Kling v. Stern, No. 24146.

CourtSupreme Court of South Dakota
Writing for the CourtZinter
Citation2007 SD 51,733 N.W.2d 615
Decision Date30 May 2007
Docket NumberNo. 24146.
PartiesKim KLING and Chris Kling, Plaintiffs and Appellants, v. Judith K. STERN, individually, Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Defendants and Appellees, and Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Third Party Plaintiff and Appellee, v. Roger A. Kessinger and Joanne M. Kessinger, Third Party Defendants.
733 N.W.2d 615
2007 SD 51
Kim KLING and Chris Kling, Plaintiffs and Appellants,
v.
Judith K. STERN, individually, Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Defendants and Appellees, and
Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Third Party Plaintiff and Appellee,
v.
Roger A. Kessinger and Joanne M. Kessinger, Third Party Defendants.
No. 24146.
Supreme Court of South Dakota.
Considered on Briefs January 8, 2007.
Decided May 30, 2007.

[733 N.W.2d 616]

Kenneth E. Barker of Barker Reynolds Law Firm, LLC, Belle Fourche, SD, for plaintiffs and appellants.

Wesley W. Buckmaster of Buckmaster Law Offices, PC, Belle Fourche, SD, for defendants and appellees.

ZINTER, Justice.


[¶ 1.] Kim and Chris Kling (Klings) sought a declaratory judgment that Judith Stern violated a restrictive covenant prohibiting the subdivision of land into parcels containing less than forty acres. The specific question was whether Stern violated the covenant when she subdivided the covenanted land into parcels of less than forty acres, but did so by "blending" the covenanted land with non-covenanted land to create "mixed" parcels that were forty acres or greater. The circuit court granted summary judgment in favor of Stern allowing the blended parcel subdivision. Klings appeal. We affirm.

Facts and Procedural History

[¶ 2.] The history of the most relevant covenanted and non-covenanted land is set out in the following time line format:

1985 — Klings sold over 2,000 acres of land to Bruce L. Riley.

1998 — Riley sold approximately 1,000 acres of this land to Roger and Joanne Kessinger (Kessingers). The grant was by warranty deed, with the covenant prohibiting subdivision of the land into less than forty-acre "parcels."

1999 — Klings sold over 30 acres of other land (non-covenanted land called Tract E) to Kessingers.

2003 — Kessingers combined land from Tract E (non-covenanted land) together with the covenanted land they acquired from Riley to form Tract K-4, a 80.57 acre "mixed parcel" — containing approximately 55 acres of covenanted land and 25 acres of non-covenanted land.

2003 — Stern bought Tract K-4 from Kessingers.

2005 — Stern subdivided K-4 into K-4A (40.29 acres) and K-4B (40.28 acres). This transaction divided the original covenanted land such that neither K-4A nor K-4B contained forty acres of covenanted land. Stern subsequently sold K-4A and K-4B.1

[¶ 3.] Because Tracts K-4A and K-4B were created by blending covenanted and

733 N.W.2d 617

non-covenanted land into parcels that contained less than forty acres of covenanted land, Klings contend that Stern violated the forty-acre restrictive covenant. Stern, however, argues that she could subdivide the covenanted land as long as the mixed parcels each contained at least forty acres.

[¶ 4.] Both parties agreed there were no material issues of disputed fact and they moved for summary judgment. The circuit court first determined that the covenant was unambiguous and the language reflected the grantor's intent to allow subdivided parcels of mixed land. Alternatively, the circuit court considered related covenants2 and Riley's testimony concerning intent of the covenant. The circuit court ultimately found that the intent of the covenant was to prevent subdivisions of less than forty acres to create "spacing" in "residential development." Because Stern's subdivision did not violate that intent, the circuit court concluded that the mixed parcels did not violate the covenant.

Standard of Review

[¶ 5.] When reviewing a grant of summary judgment, "`[w]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Burch v. Bricker, 2006 SD 101, ¶ 5, 724 N.W.2d 604, 606 (quoting Garrett v. BankWest, Inc., 459 N.W.2d 833, 836-837 (S.D.1990)). "`Once we...

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11 practice notes
  • Up v. Lloyd's London Underwriters, No. 22931.
    • United States
    • Supreme Court of South Dakota
    • 5 août 2009
    ...as to produce an absurd result." Lillibridge v. Meade School Dist. #46-1, 2008 SD 17, ¶ 19, 746 N.W.2d 428, 433 (citing Kling v. Stern, 2007 SD 51 ¶ 8, 733 N.W.2d 615, 618 n. 3); See also Jerauld County v. Huron Regional Medical Center, Inc., 2004 SD 89, ¶ 36, n. 2, 685 N.W.2d 140, 148, n. ......
  • Northstream v. 1804 Country Store, No. 24232.
    • United States
    • Supreme Court of South Dakota
    • 29 août 2007
    ...that where a contract is uncertain or ambiguous, parol or extrinsic evidence may be used to determine the parties' intent. Kling v. Stern, 2007 SD 51, ¶ 8, 733 N.W.2d 615, 618; Hanks v. Corson County Board of County Commissioners, 2007 SD 10, 10, 727 N.W.2d 296, 301 (quoting Pauley v. Simon......
  • Andrushchenko v. Silchuk, No. 24464.
    • United States
    • Supreme Court of South Dakota
    • 30 janvier 2008
    ...the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party......
  • Brown v. Hanson, No. 24526.
    • United States
    • Supreme Court of South Dakota
    • 26 décembre 2007
    ...the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party......
  • Request a trial to view additional results
11 cases
  • Up v. Lloyd's London Underwriters, No. 22931.
    • United States
    • Supreme Court of South Dakota
    • 5 août 2009
    ...to produce an absurd result." Lillibridge v. Meade School Dist. #46-1, 2008 SD 17, ¶ 19, 746 N.W.2d 428, 433 (citing Kling v. Stern, 2007 SD 51 ¶ 8, 733 N.W.2d 615, 618 n. 3); See also Jerauld County v. Huron Regional Medical Center, Inc., 2004 SD 89, ¶ 36, n. 2, 685 N.W.2d 140, 148, n......
  • Northstream v. 1804 Country Store, No. 24232.
    • United States
    • Supreme Court of South Dakota
    • 29 août 2007
    ...that where a contract is uncertain or ambiguous, parol or extrinsic evidence may be used to determine the parties' intent. Kling v. Stern, 2007 SD 51, ¶ 8, 733 N.W.2d 615, 618; Hanks v. Corson County Board of County Commissioners, 2007 SD 10, 10, 727 N.W.2d 296, 301 (quoting Pauley v. Simon......
  • Andrushchenko v. Silchuk, No. 24464.
    • United States
    • Supreme Court of South Dakota
    • 30 janvier 2008
    ...absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving......
  • Brown v. Hanson, No. 24526.
    • United States
    • Supreme Court of South Dakota
    • 26 décembre 2007
    ...absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving......
  • Request a trial to view additional results

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