Opp v. Nieuwsma
| Decision Date | 03 July 1990 |
| Docket Number | 16616,Nos. 16603,s. 16603 |
| Citation | 13 UCCRep.Serv.2d 137,458 N.W.2d 352 |
| Parties | 13 UCC Rep.Serv.2d 137 Floyd OPP, Plaintiff and Appellee, v. Willard NIEUWSMA, Defendant, and Herman Welter, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Charles Kornmann, Richardson, Groseclose, Kornmann & Wyly, Aberdeen, for plaintiff and appellee.
Willard Nieuwsma, Pollock, pro se.
Thomas A. Kolker, Maloney, Kolker, Fritz, Hogan & Johnson, Ipswich, and Dave Hughes, Cascade, Iowa, for defendant and appellant.
This action, arising out of a cattle sale, was filed in the Fifth Judicial Circuit Court for McPherson County on March 16, 1981. Pursuant to a Motion for Change of Venue, the case was transferred to Campbell County.
On August 10, 1981, Appellant Herman Welter (Welter) moved to dismiss the action on the grounds, inter alia, that he did not have sufficient minimum contacts with the State of South Dakota to vest the courts with jurisdiction over him. However, Welter did not set the motion for hearing. Appellee Floyd Opp (Opp) served joint interrogatories on September 2, 1981. Judge Hall entered an order on October 12, 1982, holding that the court had jurisdiction over the subject matter and the defendants. Opp set a hearing for October 30, 1981, which, among other things, included a motion to compel Welter to answer interrogatories. On October 30, 1981, Judge Hall directed Welter to obtain a hearing date on his motion to dismiss. Nothing was done by Welter. On November 2, 1982, the interrogatories were answered in part. On November 16, 1982, Welter filed an answer to the complaint.
On January 10, 1984, Opp filed a Certificate of Readiness for Trial. Welter objected on the grounds that discovery had not been completed. 1
On August 3, 1984, Opp filed a second Certificate of Readiness for Trial. Welter again objected. An Order was entered by Judge Berndt on September 7, 1984, setting the case for trial on October 23, 1984.
Thereafter, all parties stipulated to reset the trial date for December 5, 1984. On December 14, 1984, the court reset the trial to begin on March 5, 1985. The court directed all counsel to complete the pretrial conference checklist prior to trial.
On February 11, 1985, Nieuwsma moved for a continuance. He was scheduled to enter a federal penitentiary in March of 1985. The trial was continued indefinitely by agreement of all parties. During the next 20 months, Welter filed a motion to suppress and served interrogatories on Opp. Opp served answers to the interrogatories on December 30, 1987. During the next 11 months, both Opp and Welter delayed this action by filing various motions and objections, and the failure to serve their pretrial conference checklists. On November 18, 1988, Welter moved to dismiss the action for failure to prosecute. That motion was denied by the court on November 29, 1988.
The trial finally commenced on December 12, 1988. The jury returned a damage verdict on December 20, 1988, in favor of Opp for $24,726.21. All post-trial motions made by Opp and Welter were denied. On appeal Welter argues:
(1) That he did not have sufficient minimum contacts with South Dakota to cause him to be subject to the jurisdiction of South Dakota courts;
(2) That the circuit court clearly abused its discretion in refusing to dismiss this case for claimed failure to prosecute;
(3) That the notices of breach of warranty were insufficient and untimely, as a matter of law; and,
(4) That he did not receive a fair trial.
-Holding-
We reject Welter's arguments and accordingly affirm. Opp has filed a notice of review but has failed to argue it in his brief. A question not briefed by counsel will not be considered by the Supreme Court, even if argued at bar. Tri-State Auto Auction v. Ostroot, 76 S.D. 356, 78 N.W.2d 468 (1956).
In March of 1979, Welter, who resides in Onslow, Iowa, purchased a group of holstein heifers and apparently had those cattle vaccinated for bangs on June 8, 1979. 2 In November of 1979, Nieuwsma, who is from Pollock, South Dakota, bought 46 head of those cattle from Welter. On November 8, 1979, Opp, who is also a South Dakota resident, purchased 45 head of cattle from Nieuwsma. (Welter admitted that 42 or 43 of the 45 head Welter sold to Nieuwsma were resold to Opp). Opp received health papers on the cattle in May of 1980.
Opp decided to sell the cattle in May of 1980. Because Opp wanted to ship the cattle out of the United States, they had to pass a blood test. The cattle showed up as "suspects" or "reactors" to brucellosis. When Opp had the cattle tested, some cattle had high "titers." According to Opp, overage vaccination of the cattle caused these problems. Nine of the animals were quarantined in writing. A verbal quarantine was in effect from the federal veterinarian, Dr. Furhman, as to Opp's entire dairy herd. Dr. Fuhrman told Opp that if he attempted to sell any of the dairy herd without clearance, the entire cattle herd, including the beef herd as well, would be officially quarantined in writing.
Per Opp's testimony, he eventually lost a sale of the cattle and was required to feed and care for the cattle because of the failure of the animals to pass the blood tests. Opp could not safely sell the cattle since any sale would have been in violation of SDCL 40-7-1 (). When the quarantine was lifted, Opp eventually sold all the cattle. 3
1. Welter had sufficient minimum contacts with South Dakota to cause him to be subject to the jurisdiction of South Dakota courts under SDCL 15-7-2.
Welter first asserts, that since he has never been in South Dakota or transacted any business in South Dakota, no personal jurisdiction exists. Specifically, Welter argues that his contacts with the State of South Dakota are insufficient to "pass constitutional muster." 4 In support of his contention, Welter insists that he did not do any act or consummate any transaction in the State of South Dakota. He further insists that since he has never been in the State of South Dakota, he could not have engaged in any activity which would give rise to a cause of action. Finally, Welter advocates that no contacts, no presence, no solicitations, and no activities in South Dakota have been shown.
Opp submits, to the contrary, that Welter had sufficient minimum contacts with South Dakota to cause him to be subject to the jurisdiction of South Dakota courts. In support of his contention, Opp cites the following facts: Welter was informed at the time of the sale that the cattle he sold would eventually reach South Dakota; Welter misrepresented to South Dakota officials the age of the cattle, both at the time of vaccination and their entry into South Dakota; Welter contacted a carrier and had the cattle shipped to South Dakota; Welter had post-sale negotiations over certain disputed cattle with Nieuwsma of South Dakota.
Therefore, the first issue before us is whether these "contacts" are sufficient to give South Dakota personal jurisdiction over Welter. 5 Our second inquiry is whether an assertion of personal jurisdiction would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 6 State v. American Bankers Ins. Co., 374 N.W.2d 609 (S.D.1985).
We now apply the principles set out for determining if a given set of circumstances provides sufficient minimum contacts between a nonresident defendant and a forum state to support personal jurisdiction. State v. American Bankers Ins. Co., 374 N.W.2d 609 (S.D.1985). First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Ventling v. Kraft, 83 S.D. 465, 161 N.W.2d 29 (1968). Second, the cause of the action must arise from defendant's activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one. An important factor bearing upon the reasonableness of asserting jurisdiction is to determine if defendant's conduct and connection with the forum state are such that he would have reasonably anticipated being brought into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
In the present case, Welter admitted in his affidavit that he was informed at the time of the sale that the cattle he sold would eventually reach South Dakota. He sent the Iowa Health papers to South Dakota, representing to South Dakota officials that the cattle met the requirements of SDCL 40-7-20. 7 Furthermore, Welter contacted a carrier and instructed the cattle be shipped to South Dakota, although he did not pay for the shipping. He received a check drawn on the Campbell County Bank in South Dakota. This check was sent to Welter from South Dakota and was paid in South Dakota. Welter made telephone calls to Nieuwsma in South Dakota. Welter also had post-sale negotiations over seven disputed cattle with Nieuwsma, a resident of South Dakota. The instant cause of action clearly arose from Welter's activities directed at South Dakota. He could reasonably have expected to be responsible in a South Dakota court in the event something went wrong with the South Dakota bound cattle. We conclude that the minimum contacts test is met in the instant case and that the trial court properly asserted personal jurisdiction over Welter without any due process violations.
II. The circuit court did not abuse its discretion in refusing to dismiss this case for failure to prosecute.
Welter argues that this action should have been dismissed for failure to prosecute. In reviewing the trial court's denial of defendant's motion to dismiss, our inquiry is whether the circuit court abused its...
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