he reason recover the suffered (1989). right every Tucek has executing the same. S.W.2d monetary mine if Hieb’s misinformation constituted or and seek dam- contract affirm the O’Connor, Garrett, N.W.2d at 847. that fraud. assisted ages. at 164. granting summary erred in 2. Trial court document, he Hieb notarized this When Hieb and Bank. judgment for injured recently knew that Tucek had been may take comfort in this state leaving in a He was in an accident her coma. willfully deceives another with law: One who cognizant prob- also of Mueller’s cash flow position her to alter her intent to induce lems, including unpaid to the Bank. loans damages. or risk is liable for Although policy, irrelevant to Tucek’s Bank may rely upon also SDCL 20-10-1. She highlighting relayed this information 20-10-2(2) (3). sections de Said SDCL adjuster. father’s economic dire straits “assertion, fact, as a of that fine deceit as directly Hieb’s actions assisted Mueller true, by one who has no reason which is not obtaining proceeds of the ground believing it to be true” or the able using proceeds pay a delin- these off “suppression of a fact one who is bound to quent Bank. loan to the it, gives information of other disclose or who likely to mislead for facts which are want opened cheeking account When Tucek For a similar defi fact[.]” communication of proceeds, with the insurance she claims she fraud, Questions nition of see SDCL 53-4-5. open joint Only did not a account. her name generally questions of fraud and deceit are of Nevertheless, imprinted on was the checks. determined, ordinarily, are to be fact and appeared Mueller’s name on the account in jury. Equipment a Commercial Credit accepted the bank records. Bank numerous Johnson, 411, Corp. 87 S.D. 209 N.W.2d signed by varying Mueller in counter checks (1973). 548 amounts, $7,400.00 $2,000.00. including and Allegedly, paid Mueller off his loans to the Public, Notary acting capacity As a Bank with these funds. Genuine issues of Bank, Hieb a document the authenticated appear material fact to exist as to Hieb’s and highly damaged Tucek. He affixed a participation Bank’s in Mueller’s fraud and Notary along signature Public seal with his deceit. expressing personally appeared Tucek before law, him. She did not. Under South Dakota It that Mueller is clear needed Hieb and a criminal act. this was SDCL 18-1-11. the Bank in order to obtain and maintain augmented further Ki- Her was access to the settlement. Hieb testified he approached Hieb nonen about the claim that acting scope was within the of the Bank’s forgery. signature

the was a Hieb’s re- employment provided when he notarial ser- confirming signature’s sponse the authentici- Summary judgment upheld vices. cannot be ty directly dishonesty. aided Mueller’s for either Hieb or the Bank. a criminal act committed and then lied to deed, thereby ratifying cover his Mueller’s granting summary 3. Trial court erred in (1943). § Every fraud. 37 Fraud 61 C.J.S. Kinonen, Adjusting Com- participant in a and each one who fraud pany and Insurer. perpetration another in the assists of forged, When the release was Tucek injured party. People is liable to the suffering organic was from an mental disor Hartigan Hauling, ex rel. v. E & E 153 Ill.2d der, secondary injury. guard to a head No 473, 271, (1992); 180 Ill.Dec. 607 N.E.2d 165 appointed ian ad litem was for her. Medical Privette, Wash.App. Kaas v. 12 P.2d 529 reports reflecting her condition were made (1974); 23 37 Am.Jur.2d Fraud and Deceit Undisput available to Kinonen and Insurer. (1968). notary public § responsible A ed medical reveals that she was in evidence persons all who have been defrauded of any mental to execute no state money consequence improper their as a papers or cash checks or conduct busi notary execution of his official duties. Sum ness. Bros., Brewer, mers Inc. v. 420 So.2d (La.App.1982). Viewing favorably As Mueller defrauded the facts most jury nonmoving party, Agr. daughter, up his own it is to a to deter- American Indian By accepting fruits of Mueller’s fraud Credit, we note that at 379 N.W.2d deceit, age appellees and also legal and stand liable. knew Tueek was Kinonen Malakul, power have of attor- at 436. Mueller S.W.2d knew did adjuster, with Notwithstanding, this ney. deposed, Tueek she stated that When dealt years experience, never ten over if not know for certain Hieb or the she did (and claimant, with only met with Mueller’s actions. Bank benefitted from rather, only briefly); conferred her once testimony preceded deposition. Hieb’s This Mueller, authority legal a man without with Although one claim a better cannot version Kinonen knew of Muel- the matter. to settle testimony, Lalley v. the facts than her own eagerness financial ler’s difficulties Safway Scaffolds, Steel Inc. N.W.2d 139 settlement, expressed quick concern amake (S.D.1985), Tucek, accusing while not these taking advantage might that Mueller be appellees, never them. exonerated settle- admitted that Bank, Hieb, profited Insurer from the question, and knew ment was out of forgery appellees and fraud. All demon- —as mental medical status were telephone correspondence strated Kinonen, fact, deposition, question. his money calls—knew Mueller needed mother him expressed that Tucek’s advised participated a factual if there is issue “... could until no settlement be made in a hurry claim while a scheme settle the However, settlement, years.” several problems the father’s exacerbated. Com- Mueller, settled, quickly well under per Credit, at What mercial policy limit. role, any, appellees did in as- if these have Typically, would have a settle- Kinonen sisting father in the fraud committed notarized, did this release but not do so ment daughter? burning question This Thereafter, Tueek’s he learned that time. presents genuine a issue of material fact forged. had signature on release been the summary judgment precludes a Nevertheless, proceeded with the Insurer of for against Tucek on her cause action to do [Kinonen] draft and “asked A against appellees. deceit these fraud and knowing nothing,” full that it had well jury sort the facts. should out Werner draft, knowing full stop power to well Bank, (S.D.1993). N.W.2d 138 Norwest money. This is Tucek’s father needed that and Reversed remanded. by in Kinonen’s file and in his recite, pleadings summary (1) the judg- tion that was: “made as a statement of granted ment allega- fact, will be as to the by which was untrue party making the it, tion (2) of fraud or deceit as no recklessly made”; evidence or else “made with fraud, prove exists to Garrett v. intent to deceive purpose and for the of BankWest, Inc., 833, 459 N.W.2d 847 inducing it”; party upon the other to act and (S.D.1990), (3) allegations but not as by relied on the party, inducing innocent negligence. of party that damage.” “to act to his Family Croes Trust v. Small Business Ad- I do not by find this statement the trial court min., 55, (S.D.1989). 446 N.W.2d 57 See also to previous be inconsistent with holdings. our Sperry Corp. Schaeffer, 727, v. 394 N.W.2d A victim of fraud has an election of reme- (S.D.1986). 730 Couturier, dies him. available to Holmes v. (S.D.1990). 452 N.W.2d 137 “He can Hieb’s notarization of the release form was contract, either rescind the representation restore what he that was made as a state- paid, received and recover back what he or ment of fact which was untrue. Hieb’s nota- may agreement affirm the represented and sue for rization signed that Tucek had Id.; monetary damages.” see also O’Connor the presence when, release form in his in (S.D.1991). King, fact, she had not. The notarization thus given Tucek was her choice of remedies and qualifies violated SDCL 18-1-112 and as a The letter was not filed with the provides: clerk the 2. SDCL 18-1-11 trial court but later was filed as an exhibit to any notary It is a Class 2 misdemeanor for Proposed "Plaintiff's Motion to Reconsider Re: public signature to affix his official to docu- Ruling Summary on Defendant's Motion for Judgment” part and is of the settled record. no misrepresentation part under the first element of evidence of deceitful intent on the Garrett, of the defendant. at fraud. N.W.2d 847; Brands, Famous Inc. v. David Sher- of is that the The second element fraud (8th Cir.1987). Corp., man 814 F.2d intent to misrepresentation be “made with facts, disputed, clearly These which are not inducing purpose and of deceive provide upholding the basis for the trial court party upon Family, it.” to act Croes other n in this case. intent is an N.W.2d at 57. Fraudulent Moreover, deceit Da- the third not element of under South element fraud is essential rely misrepre- law. 20-10-1. Tucek’s com- met. Tucek did on Hieb’s kota SDCL Adjuster, “knowingly Adjusting Company plaint itself that Hieb and sentation. asserts in intentionally parties are the who participated with Mueller ef- Insurer relied on However, validity fecting against no of the notarization. Hieb’s a fraud” Tucek. notariza- Adjuster in presented were to indicate fraudu- tion the release form resulted facts providing in to part intent on the of Hieb the under- settlement check lent fact, Mueller, it Tucek cash lying transaction. Tu- but did not cause settlement testimony clearly the check did it sworn indicates that nor cause Mueller’s subse- cek’s quent in no issue material fact conversion of those funds. genuine there is fact, $70,000 accepted deposited her deceive her or reliance set- regarding intent to from tlement check Insurer. She was her.3 upset until more than six with unsigned presented the re- Mueller When months later when she discovered that Muel- Bank, form to Hieb at Hieb informed lease portion subsequently ler had converted sign that Tucek would need to Mueller funds in her to his the settlement account it. Mueller before he could notarize form after had own use. This discovered she van. was outside in his Hieb said Tucek monthly Tu- her bank statements. reviewed he saw out his window believed looked cek’s initial reaction was to advise Mueller deposition, in the In his Tucek van. making any further refrain from withdraw- accompany it intention to that was his states als. signa- to obtain Tucek’s the van Mueller interrupted Finally, that Hieb and Bank Unfortunately, Hieb Tucek asserts ture. Mueller, perpetrating with Mueller time. he returned to worked at this When However, ad- Tucek. Tucek what to be release form bore he assumed deposition has facts to it mits her that she no signature. Believing that bore Tucek’s support accusation of Hieb Mueller signature, the release Hieb notarized Rather, working Tucek she signed together. said had though even it not been form working probably just were may have believed presence. Hieb’s actions been 18-1-11, together, not know for sure. but did negligent violation SDCL than a better version facts cannot claim they do to the level of intentional but not rise Dacy, v. 502 to. Parsons Summary judgment proper if there what she testified is fraud. Maynard believed whatever appeared A. that parties I believe ments when have mean, I my I he notarized it. him. before him. dad told mean, took his help wonder. he can't but I. questions propounded in responses to 3. Tucek’s sign So I I not there to it. for it and was word following: deposition show know, if, they you what were think- know don’t any you Q. Do to believe that have reason ing, together, I know were or don’t if Maynard personally from this Hieb benefitted really it. assume about what to transaction? you any to Q. facts that lead don’t have You anything to I it back me A. don't have behind doing Maynard that? that believe did, up whether—I don’t if I and I don’t know No, sup- any facts that would A. I don’t have think did. working accusing together, if my port them of any you Q. believe that the Do have reason to you he notarized it and mean. But that’s what as a result of this? bank benefitted there, guess leads me to believe so I it I wasn't A. No. working together, but they probably were that you Q. to believe that Do have reason acting together Maynard to I know for sure. were don't and Garlan rip tty you to off? (S.D.1993). misrepresentation N.W.2d 108 Tucek asserts that lent where he had made every person who assists another representations no false in convincing them perpetration injured fraud is liable investment). passing to make More than a Privette, party citing Wash.App. v. Kaas participation necessary fraud; is to constitute (1974). However, Kaas, 529 P.2d 23 each element of supported by fraud must be each of the liable stockholders had made an McBeen, Selvidge evidence. 230 Mont. misrepresentation injured party active (1988). 750 P.2d There has unlike the facts before us. More than a presented been no evidence in resistance to participation necessary mere to be liable the motion which show participation active fraud; participátion that must be know with Mueller in converting the settlement ing par with the intent to induce the other personal funds to his use. There can be no 20-10-1; ty’s actions. Sperry Corp., SDCL dispute as to who is the scoundrel this Although at 730. Hieb notarized transaction, i.e., Mueller, the father. joint the release form and Bank established accounts for Mueller and there is no Likewise, Koepke asserted that Tu- evidence that Hieb or Bank were active signature cek’s on the release form awas knowing participants in Mueller’s fraudulent forgery, Adjuster immediately called Hieb to conversion of Tueek’s funds. verify the notarization. Hieb assured Ad- Summary Judgment? Adjuster, Adjusting juster signature that the was Tucek’s. Ad- — Company, and Insurer juster prudently acted to insure the release Furthermore, Tucek, was valid. even if she Adjuster,

Tucek asserts that Adjusting sign release, did not the settlement and ac- Company, “knowingly and Insurer and inten- cepted the settlement tionally funds and was participated with Mueller in defraud- ing” above, upset with the Tucek. As settlement until prove discussed she learned representation fraud there must be a that part that Mueller had converted of the settle- (1) fact, was: “made as a statement of which ment funds her bank account to his own it, party making was untrue or else use. showing There has been no that Ad- (2) made”; recklessly “made with intent to juster knowingly intentionally participat- purpose deceive for inducing the other ed in Mueller’s fraud or conversion. In her (3) it”; party upon to act relied on deposition, Tucek admits that she has no party, inducing innocent party “to act to showing Adjuster’s information participation damage.” Family, Croes Again, with Mueller. Tucek can claim no 57; N.W.2d at Sperry Corp., see also 394 better version of the facts than she testified N.W.2d at 730. Parsons, deposition. to in her at N.W.2d There is not one scintilla bring of evidence ing Adjuster, the actions of Adjusting Com case, considering this easily one could pany, parameters and Insurer within the identify position Tucek, with the since it is fraud and deceit. Tucek has not been dili evident that advantage she was taken byof gent in presenting facts which show where hand, jurors her father. On the other are Adjuster, Adjusting Company, or Insurer regularly sympathy instructed that is not to any representations made as statement of play during a role their consideration of the fact which were untrue with the intent case. The villain this case is the father Adjuster deceive negotiate Tucek. did Tu- and this court open up should not the vaults cek’s claim with Mueller instead of Tucek. of the bank company pay or the insurance Adjuster’s testimony uncontroverted despicable for his in converting conduct that it was industry not unusual in the daughter’s settlement personal for his use. deal with parent negotiating forget, Lest we not receiving claim after of a negotiations child. Mere do not proceeds, agree rise to did proof necessary por- the level to loan a to consti tute Thereafter, fraud. tion of it to her Midland Nat’l Bank father. v. Perrano ski, (Minn.1980)(banker tapped her accounts without her consent and answering partners liable to for stop, Further, fraudu- was told to but did not. Tu- against Mueller has cek no has contested. one the trial court.

I affirm would Dorothy Sheffield The ESTATE OF THOMAS, Plaintiff

Appellee, SHEFFIELD, Defendant Keith L. Appellant. 18247.

No. Supreme South Dakota. Court on Briefs Nov. 1993. Considered 9, 1994. Decided Feb. P.C., Steele, Steele, N. Steele

Susan Plankinton, plaintiff appellee. Miskimins, Taylor, Taylor D. & James Mitchell, appellant. for defendant and SABERS, Justice. dispute an appeal from a over

This arises concerning property real distrib- agreement in a action. We affirm. uted divorce

FACTS (Thomas) and

Dorothy Thomas Sheffield (Sheffield) on were divorced Keith Sheffield Final Decree August Under the Divorce, the farm real managed Sheffield held as tenants and Thomas which he estate provided Final also The Decree in common. party could that, years, either after four Sheffield farm real estate. move to sell the directing a Sheriffs Sale an moved for Order on real November of the estate reflected notes expressed deposition “there wherein STEELE, MILLER, C.J., [Mueller’s] concern because of anxiousness Circuit and money], get I and which believe Judge, [to settle concur. Thus, relayed company.” Insurer I to the SABERS, J., specially. concurs to could a settlement favorable knew it reach to In other itself albeit unfavorable Tucek. AMUNDSON, J., dissents. words, iron strike when the was hot. WUEST, J., STEELE, Judge, for Circuit every participant in We that reiterate disqualified. and who assists another a fraud each one is to the perpetration the fraud liable of SABERS, (concurring specially). Justice injured party. Hartigan, 180 Ill.Dec. at genuine of fact agree that issues material I Kaas, 179; at 529 P.2d at 29. 607 N.E.2d Bank, Hieb and exist as they expressed Kinonen Insurer Both and company, In- Adjuster Kinonen his and stop could not the draft. nothing could do Employers principals are bound surer. good knew deal and was Insurer it had employees agents, acts of their Kinonen, give good away. deal going its and Kinonen. employer, company his and the insurance summary judgment case. The Undisputed is a facts exist This ratified fraud. that upon show that is Defendants parties these three were aware burden genuine fact. are no issues material acting unscrupulously Mueller was when there respective their unknowing They to meet claim. have failed undermined the Tucek’s Thiewes, Dept. Rev. v. agreement burdens. 448 elected to affirm the and sue for (S.D.1989). monetary damages. election, N.W.2d 1 howev- er, summary judgment. resulted in AMUNDSON, (dissenting). Justice Summary Judgment and Bank —Hieb brought against Tucek this action Mueller Tucek asserts that the trial court erred fraud, deceit, for and conversion. Tucek al- granting summary an order for Hieb, leged separate Bank, in a count that dismissing her claims fraud and deceit Adjuster, Adjusting Company and Insurer “Questions Hieb and Bank. of fraud were liable for fraud and deceit. This action generally questions and deceit are of fact and twenty was commenced some months after as such are jury.” to be determined deposited she proceeds the settlement into Garrett, However, 459 N.W.2d at 847. her bank accounts. considering a summary judgment, motion for Choice Remedies presented pleadings the issues in the are not controlling party may upon not rest argues obligat- that the trial court is allegations the mere contained therein. ed to allow her a choice of either rescission Co., Inc., Breen v. Dakota monetary Gear & Joint damages remedy or as her (S.D.1988). party op- N.W.2d argument “The fraud. Her is somewhat unclear posing summary judgment a motion for must precisely that the trial court did what she is diligent motion, be in resisting the requesting. and mere hearing After the on the motion general allegations summary and denials which do not judgment, the trial court sent a specific set forth prevent facts will parties setting is- proposed letter to the forth its judgment.” suance of a ruling.1 Id. We must deter- The letter stated that Tucek could mine any support- whether there exists monetary elect either basis damages. rescission or ing the trial ruling. court’s Id. provided: The letter plaintiff 1. If the desires to elect rescis- another, willfully “One who deceives with remedy, summary sion as her judg- intent position to induce him to alter his ment will not be allowed as there are risk, damage liable for disputed facts. thereby which he suffers.” SDCL 20-10-1. plaintiff If proceed fraud, desires to prove as To representa- there must be a

Case Details

Case Name: Tucek v. Mueller

Court Name: South Dakota Supreme Court

Date Published: Feb 9, 1994

Citation: 511 N.W.2d 832

Docket Number: 18122

Court Abbreviation: S.D.