Jensen v. Weyrens

• Decision Date: 31 July 1991
• Docket Number: No. 17224,17224
• Citation: 474 N.W.2d 261
• Parties: Larry JENSEN, Plaintiff and Appellant, v. John J. WEYRENS and Catherine J. Weyrens, Defendants, Third-Party Plaintiffs and Appellees, v. Dennis S. GROSS and Reynolds Realty and Insurance Company, Third-Party Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 261

474 N.W.2d 261

Larry JENSEN, Plaintiff and Appellant, v. John J. WEYRENS and Catherine J. Weyrens, Defendants, Third-Party Plaintiffs and Appellees, v. Dennis S. GROSS and Reynolds Realty and Insurance Company,

Third-Party Defendants and Appellees.

No. 17224.

Supreme Court of South Dakota.

Argued March 19, 1991.

Reassigned June 4, 1991.

July 31, 1991.

William E. Coester, Milbank, for plaintiff and appellant.

Nancy J. Turbak, Watertown, for defendants, third-party plaintiffs and appellees Weyrens.

Raymond M. Schutz of Siegel, Barnett & Schutz, Aberdeen, for third-party defendant and appellee Gross.

T.F. Martin of McCann, Martin & McCann, Brookings, for Gilbert, Hinsvark & Saltee.

MILLER, Chief Justice (on reassignment).

A contract-for-deed purchaser brought suit against seller because of an unresolved boundary dispute. The circuit court ordered specific performance after a court-ordered survey resolved the boundary dispute. Purchaser appeals the trial court's allocation of the survey cost, denial of attorney fees and failure to set off purchaser's claimed damages against his contract obligations. We affirm.

Facts

In August, 1980, Weyrens purchased a parcel of improved land (contract property) on Lake Cochrane in Deuel County, South Dakota, under a contract for deed from Gross. Weyrens' final installment payment was due September 1, 1984.

On October 8, 1983, Jensen purchased this property by a contract for deed from Weyrens, with Jensen's final installment due April 1, 1989.

By the time of this second contract for deed, Gross, Weyrens and Jensen were all aware of a potential problem with the lot lines of the contract property, but neither Gross nor Weyrens believed the problem, if any, to be a serious one. Jensen understood the boundary problem to be nothing more than a possible 15-foot discrepancy in the location of the lot lines, which would not affect the improvements on the contract property. Jensen required Weyrens to guarantee him a 115-foot shoreline in any event. (See footnote 2). Jensen signed a "purchase agreement" on September 9, 1983, which expressly guaranteed Jensen 115 feet of shoreline and recited that any expense involved in correcting the boundary discrepancy would be borne by Weyrens. However, Weyrens did not sign this "purchase agreement" and the actual contract for deed signed by Weyrens and Jensen one month later makes no mention of any boundary problem or any allocation of expenses for its correction.

On May 1, 1984, Jensen leased the contract property to another for a term of five years. Two months later, Jensen was informed by a Lake Cochrane neighbor that three sisters named Gilbert, Hinsvark and Saltee (the sisters) were claiming to own a lot which straddled what Jensen and the neighbor assumed was the line between their properties. If true, this claim would affect the placement of the lot lines and could substantially cut into Jensen's 115 feet of anticipated shoreline. After Jensen informed Weyrens that the boundary problem could be more significant than anyone suspected, Weyrens withheld from Gross the final contract payment due September 1, 1984.

In October, 1984, Gross obtained a survey of the contract property which revealed a problem with the lot lines substantially in excess of the discrepancy previously anticipated by Gross, Weyrens and Jensen. ¹

By early 1986, Jensen's lessee prematurely terminated his five-year lease, claiming that conflicts with the sisters over the boundary line effectively deprived him of the use of the contract property. Subsequently, Jensen ceased making payments on his contract with Weyrens.

On June 3, 1988, Weyrens filed an action to quiet title (# 88-1026). Jensen counterclaimed against Weyrens and cross-claimed against Gross, the sisters and others, alleging the existence of a boundary dispute and requesting (1) a court-ordered survey of the contract property, (2) damages for loss of use of the contract property, and (3) other costs and attorney fees.

The following month, Jensen filed suit against Weyrens (# 88-1030), seeking specific performance of the Weyrens-Jensen contract or, in the alternative, damages. Weyrens counterclaimed for cancellation or reformation of the contract plus damages and costs, and brought a third-party complaint against Gross. On August 12, 1988, the court ordered the consolidation of suits # 88-1026 and # 88-1030 and appointed a surveyor. Ten months later, the report of the surveyor placed the boundaries of the contract property roughly where Gross, Weyrens and Jensen originally anticipated ² and resolved the central conflict in the case to the apparent satisfaction of all parties.

On April 17, 1990, following trial by affidavit, the circuit court issued findings of fact and conclusions of law in # 88-1026, which quieted title to the contract property without opposition. On May 24, 1990, the court issued findings of fact and conclusions of law in # 88-1030, ordered specific performance of the Weyrens-Jensen contract, allocated the cost of the court-ordered survey, fifty percent to Jensen and fifty percent to Gross, Weyrens and the sisters, and denied all pecuniary relief to Jensen.

Jensen appeals, claiming the court erred in

(1) allocating 50% of the survey cost to Jensen and denying Jensen recovery of other costs and attorney fees; and

(2) failing to reduce the amount Jensen owes Weyrens under the contract for deed by the costs and consequential damages Jensen claims.

Scope of Review

Jensen does not claim that any of the court's factual findings are clearly erroneous. All parties appear to concede that this is essentially an action in equity. "[T]he equitable remedy of specific performance is addressed to the sound discretion of the trial court." Berendes v. Berendes, 385 N.W.2d 119, 121 (S.D.1986). Therefore, this court will not disturb the equitable determinations of the trial court unless we find that the trial court abused its discretion. Wiggins v. Shewmake, 374 N.W.2d 111 (S.D.1985). Under the abuse of discretion standard, we do not re-try the case de novo or interfere with the court's ruling to reach a result we happen to like better. Rather, we determine that an abuse of discretion occurred only if no "judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion." Estate of Pejsa, 459 N.W.2d 243, 245 (S.D.1990); Estate of Smith, 401 N.W.2d 736 (S.D.1987).

1. Survey Cost Allocation

SDCL 21-40-8 provides:

The court shall make such order respecting the costs and disbursements including the costs and expenses of a survey thereof and of the establishing of any markings of such boundaries between the parties to such action as it shall deem just.

In this case, the court deemed it just to allocate fifty percent of the cost of the court-ordered survey to Jensen and to divide the remaining fifty percent of the cost among Weyrens, Gross and the sisters.

SDCL 19-15-16 provides that the initial disbursement for court-appointed experts shall "be paid in equal parts by the opposing litigants ... and thereafter assessed as costs of the suit." By its terms, this statute does not restrict the court's equitable discretion over the ultimate assessment of costs. Here the court's ultimate assessment is consistent with the initial allocation of expenses prescribed by SDCL 19-15-16, i.e., half to plaintiff Jensen and half to defendants Weyrens, Gross and sisters.

The record supports this allocation of the cost of the survey. The trial court specifically noted that, under SDCL 21-40-8, the survey costs are to be allocated between the parties "on an equitable basis." It analyzed the arguments of all parties as to their positions, asserting specific "equitable allocations." In explaining its ultimate determination for the allocation, the trial court stated (in its memorandum decision, incorporated into the findings):

No one party is entirely to blame or blameless in this matter. Jensen is correct in contending that if he would have accepted the sisters' offer, he would have had less than 115 feet of shoreline, measured according to Johnson's plat. The sisters' settlement proposal also ignores the fact that although the immediate boundary dispute between the parties may have been resolved, the boundary question would have lingered and could have arisen in future transfers. The current plat establishes judicial monuments pursuant to SDCL 21-40-6 so that all parties and their future grantees are assured of where the boundaries are.

Weyrens knew that there was a boundary dispute when he sold the property to Jensen; he guaranteed 115 feet of shoreline, and if there were any problems he was to solve them at his expense. Gross agreed to give Weyrens peaceable possession of the property during the contract term, and to deliver good and sufficient warranty deed in performance of the contract. As there were persons claiming some of the same property, there was a constructive eviction of Weyrens and Jensen which was a breach of Gross' contract warranties. (Citations omitted.)

Both Gross and Weyrens have limited benefit by the outcome of this litigation, because they are held to the contract sale prices. After all is said and done, they are both able to deliver good title to their purchasers.

Jensen has accrued the benefit of resolution of a boundary dispute of which he was aware when he entered into the contract, and he now has 115 feet of valuable lake front property and assured boundaries. He was inflexible in his settlement negotiations; his insistence that the other parties bear the whole cost of resolution of the matter led to extra legal expense for all parties.

The sisters are in possession of a lot in which they have assured boundaries and to which they hold title, assuming that their ownership interest is borne out by the descriptions in the deeds of record. Although this lot is too narrow for resale as a unit upon which...