Holy Cross Parish v. Huether, No. 13256

• Court: Supreme Court of South Dakota
• Writing for the Court: DUNN
• Citation: 308 N.W.2d 575
• Parties: HOLY CROSS PARISH, a non-profit religious parish of the Catholic Diocese of Sioux Falls, Plaintiff and Appellant, v. Henry HUETHER, Jr., and Carl Huether, jointly and severally, and d/b/a Huether Construction, a Partnership, and Herges, Kirchgasler & Associates, a Corporation, and John Kirchgasler and Marvin Warrens, agents, servants, and employees of Defendants, Herges, Kirchgasler & Associates, Defendants and Appellees.
• Decision Date: 22 July 1981
• Docket Number: No. 13256

Page 575

308 N.W.2d 575 HOLY CROSS PARISH, a non-profit religious parish of the
Catholic Diocese of Sioux Falls, Plaintiff and
Appellant,
v.
Henry HUETHER, Jr., and Carl Huether, jointly and severally,
and d/b/a Huether Construction, a Partnership, and Herges,
Kirchgasler & Associates, a Corporation, and John
Kirchgasler and Marvin Warrens, agents, servants, and
employees of Defendants, Herges, Kirchgasler & Associates,
Defendants and Appellees. No. 13256. Supreme Court of South Dakota. Argued April 24, 1981.
Decided July 22, 1981.

Page 576

Thomas A. Kolker of Maloney, Kolker, Fritz, Hogan & Johnson, Ipswich, for plaintiff and appellant.

Russell H. Battey of Williams & Gelhaus, Aberdeen, for defendants and appellees Carl Huether and Henry Huether, Jr.; Paul O. Kretschmar, Eureka, on brief.

Joseph H. Barnett of Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, for defendants and appellees Herges, Kirchgasler & Associates.

DUNN, Justice.

Holy Cross Parish (appellant) appeals from an order and a judgment that dismissed its complaint on the merits with prejudice. We affirm in part, reverse in part, and remand.

In 1963, appellant contracted with appellee Huether (contractor) and appellee Herges (architect) to design and construct an auditorium in Ipswich, South Dakota. This building was completed and turned over to appellant in 1965. In 1977, due to the occurrence of a heaving and unevenness in the floor, appellant had performed a subsurface exploration of the concrete floor. This exploration revealed that the fill used under the concrete floor was consolidating and that the cause of the unevenness was due to the usage of unsuitable fill and inadequate compaction of the fill. To preserve this building, appellant must remove the floor and subsurface fill, replace it with proper fill and pour a new concrete floor.

During construction, the architect's progress reports indicated that the fill procedure and materials were improper and inadequate. Appellant was aware of these reports. In these reports, architect requested that contractor remedy these problems. The problems were not remedied.

In March of 1980, appellant brought this action based on various tort theories. Architect and contractor moved to dismiss appellant's complaint for failure to state a cause of action upon which relief could be granted and that appellant's cause was barred by applicable statutes of limitation. The trial court dismissed appellant's complaint on the merits with prejudice and issued a judgment to the same effect. Appellant contends that the trial court erred in dismissing the cause of action for fraud and deceit and in failing to adopt the "discovery rule" which would have tolled the statute of limitations on the negligence action.

Contractor and architect contend that appellant has not sufficiently pleaded a cause of action for fraud and deceit. SDCL 15-6-9(b) requires that "(i)n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." (Emphasis added.)

This court has required that a pleading based on fraud as a basis of recovery of damages must allege all the essential elements of actionable fraud to be sufficient. Voeller v. Geisler, 77 S.D. 96, 86 N.W.2d 395 (1957). The essential elements of...