Picardi v. Zimmiond

• Decision Date: 16 February 2005
• Docket Number: No. 23258,23258
• Citation: 2005 SD 24,693 NW 2d 656
• Parties: EDWARD J.S. PICARDI and SANDRA J. PICARDI, Plaintiffs and Appellees, v. RICHARD ZIMMIOND and LORI ZIMMIOND, Defendants and Appellants, and CHRIS A. SOPPE and CINDY SOPPE, Defendants.
• Court: South Dakota Supreme Court

2005 SD 24

693 NW 2d 656

EDWARD J.S. PICARDI and SANDRA J. PICARDI, Plaintiffs and Appellees, v. RICHARD ZIMMIOND and LORI ZIMMIOND, Defendants and Appellants, and CHRIS A. SOPPE and CINDY SOPPE, Defendants.

No. 23258

Supreme Court of South Dakota.

Considered on Briefs on January 10, 2005

Opinion Filed February 16, 2005

JOHN K. NOONEY of Thomas Nooney Braun, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

ROBERT A. HAIVALA, Haivala Law Firm, Sturgis, South Dakota, Attorney for defendants and appellants.

GILBERTSON, Chief Justice.

[¶ 1.] Richard Zimmiond and Lori Zimmiond appealed a taxation of costs and disbursements stemming from an application filed by Edward J.S., M.D., and Sandra J. Picardi. The Picardis filed the application after the Fourth Circuit Court, Judge Jerome A. Eckrich, III presiding, found for Picardis on an underlying easement dispute.¹ Zimmionds contended the trial court did not have jurisdiction to tax costs and disbursements while the underlying case was on appeal to the South Dakota Supreme Court. Zimmionds also appealed the trial court's March 9, 2004 order enforcing its judgment, which prohibited Zimmionds from obstructing the Picardi easement with unattended or parked vehicles, trailers, equipment, fence posts and poles or other items of personalty. We affirm in part and reverse in part, and remand.

FACTS AND PROCEDURE

[¶ 2.] In July 1998, Dr. Edward Picardi and Sandra Picardi purchased 320 acres of land in Meade County, South Dakota from Thomas D. Hildebrand and Glenda D. Hildebrand. Because the acreage was landlocked by Hildebrands' property, the Picardis contracted for a perpetual easement across Hildebrands' land. The easement was executed on December 4, 1998, and provided in relevant part:

The easement over the portion of Hildebrands' above-described real property is necessary for use for roadway purposes, and includes the right to use as a means of ingress and egress to and from Picardis' property. This easement shall run with Hildebrands' real property, and the title to such property and be binding upon Hildebrands, their heirs and any person who shall after the effective date of this instrument, acquire title to Hildebrands' property.

This easement shall be used for access to one single family residence located upon the Picardi property. Picardi, their heirs, successors and assigns shall not be allowed to construct any additional residences upon the Picardi property, which depend upon use of this easement for access. This easement shall allow access to the Picardi property only and to no other property.

[¶ 3.] The writing described the nature of the use and the scope of the enjoyment of the easement in general terms, but failed to note the width of the easement. Oral agreements between Dr. Picardi and Thomas Hildebrand set the physical dimensions of the easement at forty-four feet in width to accommodate a planned roadway of twenty-eight feet plus an eight foot setoff on each side for drainage and ditches. A sixteen to eighteen foot wide road was constructed sometime during the second half of 1998, along with "extra-wide" culverts beneath the road to accommodate the eventual construction of the twenty-eight foot roadway and accompanying setoffs.

[¶ 4.] In December 2000, Hildebrands subdivided their adjacent property and recorded the subdivision plat in the Meade County Register of Deeds office on January 4, 2001. Lots D and E were created at that time. The plat indicated Picardis' easement crossed both Lots D and E. Chris A. and Cindy Soppe purchased Lot E from Hildebrands in late July or early August of 2001. Zimmionds purchased Lot D in October 2001.

[¶ 5.] After closing on the sale, Zimmionds began construction of their home, garage and driveway. Zimmionds garage was built approximately one to two feet away from the edge of the forty-four foot easement. Zimmionds' vehicles were parked daily within the forty-four foot easement, and at times within the sixteen to eighteen foot roadway. At times, passage for even one vehicle was impossible due to cars parked in front of the Zimmiond residence and garage.

[¶ 6.] Zimmionds placed other items within the easement. Fence posts with reflective white paint were placed along the edge of the eighteen foot roadway to indicate turns in the roadway.² Zimmionds also placed a horse fence within the easement, located along the edge of a portion of the current roadway where it is approximately twelve feet in width.

[¶ 7.] Attempts to negotiate a resolution of the respective rights between the parties failed. As a consequence, Picardis filed a petition for declaratory judgment seeking to establish the width and the exclusive use of the easement. After trial on the issues, judgment and an order were entered on December 23, 2003. The court order set the location of the Picardi easement and its width at forty-four feet. The court also ordered that the Soppes and Zimmionds could use the easement as long as such use was not inconsistent with its express use and purpose, and did not impede, hinder, limit, or restrict the use and enjoyment of the easement by Picardis.

[¶ 8.] Zimmionds appealed the trial court's judgment and order as to the width of the easement, and Picardis filed notice of review on the issue of whether the easement was granted solely for Picardis' use. These issues were reviewed in our opinion Picardi v. Zimmiond, 2004 SD 125, 689 NW2d 886 (hereinafter Picardi I). We affirmed the lower court, holding the width of the easement was forty-four feet and the easement was not for the exclusive use of Picardis by virtue of the language of the easement grant.

[¶ 9.] On December 12, 2003, before Zimmionds filed their appeal in Picardi I, Picardis filed an application for taxation of costs and disbursements with the trial court. The trial court conducted a hearing on the matter on March 3, 2004. The trial court entered an order on March 9, 2004 awarding Picardis costs and disbursements in the amount of $2,609.96 as the prevailing party in Picardi I at the trial court level.

[¶ 10.] At the March 3, 2004 hearing, the trial court also considered Picardis' motion for removal of any and all structures located within the forty-four foot easement. At the hearing, Dr. Picardi testified that is was necessary to clear the easement of all obstructions as Picardis planned to have part of their property logged by a commercial logger. Picardi further testified it was necessary to remove a fence Zimmionds had located six feet from the center point of the easement in order for heavy, commercial logging equipment to travel the roadway. The record indicates this fence is located off of the roadway as it is currently configured, but within the width designated for the yet to be constructed twenty-eight foot roadway. Therefore, the Zimmionds' fence is located within an area currently serving as a ditch alongside a twelve-foot wide section of the roadway.

[¶ 11.] In its March 9, 2004 order, the trial court ordered Zimmionds remove the fence as it was located within the forty-four foot easement. The trial court's order also prohibited Zimmionds from placing any item of personalty within the forty-four foot easement, "including but not limited to fencing posts, poles, unattended or parked vehicles, trailers, or equipment."

[¶ 12.] There are two issues for review by this Court:

1. Whether the trial court had jurisdiction to tax costs against Zimmionds while the underlying case was on appeal to the South Dakota Supreme Court.

2. What are the servient and dominant tenement owners' rights under the easement, including whether the owner of the servient tenement may place items of personalty within the easement.

STANDARD OF REVIEW

[¶ 13.] The jurisdiction of circuit courts is established by statute in SDCL 16-6-9. The issue of whether a circuit court loses jurisdiction to tax costs against a non-prevailing party once that party appeals the underlying litigation is an issue of statutory interpretation. It is well settled that "[s]tatutory interpretation presents a question of law reviewable de novo." Zoss v. Schaefers, 1999 SD 105, ¶6, 598 NW2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶5, 581 NW2d 478, 480). We review a circuit court's conclusions of law under the de novo standard, giving no deference to its conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶4, 593 NW2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶8, 557 NW2d 769, 771).

[¶ 14.] "The construction of a written contract is a question of law." Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶10, 604 NW2d 289, 292 (citing Cotton v. Manning, 1999 SD 128, ¶15, 600 NW2d 585, 588) (additional citations omitted). This Court reviews the effects and terms of a contract under the de novo standard. Id. (citing Campion v. Parkview Apartments, 1999 SD 10, ¶25, 588 NW2d 897, 902) (additional citations omitted)).

ANALYSIS AND DECISION

[¶ AUTONUM 15.] 1. Whether the trial court had jurisdiction to tax costs against Zimmionds while the underlying case was on appeal to the South Dakota Supreme Court.

[¶ 16.] Under SDCL 15-17-37, "[t]he prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial." It is within the trial court's discretion to award costs in a civil action to the prevailing party, unless prohibited by law. Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 SD 116, ¶20, 587 NW2d 580, 583. The prevailing party for purposes of SDCL 15-17-37 is "the party in whose favor the decision or verdict is or should be rendered and judgment entered." Culhane v. Michels, 2000 SD 101, ¶33, 615 NW2d 580, 590 (citing Michlitsch v. Meyer, 1999 SD 69, ¶12, 594 NW2d 731, 734 (quoting Noble v. Shaver, 1998 SD 102, ¶26, 583 NW2d 643, 648 (quoting Strand v. Courier, 434 NW2d 60, 65 (SD 1988)))). SDCL 15-17-56 provide...