Scherf v. Myers

• Decision Date: 31 October 1977
• Docket Number: Nos. 11665 and 11706,s. 11665 and 11706
• Citation: 258 N.W.2d 831
• Parties: Harold W. SCHERF, Plaintiff and Respondent, v. Morris B. MYERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 831

258 N.W.2d 831

Harold W. SCHERF, Plaintiff and Respondent, v. Morris B. MYERS, Defendant and Appellant.

Nos. 11665 and 11706.

Supreme Court of South Dakota.

Oct. 31, 1977.

Rehearing Denied Dec. 7, 1977.

Bruce Cutler, Aberdeen, for plaintiff and respondent.

Morris B. Myers, pro se.

DUNN, Chief Justice (on reassignment).

Defendant has appealed from a judgment entered against him following a court trial on plaintiff's action based upon an alleged conversion of certain guardianship funds. We affirm as to liability but reverse as to damages.

At the outset, we are faced with plaintiff's contention that because defendant failed to submit proposed findings of fact he is precluded from asking for a review of the sufficiency of the evidence to support the judgment. Moody County v. Cable, 82 S.D. 537, 150 N.W.2d 193; In re Appeals of Bottcher, 78 S.D. 360, 102 N.W.2d 623. In view of the defendant's timely motion for a new trial under SDCL 15-6-59(a), we will consider this case on the merits. In this nonjury trial, the court under SDCL 15-6-59(a) "may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." Oahe Enterprises, Incorporated v. Golden, 1974, S.D., 218 N.W.2d 485.

We turn, then, to the facts established by the evidence.

Allen L. Miller, the father of Dennis Allen Miller, was killed in a farm accident on July 27, 1968. Sally Miller, Dennis' mother, had been granted a divorce from Allen Miller some time earlier in the year 1968. In August of 1968 she married Bill Meidinger, who later adopted Dennis.

Dennis Miller was the named beneficiary in a life insurance policy carried by Allen Miller. Because Dennis was only two years of age at the time of his father's death, it was necessary to have a guardian appointed to receive the proceeds of the policy. Defendant, who was then practicing law in Aberdeen, South Dakota, had represented Sally in the divorce proceedings against Allen Miller, had handled the adoption proceedings when Bill Meidenger adopted Dennis, and was then representing Sally and Bill Meidinger. He prepared a petition for letters of guardianship for plaintiff, the father of Sally Meidinger, and on January 2, 1969, plaintiff was appointed guardian of Dennis' estate.

On February 26, 1969, a check in the amount of $4,739.66, which represented the proceeds of the life insurance policy on Allen Miller's life, was mailed to defendant by the insurance company. On March 5, 1969, defendant asked plaintiff to come to his office where a conference was had among plaintiff, defendant, and Sally and Bill Meidinger. According to plaintiff's testimony, defendant brought up the matter of using some of the insurance proceeds to pay some bills owed by the Meidingers and then applying the balance of the proceeds towards the purchase price of a house and lot that the Meidingers were buying on a contract for deed. In response to defendant's proposal, plaintiff responded that he would agree that this be done if it was legal and was advised by defendant that, in plaintiff's words, " * * * it would be all right for us to do it that way." Plaintiff testified that he had never served as a guardian before and did not learn until the following year that an accounting of the guardianship funds would have to be made. In any event, plaintiff endorsed the insurance check, and on that same day defendant deposited the proceeds of the check in an account in an Aberdeen bank by means of a printed deposit slip that identified the account simply as "Morris Myers."

In addition to the life insurance policy proceeds, Dennis Miller was the beneficiary of certain benefits payable by the Veterans Administration.

Sometime in early 1971, defendant advised plaintiff that it would be necessary to file a guardianship accounting and that plaintiff would have to borrow some money for that purpose. Defendant arranged for plaintiff to secure a loan at a local bank, and on March 11, 1971, plaintiff borrowed sufficient funds from this bank to purchase a time savings certificate in the name of the guardianship in the amount of $4,739.66. When the certificate matured in June of 1971, plaintiff cashed it and paid off the loan, paying the interest differential out of his personal funds. In June of 1972, plaintiff again borrowed funds from the same bank and purchased a savings certificate in the name of the guardianship in the amount of $5,039.11. Plaintiff paid off this second loan, which with interest then totaled $5,799.56, with his personal funds on May 14, 1974, and the bank then converted the savings certificate he had purchased in June of 1972 into a four-year certificate in the name of the guardianship, with the result that the guardianship was made whole to the extent of the funds represented by the insurance policy proceeds.

Although there is some confusion in the record on this point, apparently at some time after March 5, 1969, defendant did apply the proceeds of the insurance check on certain bills owed by Sally and Bill Meidinger. In a letter to Bill Meidinger dated January 19, 1973, defendant stated that $1,599.54 had been paid to satisfy bills, a list of which was attached to the letter, and that $2,750 had been paid on a steel building purchased by the Meidingers for use in Bill Meidinger's auto salvage business located on the land that was being purchased on the contract for deed. (Plaintiff testified that he had never been asked about the payment on this building and that he would not have approved the payment had he been asked.) The letter also stated that a balance of $390.12 remained from the insurance proceeds and indicated that it had been agreed that defendant's fees for handling the custody, adoption and guardianship proceedings were to be paid from the insurance proceeds. Defendant's bills for these services, totaling $688.73, were attached to the letter. ¹

By warranty deed dated March 10, 1971, but apparently never recorded, Sally and Bill Meidinger conveyed to plaintiff the property which they were purchasing on the contract for deed described above. Apparently this deed was to serve as a security device to insure the repayment to plaintiff of the guardianship funds disbursed on the Meidingers' account, although plaintiff was named as grantee individually and not in his capacity as guardian.

Plaintiff testified that at the time he was required to borrow money to replace the guardianship funds in 1971 and 1972 he had demanded of defendant that the money be returned to the guardianship account but that defendant had made no response to the demands.

Plaintiff's testimony, both on direct and on cross-examination reveals one theme: that although plaintiff was apparently willing that the insurance proceeds be applied to pay the bills owed by his daughter and her husband and to increase the equity in the real estate that they were buying, his consent was obtained in response to defendant's suggestion that this be done and in direct reliance upon defendant's advice that it was legal and proper for plaintiff to endorse the insurance check with the authorization that defendant use the money in that manner. We think that the tenor of plaintiff's reliance upon defendant's advice can best be illustrated by the following excerpts from defendant's cross-examination of plaintiff on the question of why the insurance money was not placed in the guardianship account, as plaintiff alleged he thought defendant would do:

"Q. Well, how could both of these things have been done, that is, you wanted the money in the guardianship account, and yet you wanted me to pay the money out for the things that you have previously described?

"A. All I was interested in was the legal way of doing it. I didn't care if it was a guardianship account or your account.

"Q. All right. If what you say is true, then why did you turn over the funds to me to put in a guardianship account?

"A. Because you're the one that wanted it. You're the one that asked me to sign the check.

"Q. But why didn't you put it in the guardianship account yourself, and disburse the money as you testified you wanted done?

"A. Well, that was the reason I had a lawyer. I thought that was the way it should be the way you said it should be done. I can't argue with a lawyer.

"Q. But you know better than that, don't you?

"A. I do now, yes."

The court found that plaintiff's dominion and control over the proceeds of the insurance policy had passed from plaintiff to defendant when defendant deposited the check in his personal account on March 5, 1969, and that defendant had thereafter denied plaintiff the ownership, possession, dominion and control over the insurance proceeds. The court concluded that defendant had converted those proceeds to his own use or to the use of others; that defendant had knowingly misrepresented the legality of the planned disbursement of the funds with full knowledge that plaintiff would rely upon defendant's representation, and that defendant had done so for the purpose of gaining dominion and control over the funds; and that defendant had breached his attorney-client relationship with plaintiff. The court further concluded that defendant had acted oppressively by taking advantage of plaintiff's status as a bonded guardian and by coercing plaintiff to borrow money to replace the insurance proceeds. The court also concluded that defendant had acted maliciously in taking possession and control of the insurance proceeds and the money advanced by plaintiff to facilitate the guardianship accountings.

Based upon these findings and conclusions, the court entered judgment for plaintiff in the amount of $5,846.43 compensatory damages, plus interest, attorney fees in the amount of $1,880, and exemplary damages in the amount of $10,000.

We conclude that the plaintiff is entitled to be reimbursed for his personal loss...