Engelhart v. Kramer, s. 19963
| Court | Supreme Court of South Dakota |
| Writing for the Court | GILBERTSON |
| Citation | 570 N.W.2d 550,1997 SD 124 |
| Parties | Karen S. ENGELHART, Plaintiff and Appellee, v. Crystal Kay KRAMER, Defendant and Appellant. |
| Docket Number | Nos. 19963,19966,s. 19963 |
| Decision Date | 01 December 1997 |
Page 550
v.
Crystal Kay KRAMER, Defendant and Appellant.
Decided Oct. 29, 1997.
Rehearing Denied Dec. 1, 1997.
James A. Craig of Craig Law Office, Sioux Falls, for plaintiff and appellee.
Dennis Duncan and Jeffrey A. Cole of Zimmer, Duncan and Cole Parker, for defendant and appellant.
Page 551
GILBERTSON, Justice.
¶1 A $34,800 judgment was rendered against Crystal Kay Kramer based on violation of SDCL ch 43-4 and for failure to properly disclose a defect in the home she sold to Karen Engelhart. The case was tried without a jury before the Second Judicial Circuit Court. Kramer appeals the award claiming that Engelhart did not show that Kramer failed to meet the required standard in completing the seller's property disclosure statement. 1 We affirm.
¶2 In May of 1991, Crystal Kay Kramer purchased a home in Sioux Falls, South Dakota for $35,000. Over the next few years Kramer made several improvements. Four days prior to putting the home on the market, in September, 1993, Kramer enlisted the support of friends and family and began an extensive cleaning of the basement. There were several large cracks in the basement's cement walls and pieces of various sizes had fallen off. They removed old sheet rock and put up wood paneling over the basement walls. The basement project was memorialized by Kramer with several photographs depicting the before, during and after condition of the walls.
¶3 During this period Karen Engelhart was searching for a home commensurate with her income level. Engelhart was a first-time home buyer and was assisted by Dorothy Ecker, a real estate agent. Engelhart viewed Kramer's home, became interested, and then decided to purchase it.
¶4 Kramer was represented by Shirley Ullom, a Century 21 Advantage, Inc. real estate agent. Kramer completed the detailed "property condition disclosure statement" form required by SDCL 43-4-44. Part two of the form required the seller to disclose certain structural information. Specifically, question 2 asked "Have you experienced water penetration in the basement ... within the past two years?" Kramer replied, "Small amt of H20 penetration in NW + NE corners [when it] rains." (emphasis added). In answering question 3 "[a]re there any cracked walls or floors?" Kramer responded "basement floor, some spots in basement walls, East bedroom walls." Under § 5, Miscellaneous Information, Kramer was required to disclose any additional problems that were not previously mentioned. Kramer offered, "basement cement walls have some crumbling, behind paneling, basement floor cracked [and] uneven in spots." (emphasis added).
¶5 The trial court found that Engelhart relied upon, among other things, Kramer's disclosure statement with regard to the condition of the basement walls and that Engelhart believed "some spots" and "some crumbling" to mean the problems were minimal. Kramer allegedly offered to remove the paneling to expose the basement walls but the trial court concluded that the offer was "a gambit, or a bluff ... without any real intention of performing" and that the typical buyer in Engelhart's position would be "reluctant to remove paneling from someone else's house." Kramer admitted taking photographs before installing the paneling and that showing the photos to a potential purchaser would have been easier than removing it. Kramer could not explain why she did not offer the photos.
¶6 Engelhart purchased the property in October 1994. In March of 1995, she discovered water seepage through the south wall of the basement. The paneling was removed and water was discovered running through cracks in the south wall. Also noted were several other large cracks, including a large horizontal crack running around the basement. Engelhart hired a structural engineer, Chester Quick (Quick) to diagnose the problem. Quick issued a report in which
Page 552
he found the basement walls "very badly cracked" and testified that the cement had "leeched out" which allowed dirt and water to pass into the basement. 2 Further, Quick noted that the concrete was showing "considerable disintegration especially at the south wall" which was not repairable. He concluded that the foundation had to be replaced and that "As bad as [the walls] are cracked they could collapse at any time." When asked whether the disclosure statement adequately described the condition of the basement Quick testified that, although accurate in part, "some crumbling" did not adequately describe the damage that existed behind the paneling.¶7 Engelhart brought suit against Kramer based upon misrepresentations made in the disclosure statement. The trial court ruled in favor of Engelhart on failure to comply with South Dakota's Disclosure Statutes and fraud. Kramer appeals the $34,800 award entered against her.
¶8 Our standard of review of the trial court's findings of fact is under a clearly erroneous standard. Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995); Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995). The trial court's findings will not be disturbed unless the court is "firmly and definitely convinced a mistake has been made." Jasper, 540 N.W.2d at 401. Conclusions of law, on the other hand, are reviewed under a de novo standard, giving no deference to the trial court's conclusions of law. Id. Questions of law, including statutory construction, we review de novo. West Two Rivers Ranch v. Pennington County, 1996 SD 70, p 6, 549 N.W.2d 683, 685.
¶9 Whether Kramer failed to complete the disclosure statement in good faith as required by SDCL Ch 43-A?
¶10 In 1993 the South Dakota legislature enacted specific requirements for disclosures in certain real estate transfers. SDCL §§ 43-4-38 to -44. SDCL 43-4-38 provides:
The seller of residential real property shall furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer. If after delivering the disclosure statement to the buyer or the buyer's agent and prior to the date of closing for the property or the date of possession of the property, whichever comes first, the seller becomes aware of any change of material fact which would affect the disclosure statement, the seller shall furnish a written amendment disclosing the change of material fact.
SDCL 43-4-41 requires that "The...
To continue reading
Request your trial
-
Fox v. Burden, 20811.
...(emphasis in original). Under the de novo standard, we give "no deference to the trial court's conclusions of law." Engelhart v. Kramer, 1997 SD 124, ¶ 8, 570 N.W.2d 550, 552 (citing Jasper v. Smith, 540 N.W.2d 399, 401 [¶ 26.] The trial court found that the action was not barred by the sta......
-
Bergee v. Bd. of Pardons and Paroles, 21058.
...of statutes are reviewed under the de novo standard. State v. Shadbolt, 1999 SD 15, ¶ 10, 590 N.W.2d 231, 233 (citing Engelhart v. Kramer, 1997 SD 124, ¶ 8, 570 N.W.2d 550, 552); Wegleitner v. Sattler, 1998 SD 88, ¶ 4, 582 N.W.2d 688, 689 (citation omitted). Statutes are presumed to be cons......
-
McCollam v. Cahill, 24895.
...is aware.'" Parmely v. Hildebrand (Parmely II), 2001 SD 83, ¶ 9, 630 N.W.2d 509, 513 (emphasis removed) (quoting Engelhart v. Kramer, 1997 SD 124, ¶ 20, 570 N.W.2d 550, 554). The seller's good faith in truthful and complete disclosure is judged using the reasonable person standard. See SDCL......
-
State v. Blem, 21064.
...law, including statutory construction, are reviewed under a de novo standard, giving no deference to the trial court. Engelhart v. Kramer, 1997 SD 124, ¶ 8, 570 N.W.2d 550, 552 (citing West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 6, 549 N.W.2d 683, [¶ 22.] SDCL 23A-20-6 provide......