BankWest, N.A. v. Groseclose, s. 18899

CourtSupreme Court of South Dakota
Citation535 N.W.2d 860
Docket NumberNos. 18899,18900,s. 18899
PartiesBANKWEST, N.A., Plaintiff and Appellee, v. Mary GROSECLOSE, Defendant, Third-Party Plaintiff and Appellant, v. Sandra GARRETT and Jerome Zebroski, Third-Party Defendants and Appellees, and Brad Garrett, Jeff Garrett and Mike Garrett, Defendants. Mary A. GROSECLOSE, Plaintiff and Appellant, v. Sandra GARRETT, Jerome Zebroski, and BankWest, N.A., Defendants and Appellees.
Decision Date02 August 1995

Page 860

535 N.W.2d 860
BANKWEST, N.A., Plaintiff and Appellee,
v.
Mary GROSECLOSE, Defendant, Third-Party Plaintiff and Appellant,
v.
Sandra GARRETT and Jerome Zebroski, Third-Party Defendants
and Appellees,
and
Brad Garrett, Jeff Garrett and Mike Garrett, Defendants.
Mary A. GROSECLOSE, Plaintiff and Appellant,
v.
Sandra GARRETT, Jerome Zebroski, and BankWest, N.A.,
Defendants and Appellees.
Nos. 18899, 18900.
Supreme Court of South Dakota.
Argued April 26, 1995.
Decided Aug. 2, 1995.

James E. Carlon of Carlon Law Office, Pierre, for appellants.

Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, for appellee BankWest.

Thomas M. Maher of Maher and Arendt, Pierre, for appellee Sandra Garrett.

James C. Robbennolt of Olinger, Lovald, Robbennolt & McCahren, Pierre, for appellee Jerome Zebroski.

AMUNDSON, Justice.

Mary Groseclose (Groseclose) appeals summary judgments granted to BankWest, Sandra Garrett (S. Garrett), and Jerome Zebroski (Zebroski) (collectively referred to as Buyers) in actions filed in Sully and Hughes Counties. We agree with the trial court in both cases that no genuine issue of material fact exists and, therefore, Buyers are entitled to judgment as a matter of law. We affirm.

FACTS

The issues of these consolidated appeals arise out of a contract for deed executed on 1,440 acres of property in Sully County, South Dakota. In 1981, Ward (now deceased) and Mary Groseclose sold the property to Brad, Jeff and Mike Garrett (Garretts). In order to settle other obligations, Garretts assigned their vendee's interest in the property to BankWest. See Garrett v. BankWest, 459 N.W.2d 833 (S.D.1990). In turn, BankWest reconveyed a portion of the property, subject to the contract, to S. Garrett and the balance of the property to Zebroski (collectively referred to as Assignees). Under this revised agreement, Assignees were responsible to make their own real estate tax payments while BankWest was obligated to pay the principal and interest.

S. Garrett failed to pay real property taxes due in 1993. Groseclose immediately brought the taxes current and gave notice of default under the contract for deed on February 23, 1994. S. Garrett attempted to tender payment of the taxes to Groseclose the following day, but her attempt to cure the default was refused. The following month, BankWest offered to pay off the outstanding balance of the contract, $53,735.25, but Groseclose again refused.

On March 29, 1994, Groseclose filed an action in Sully County for forcible entry and detainer, pursuant to SDCL ch. 21-16. Groseclose argued that the contract provided the immediate right to repossess the property upon default without bringing a foreclosure action or giving BankWest or Assignees an opportunity to cure the default. On April 27, 1994, pursuant to a hearing on the matter, the trial court granted summary judgment to Buyers. An order for summary judgment was filed on April 28, 1994. Groseclose failed to file a timely notice of appeal. Instead, Groseclose filed a motion to amend the order of summary judgment more than sixty-days after the summary judgment order was filed. On July 27, 1994, the trial court denied Groseclose's motion to amend. On August 29, 1994, Groseclose thereafter filed an appeal from this order denying her motion to amend the summary judgment.

After tendering payment of the contract balance, BankWest demanded a deed to the property. Groseclose refused. BankWest commenced an action for specific performance of the contract in Hughes County, Groseclose's new residence. Groseclose answered and counterclaimed, again seeking repossession of the property and cancellation of the contract as against all Buyers. Buyers alleged that Groseclose's counterclaim was barred by the doctrine of res judicata and filed a motion for summary judgment. At a hearing on July 8, 1994, the trial court 1 agreed, awarding BankWest specific performance of the contract terms, denying Groseclose's claim to repossess the property, and holding Groseclose's claim was barred by res judicata. Groseclose then appealed from this summary judgment. The appeals from Sully and Hughes Counties have been consolidated into this appeal.

ISSUES

I. DOES A SELLER OF REAL PROPERTY UNDER A CONTRACT FOR DEED HAVE AN

Page 863

IMMEDIATE RIGHT OF REPOSSESSION WHERE THE CONTRACT DOES NOT CONTAIN A PROVISION EXPRESSLY PROVIDING BUYERS AN OPPORTUNITY TO CURE DEFAULT?

II. IS GROSECLOSE'S CONTRACT RIGHT OF REPOSSESSION BARRED BY RES JUDICATA?

STANDARD OF REVIEW

The standard of review on a motion for summary judgment is well settled. In reviewing a grant or denial of summary judgment,

'we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.'

Easson v. Wagner, 501 N.W.2d 348, 350 (S.D.1993) (quoting Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D.1991)).

DECISION

I. Proper Jurisdiction.

Before we reach the substantive issues, we must first adequately assess jurisdiction, as BankWest challenges the jurisdiction of this court regarding the Sully County action. With regard to the initial lawsuit in Sully County, Groseclose failed to comply with SDCL 15-26A-6 and timely file an appeal from the summary judgment in favor of Buyers. Missing the deadline for appeal, Groseclose then filed a motion to amend the court's order for summary judgment. The trial court denied that motion. We agree with BankWest that our jurisdiction in the Sully County case is limited to whether the trial court erred in denying Groseclose's motion to amend the summary judgment, and such jurisdiction does not extend to a full review of the merits of that action.

The standard of review to amend a judgment under SDCL 15-6-60(b) is one of abuse of discretion. "The decision to grant or deny a Rule 60(b) motion rests within the sound discretion of the trial court and will not be disturbed on appeal except for abuse." Peterson v. LaCroix, 420 N.W.2d 18, 19 (S.D.1988). Groseclose claims the order for summary judgment was ambiguous and failed to state reasons why the claim for forcible entry and detainer was denied. A hearing was held on July 25, 1994, during which the trial court reaffirmed its initial summary judgment ruling and denied Groseclose's motion. The trial court again based its decision on the grounds that the forfeiture clause of the contract for deed was invalid. Contrary to its purported use here, SDCL 15-6-60 is not a mechanism to extend the time limit...

To continue reading

Request your trial
14 cases
  • Bozied v. City of Brookings, No. 21299
    • United States
    • Supreme Court of South Dakota
    • December 26, 2001
    ...would be required. [¶ 24.] This Court has emphasized on numerous occasions that the law "abhors a forfeiture." BankWest v. Groseclose, 535 N.W.2d 860, 864 (S.D.1995)(citing Ford v. Hofer, 79 S.D. 257, 261, 111 N.W.2d 214, 216 (1961)); Wandler v. Lewis, 1997 SD 98, ¶ 26, 567 N.W.2d 377, 383.......
  • United States, for the United Statese & Benefit of Ash Equip. Co. v. Morris, Inc., 4:14-CV-04131-VLD
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 8, 2017
    ...the short term of the contract, less the sellers' damages. Id. The Supreme Court affirmed. Id. at 45-46. In BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 863-64 (S.D. 1995), in an opinion written by then-Justice Amundson, the court appeared to harken back to the earlier standards announced ......
  • Wandler v. Lewis, 19698
    • United States
    • Supreme Court of South Dakota
    • February 20, 1997
    ...by the courts. Courts of equity will seize upon slight circumstances to relieve a party therefrom.' " BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 864 (S.D.1995) (quoting Ford v. Hofer, 79 S.D. 257, 261, 111 N.W.2d 214, 216 (1961)); see also Beitelspacher v. Winther, 447 N.W.2d 347, 351-52......
  • Talley v. Talley, 19739
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...therefrom. 17A AmJur2d Contracts § 578, at 588 (1991) (collecting cases) (footnotes omitted); see also BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 865 (S.D.1995) ("It is a standing rule that a forfeiture shall not bind, when a thing may be done afterwards, or any compensation may be made.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT