Overvaag v. City of Dell Rapids, S. D., 13553
| Decision Date | 12 May 1982 |
| Docket Number | No. 13553,13553 |
| Citation | 319 N.W.2d 171 |
| Parties | N. L. OVERVAAG and Frances Overvaag, Plaintiffs and Appellants, v. The CITY OF DELL RAPIDS, SOUTH DAKOTA, a Municipal Corporation, and Lawrence Hansen, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
Dennis C. McFarland of McFarland & Peterson, Sioux Falls, for plaintiffs and appellants.
Michael F. Pieplow of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.
This appeal is from an order denying appellant's motion to set aside a judgment of dismissal. We affirm.
Appellants sued the City of Dell Rapids and its then mayor, Lawrence Hansen. The lawsuit embodied two causes of action. The first cause of action sought judgment against the City for $7,560 damages and an order prohibiting the City from further trespassing across plaintiffs' property in connection with its well drilling operations. The second cause of action claimed actual and punitive damages for an alleged slander by Mayor Hansen. Frances Overvaag was not involved in the second cause of action. Defendants filed a joint answer in the nature of a denial and counterclaimed for $2,500 damages for loss of a pump house and water pump installed on plaintiffs' property.
Interrogatories were submitted to, and answered by, Mr. Overvaag. His deposition was also taken. Mr. Overvaag was then advised by one of his lawyers that as a result of his testimony he had no lawsuit. After extended discussions with his lawyers, Mr. Overvaag agreed to compromise his claim if it could be arranged. Negotiations for settlement were conducted by the lawyers for the parties which culminated in an agreement between counsel to settle the case in consideration of payment by, or on behalf of, the defendants of $5,000 and the issuance of an apology letter to Mr. Overvaag by Defendant Hansen. The apology letter, in form satisfactory to Mr. Overvaag, was issued and published and $5,000 was in due course delivered to Mr. Overvaag. The City also submitted to appellants' lawyers a release form. Mr. Overvaag refused to sign this form because he believed it might release other claims against the City he may have or would have in the future. As a result of such refusal to sign, a different release, entitled "Stipulation for Dismissal," was prepared by appellants' counsel. Mr. Overvaag signed this form on behalf of himself and his wife.
Mr. Overvaag and his counsel presented themselves at the chambers of the circuit court on June 10, 1980, for the purpose of obtaining a judgment and dismissal of appellants' suit. Following an extended colloquy, the court expunged its signature on the Judgment of Dismissal when it learned Mr. Overvaag was ambivalent about having the action dismissed. Directly following the meeting in chambers an extended conversation between Mr. Overvaag and his counsel ensued. Counsel reiterated his belief that the proffered settlement was the best appellants could expect and that they should accept it rather than risk the probability of an...
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