Estate of Fisher v. Fisher

• Decision Date: 22 May 2002
• Docket Number: No. 21958.,21958.
• Citation: 645 N.W.2d 841,2002 SD 62
• Parties: ESTATE OF Florence FISHER, Deceased, Plaintiff, v. Dean FISHER and Norma Fisher Husband and Wife, Defendants. Donald Fisher, Plaintiff and Appellant, v. Estate of Florence Fisher, Deceased, Defendant and Appellee. Donald O. Fisher, Plaintiff and Appellant, v. Dean Fisher, Defendant and Appellee, v. Joanita Kant-Montieth, Third-Party Defendant.
• Court: South Dakota Supreme Court

645 N.W.2d 841

2002 SD 62

ESTATE OF Florence FISHER, Deceased, Plaintiff, v. Dean FISHER and Norma Fisher Husband and Wife, Defendants.

Donald Fisher, Plaintiff and Appellant, v. Estate of Florence Fisher, Deceased, Defendant and Appellee.

Donald O. Fisher, Plaintiff and Appellant, v. Dean Fisher, Defendant and Appellee, v. Joanita Kant-Montieth, Third-Party Defendant.

No. 21958.

Supreme Court of South Dakota.

Argued January 9, 2002.

Decided May 22, 2002.

James M. Cremer of Bantz, Gosch & Cremer, L.L.C., Aberdeen, South Dakota, for appellant Donald O. Fisher.

Lonald L. Gellhaus, Jay R. Gellhaus of Gellhaus, Gerdes & Gellhaus, P.C., Aberdeen, South Dakota, for appellee Dean Fisher.

GORS, Acting Justice.

[¶ 1.] Donald Fisher (Donald) sued his brother Dean Fisher (Dean) alleging that Donald had a first-chance-to-buy land sold to Dean by John (Father) and Florence (Mother) Fisher (Parents) on a contract for deed. The trial court held that Dean fulfilled the contract and that he was entitled to the land free and clear of any claims by Donald. We affirm.

FACTS AND PROCEDURE

[¶ 2.] This is a land dispute between two brothers. On January 15, 1976, Dean entered into a contract for deed with Parents to purchase four quarters of land near Britton, South Dakota. Payments covered twenty years. The contract stated the following:

It is understood by the parties that [Dean] is purchasing the real estate in question for the purpose of farming it; however, if [Dean] subsequently decides to quit farming, is incapacitated so he cannot farm said land, or becomes incompetent or predeceases [Parents] during the life of this contract, then it is agreed between the parties that Donald... shall have the first chance to buy the above-described property ....

The contract also stated that the land was to be conveyed to Dean by warranty deed, "free and clear of all liens and encumbrances" upon payment. Parents escrowed a warranty deed to be delivered to Dean upon payment of the contract. The deed contained no restrictions.

[¶ 3.] In 1977, Dean married Joanita Kant Fisher (Joanita). The contract for deed was modified to add Joanita as a party. Father died in 1978 and his interest in the contract for deed passed to Mother. In 1982, Dean and Joanita moved to Watertown. Dean sold his machinery and cattle and rented the tillable land to Dalton Docter (Docter) and the pastureland to Hubert Dinger (Dinger). Dean made payments to Mother until 1987.

[¶ 4.] In the summer of 1985, Dean returned to Britton to work for Jarrett Farms. Dean and Joanita divorced in 1986. As part of the divorce, Joanita received one of the four quarters of land (Joanita Quarter) that was part of the contract for deed. The divorce decree gave Dean the first right to purchase the Joanita Quarter if she decided to sell it. Two years later, Joanita brought a quiet title action against Dean, Florence and Donald. The quiet title was resolved by stipulation. Joanita received clear title to her quarter of land. Dean's first right to purchase the Joanita Quarter continued in the event Joanita sold the land, and further provided that if Dean repurchased the land, Donald's first-chance-to-buy under the contract would also reattach.

[¶ 5.] Joanita rented her quarter until she decided to sell it to Donald in 1997. Dean sued Joanita and Donald to exercise his first right to purchase. The trial court entered a judgment giving Dean the right to purchase the Joanita Quarter by paying $88,000 by March 30, 1998. Dean borrowed $90,000 from the Landreths, who are his neighbors, and paid Joanita. Joanita executed a warranty deed conveying the land to Dean, free and clear of all encumbrances. The deed was recorded. Even though Dean now owned the land, Donald had leased it from Joanita for the 1998 crop-year and Dean was effectively excluded from the Joanita Quarter for the first year that he owned it. Dean had the Joanita Quarter custom farmed by Peter Bremmon in 1999 and 2000.

[¶ 6.] Dean's lease agreements with Docter and Dinger on the other three quarters of land expired in 1987. Thereafter, Dean personally farmed the other three quarters of land. In 1994, Dean began certifying these three quarters of land for organic farming. The tillable acres of these three quarters became fully certified "organic" in 1998. The organic certification was still in effect at the time of trial.

[¶ 7.] Mother died in 1996. The contract provided:

[I]f [Parents] die during the life of this Contract, then upon the demise of the latter of the two, [Dean] is to pay, or enter into a Contract to pay, [Donald] one-half of the remaining unpaid balance of this Contract for Deed due and owing at that time, after which this Contract will terminate and cease to exist and [Dean] will be entitled to have the Warranty Deed ... delivered to him and to thereafter have clear and merchantable title....

Shortly after Mother's death, Donald learned that Dean had been in default on the contract since 1987. Donald began foreclosure on behalf of Mother's estate in 1998. In 1999, a judgment in the foreclosure action determined that the principal and interest due from Dean to redeem the contract totaled $188,025.20. Therefore, under the terms of the contract, Dean owed Donald one half, which was $94,012.60. Dean borrowed $186,500¹ from Mark Hartinger, the stepson of one of the Landreths, and tendered the full payment of $190,322.70 into escrow on November 27, 1999, to payoff the contract. Donald refused to authorize delivery of the warranty deed from escrow.

[¶ 8.] The case was tried March 7-8, 2001. The trial court found that Dean had fulfilled his part of the contract in November, 1999, when he had $190,322.70 placed in escrow to pay Donald. The trial court also found that Dean's payment of the contract terminated Donald's first-chance-to-buy the real estate. The trial court held that Dean was entitled to receive the warranty deed held in escrow. The trial court further found that Dean had not quit farming and did not sell the land during the life of the contract.

[¶ 9.] Donald appeals on the following issues:

1. Whether Dean's payoff of the contract terminated Donald's first-chance-to-buy.

2. Whether Dean quit farming within the life of the contract.

3. Whether the tender of payments stopped the interest from accruing.

STANDARD OF REVIEW

[¶ 10.] Our standard of review is well settled. "We will not set aside a trial court's findings of fact unless they are clearly erroneous. A trial court's finding is clearly erroneous if, `after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made[.]'" In re Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490 (internal citations omitted). We review a trial court's conclusions of law under the de novo standard, giving no deference to the trial court's conclusions of law. Osloond v. Osloond, 2000 SD 46, ¶ 6, 609 N.W.2d 118, 121.

ANALYSIS

[¶ 11.] 1. Whether Dean's payoff of the contract terminated Donald's first-chance-to-buy.

[¶ 12.] The dispute between Donald (age 71 in 2000) and Dean (age 60 in 2001) centers on the following provision in the contract:

If [Dean] subsequently decides to quit farming, is incapacitated so he cannot farm said land, or becomes incompetent or predeceases [Parents] during the life of this contract, then it is agreed between the parties that Donald ... shall have the first chance to buy the above-described property....

(emphasis added). The contract is unambiguous. The contract is not rendered ambiguous just because the parties do not agree on what it means.

A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Divich v. Divich, 2002 SD 24, ¶ 10, 640 N.W.2d 758; (citing Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719). The contract provides that if Dean decides to quit farming, becomes incapacitated, incompetent, or predeceases his parents, then Donald shall have the first-chance-to-buy the property. Donald argues that the phrase "during the life of this contract" only applies if Dean "predeceases [Parents]." Donald claims that even if Dean pays off the contract and then "subsequently decides to quit farming," Donald has the right to purchase the land. Under this theory, Dean could never sell the property to anyone but Donald as long as Donald is alive. We disagree.

Doctrine of the Last Antecedent

[¶ 13.] In support of his position, Donald advances the "Doctrine of Last Antecedent," which provides the following:

It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.

Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 617 (S.D.1994). Donald urges us to construe the words "during the life of this contract" to modify only "predeceases [Parents]." Under Donald's argument, the phrase "decides to quit farming" survives payoff of the contract and prevents delivery of the deed to Dean. If the phrase "decides to quit farming" survives payoff, Donald would continue to have a first-chance-to-buy the property as long as Donald lives. To secure his first-chance-to-buy, Donald then makes the quantum leap in logic that he can order the escrow agent to retain possession of the warranty deed.

[¶ 14.] Essentially Donald argues that "during the life of the contract" would have to appear after each phrase in the list to modify anything more than the phrase "predeceases [Parents]." Carrying Donald's argument to its logical extreme, the paragraph would have to read as follows:

[I]f [Dean] subsequently decides to quit farming during

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