Rosen's Inc. v. Juhnke

• Decision Date: 02 December 1993
• Docket Number: No. 18305,18305
• Citation: 513 N.W.2d 575
• Parties: ROSEN'S INC., Plaintiff and Appellant, v. Thomas JUHNKE and Kerry Juhnke, d/b/a Juhnke Feed and Chemical, a Partnership, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 575

513 N.W.2d 575

ROSEN'S INC., Plaintiff and Appellant, v. Thomas JUHNKE and Kerry Juhnke, d/b/a Juhnke Feed and Chemical, a Partnership, Defendants and Appellees.

No. 18305.

Supreme Court of South Dakota.

Considered on Briefs Dec. 2, 1993.

Decided March 16, 1994.

John P. Blackburn of Blackburn and Stevens, Yankton, for plaintiff and appellant.

John Harmelink of Harmelink and Fox, Yankton, for defendants and appellees.

AMUNDSON, Justice.

Rosen's Inc. appeals a decision of the trial court for Thomas Juhnke and Kerry Juhnke, doing business as Juhnke Feed & Chemical, Inc., on Rosen's claim for a past-due open account. We reverse and remand.

FACTS

In 1991, Rosen's Inc. (Rosen's) sold Thomas and Kerry Juhnke (Juhnkes) $296,000 worth of goods and supplies. Prior to that time, Juhnkes had an established account with Rosen's. Juhnkes had been making payments on account to Rosen's and, on many occasions, products were returned to Rosen's for credit against their account. In June 1992, Rosen's filed suit against Juhnkes for their past-due account, seeking $80,052.29 plus $13,147.89 accrued interest. The interest is calculated in accordance with a credit agreement signed by Thomas Juhnke. This agreement stated the credit terms and included provisions under which Juhnke agreed to pay attorney fees and other costs incurred in collection of the past-due account. Juhnkes answered the complaint by denying that they received $80,052.28 of goods from Rosen's.

At a court trial, Rosen's called Duane Simons (Simons), the territorial manager, to testify about the Juhnke account. Simons testified as to the amount owed as shown by business records admitted at trial. Juhnkes cross-examined Simons on the statements of their account. ¹ Rosen's rested after calling Simons. Juhnkes then rested without calling any witnesses.

After both parties rested, the trial court stated: "I think in all truth, the defense owes some money but I can't determine what.... (discussion omitted) I'm thoroughly convinced that [Juhnkes] owe some money. They've admitted owing some money, but that is not an accounting." ² Nevertheless, the court ruled in favor of Juhnkes because the trial court was unable to determine what amount, if any, was owed by Juhnkes. Rosen's then orally moved to reopen the case to introduce any evidence the court needed to assist it in determining the unpaid balance. The trial court denied this request.

In its conclusions of law, the trial court stated that Rosen's had the ability to produce records necessary to support its claim but failed to do so and this failure required the court to find for Juhnkes. Thereafter, Rosen's made a written motion to the court for reconsideration and/or a new trial. The trial court did not rule on these motions so they were denied pursuant to SDCL 15-6-59(b).

ISSUES

1. Did the trial court err by requiring Rosen's to prove the exact amount owed by Juhnkes?

2. Did Rosen's present sufficient evidence to establish a prima facie case?

3. Was it an abuse of discretion for the trial court to deny the motions for reconsideration and new trial?

DECISION

The issues raised will not be addressed individually because they are interwoven and must be considered together.

"The reopening of a case to receive additional evidence is a matter within the trial court's discretion and will not be disturbed on appeal except for an abuse of discretion, such as where it clearly appears that reopening the case is necessary to the due administration of justice." 75 Am.Jur.2d Trial Sec. 379 (1991). The test used by this court in reviewing a trial court's discretion to reopen a case is " 'whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.' " Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966) (quoting Slagle & Co. v. Bushnell, 70 S.D. 250, 254, 16 N.W.2d 914, 916 (1944)).

This action was brought to collect $80,052.29 plus finance charges on a past-due "open account." SDCL 54-1-6. In their answer to the complaint, Juhnkes denied receiving $80,052.29 worth of goods.

During opening statements, Juhnkes' attorney stated that "Tom Juhnke, on behalf of Juhnke Feed and Chemical, does not deny that he owes some, if not the majority of the invoices." ³ "A judicial admission is a formal act of a party or his attorney in court, dispensing with proof of the fact claimed to be true, and is used as a substitute for legal evidence at the trial." Harmon v. Christy Lumber, Inc., 402 N.W.2d 690, 692-93 (S.D.1987) (citations omitted). "[A]n attorney can make an admission during opening statement that is binding upon his client and relieves the opposing party of the duty to present evidence on that issue." Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind.App.1982) (collecting cases). This statement constitutes a judicial admission of debt.

At trial, Rosen's introduced a credit application signed by Thomas Juhnke and a terms disclosure statement outlining the contract between Rosen's and Juhnkes. Rosen's territorial manager, Simons, testified that goods had been delivered to Juhnkes. Simons also identified invoices created by these deliveries in the regular course of business. He also identified a statement of the account which showed the balance claimed by Rosen's. "Proof of the instrument of indebtedness in the hands of the party seeking payment creates a presumption of indebtedness and places the burden of proving payment on the party seeking to rely on payment." Frank Stinson Chevrolet, Inc. v. Connelly, 356 N.W.2d 480, 482-83 (S.D.1984).

The only defense offered by Juhnkes was that the account statement contained errors as to credits given, although no specific error was conclusively established. During Juhnkes' cross-examination, Simons was asked whether Juhnkes had properly received credit for certain items returned to Rosen's. Simons was unable to locate where all credits were reflected on the statement and admitted that Juhnkes had paid the majority of their bills as indicated by the unpaid balance.

After Rosen's concluded their case, Juhnkes rested without calling any witnesses. In closing arguments, Juhnkes argued that Rosen's had not fulfilled their burden of proof. The trial court agreed and ruled for Juhnkes. In other words, the trial court held that Rosen's had not made a prima facie case.

"When a party having the burden of proof establishes a prima facie case, he will prevail, in the absence of proof to the contrary offered on the part of his opponent." 30 Am.Jur.2d Evidence Sec. 1165 (1967). This court has recognized the following test to determine whether a prima facie...