Associated Press v. Heart of Black Hills Stations, Inc., 13221

• Decision Date: 06 October 1982
• Docket Number: No. 13221,13221
• Parties: The ASSOCIATED PRESS, Plaintiff and Appellee, v. HEART OF the BLACK HILLS STATIONS, INCORPORATED, Eli Daniels and Harry Daniels, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 49

325 N.W.2d 49

The ASSOCIATED PRESS, Plaintiff and Appellee, v. HEART OF the BLACK HILLS STATIONS, INCORPORATED, Eli Daniels and Harry Daniels, Defendants and Appellants.

No. 13221.

Supreme Court of South Dakota.

Argued April 23, 1981.

Decided Oct. 6, 1982.

Ann C. Jones of Banks & Johnson, A Professional Corp., Rapid City, for plaintiff and appellee.

David J. Stanton, Rapid City, for defendants and appellants.

HOYT, Circuit Judge.

CASE SUMMARY

This is an appeal from a judgment entered by the Seventh Judicial Circuit Court of the State of South Dakota pursuant to a jury verdict in favor of appellee in the amount of $10,541.98 plus interest representing uncollected future anticipated revenue and assessments due and owing to the

appellee for services rendered prior to the breach of a newswire service agreement between the parties for the benefit of radio station KDSJ in Deadwood, South Dakota. Also on appeal is a judgment notwithstanding the verdict entered by the trial judge pursuant to a motion by appellee for $1,210.52 plus interest representing assessments due and owing to appellee for services rendered prior to the breach of a second wire service agreement between the parties for the benefit of radio and TV station KRSD in Rapid City, South Dakota. We affirm.

FACTS

Appellants, Harry and Eli Daniels, d/b/a as Heart of the Black Hills Stations, Inc., owners and operators of stations KDSJ and KRSD, entered into two separate contracts on October 23, 1972 with appellee, Associated Press News Services.

The purpose of the first contract, hereinafter referred to as the "KDSJ contract," was to provide radio station KDSJ in Deadwood, South Dakota, with newswire service. Appellee was to provide this service in consideration for a weekly assessment of $66.20 unless such assessments were increased during the term the agreement by appellee's board of directors as provided in its by-laws. According to the terms of the agreement, the effective date of the contract was to be July 4, 1974, or the first date upon which service was rendered by appellee, whichever occurred earlier. The contract was to run for a period of three years and five weeks and was to be automatically renewed for an additional term of five years unless either party gave written notice to the other by certified mail not less than six months prior to the end of the term of the agreement if such termination was desired.

Actual service was begun on January 5, 1974, as alleged by appellee in its complaint and as admitted by appellants in their answer. Appellee received a letter dated September 7, 1976, from one of the appellants requesting that service to KDSJ be discontinued. Appellee declined to accept notice of such cancellation because the notice was given one month and one day past the six month notice requirement provided for in the contract. As a consequence, appellee considered the KRSD contract automatically renewed for five years pursuant to the terms of their contract to terminate February 8, 1982. However, service was discontinued on January 4, 1978, pursuant to a contractual provision which gave appellee the right to discontinue service upon nonpayment by appellant.

The jury returned a verdict in favor of appellee for $2,217.81, consisting of unpaid assessments from July 3, 1977, through December 31, 1977, at the weekly rate of $83.35, and of unpaid assessments from January 1, 1978, through January 4, 1978, at the weekly rate of $88.75, the increased rates approved by appellee's board of directors pursuant to the authority given to it under appellee's by-laws, which by-laws were incorporated in the terms of the contract between the parties. The jury also awarded appellee $8,324.17 plus interest, the amount representing lost future revenue from January 5, 1978, through February 8, 1982, at $88.75 per week less unincurred expenses saved by appellee due to the discontinuance of service.

The purpose of the second contract, hereinafter referred to as "KRSD contract," was to provide radio and television station KRSD in Rapid City, South Dakota, with newswire service. Service began on January 5, 1974, and was terminated pursuant to the terms of the contract on February 29, 1976, when the Federal Communications Commission denied a renewal of license to KRSD. Evidence was presented by both parties concerning the assessments for service from January 5, 1974, until termination, appellee claiming that $1,210.52 was due and owing on the account. The jury returned a verdict in favor of appellants, indicating that no amount was due and owing to appellee. Appellee moved for and was granted a judgment notwithstanding the verdict in the amount of $1,210.52.

At all times prior to and during the trial, South Dakota law was urged and applied by both parties.

ISSUES

Appellants present five issues on appeal, the first four of which concern themselves with the KDSJ contract.

Appellants' first issue is whether a question concerning the possible applicability of the law of New York may be raised on appeal even though appellants did not offer evidence of such applicability at the trial level, in the light of the fact that appellee is a resident of the State of New York, thus having easy accessability to New York law. If this Court holds that New York law may not be raised at the appellate stage, appellants raise as the second issue the question whether the automatic renewal provision of the contract between the parties is an unreasonable method of calculating damages and is thus void and unenforceable as a penalty under South Dakota law. Also presented by appellants is the issue whether the trial court erred in its instruction to the jury that the KDSJ contract commenced on January 5, 1974, as a matter of law, when appellee so stated in its complaint and appellants merely admitted in their answer that the services were initially provided by appellee on that date, but did not specifically admit that the contract began to run on that date. If, arguendo, the contract did commence on January 5, 1974, as a matter of law, the final issue urged by appellants concerning the KDSJ contract is whether the notice given to appellee on September 7, 1976, was substantially in compliance with the six month notice requirement set forth in the contract, in that such notice was given approximately five months prior to the expiration of the contract, and in that, it is contended, appellee did not suffer any damages because of the late notice. The fifth and final issue concerns itself with the KRSD contract. This issue is whether the trial court erred in granting appellee's motion for judgment notwithstanding the verdict concerning the alleged assessments due and owing to appellee under the contract for the period of time between January 5, 1974, when service was initiated, and February 29, 1976, when service was terminated.

DECISION

Appellants argue that New York statutory law should have been applied in this case, in that the agreement between the parties specifically states that the contract was made in New York and, in that under the South Dakota conflict of law rule, the law of the place where the contract is made is the law which must be applied. Appellants ask that we rule on the issue of such applicability even though appellants did not offer any evidence of such applicability at the trial level, and to hold appellee on notice to all New York law, merely because it is a resident of the state of New York.

In 1937, South Dakota adopted the Uniform Judicial Notice of Foreign Law Act, now found in SDCL ch. 19-8. SDCL 19-8-4 provides:

Any party may also present to the trial court any admissible evidence of the laws referred to in Sec. 19-8-1, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial...