Parmely v. Hilderbrand, 20892.

CourtSupreme Court of South Dakota
Writing for the CourtSABERS, Justice.
Citation603 N.W.2d 713,1999 SD 157
PartiesLonny C. PARMELY and Jeanny E. Parmely, Plaintiffs and Appellants, v. Tom HILDEBRAND and Glenda Hildebrand, Defendants and Appellees, and Third Party Plaintiffs, v. Walt Simons Real Estate, Third Party Defendant.
Docket NumberNo. 20892.,20892.
Decision Date22 December 1999

603 N.W.2d 713
1999 SD 157

Lonny C. PARMELY and Jeanny E. Parmely, Plaintiffs and Appellants,
v.
Tom HILDEBRAND and Glenda Hildebrand, Defendants and Appellees, and Third Party Plaintiffs,
v.
Walt Simons Real Estate, Third Party Defendant

No. 20892.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided December 22, 1999.


603 N.W.2d 714
Courtney R. Clayborne of Johnson, Eiesland, Huffman and Clayborne, Rapid City, South Dakota, Attorneys for plaintiffs and appellants

Rodney W. Schlauger and Gregory J. Erlandson of Bangs, McCullen, Butler, Foye and Simmons, Rapid City, South Dakota, Attorneys for defendants and appellees, and third party plaintiffs.

SABERS, Justice.

[¶ 1.] Lonny and Jeanny Parmely (Parmely) appeal an Order granting Tom and Glenda Hildebrand's (Hildebrand) motion for summary judgment. We reverse and remand Issues 1 and 2, but affirm Issue 3.

FACTS

[¶ 2.] Hildebrand constructed a house north of Sturgis for his family in 1988. Parmely, buyer, purchased the home from Hildebrand, the seller, in 1994. While he had never built a home before, Hildebrand has now been involved in residential construction for twenty years as a concrete/masonry contractor in western South Dakota. He agrees that he had a duty to construct the home in a good workmanlike manner. He did not consult an engineer or an architect before or during construction. In 1989, a few months after the house was completed, Hildebrand experienced structural problems with the home. Hildebrand claims that it was at this time that he discovered the home was built on expansive soils, which causes the soil to expand when it becomes wet. Hildebrand indicated he had heard the term "expansive soils" during his employment as a contractor, but did not know what it meant. Parmely claims that building on this soil caused the house to settle. Consequently, in 1991, Hildebrand replaced the interior walls and floors of the home and performed extensive landscaping to the property in an attempt to remedy the effects of the settling.

[¶ 3.] In the early months of 1994, Hildebrand decided to sell their home. On February 11, 1994 and July 23, 1994, Hildebrand completed the seller's property disclosure statements for this property. An attached addendum, drafted by Hildebrand's attorney, provides:

We moved into this house on November 22, 1988. We did not have it completed

603 N.W.2d 715
due to the weather. The area incomplete on the outside of the structure was missing rain gutter[s] and downspouts and part of the foundation was not back-filled
In the Spring of 1989, we had rain lasting for 9 days that totaled 7 or 8 inches. All of this moisture coming off the roof with no rain gutter[s] caused the backside of the house to settle. We had drain tile already installed and, because of that, all the water was evenly distributed. The only cracking on the back wall is on the garage. This is a hairline crack which has not moved since it happened.
When the house settled, the inside floors stayed in place, which caused the interior walls to crack. We had an engineer from the School of Mines come and explain to us exactly what had happened and what to do about it. He explained the area all around us is known to have shale and gumbo for soil. We had a soil test done to confirm this. The engineer advised us to wait two years and let the soil completely dry out before trying to fix it.
In the Spring of 1991, we moved into the upstairs and removed all of the interior walls and floors and replaced them. Since that time, we have had some sheetrock cracking in the kitchen/living room area, master bedroom area and other bedroom. These have all been repaired. The kitchen floor had a crack, which is normal for the size of the floor. We filled the crack and replaced the 14 tile[s] it affected. On the outside of the house, we have poured patios and sidewalks in the front and back to prevent water from getting close to the foundation of the house.

[¶ 4.] In the fall of 1994, Parmely bought this home and the 42 acres of land it was situated upon. The purchase was arranged through Parmely's real estate agent, Walt Simons. Parmely signed a receipt for the disclosure statements, as well as the attachment. Parmely began experiencing problems with the settling of the house in February of 1995; namely, the doors did not fit properly, the roof leaked, the walls and floors were cracking, certain windows would not close, the floor was swelling and there was a bug infestation problem.

[¶ 5.] Parmely sued Hildebrand alleging failure to disclose known defects as required by SDCL 43-4-44, fraudulent concealment, mutual mistake, failure of consideration, fraud, negligent construction, and breach of warranty. Hildebrand brought a third party action against Parmely's realtor, Walt Simons, which was dismissed and not appealed. On December 4, 1998, Hildebrand made a motion for summary judgment claiming: (1) Hildebrand satisfied the mandates of SDCL ch. 43-3 in disclosing the condition of the home as it existed at the time the disclosure was completed; (2) Parmely's claim for negligent construction fails as a matter of law;...

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13 practice notes
  • Setliff v. Akins, No. 21023
    • United States
    • Supreme Court of South Dakota
    • September 6, 2000
    ...exists and whether the law was correctly applied.'" Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations [¶ 11.] 1. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST SETLIFF ON HIS CLAIMS ......
  • Olson-Roti v. Kilcoin, No. 22244
    • United States
    • Supreme Court of South Dakota
    • October 23, 2002
    ...exists and whether the law was correctly applied." Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)). Questions of law are reviewed de novo without deference to the trial court. City of Colton......
  • Weston v. Jones, 20958.
    • United States
    • Supreme Court of South Dakota
    • December 22, 1999
    ...was to prevent the "bus loads" of Native American Indians who obtained divorces in state court years ago from thwarting those divorce 603 N.W.2d 713 decrees. My response is simply that that fact pattern is not before us now and we should reserve ruling on that matter until it is. This divor......
  • McCollam v. Cahill, 24895.
    • United States
    • Supreme Court of South Dakota
    • May 13, 2009
    ...buyer on notice of the defects.'" Fuller v. Croston, 2006 SD 110, ¶ 18, 725 N.W.2d 600, 606-07 (quoting Parmely v. Hildebrand (Parmely I), 1999 SD 157, ¶ 9, 603 N.W.2d 713, 717 (emphasis in original)). "One obvious purpose of the disclosure statutes is `to provide prospective buyers with in......
  • Request a trial to view additional results
13 cases
  • Setliff v. Akins, No. 21023
    • United States
    • Supreme Court of South Dakota
    • September 6, 2000
    ...exists and whether the law was correctly applied.'" Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations [¶ 11.] 1. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST SETLIFF ON HIS CLAIMS ......
  • Olson-Roti v. Kilcoin, No. 22244
    • United States
    • Supreme Court of South Dakota
    • October 23, 2002
    ...exists and whether the law was correctly applied." Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)). Questions of law are reviewed de novo without deference to the trial court. City of Colton......
  • Weston v. Jones, 20958.
    • United States
    • Supreme Court of South Dakota
    • December 22, 1999
    ...was to prevent the "bus loads" of Native American Indians who obtained divorces in state court years ago from thwarting those divorce 603 N.W.2d 713 decrees. My response is simply that that fact pattern is not before us now and we should reserve ruling on that matter until it is. This divor......
  • McCollam v. Cahill, 24895.
    • United States
    • Supreme Court of South Dakota
    • May 13, 2009
    ...buyer on notice of the defects.'" Fuller v. Croston, 2006 SD 110, ¶ 18, 725 N.W.2d 600, 606-07 (quoting Parmely v. Hildebrand (Parmely I), 1999 SD 157, ¶ 9, 603 N.W.2d 713, 717 (emphasis in original)). "One obvious purpose of the disclosure statutes is `to provide prospective buyers with in......
  • Request a trial to view additional results

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