North American Truck v. M.C.I. Comm., No. 24669.

CourtSupreme Court of South Dakota
Writing for the CourtTrandahl
Citation751 N.W.2d 710,2008 SD 45
Docket NumberNo. 24669.
Decision Date11 June 2008
PartiesNORTH AMERICAN TRUCK & TRAILER, INC., Plaintiff and appellant, v. M.C.I. COMMUNICATION SERVICES, INC., d/b/a Verizon Business Services, Defendant and appellee.
751 N.W.2d 710
2008 SD 45
NORTH AMERICAN TRUCK & TRAILER, INC., Plaintiff and appellant,
v.
M.C.I. COMMUNICATION SERVICES, INC., d/b/a Verizon Business Services, Defendant and appellee.
No. 24669.
Supreme Court of South Dakota.
Considered on Briefs March 28, 2008.
Decided June 11, 2008.

[751 N.W.2d 711]

Daniel K. Brendtro, Brendtro Law Offices, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

Daniel R. Fritz, Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

TRANDAHL, Circuit Judge.


[¶ 1.] North American Truck & Trailer, Inc. (NATT) appeals from an order of judgment dismissing its claim for fraud and deceit against M.C.I. Communication,

751 N.W.2d 712

Inc. d/b/a Verizon Business Services (MCI). We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] NATT is a South Dakota corporation with its principal place of business in Sioux Falls, South Dakota. MCI is a Delaware corporation with its principal place of business in New York, New York. MCI provided telecommunication services to NATT for several years, including 2003 and 2004.

[¶ 3.] On April 27, 2007, NATT filed this lawsuit against MCI. NATT's complaint contained only one count, which was entitled "Fraud & Deceit." NATT alleged that in 2003 and 2004 MCI engaged in a pattern of overcharging it for various telecommunications services and that MCI did so intentionally or with reckless disregard. NATT further alleged that it was unaware of the overcharging and to its detriment paid the amounts due. NATT attached to its complaint an eight-page spreadsheet that was intended to explain or summarize the alleged overcharges.

[¶ 4.] MCI filed a motion to dismiss pursuant to SDCL 15-6-12(b)(5) on the basis that NATT's complaint did not plead fraud and deceit with sufficient particularity as required by SDCL 15-6-9(b). The parties briefed the issue, and a hearing was held on August 27, 2007, before the trial court. The trial court took the matter under advisement and issued a letter opinion dated August 28, 2007, granting MCI's motion. NATT objected to the order of judgment proposed by MCI, and also moved the court to reconsider its decision. The court declined both requests and entered an order of judgment dismissing the complaint on September 6, 2007.

[¶ 5.] NATT raises two issues on appeal:

Whether NATT's complaint stated a claim of fraud and deceit with sufficient particularity as required by SDCL 15-6-9(b).

Whether the trial court erred in denying NATT's objection to the order of judgment.

STANDARD OF REVIEW

[¶ 6.] "A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader." Nygaard v. Sioux Valley Hosp. & Health Sys., 2007 SD 34, ¶ 9, 731 N.W.2d 184, 190 (citing Guthmiller v. Deloitte & Touche, LLP, 2005 SD 77, ¶ 4, 699 N.W.2d 493, 496). "The motions are viewed with disfavor and seldom prevail." Id. (citing Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 238). "Pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action." Thompson v. Summers, 1997 SD 103, ¶ 7, 567 N.W.2d 387, 390. Further, "[t]he rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations." Id. "The court accepts the pleader's description of what happened along with any conclusions reasonably drawn therefrom." Id. ¶ 5. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. "We review the circuit court's ruling de novo, with no deference to its determination." Nygaard, 2007 SD 34, ¶ 9, 731 N.W.2d at 190 (citing Elkjer, 2005 SD 45, ¶ 6, 695 N.W.2d at 238).

ANALYSIS AND DECISION

[¶ 7.] Whether NATT's complaint stated a claim of fraud and deceit

751 N.W.2d 713

with sufficient particularity as required by SDCL 15-6-9(b).

[¶ 8.] SDCL 15-6-9(b)1 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." Additionally, "[t]his 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." Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D.1981) (citing Voeller v. Geisler, 77 S.D. 96, 86 N.W.2d 395 (1957)).2 The essential elements of actionable fraud are:

[T]hat a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.

Northwest Realty Co. v. Colling, 82 S.D. 421, 433, 147 N.W.2d 675, 683 (1966).

[¶ 9.] In this case, the trial court held that NATT "overlooked the essential element of adequately stating a claim for fraud and deceit — the requirement that the claim be stated with sufficient particularity." The trial court found that "[NATT]...

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34 practice notes
  • Noble v. Am. Nat'l Prop., CIV. 17–5088–JLV
    • United States
    • U.S. District Court — District of South Dakota
    • February 26, 2018
    ...upon the untrue statement of fact; 3. [r]esulting in injury or damage." N. Am. Truck & Trailer, Inc. v. M.C.I. Comm. Servs., Inc., 751 N.W.2d 710, 714 (S.D. 2008). Plaintiffs allege conversion and trespass within the same cause of action. (Docket 8 at p. 35). Under South Dakota law, a plain......
  • Stabler v. First State Bank of Roscoe, Nos. 26917
    • United States
    • Supreme Court of South Dakota
    • June 10, 2015
    ...essential elements of actionable fraud to be sufficient.” N. Am. Truck & Trailer, Inc. v. M.C.I. Commc'n Servs., Inc., 2008 S.D. 45, ¶ 8, 751 N.W.2d 710, 713 (quoting Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D.1981) ). Those elements, which were recited in settled jury instructi......
  • Estate of Johnson v. Weber, 27792
    • United States
    • Supreme Court of South Dakota
    • June 14, 2017
    ...representation;6) The plaintiff suffered damage as a result.See N. Am. Truck & Trailer, Inc. v. M.C.I. Com. Serv. , 2008 S.D. 45, ¶ 10, 751 N.W.2d 710, 714 ; see also Delka v. Cont'l Cas. Co. , 2008 S.D. 28, ¶ 30, 748 N.W.2d 140, 152. "In fraud and deceit claims, ‘summary judgment is proper......
  • U.S.A v. Farm, CIV. 09-5049-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 17, 2011
    ...particular if it alleges 'all of the essential elements of actionable fraud.' " North American Truck & Trailer, Inc. v. M.C.I., 2008 SD 45, ¶10, 751 N.W.2d 710, 713 (citing Holy Cross Parish v. Heuther, 308 N.W.2d 575, 576 (S.D. 1981) (internal quotation marks omitted). The South Dakota Sup......
  • Request a trial to view additional results
33 cases
  • Noble v. Am. Nat'l Prop., CIV. 17–5088–JLV
    • United States
    • U.S. District Court — District of South Dakota
    • February 26, 2018
    ...upon the untrue statement of fact; 3. [r]esulting in injury or damage." N. Am. Truck & Trailer, Inc. v. M.C.I. Comm. Servs., Inc., 751 N.W.2d 710, 714 (S.D. 2008). Plaintiffs allege conversion and trespass within the same cause of action. (Docket 8 at p. 35). Under South Dakota law, a plain......
  • Stabler v. First State Bank of Roscoe, Nos. 26917
    • United States
    • Supreme Court of South Dakota
    • June 10, 2015
    ...essential elements of actionable fraud to be sufficient.” N. Am. Truck & Trailer, Inc. v. M.C.I. Commc'n Servs., Inc., 2008 S.D. 45, ¶ 8, 751 N.W.2d 710, 713 (quoting Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D.1981) ). Those elements, which were recited in settled jury instructi......
  • Estate of Johnson v. Weber, 27792
    • United States
    • Supreme Court of South Dakota
    • June 14, 2017
    ...representation;6) The plaintiff suffered damage as a result.See N. Am. Truck & Trailer, Inc. v. M.C.I. Com. Serv. , 2008 S.D. 45, ¶ 10, 751 N.W.2d 710, 714 ; see also Delka v. Cont'l Cas. Co. , 2008 S.D. 28, ¶ 30, 748 N.W.2d 140, 152. "In fraud and deceit claims, ‘summary judgment is proper......
  • U.S.A v. Farm, CIV. 09-5049-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 17, 2011
    ...particular if it alleges 'all of the essential elements of actionable fraud.' " North American Truck & Trailer, Inc. v. M.C.I., 2008 SD 45, ¶10, 751 N.W.2d 710, 713 (citing Holy Cross Parish v. Heuther, 308 N.W.2d 575, 576 (S.D. 1981) (internal quotation marks omitted). The South Dakota Sup......
  • Request a trial to view additional results

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