*1 less likelihood of there was even success together. if Mother and Child than were WERNER, Herb The Dakota d/b/a
Dame said that if Mother would not follow Company, American Plaintiff through with the recommendations that Appellant, made, have been Child would be better off parental rights having Mother’s terminated seeing her. and not DAKOTA, NORWEST BANK SOUTH feelings staying had mixed Child about N.A., Appellee. Defendant and with Mother. Several times he testified No. 17954. although prefer would to live with her, just adopted he would rather if she Supreme Court South Dakota. could not control her life. Child was aware may adoption never occur. He loves Moth- Considered on Briefs Jan. 1993. stay er and would like to be able to April Decided 1993. her, contact with but he does not want to again. be left did equate “perma-
The trial court
nency” “adoption.” parties All were adoption only possibility,
aware that was certainty.
not a We note that since this
case first came to the attention of the
court, placed Child has been in one foster
home, home, then a second foster then at Hospital,
McKennan then in another foster
home, then with Crossroads and then in a Viborg.
foster home in From there he was
abducted and taken to Texas Mother. discovered,
After Child’s whereabouts was Crossroads,
he was returned to then he
was returned to the foster in Viborg, home placed
then he was with a foster home in area,
the Pierre then he was returned to
Crossroads, placed then he was in a Ft. and,
Pierre area foster finally, home Child placed
was at Crossroads where he re-
mained at the time of dispositional
hearing. The trial court is correct. Child
needs a permanency. sense of The record
contains clear and convincing evidence to
support the trial court’s determination that
termination parental rights of Mother’s
in the best interests of Child and is the
least restrictive alternative available com- K.C.,
mensurate with those interests.
N.W.2d at 621.
Affirmed.
WUEST, HENDERSON, SABERS and JJ.,
AMUNDSON, concur. *2 City, for Buffington, Rapid
Michael L. plaintiff appellant. McCullen, Hickey Bangs, M.
Michael Simmons, City, for Rapid Foye Butler appellee. defendant and HENDERSON, Justice. HISTORY/ISSUES PROCEDURAL grant from a of sum- This matter arises Bank South mary judgment to Norwest Dakota, (Norwest) on March N.A. (Wer- appellant Herb Werner’s concerning ner) had appellee Norwest claim provide month, breached an oral same pur- Werner wrote a check to Upon commercial loan. the trial court’s equipment chase from Wave Manufactur- finding that there was no issue of bounced, ing. Although the check Norwest fact, Ap- material filed Notice of covered the overdraft. *3 29,
peal May raising following on 1992 the October, $75,- In Norwest refused to loan issues: purchase 000 for the sup- of materials and granting I. Did the trial court err in plies being for P03. After denied loans regard in summary judgment to the banks, $25,000 other Werner obtained two existence and terms of an oral advances from Zondervan. In the mean- agreement money? to loan time, Norwest loaned Werner lesser granting II. err in Did trial court amounts, totaling $19,000, over to cover summary judgment concerning par- expenses. spite various In of these fi- performance promissory tial and es- nances, complete Werner failed to the or- toppel? money. der because he ran out of We hold that there was no error and result, As a Werner filed this action affirm the respects. trial court all claiming breach promise of an oral to loan money. However, granted the trial court FACTS summary judgment to Norwest. 1979, Springs,
In
Werner moved to Hot
South Dakota to establish Dakota Ameri-
DECISION
can,
reproduction,
a manufacturer of art
books,
picture
and
frames. Soon thereaf-
STANDARD OF REVIEW
ter,
opened
checking
account with
reviewing grant
In
summary
purchased
Norwest and
five acres of land
judgment, we must determine whether the
Springs
in the Hot
Industrial Park. Nor-
moving party demonstrated the absence of
$15,000
west loaned Werner
to construct a
any genuine issue of material fact and
pre-fabricated building
land,
on the
as well
any judgment
showed entitlement to
on the
as several other loans of lesser amounts
merits as a matter of law. The evidence
during
years
1979 through 1982. How-
must
favorably
be viewed most
to the non-
ever,
$11,000
he failed
pay
note due
moving party and reasonable doubts should
10, 1981,
March
and defaulted on another
against
moving party.
be resolved
The
note due in May 1982.
however,
nonmoving party,
present
must
May default,
Prior to the
Zondervan
specific
showing
genuine,
facts
that a
ma
Book. Stores of
Rapids, Michigan
Grand
terial issue for trial exists. Our task on
placed
purchase
two
picture
orders for
appeal
only
gen
is to determine
whether a
1982,
frames with Werner.
In June of
uine issue of material fact exists and
completing
orders,
after
the two
Werner
whether the
correctly applied.
law was
If
met with Richard Brady (Brady), a Nor-
any
there
supports
exists
basis which
officer,
west loan
about financing an order
court,
ruling of the trial
affirmance of a
10,000
20,000 picture
frames for Zon-
summary judgment
proper.
is
v.
Waddell
(Werner
dervan.
refers to this order as
Bank,
Dewey County
591,
471 N.W.2d
593
P03.) Werner estimated that the materials
(S.D.1991);
BankWest, Inc.,
v.
Garrett
$60,000
would cost somewhere between
833,
(S.D.1990).
N.W.2d
836-37
$80,000.
Although Brady indicated
that Norwest could handle loans of that
resisting
When
a motion for sum
amount, at
they
no time did
spe-
discuss a
mary judgment, the nonmoving party must
amount,
rate, term,
cific
interest
or collat-
diligent.
allegations
Mere
and denials
eral.
which do not
set forth
facts will
15, 1982,
On June
Norwest
prevent
obtained a
issuance
judgment.
of a
security
interest Werner’s accounts re-
Co., Inc.,
Breen v. Dakota Gear & Joint
$6,000
ceivable and loaned Werner
pay
(S.D.1988).
433 N.W.2d
However,
off old bills and raw materials.
party
Later that
may not claim a version of the facts
loan,
rate, term,
amount of the
interest
given
the version
than
more favorable
testimony. Lalley
security,
repayment,
v.
time and method of
party’s
own
Saf
Inc., 364
Scaffolds,
date,
way
closing
preparation
Steel
and the
exe
(S.D.1985);
Roy’s Paving,
&Myrl
Swee
Where there
cution written documents.
Inc.,
283 N.W.2d
showing
alleged
no
the terms of an
is
agreed
settled or
oral
were ever
REQUIRE SPECIFIC
I. CONTRACTS
upon,
proper
granting
the trial court
TERMS
summary judgment.
Lodge
Deadwood
No.
his
1982 con-
asserts that
June
Werner
Albert,
(S.D.
in an oral
culminated
versation
1982),
Heier,
citing Engle v.
S.D.
Although
admits
agreement.
loan
(1970).
*4
specific, he con-
not all terms were
that
unspecified terms could be
tends that those
brief,
As evident
his own
Wer-
dealings
by viewing previous
determined
specify
ner fails to
terms that indicate the
that
parties.
the
Norwest claims
between
specify
He
existence of a contract.
cannot
no
proves
terms
that
this lack of material
loan,
gives
the amount of the
rather he
a
the law.
contract exists under
valid
$70,000
figure
ballpark
of “between
80,000 $80,000
Yet,
being the max.”
he
express
of a valid
The existence
—
has also testified that the amount needed
of
to be deter
question
is a
law
contract
$60,000.
little as
He claims the
could be as
court,
jury.
by a
not a
Mid-Amer
mined
Industries,
interest rate could be inferred from his
289
Mktg. Cory. v. Dakota
ica
express
security agreement
An
con previous
797
loan. For a
mutually
$80,000loan,
ex
parties
$70,000
the
alleged
tract results when
to
Wer-
on the
press
by specific
15,
an intent
to be bound
1982 document.
points
ner
to a June
Witzke,
v.
terms and conditions. Van Zee
However,
the June 15 note indicates
(S.D.1989). Werner con
upon trial is basis to not sufficient are not the motion on issues which done, let’s way that was Q: And the sham, so unsub- shown to be frivolous or $15,- that, up okay. They set review it would be stantial that it is obvious note, they? didn’t (5) Summary judg- try futile to them. A: I think so. remedy should ment an extreme and under that Q: they made advances And truth is clear only be awarded when the note— touching exis- and reasonable doubts Right. A: material of a issue as to tence Q: —correct? against the should resolved mov- fact bank, way your ant.” That’s the loans to experience, always handled (S.D.1989)(quoting 448 N.W.2d Wilson you, isn’t that true? 207, 212, Co., Ry. 83 S.D. v. Great N. particular bank? (1968)). A: You mean this 19, N.W.2d debt, obligation every type and (Security Agree- liability Deposition and 1. See Exhibit #3 of ment). Security Agree- may any Under the terms of the now or at description which Debtor 15, 1982, granted First (whether dated June ment National inventory, equipment, Party to Secured time owe hereafter (Norwest) (in security Bank interest debt, liability obligation or is or now exists such accounts, rights contract [.) (Emphasis ]” created or incurred hereafter rights payment) and other payment secure the "[t]o added.) performance every each and of fact, must be questions of doubts With Q: Yes. moving against the Bank as the resolved always We didn’t all the time. A: Not to establish Bank has failed party. The that. do of materi genuine issue that there is NO example when me one Q: you give Can is con court’s decision al fact. The trial than that? it different they handled summary judgment law recent trary to A: Yeah. State, Dakota, Dept. especially South Q: me Tell when. (S.D. Thiewes, Revenue ready for the getting A: we was When 1989), opinion written a unanimous ’82, in of Zondervan’s third order reversed where we Henderson Justice June. moving party the trial court because Q: inWhen ’82? that there to sustain its burden failed Yeah, a securi- of 1982. There’s A: June fact. genuine issues of material were no Af- 15th of June. ty agreement on the might reach persons Where reasonable buy some going to ter that we were conclusions, summary judg different company that was equipment from a Sittner, denied. Dahl v. ment should be Rapid City, Wave closing here in down (citation (S.D.1988) the ex- Manufacturing, and we needed omitted). of this help take care equipment tra judg- summary No one is entitled order, purchased that. so we matter unless entitled thereto as a ment on a the interest Rather than pay genuine issues of and there are no law security agree- note or underneath Here, 15-6-56(c). fact. material SDCL that, Bra- something like Rick ment or incorrectly placed the bur- the trial court much says, doesn’t make dy “That party instead upon non-moving den you just sense. We’ll run —whenever moving party, the Bank. upon the get ready up here get ready they and all of For all of the above reasons thing they wer- to close that down”— summary judgment the well-reasoned date that was quite en’t sure what Dakota, summary judg- cases South check,” “just going to write be— improper. ment was Wilson {See overdraft, make an and at which would progeny.) and its Ry. N. Co. Great they would cover that time would— Bank, 496 N.W.2d Lamp v. First Nat’l down there and then we would them *7 too, moving 581, (S.D.1993). “the Here loan; that would save that make that there its burden party failed to sustain interest. So that wasn’t—that much of material fact” were no issues do may example one how we would incorrectly placed the and “the trial court something. non-moving party instead upon the burden equip- alleges purchased that he moving party, the Bank.” Id. upon the necessary fill the third order of ment to a trial and remand for We should reverse (P03) “because of the Zondervan’s 15-6-56(c), in accordance with SDCL promise” the Bank would loan him Wilson, Thiewes, 83 S.D. 448 N.W.2d and allegations capital. “If these were needed 19.2 157 N.W.2d trial, unrea- at it would not be established the trier of fact to conclude sonable for parties entered into a definite ...
that the should have
contract ... Werner] [and existence
opportunity prove at trial the provide a commercial loan.
of a contract” Inc.,
Larson v. Kreiser’s overreacting results According majority opinion, possi- to SDCL 15-26A-60 which "the 2. rely heavily on waiver of a bility implied deemed in decisions that too of an contract must be point argument to cite argues or failure authorities.’ because Werner never for waived” " Matheson, (S.D.1983), Corbly again implied contract. Once 'this court BELL, A. Plaintiff Paulette Appellee, BELL,
Stephen Defendant G. Appellant.
No. 17798. Dakota. of South
Supreme Court 17, 1992. on Briefs Nov.
Considered April 1993.
Decided *8 Larson, sufficiently progeny beyond implied should stretched are broad to include and its all N.W.2d at 835 and not be Larson, J., contemplation.” (Morgan, concurring (Sabers, J., part reasonable contract. Id. in J., (Sabers, concurring part in dissenting part); Id. and concur- dissenting part). Werner’sdenomination dissenting ring part part). issues, citations, arguments including