Durkee v. Van Well

• Decision Date: 04 December 2002
• Docket Number: No. 22242.,22242.
• Citation: 2002 SD 150,654 N.W.2d 807
• Parties: Jennie DURKEE, Jennell Sylte, Geneva Durkee and William Fielhaber, Plaintiffs and Appellants, v. Gerald VAN WELL and Beverly Van Well, Defendants and Appellees.
• Court: South Dakota Supreme Court

654 N.W.2d 807

2002 SD 150

Jennie DURKEE, Jennell Sylte, Geneva Durkee and William Fielhaber, Plaintiffs and Appellants, v. Gerald VAN WELL and Beverly Van Well, Defendants and Appellees.

No. 22242.

Supreme Court of South Dakota.

Considered on Briefs October 7, 2002.

Decided December 4, 2002.

Gordon P. Nielsen of Delaney, Vander Linden, Delaney & Nielsen, Sisseton, South Dakota, Attorneys for plaintiffs and appellants.

John Wiles of Wiles & Rylance, Watertown, South Dakota, Attorneys for defendants and appellees.

ZINTER, Justice.

[¶ 1.] In 1975, Jennie Durkee (Durkee)¹ and Gerald Van Well (Van Well) entered into an oral agreement to relocate a boundary fence that separated their respective properties. The agreement was made after a survey revealed that the fence was located approximately thirty-five feet north of the legally described location on the east-west quarter-section line between the properties. The southerly relocation of the fence would have changed possession of the thirty-five foot strip of land from Durkee to Van Well. In 2000, Van Well removed the old fence and began constructing the new fence on the quarter-section line pursuant to the parties' 1975 agreement. However, before the new fence was completed, Durkee commenced this action to declare the agreement unenforceable under the statute of frauds and to enjoin Van Well from relocating the fence. The trial court held that Van Well's partial performance of the agreement and the doctrine of promissory estoppel removed the agreement from the statute of frauds. Therefore, the trial court denied Durkee's request to enjoin relocation of the fence. Durkee appeals. We affirm.

FACTS

[¶ 2.] In 1953, Durkee and her late husband acquired property in the south half of a section of land in Codington County. In 1975, Van Well and his wife became interested in acquiring two quarters of land in the north half of the same section. Van Well's property was contiguous to, and directly north of Durkee's property. According to the legal descriptions, an east-west quarter-section line divided a portion of the properties.² [¶ 3.] Before Van Well completed the purchase of his property, he hired an engineering company to survey his parcel. The survey revealed that the boundary fence between the two properties was located approximately thirty-five feet north of the legally described boundary on the east-west quarter-section line. Upon making this discovery, Van Well discussed the survey and a proposed relocation of the misplaced fence with Durkee. Durkee and Van Well agreed to leave the fence as it stood until it needed to be replaced. They agreed that when it became necessary to replace the fence, Van Well would move it thirty-five feet south to the east-west quarter-section line as provided in the legal descriptions.³ They also agreed that each party would pay an equal share of the cost of reconstructing the new boundary fence. They finally agreed that, although the incorrectly located fence prevented Van Well's immediate use and possession of the southerly thirty-five feet of his property, he would maintain the existing fence and would pay the real estate taxes on the strip of property. This agreement allowed Durkee to continue to have the use and benefit of the thirty-five foot strip of land, tax free, until Van Well relocated the fence.

[¶ 4.] In 1982, Van Well had the property resurveyed in preparation to move the fence. At the same time, Durkee first sought legal advice about her rights to the thirty-five foot strip of property. Durkee was advised by an attorney that she had already acquired legal title to the property by adversely possessing it from 1953 until 1975. She did not however relay that information to Van Well. Coincidentally, Van Well abandoned his plan to replace the fence at that time because of economic circumstances.

[¶ 5.] In 2000, Van Well began preparations to move the fence again. At that time the property was resurveyed, Van Well removed the original fence, and he began constructing the new fence on the east-west quarter-section line. After Van Well had constructed almost one-half of the new fence, Durkee filed a complaint seeking to enjoin Van Well from relocating the fence. Van Well counterclaimed for enforcement of the 1975 agreement to move the fence. Van Well also sought damages for one-half the cost of relocating the fence.

[¶ 6.] In pre-trial rulings, the trial court denied Durkee's motion for summary judgment on her request for injunctive relief and denied Durkee's request for a jury trial. The trial court then conducted a court trial that was limited to Durkee's request for injunctive relief and the underlying equitable issues. Following the court trial, the court ruled that Durkee had acquired the disputed property by adverse possession by occupying the fenced property from 1953 to 1975.⁴ The trial court also found that the 1975 oral agreement existed between Durkee and Van Well. Although that agreement did not comply with the writing requirement of the statute of frauds, the trial court concluded that Durkee was estopped from asserting that defense. The court concluded that Durkee was estopped because (1) Van Well had reasonably and detrimentally relied on the oral agreement, and (2) Van Well had partially performed the oral agreement by maintaining the original fence and by paying the property taxes after 1975.

[¶ 7.] On appeal to this Court, Durkee raises five issues, four of which we address.

1. Whether the trial court erred in denying Durkee's motion for summary judgment.

2. Whether the trial court erred in denying Durkee's request for a jury trial.

3. Whether the trial court erred in finding that a 1975 oral agreement existed between the parties.

4. Whether the trial court erred in determining that promissory estoppel and partial performance removed the oral agreement from the statute of frauds.

DECISION

[¶ 8.] 1. Durkee was not entitled to summary judgment.

[¶ 9.] Durkee argues that the trial court erred in denying her motion for summary judgment. We disagree for two reasons. First, considering Van Well's evidence regarding the existence of the 1975 oral agreement, Van Well raised genuine issues of disputed fact that precluded summary judgment. The disputes of fact were material to the existence of an oral contract, as well as Van Well's related defenses of promissory estoppel and partial performance. Second, even if there were no disputed issues of material fact relating to these issues, Durkee suffered no prejudice because the trial court fully considered, but ultimately rejected all of Durkee's claims on the merits at trial. Because the trial court correctly determined that Durkee was not entitled to relief on the merits, she could not have been prejudiced by an earlier denial of her motion for summary judgment on the same claims.

[¶ 10.] 2. The trial court correctly refused Durkee's request for a jury trial.

[¶ 11.] Although Durkee did not demand a jury trial in her pleadings, Durkee argues that she was entitled to a jury trial because Van Well's counterclaim requested a jury trial on Van Well's claim for damages. The trial court, however, bifurcated the equitable issues for a trial to the court, and the legal claims for a trial by jury. The trial court ruled that it would try Durkee's claim for an injunction along with the incidental equitable issues involving promissory estoppel, partial performance, specific performance, and the statute of frauds. The trial court further ruled that if Van Well prevailed on these equitable issues, the court would then grant Durkee a jury trial on Van Well's legal claim for damages. This procedure followed our settled law on the right to jury trial in cases seeking both equitable and legal relief.

[¶ 12.] We have often noted that the right to a jury trial does not exist in all civil cases. Nizielski v. Tvinnereim, 453 N.W.2d 831, 833 (S.D.1990). "In cases where the pleadings seek equitable relief or where the legal relief is incidental, a jury trial is a matter for the trial court's discretion." Id. at 833 (citing Skoglund v. Staab, 312 N.W.2d 29 (S.D.1981)). In determining whether the action arises at law or in equity, we look to the pleadings, including the complaint, answer, cross-complaint and prayer for relief. Id. (citing Arlt v. Langley, 56 S.D. 79, 227 N.W. 469, 473 (1929)).

[¶ 13.] Here, the pleadings and prayer for relief reflect that Durkee was seeking injunctive relief for which there was no right to trial by jury. Injunction is an equitable remedy for which Durkee was not entitled to trial by jury. Metropolitan Life Insurance Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943). Moreover, Durkee's right to injunctive relief was dependent upon equitable or incidental legal claims for which there was no right to jury trial. See Skoglund v. Staab, 312 N.W.2d 29, 31 (action for specific performance is equitable); Valley Bank v. Dowdy, 337 N.W.2d 164, 165 (S.D.1983) (promissory estoppel involves equitable relief); Crawford v. Carter, 74 S.D. 316, 319, 52 N.W.2d 302, 304 (1952) (a court of equity may exercise its power where there has been a part performance); Owens v. Moyes, 95 SD 211, ¶ 6, 530 N.W.2d 663, 665 (the existence of a valid express contract is a question of law to be determined by the court, not a jury). Therefore, the trial court correctly tried the equitable and incidental legal claims, while leaving the claim for damages for a jury.

[¶ 14.] 3. A 1975 oral agreement existed between the parties.

[¶ 15.] Durkee argues that the 1975 oral agreement was invalid because there was no "meeting of the minds," and therefore, there was no consent to the agreement. Durkee contends that the parties believed they were only consenting to relocate a fence, but not to transferring ownership of real property. In support of this contention, Durkee points out that at the time of the 1975 agreement, she did not know that she had already acquired the...