Brummer v. Stokebrand, No. 20873.

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER, Chief Justice.
• Citation: 601 N.W.2d 619,1999 SD 137
• Parties: Errol W. BRUMMER, Plaintiff and Appellee, v. Dennis STOKEBRAND, Defendant and Appellant.
• Decision Date: 27 October 1999
• Docket Number: No. 20873.

601 N.W.2d 619
1999 SD 137

Errol W. BRUMMER, Plaintiff and Appellee,
v.
Dennis STOKEBRAND, Defendant and Appellant

No. 20873.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided October 27, 1999.

601 N.W.2d 620

No Appearance for Plaintiff and Appellee

John J. Simpson, Winner, for defendant and appellant.

MILLER, Chief Justice.

[¶ 1.] Dennis Stokebrand appeals from an order in a claim and delivery proceeding and from a contempt order. We affirm the claim and delivery order, but we reverse the contempt order and remand for further proceedings.

FACTS

[¶ 2.] In November 1997 Errol Brummer and Stokebrand entered into an oral agreement for the lease of a home owned by Stokebrand's wife. Stokebrand claims that several months later Brummer became delinquent in rental and utility payments. Around the first of April 1998 either Stokebrand or his adult stepsons evicted Brummer from the residence by barring access to it. However, Brummer was allowed to return to the home to collect some personal possessions and to take a shower. Brummer claims he did not remove all his personal belongings during his last visit to the house, and that Stokebrand retained some of his property in order to collect the allegedly delinquent rent payments. In contrast, Stokebrand claims he does not have any of Brummer's property.

601 N.W.2d 621

[¶ 3.] On September 8, 1998, Brummer commenced a claim and delivery proceeding seeking to require Stokebrand to show cause why Brummer should not be entitled to immediate delivery of his property. Brummer also brought an action against Stokebrand for specific delivery of unreturned personal property, as well as seeking damages for conversion of property which Stokebrand did not return. The trial court ordered a show cause hearing be held on the claim and delivery proceeding on October 2, 1998. On that date, after hearing testimony by both sides, the trial judge ordered Stokebrand to either return property rightfully owned by Brummer no later than October 3, 1998, or else be held in contempt. On October 6, 1998, the parties reconvened before the trial judge. Brummer was represented by counsel; Stokebrand was not. At that time the judge determined that Stokebrand was in contempt of the order because he failed to return all of Brummer's property.¹ The court immediately remanded Stokebrand to the custody of the Todd County Sheriff, who placed him in jail. Stokebrand was released on October 7, 1998, when his wife posted a cash bond of $4,540

[¶ 4.] On appeal, Stokebrand raises the following issues:

1. Whether the claim and delivery order compelling Stokebrand to return personal property to Brummer was erroneously entered.

2. Whether the contempt order was erroneously entered.

STANDARD OF REVIEW

[¶ 5.] Our review of a trial court's findings of fact and conclusions of law are well settled. "We have held that a trial court's findings of fact will not be disturbed unless they are clearly erroneous." Fanning v. Iversen, 535 N.W.2d 770, 773 (S.D.1995) (quoting Knudsen v. Jensen, 521 N.W.2d 415, 418 (S.D.1994)). Clear error is shown only when, after review of all the evidence, "we are left with a definite and firm conviction that a mistake has been made." Id. (citing Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D. 1994)). A trial court's findings in a contempt action are also reviewed under the clearly erroneous standard. Taecker v. Taecker, 527 N.W.2d 295, 298 (S.D.1995). Conclusions of law are reviewed de novo. Fanning, 535 N.W.2d at 773. Statutes are interpreted "under a de novo standard of review without deference to the decision of the trial court." In re Estate of Jetter, 1997 SD 125, ¶ 10, 570 N.W.2d 26, 28 (citations omitted).

[¶ 6.] Before reaching the merits of the case, we must first address a procedural issue. Brummer, who is the appellee, did not file a brief because of financial considerations. SDCL 15-26A-80 provides:

If an appellant fails to file his brief within the time provided by 15-26A-75 or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to timely file his brief, he will not be heard at oral argument except by permission of the Court. The clerk may not accept for filing any brief not timely submitted for filing. (Emphasis added.)

This Court stated in Hawkins v. Peterson, 474 N.W.2d 90 (S.D.1991):

While failure of an appellant to file a brief may be fatal ... failure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneous or that the conclusions of law are incorrect.... The appeal will be decided on the merits.

Id. at 92 (internal citation and footnote omitted). In the present case, as was the

601 N.W.2d 622

situation in Hawkins, the reason for not filing an appellee brief is lack of funds. As in Hawkins, this case will be decided on the merits

DECISION

[¶ 7.] 1. The order compelling Stokebrand to return personal property to Brummer was proper.

[¶ 8.] The claim and delivery hearing held on October 2, 1998, was to determine who had the right to possession of the property. Stokebrand does not dispute that the property belongs to Brummer. Rather, his defense centers around the fact that it is impossible for him to return Brummer's property because he does not have it in his possession. Notwithstanding this defense, the trial judge found that Brummer was entitled to possession and ordered Stokebrand to return it. The order entered pursuant to the claim and delivery hearing states in pertinent part:

It is therefore, ORDERED, ADJUDGED AND DECREED, that Defendant shall deliver all the items of personal property described on Exhibit "A" to Plaintiff at the Todd County Sheriff's office at 5:00 p.m. on October 3, 1998. If Defendant fails to do so, the parties shall appear before the Court at 4:00 p.m. on October 5, 1998, at which time Defendant shall show cause to the Court why he should not

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