Kellogg v. Rowett, 15459

• Citation: 408 N.W.2d 334
• Decision Date: 25 March 1987
• Docket Number: No. 15459,15459
• Parties: Keith KELLOGG and Lois Kellogg, Plaintiffs and Appellees, v. Tom ROWETT and Lonnie Humbracht, Defendant and Appellants. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 334

408 N.W.2d 334

Keith KELLOGG and Lois Kellogg, Plaintiffs and Appellees, v. Tom ROWETT and Lonnie Humbracht, Defendant and Appellants.

No. 15459.

Supreme Court of South Dakota.

Considered on Briefs March 25, 1987.

Decided June 24, 1987.

Robert M. Nash, Rapid City, for plaintiffs and appellees.

Harlan A. Schmidt, Spearfish, for defendants and appellants.

MORGAN, Justice.

Appellants Ron Rowett (Rowett) and Lonnie Humbracht (Humbracht) appeal from a judgment for appellees Keith and Lois Kellogg (Kelloggs), which included an award of prejudgment interest on Kelloggs' claim for lost rent and damages to their building. We affirm.

Kelloggs were owners of a building in which they conducted a millwork business. They sold the business and equipment to Rowett and Humbracht and leased them the building. Subsequently, Rowett and Humbracht built their own building and moved the equipment which they had purchased to that building. Kelloggs then brought suit claiming Rowett and Humbracht damaged their building, and removed property without authorization. They also sought six months' rent due since Rowett and Humbracht allegedly failed to give proper notice and rendered the building untenantable.

The case was tried to the court, the Honorable Warren Johnson, presiding, and the court rendered judgment for Kelloggs in the sums of $2,500 for the damages to the electrical system and the building, and $900 for rent due under the leasehold agreement. The court also allowed prejudgment interest at fifteen percent on the total sum of $3,400.

Rowett and Humbracht raise three issues on appeal claiming

(1) The trial court erred in allowing prejudgment interest on both damages and rent;

(2) There was insufficient evidence to support the award of the three months' rent; and

(3) There was insufficient evidence to support the award of the other damages.

On their initial issue, Rowett and Humbracht argue that prejudgment interest was improper because the damages were not certain or capable of being made certain as required by the provisions of SDCL 21-1-11. We find the trial court was correct in allowing the prejudgment interest on the entire sum. The bulk of the claim centered around the damage to the electrical system. The parties did not dispute what was taken, but only if Rowett and Humbracht were entitled to take specific items. These damages were readily ascertainable as witnessed by the estimates of the contractors, which varied due to the use of new equipment figures by the one and used equipment figures by the other.

Rowett and Humbracht also argue that prejudgment interest was improper because of the variance between the amount claimed by Kelloggs and the amount awarded by the court. We have previously indicated that a large discrepancy between the amount claimed and the award is relevant to the right to prejudgment interest. In Amert v. Ziebarth Const. Co., 400 N.W.2d 888 (S.D.1987), we quoted a California decision, Polster Inc. v. Swing, 164 Cal.App.3d 427, 210 Cal.Rptr. 567 (1985), for the proposition that a large discrepancy between the amount claimed and the size of the eventual award militates against the certainty mandated by the statute. Amert, supra. Amert, however, goes on to state that there was no discrepancy between the damages requested and the damages awarded and decided the issue for other reasons. In Arcon Const. Co. v. S.D. Cement Plant, 405 N.W.2d 45 (S.D.1987), we cited Amert for the same proposition, that a sizeable discrepancy between the demand and the award militates against the certainty demanded by statute (SDCL 21-1-11). Arcon goes on, however, to hold that in spite of a large discrepancy, Arcon was entitled...