Dow v. Noble
| Decision Date | 15 January 1986 |
| Docket Number | 14670,Nos. 14660,s. 14660 |
| Citation | 380 N.W.2d 359 |
| Parties | Charles DOW, a/k/a Charles D. Dow, Plaintiff and Appellee, v. Gerald NOBLE and Janet Noble, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Roy A. Wise of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for plaintiff and appellee.
Thomas M. Tobin of Maynes, Tonner, Maynes & Tobin, Aberdeen, for defendants and appellants.
This is an action for foreclosure of a real estate contract under the provisions of SDCL ch. 21-50. The trial court entered judgment for the vendor, Charles Dow (Dow), and against vendees Gerald and Janet Noble (Nobles), cancelling and annulling the contract unless Nobles paid Dow the sum of $297,000 plus interest and attorney fees to be taxed by the court, costs to be taxed by the clerk. The judgment provided in the alternative for Dow to pay to Nobles $10,600 to finalize the judgment. Nobles appeal and Dow filed a notice of review. We affirm in part, reverse in part, and remand.
The contract for deed which is the subject of this action was entered into on April 8, 1981, for the sale and purchase of approximately 960 acres of land in Edmunds County, South Dakota, for the agreed sum of $432,000, payable in the following manner: $125,000 down, $10,000 annual payment March 1, 1982 through March 1, 1986, with a balloon payment on March 1, 1987, with interest on the unpaid principal at 9.5 percent per annum, payable on each principal payment date on the whole sum remaining from time to time unpaid.
Dow's complaint sought strict foreclosure of the contract and that the Nobles "be barred and foreclosed of all other rights ... under said contract for deed." The trial court decreed that Nobles were in default and barred and foreclosed any rights Nobles acquired under the contract unless they paid the balance due thereunder within thirteen days. Concluding that Nobles had some equity in the real property, the trial court balanced Nobles' equity against Dow's damages and expenses in recovering the land and concluded that from the monies expended by Nobles to prepare the land and seed it to winter wheat for the next year's crop, Dow should pay Nobles the sum of $10,600 or post bond for payment of such sum in order for the judgment to become final entitling Dow to immediate possession of the land and improvements.
Nobles appeal and question only (1) whether the trial court's award of costs and attorney fees was excessive and improper, and (2) whether the trial court equitably adjusted the parties' rights under SDCL 21-50-2. * Dow filed a notice of review and asserts that the trial court erred as a matter of law when it concluded that Nobles had any equitable interest in the real property.
Initially, Nobles claim the trial court erred in awarding Dow $4,000 for attorney fees and costs. Nobles claim that since the fees were generated in a bankruptcy action and not the foreclosure action, they are not properly awardable costs under SDCL 15-17-8 or SDCL 21-50-4.
If the $4,000 was awarded as statutory costs under SDCL 21-50-4, Nobles' argument would have merit. However, the trial court awarded judgment against Nobles in the alternative. They could either pay the balance due on the contract within thirteen days, or they would receive their $10,600 equity in the property and lose all other rights to it. The judgment made no other provisions for the taxation of attorney fees and costs.
The contested $4,000 in attorney fees were not awarded by the court as costs. They were instead included as part of the equities' balancing process. In Prentice v. Classen, 355 N.W.2d 352 (S.D.1984), we noted that detriment suffered by the vendor is part of the balancing process in construing the validity of a liquidated damages clause in a foreclosure action. We believe that the vendors' detriment, including fees accrued in actions related to the property, also is properly part of the trial court's balancing process under SDCL 21-50-2. The trial court was not clearly erroneous in including the fees incurred in the bankruptcy proceeding as part of the detriment suffered by Dow. This is particularly appropriate in light of the fact that Nobles instituted the bankruptcy proceeding in an attempt to defeat this proceeding.
Nobles also contend that the trial court erred in balancing the equities under SDCL 21-50-2. They claim that the court erred in not considering the interest Nobles paid on the contract, and the increase in value to Dow of the down payment made by Nobles.
The trial court included the following computation in its balancing of the equities:
Rent equivalent, 3 years, each
$30.00 per acre $ 86,400.00
Less taxes, etc. 6,000.00
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$ 80,400.00
12 1/2% loss in land value 54,000.00
Expenses to recover
land--including attorney's fees 13,900.00
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$148,300.00
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Principal paid by defendants $135,000.00
Improvements--expenses to
prepare and seed land to winter
wheat 23,900.00
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Total benefit to plaintiff $158,900.00
Less adjustment 148,300.00
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Defendants' equity $ 10,600.00
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After making this finding, the trial court stated: "[T]his computation is less than precise, but [the court] is satisfied that it is equitable." With one exception, we agree.
The trial court included a rent equivalent of $86,400 in determining Dow's interest in the property. In determining Nobles' equity, while including the principal payments, ...
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Healy v. Fox
...to the prior adjudication?"). These elements were subsequently cited in several South Dakota collateral estoppel cases—Dow v. Noble, 380 N.W.2d 359, 361 (S.D. 1986) and Estes v. Millea, 464 N.W.2d 616, 618 (S.D. 1990) —until the collateral estoppel doctrine merged with res judicata in Moe.1......
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Wandler v. Lewis
...contracts. SDCL 21-50-4 (attorney fees awarded as part of costs); Wolken v. Bunn, 422 N.W.2d 417, 420 (S.D.1988) (same); Dow v. Noble, 380 N.W.2d 359, 360 (S.D.1986) (attorney fees may be included as part of balancing equities).... When included as part of the equity of redemption, we revie......
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Mattson v. Rachetto, 20543
...we refused to allow interest on principal payments made on a contract for deed which was subsequently foreclosed (citing Dow v. Noble, 380 N.W.2d 359, 360 (S.D.1986)). In Beitelspacher and Dow, the party seeking the interest was unable to cite to any statute which authorized such an ...
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Beitelspacher v. Winther, s. 16388
...represented an adjustment of the equities between the parties under SDCL 21-50-2 and per this Court's unanimous decision in Dow v. Noble, 380 N.W.2d 359 (S.D.1986). Sellers contend, in their Notice of Appeal No. 16388, that the trial court erred in four 1. The equitable adjustment formula o......