Quick v. Samp, No. 23319.

CourtSupreme Court of South Dakota
Writing for the CourtZINTER, Justice.
Citation697 N.W.2d 741,2005 SD 60
Docket NumberNo. 23319.
Decision Date11 May 2005
PartiesRuss J. QUICK and ZR Consulting, Inc., Plaintiffs and Appellants, v. Rollyn H. SAMP, as Personal Representative of the Estate of John E. Burke, Defendant and Appellee.

697 N.W.2d 741
2005 SD 60

Russ J. QUICK and ZR Consulting, Inc., Plaintiffs and Appellants,
v.
Rollyn H. SAMP, as Personal Representative of the Estate of John E. Burke, Defendant and Appellee

No. 23319.

Supreme Court of South Dakota.

Considered on Briefs March 21, 2005.

Decided May 11, 2005.


697 N.W.2d 743
Thomas M. Issenhuth of Arneson, Issenhuth & Parent, LLP, Madison, for plaintiffs and appellants

William P. Fuller, Susan M. Sabers of Woods, Fuller, Shultz and Smith, PC, Sioux Falls, for defendant and appellee.

ZINTER, Justice.

[¶ 1.] Russ J. Quick and ZR Consulting, Inc. brought this malpractice action against their former attorney, John Burke. The malpractice allegedly occurred during Burke's representation of Quick in a prior suit against a third-party. Quick alleged malpractice on two theories: (1) attorney negligence in preparation of the complaint; and, (2) fraud in Burke's preparation of a forged document that was used to correct a problem caused by the defective complaint. In this action, Burke's Personal Representative1 moved for summary judgment alleging that Quick was in pari delicto with Burke in committing the forgery.2 The trial court granted the motion, Quick and ZR Consulting, Inc. appeal, and we affirm.

Facts and Procedural History

[¶ 2.] The prior suit arose out of a consulting contract between ZR Consulting, Inc. and Freshway, Inc. Quick, as the president and sole shareholder of ZR Consulting, Inc., retained Burke to sue Freshway for breach of contract. Burke prepared a complaint naming Quick, instead of ZR Consulting, Inc., as the plaintiff. In preparing for trial, it was determined that ZR Consulting, Inc. was the real party in interest. To rectify that problem, Burke prepared a corporate document entitled an "Action in Writing." By that writing, ZR Consulting, Inc. assigned its rights under the consulting contract to Quick. Burke apparently believed that to appear effective, the document had to be backdated to 1994 and that Quick's ex-wife was a necessary signatory.3 Therefore, Burke asked Quick to sign his ex-wife's name on the document. Because Quick indicated that he could not "convincingly" sign her name, Burke signed her name in Quick's presence. Although both signatures were affixed on March 12, 2001, the document was also backdated to October 1994.

[¶ 3.] Due to a conflict in Burke's schedule, attorney Bob Burns was retained to try the breach of contract case. The trial began on March 15, 2001. Burns, unaware that the Action in Writing had been backdated and forged three days earlier, introduced the document into evidence. Although Quick was aware of the forgery, he sat by silently and did not inform Burns of these facts when the document was introduced. However, after opposing counsel questioned Quick about the legitimacy of his ex-wife's signature, Burns became suspicious and he questioned Quick about the matter at the conclusion of the first day of trial. Quick then admitted the forgery. After Burns advised Quick that he was partially responsible for the forged evidence, Quick told Burns to settle the case so that he could avoid having to testify under oath. Burns then settled the case for substantially more than Quick had authorized, but for less than what Quick had sought.4

697 N.W.2d 744
[¶ 4.] Quick subsequently brought this malpractice action to recover that difference from Burke. Quick pleaded two causes of action. He first alleged that Burke was negligent in naming Quick, instead of ZR Consulting, Inc., as the plaintiff and real party in interest.5 Quick also alleged fraud6 in Burke's preparation of the Action in Writing

[¶ 5.] Burke's Personal Representative subsequently moved for summary judgment alleging that Quick was in pari delicto with Burke in the preparation and use of the forged document. The trial court agreed and dismissed the action. Although both Quick and ZR Consulting filed a joint notice of appeal, only Quick has advanced arguments that the trial court should be reversed.7

Decision

[¶ 6.] Quick contends there are two reasons why the summary judgment should be reversed. Quick first contends that the trial court erred in concluding that he was in pari delicto with Burke. Alternatively, Quick maintains that, even if he were in pari delicto with Burke on the fraud, Quick's "cause of action for negligence [in the preparation of the complaint with the wrong real party in interest] was separable from the fraud and should have survived the motion for summary judgment."

[¶ 7.] Our standard of review on summary judgment is well-settled. In reviewing a grant of summary judgment, we must decide "whether the moving party

697 N.W.2d 745
demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law." Thornton v. City of Rapid City, 2005 SD 15, ¶ 4, 692 N.W.2d 525, 528

Was Quick `In Pari Delicto' With Burke

[¶ 8.] The doctrine of in pari delicto is defined as "[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing." Black's Law Dictionary (8th ed 2004). "The doctrine ... is an application of the principle of public policy that `[n]o court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.'" Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 28 (1985) (citing Clemens v. Clemens, 28 Wis. 637, 654 (1871)).

[¶ 9.] Quick relies upon two exceptions to the doctrine. These exceptions are applicable: (1) when the parties are on unequal footing, the client relies on the advice of their attorney, and therefore, there is inequality or undue influence between the lawyer and client, Cameron, 360 N.W.2d at 28-29; and, (2) when denying relief would offend public morals to a greater extent than granting relief. Gaines v. Wolcott, 119 Ga.App. 313, 167 S.E.2d 366, 370 (1969). These exceptions were more fully explained by a Michigan Court of Appeals:

...two exceptions to the bar of in pari delicto [are] both drawn from Justice Story:
And indeed in cases where both parties are in delicto concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be.

Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 447 N.W.2d 864, 867-868 (1989) (citing 1 Story, Equity Jurisprudence (14th ed), § 423, pp 399-400).

[¶ 10.] Considering the public policy exception first, Quick argues that Burke's use of the in pari delicto defense is a greater violation of public policy than any wrong committed by Quick. He contends that Burke should not be allowed to assert the defense because his conduct was more egregious. However, as is further explained below, this is not a case in which a client innocently relied on an attorney's advice. This is a case where Quick's conduct was obviously wrongful and fraudulent, even to a layperson. Therefore, Burke's forgery does not offend public morals to a materially greater extent than Quick's forgery.

[¶ 11.] Moreover, we have applied the doctrine even...

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9 practice notes
  • In re Greater Southeast Community Hosp. Corp. I, Bankruptcy No. 02-02250.
    • United States
    • United States Bankruptcy Courts. District of Columbia Circuit
    • September 21, 2006
    ...policy argument in holding that legal malpractice claim was barred because the plaintiff was in pari delicto); accord Quick v. Samp, 697 N.W.2d 741, 745-48 (S.D.2005); Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 29 (1985); Tillman v. Shofner, 90 P.3d 582, 584-86 Finally, Alberts points......
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • March 12, 2008
    ...schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court." Id. ¶ 30, 697 N.W.2d at 741. However, in order to even reach the possibility of a deviation, the referee must first compute the child support pursuant to SDCL 25-7-6......
  • Midzak v. Midzak, No. 23280.
    • United States
    • Supreme Court of South Dakota
    • May 11, 2005
    ...court is required to calculate the parents' monthly net income, which is equal to gross income less allowable deductions, as codified at 697 N.W.2d 741 SDCL 25-7-6.3 and 25-7-6.7. Deviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the partie......
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...(stating that injunction is an equitable remedy). Those who seek equity must do equity and come into court with clean hands. Quick v. Samp, 2005 SD 60, ¶ 16, 697 N.W.2d 741, 747 (citing Himrich v. Carpenter, 1997 SD 116, ¶¶ 21-2, 569 N.W.2d 568, 573). Those who do not should be left in the ......
  • Request a trial to view additional results
9 cases
  • In re Greater Southeast Community Hosp. Corp. I, Bankruptcy No. 02-02250.
    • United States
    • United States Bankruptcy Courts. District of Columbia Circuit
    • September 21, 2006
    ...policy argument in holding that legal malpractice claim was barred because the plaintiff was in pari delicto); accord Quick v. Samp, 697 N.W.2d 741, 745-48 (S.D.2005); Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 29 (1985); Tillman v. Shofner, 90 P.3d 582, 584-86 Finally, Alberts points......
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • March 12, 2008
    ...schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court." Id. ¶ 30, 697 N.W.2d at 741. However, in order to even reach the possibility of a deviation, the referee must first compute the child support pursuant to SDCL 25-7-6......
  • Midzak v. Midzak, No. 23280.
    • United States
    • Supreme Court of South Dakota
    • May 11, 2005
    ...court is required to calculate the parents' monthly net income, which is equal to gross income less allowable deductions, as codified at 697 N.W.2d 741 SDCL 25-7-6.3 and 25-7-6.7. Deviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the partie......
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • November 24, 2009
    ...(stating that injunction is an equitable remedy). Those who seek equity must do equity and come into court with clean hands. Quick v. Samp, 2005 SD 60, ¶ 16, 697 N.W.2d 741, 747 (citing Himrich v. Carpenter, 1997 SD 116, ¶¶ 21-2, 569 N.W.2d 568, 573). Those who do not should be left in the ......
  • Request a trial to view additional results

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