Leonard v. State ex rel. South Dakota Real EState Com'n, No. 25619.

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP
Citation2010 S.D. 97,793 N.W.2d 19
Decision Date15 December 2010
Docket NumberNo. 25619.
PartiesRobert LEONARD, Plaintiff and Appellee, v. STATE of South Dakota, ex rel. South Dakota REAL ESTATE COMMISSION, Defendant and Appellant.
793 N.W.2d 19
2010 S.D. 97


Robert LEONARD, Plaintiff and Appellee,
v.
STATE of South Dakota, ex rel. South Dakota REAL ESTATE COMMISSION, Defendant and Appellant.


No. 25619.

Supreme Court of South Dakota.

Argued Nov. 16, 2010.
Decided Dec. 15, 2010.

793 N.W.2d 20

Heather M. Lammers Bogard of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Lindsey Riter-Rapp Robert C. Riter, Jr. of Riter, Rogers, Wattier & Northrup, LLP, Pierre, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Does the assignment of a real estate purchase agreement to a new buyer require the broker to obtain a new agency agreement along with its required disclosures under SDCL 36-21A-130? The South Dakota Real Estate Commission ruled that a real estate agent committed unprofessional conduct when he failed to execute a new written agency agreement with the new buyer he represented. On appeal, we conclude that because there was no written agency agreement between the parties sufficient to satisfy SDCL 36-21A-130, the Commission's decision was correct. The circuit court's ruling to the contrary is reversed.

Background

[¶ 2.] In June 2004, Walter D. Miller hired Garry Neiderworder of Rapid Realty to represent him in the sale of ranch land in Meade County, South Dakota. Neiderworder became both the listing agent and broker. Russell Engesser wanted to purchase Miller's land and entered into an agency agreement with Robert Leonard, also of Rapid Realty. Because Leonard and Neiderworder were both affiliated with Rapid Realty and represented the seller (Miller) and the buyer (Engesser), Engesser and Leonard signed an addendum to the agency agreement, creating a limited agency relationship. On that same day, Engesser offered to purchase Miller's land for $900,000, contingent on the sale of Engesser's land. Miller countered with a request for $930,000, but accepted Engesser's contingency. Engesser accepted Miller's counteroffer, and they signed a purchase agreement, reflecting a sale price of $930,000. The agreement also noted a backup purchase offer from Bill Gikling for $933,750.

[¶ 3.] Ultimately, Engesser was unable to sell his land. On learning this, Leonard mentioned the land transaction to Daniel Wolken, who expressed an interest. Leonard gave Wolken a map of the property. Wolken and his partners, Scott Grimsrud and Norman Rieger (both now deceased), considered purchasing the land through their company, Western Dakota Land, LLC. Leonard arranged a meeting with Engesser, Wolken, and Grimsrud to discuss Western Dakota's options in light of

793 N.W.2d 21
Gikling's backup offer. At this meeting, the parties agreed that to effect the sale without triggering the backup offer, Engesser, in exchange for $25,000, would assign his right to purchase the property under the purchase agreement to Wolken and his partners. The assignment provided,
I, Russell H. Engesser, the undersigned, for one dollar and other good and valuable consideration, assign all of my interest in and to two certain Purchase Agreements dated June 17th, 2004 between Miller, Seller/Engesser, Buyer, and dated September 10th, 2004 between Hackens, Seller/Engesser, Buyer. Along with all of the rights, privileges, and obligations set forth therein to.
The executed assignment names Scott A. Grimsrud, Daniel L. Wolken, and Norman L. Rieger as assignees.

[¶ 4.] Following the assignment, Leonard gave Wolken copies of certain restrictive covenants on the property. Wolken questioned Leonard and Neiderworder on the legal ramifications of the covenants. According to Wolken, Leonard and Neiderworder represented that the covenants would not restrict Western Dakota's ultimate purchase of the property or hamper them from using and developing the property after the purchase. The parties closed on the sale in October 2004. Some time later, Western Dakota decided to sell the property by auction. But it came to light that the map Leonard gave Wolken was incorrect in several respects, and the covenants were more restrictive than Leonard and Neiderworder previously represented. To remove these difficulties, the restricted two hundred and forty acres were withdrawn, and the remaining acres were sold.

[¶ 5.] Western Dakota, Wolken, and Grimsrud filed a complaint with the South Dakota Real Estate Commission against Leonard and Neiderworder for their representations on the sale of the land, in particular the covenants on the two hundred and forty acres. In addition to the issues raised by Wolken and Grimsrud, the Commission charged that Leonard had violated certain statutory...

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5 practice notes
  • State v. Armstrong, No. 25428.
    • United States
    • Supreme Court of South Dakota
    • 15 Diciembre 2010
    ...when compared to the facts of the current charged offense. [¶ 46.] Nevertheless, I am not convinced its admission warrants reversal.793 N.W.2d 19Unlike Fisher, the prosecutor did not make the prior conviction a centerpiece of his case. It was only briefly described by one of the witnesses, ......
  • Pierre v. State ex rel. South Dakota Real Estate Comm'n, 26112-rev & rem-SLZ
    • United States
    • Supreme Court of South Dakota
    • 5 Abril 2012
    ...circuit court; there is no presumption that the circuit court's decision was correct." Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n.*, 793 N.W.2d 19, 22 n.* This Court must "give great weight to the findings of the agency and reverse only when those findings are cle......
  • St. Pierre v. State ex rel. S.D. Real Estate Comm'n, No. 26112.
    • United States
    • South Dakota Supreme Court
    • 4 Abril 2012
    ...circuit court; there is no presumption that the circuit court's decision was correct.” Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n. *, 793 N.W.2d 19, 22 n. *. This Court must “give great weight to the findings of the agency and reverse only when those findings are ......
  • Afscme Local 1025 v. Sioux Falls Sch. Dist., No. 25935.
    • United States
    • Supreme Court of South Dakota
    • 16 Noviembre 2011
    ...Contract and statutory interpretation are questions of law we review de novo. Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n. 1, 793 N.W.2d 19, 22 n. 1. [¶ 12.] The Department lacks jurisdiction over a grievance that is not timely filed in conformity with grievance pr......
  • Request a trial to view additional results
5 cases
  • State v. Armstrong, No. 25428.
    • United States
    • Supreme Court of South Dakota
    • 15 Diciembre 2010
    ...when compared to the facts of the current charged offense. [¶ 46.] Nevertheless, I am not convinced its admission warrants reversal.793 N.W.2d 19Unlike Fisher, the prosecutor did not make the prior conviction a centerpiece of his case. It was only briefly described by one of the witnesses, ......
  • Pierre v. State ex rel. South Dakota Real Estate Comm'n, 26112-rev & rem-SLZ
    • United States
    • Supreme Court of South Dakota
    • 5 Abril 2012
    ...circuit court; there is no presumption that the circuit court's decision was correct." Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n.*, 793 N.W.2d 19, 22 n.* This Court must "give great weight to the findings of the agency and reverse only when those findings are cle......
  • St. Pierre v. State ex rel. S.D. Real Estate Comm'n, No. 26112.
    • United States
    • South Dakota Supreme Court
    • 4 Abril 2012
    ...circuit court; there is no presumption that the circuit court's decision was correct.” Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n. *, 793 N.W.2d 19, 22 n. *. This Court must “give great weight to the findings of the agency and reverse only when those findings are ......
  • Afscme Local 1025 v. Sioux Falls Sch. Dist., No. 25935.
    • United States
    • Supreme Court of South Dakota
    • 16 Noviembre 2011
    ...Contract and statutory interpretation are questions of law we review de novo. Leonard v. State ex rel. S.D. Real Estate Comm'n, 2010 S.D. 97, ¶ 8 n. 1, 793 N.W.2d 19, 22 n. 1. [¶ 12.] The Department lacks jurisdiction over a grievance that is not timely filed in conformity with grievance pr......
  • Request a trial to view additional results

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