Piner v. Jensen, 18552

• Decision Date: 24 May 1994
• Docket Number: No. 18552,18552
• Parties: Susan M. PINER, Plaintiff and Appellant, v. Kevin JENSEN, Debra Jensen, Kenneth G. Jensen, Sr., Joan Jensen, Leo Schmitz and Gilbert Schmitz, Defendants, and State Bank of Springfield, a Minnesota Banking Corporation, Defendant and Appellee, and Susan M. PINER, Plaintiff and Appellant, v. Kevin JENSEN, Debra Jensen, Curtis A. Thram, Dianne Thram, Ethel Thram, David D. Bornitz and Ruby Bornitz, Defendants, and State Bank of Springfield, a Minnesota Banking Corporation, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 337

519 N.W.2d 337

Susan M. PINER, Plaintiff and Appellant, v. Kevin JENSEN, Debra Jensen, Kenneth G. Jensen, Sr., Joan

Jensen, Leo Schmitz and Gilbert Schmitz, Defendants,

and

State Bank of Springfield, a Minnesota Banking Corporation, Defendant and Appellee, and Susan M. PINER, Plaintiff and Appellant, v. Kevin JENSEN, Debra Jensen, Curtis A. Thram, Dianne Thram, Ethel Thram, David D. Bornitz and Ruby Bornitz, Defendants, and State Bank of Springfield, a Minnesota Banking Corporation,

Defendant and Appellee.

No. 18552.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1994.

Decided July 13, 1994.

Larry L. Gullickson, Lake Preston, for appellant.

Todd D. Wilkinson, Wilkinson & Wilkinson, DeSmet, for appellee.

SABERS, Justice.

This is an appeal of a determination of fraudulent conveyance of property on summary judgment motion. Transferee appeals claiming genuine issues of material fact exist. We reverse and remand for trial.

FACTS ¹

On June 21, 1980, Dennis Ashwill (Ashwill) acquired 1400 acres in Sanborn County, South Dakota, on a Contract for Deed from LeRoy and Rose Marie Duke (Duke Contract). The Duke Contract provided that Ashwill would not obtain marketable title from the Dukes until he made the last payment, which was due April 1, 1996. Under the terms of the Duke Contract, Ashwill had the privilege of prepaying up to 29% of the total consideration in any one year.

On July 15, 1981, Ashwill entered into a Contract for Deed with Curtis Thram (Thram) whereby Ashwill sold Thram 440 acres of the original 1400 acres (Contract I). Ashwill also entered into a Contract for Deed on July 15, 1981 with Kevin Jensen (Jensen) for 960 acres of the original 1400 acre parcel (Contract II). Contracts I and II both ballooned on the final due date of March 15, 1991, at which time Ashwill was required to deliver marketable title to the purchasers. Ashwill remained obligated to the Dukes after executing the Contracts.

Jensen subsequently transferred a portion of his interest in Contract II to Kenneth G. Jensen, Sr., Joan Jensen, Leo Schmitz and Gilbert Schmitz. Eventually Jensen and his wife transferred their remaining interest to the State Bank of Springfield (Bank) by Quit Claim Deed dated February 22, 1985. Thram assigned his interest in Contract I to Jensen on January 21, 1983 and on February 22, 1985, Jensen assigned his interest in Contract I to the Bank. Bank entered into a contract for deed for the sale of the property in Contract I to David D. and Ruby Bornitz.

On October 17, 1990, Ashwill assigned and quitclaimed his interest in the 1400 acres to life-long friend, Susan Piner, for the purported consideration of $30,000. Ashwill and Piner were living together at the time of the assignment and subsequently married. Ashwill did not tell Jensen of the assignment.

On February 15, 1990, Bank sued Ashwill in Minnesota District Court to collect on an unrelated debt that was secured by real property in Minnesota and for foreclosure of that property. Ashwill and the Bank agreed to settle the Minnesota lawsuit on January 8, 1991. Under the terms of the settlement, Ashwill agreed to pay the Bank $200,000. As part of the settlement, Ashwill agreed to allow Jensen to make his March 15 contract payment of approximately $20,000 directly to the Bank. Ashwill did not inform the Bank or the court that he had previously assigned his interest in Contracts I and II to Piner. Ashwill claims that Jensen owed him money for custom farm work he had performed for Jensen and that it was his understanding that he was assigning his payment from the farming debt and not from Jensen's debt on the contracts. The settlement was recited to and approved by the court. On March 28, 1991, Jensen made a payment in the amount of $12,333.87 to the Bank. This amount represented Ashwill's remaining equity in the property.

On November 20, 1991, Piner filed a Complaint to Foreclose Executory Real Estate Contract against Jensen, Debra Jensen, Kenneth G. Jensen, Sr., Joan Jensen, Bank, Leo Schmitz, and Gilbert Schmitz as successors in interest of five-sixths of Jensen's interest in Contract II. Piner filed a second Complaint to Foreclose Executory Real Estate Contract against Jensen, Debra Jensen, Curtis A. Thram, Dianne Thram, Ethel Thram, Bank, David D. Bornitz, and Ruby Bornitz as successors in interest in Contract I. Bank filed a Motion for Summary Judgment seeking dismissal of Piner's Complaints, reformation of the underlying contracts, and an award of costs, disbursements, and attorney's fees. The Bank's Motion was granted. Piner appeals.

Whether the circuit court erred in granting the Bank's

Motion for Summary Judgment.

The circuit court issued 28 findings of fact and 6 conclusions of law. Bank argues that because Piner failed to object to the proposed findings of fact and conclusions of law or to propose her own findings of fact and conclusions of law, our standard of review is limited to the question of whether the findings support the conclusions of law and judgment. Shoop v. Shoop, 460 N.W.2d 721, 723-24 (S.D.1990).

As the Bank notes, findings of fact and conclusions of law are unnecessary in a summary judgment action. SDCL 15-6-52(a); Wilson v. Great N. Ry. Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (1968). "Since summary judgment presupposes there is no genuine issue of fact, findings of fact and conclusions of law are unnecessary." Wilson, 83 S.D. at 211, 157 N.W.2d at 21. The fact that "[t]he trial court chose to enter findings of fact and conclusions of law," id., and Piner failed to object to the findings and conclusions or propose her own, does not limit our review. "[W]e are not bound by the factual findings of the trial court and must conduct an independent review of the record," Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988) (citation omitted). See Time Out, Inc. v. Karras, 392 N.W.2d 434, 436 (S.D.1986) ("Findings of fact and conclusions of law are unnecessary in summary judgment proceedings. Therefore, our scope of review on appeal is not under the 'clearly erroneous' doctrine, but rather under the strict standards attendant upon entry of summary judgment as delineated in Wilson [.]"). See generally City of Belle Fourche v. Dittman, 325 N.W.2d 309, 311 (S.D.1982) (holding that appellants' failure to submit findings of fact and conclusions of law as requested by the trial court in a summary judgment action did not deprive the court of jurisdiction of the appeal because findings of fact and conclusions of law were unnecessary under SDCL 15-6-52(a)).

Piner argues that the circuit court erred in granting the Bank's Motion for Summary Judgment. Summary judgment is an extreme remedy, not intended as a substitute for trial. Dahl v. Sittner, 429 N.W.2d 458, 461 (S.D.1988) (citations omitted). It is appropriate to dispose of legal, not factual issues and, therefore, it is authorized only when the movant is entitled to judgment as a matter of law because there are no genuine issues of material fact. Koeniguer, 422 N.W.2d at 601 (citations omitted). See SDCL 15-6-56(c).

The moving party has the burden of proof and the evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Therefore, the pleadings, affidavits, depositions, and every reasonable inference arising therefrom must be viewed most favorably toward the nonmoving party.

Koeniguer, 422 N.W.2d at 601 (citations omitted).

Claims of fraud and deceit are usually jury questions. Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 498 (S.D.1990) ² (citing Tri-State Ref. and Inv. Co., Inc. v. Apaloosa Co., 431 N.W.2d 311, 314 (S.D.1988) ("A claim for fraud and deceit is generally a question of fact for the fact finder.")). In Time Out, Inc. v. Karras, the trial court concluded, on a motion for partial summary judgment, that the registration of the name "Time Out Steakhouse & Restaurant" was granted improperly and obtained fraudulently. The trial court was reversed on appeal because "[i]ssues involving fraud are generally a question of fact. Whether or not the application of appellant filed with the Secretary of State contained representations that constitute fraud is a genuine question of material fact and therefore inappropriate for summary disposition." 392 N.W.2d at 437 (citation omitted). "In Wilson, [ ] we held that equitable actions are not usually suited for summary disposition." Id. (citing ...