Schmidt v. Zellmer, No. 12949

CourtSupreme Court of South Dakota
Writing for the CourtHENDERSON
Citation298 N.W.2d 178
Docket NumberNo. 12949
Decision Date05 November 1980
PartiesCletus SCHMIDT, d/b/a Skipper's Bar, Plaintiff and Appellee, v. Steven J. ZELLMER, Secretary of Revenue of the State of South Dakota, Defendant and Appellant, and David Volk, Treasurer of the State of South Dakota, Defendant.

Page 178

298 N.W.2d 178
Cletus SCHMIDT, d/b/a Skipper's Bar, Plaintiff and Appellee,
v.
Steven J. ZELLMER, Secretary of Revenue of the State of
South Dakota, Defendant and Appellant,
and
David Volk, Treasurer of the State of South Dakota, Defendant.
No. 12949.
Supreme Court of South Dakota.
Submitted on Briefs Sept. 8, 1980.
Decided Nov. 5, 1980.

Page 179

David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, for plaintiff and appellee.

Jon Haverly, Asst. Atty. Gen., Pierre, for defendant and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

HENDERSON, Justice.

ACTION

This is an appeal by Steven J. Zellmer, Secretary of Revenue of the State of South Dakota (appellant), from an order of the trial court requiring appellant to reimburse Cletus Schmidt, d/b/a Skipper's Bar (appellee), for payment of an alleged sales tax overassessment. Appellant contends the trial court erred in not barring appellee's suit on grounds of res judicata. We agree and reverse.

FACTS

During September of 1973, the South Dakota Department of Revenue audited appellee for the period of July 1970 through March 1973. As a result of this audit, a hearing before the Deputy Secretary of Revenue was conducted on December 29, 1975, to determine the sales tax liability, if any, of appellee. Notice of this hearing was received by appellee on December 4, 1975. Appellee did not appear at this hearing, nor was he represented thereat by counsel. As a result of said hearing, on January 14, 1976, appellee was ordered to pay appellant $6,179.97 for back sales tax and interest thereon. This was based on the absence of records kept by appellee and the Revenue Department's reconstruction of appellee's gross receipts.

Appellee then received notice on July 2, 1976, of a hearing to be held for the purpose of revoking his sales tax license due to his failure to comply with the administrative order of January 14, 1976. This incited appellee's attention as he immediately filed with the Secretary of Revenue a petition for rehearing on the sales tax liability established by the order of January 14, 1976. This petition was subsequently denied. On July 8, 1976, a hearing before the Secretary of Revenue resulted in the Secretary finding that the order of January 14, 1976, had not been complied with; hence, appellee's sales tax license was revoked by order dated July 13, 1976.

On August 6, 1976, an appeal was taken by appellee from: the order of January 14, 1976; the denial of appellee's...

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10 practice notes
  • Igal v. Brightstar Information Technology, No. 04-0931.
    • United States
    • Supreme Court of Texas
    • 2 Mayo 2008
    ...A.2d 1080, 1089 (R.I.2002); Carman v. S.C. Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386 (1994); Schmidt v. Zellmer, 298 N.W.2d 178, 180 (S.D.1980); Salt Lake Citizens Congress v. Mountain States Tel. & Tel. Co., 846 P.2d 1245, 1251 n. 4 (Utah 1992); Sheehan v. Dep't of......
  • Rosebud Sioux Tribe v. Strain, No. 15929
    • United States
    • Supreme Court of South Dakota
    • 29 Diciembre 1988
    ...properly raised and determined in a prior action. Matter of Page 262 Estate of Nelson, 330 N.W.2d 151 (S.D.1983); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n., 264 N.W.2d 905 (S.D.1978). Of course, the earlier court must have had jurisd......
  • Chapman v. Chapman, No. 23702.
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 2006
    ...Jewel Indus., Inc., 336 N.W.2d 153, 157 (S.D.1983) (citing Matter of Estate of Nelson, 330 N.W.2d 151 (S.D.1983)); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n, 264 N.W.2d 905 (S.D.1975). One purpose of res judicata is to prevent parties......
  • Dakota Plains Ag Center, LLC v. Smithey, No. 24976.
    • United States
    • Supreme Court of South Dakota
    • 26 Agosto 2009
    ...properly raised and determined in a prior action." Id. (citing Matter of Estate of Nelson, 330 N.W.2d 151 (S.D.1983); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n, 264 N.W.2d 905 (S.D.1978)). Res judicata also requires that the court in ......
  • Request a trial to view additional results
10 cases
  • Igal v. Brightstar Information Technology, No. 04-0931.
    • United States
    • Supreme Court of Texas
    • 2 Mayo 2008
    ...A.2d 1080, 1089 (R.I.2002); Carman v. S.C. Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386 (1994); Schmidt v. Zellmer, 298 N.W.2d 178, 180 (S.D.1980); Salt Lake Citizens Congress v. Mountain States Tel. & Tel. Co., 846 P.2d 1245, 1251 n. 4 (Utah 1992); Sheehan v. Dep't of......
  • Rosebud Sioux Tribe v. Strain, No. 15929
    • United States
    • Supreme Court of South Dakota
    • 29 Diciembre 1988
    ...properly raised and determined in a prior action. Matter of Page 262 Estate of Nelson, 330 N.W.2d 151 (S.D.1983); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n., 264 N.W.2d 905 (S.D.1978). Of course, the earlier court must have had jurisd......
  • Chapman v. Chapman, No. 23702.
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 2006
    ...Jewel Indus., Inc., 336 N.W.2d 153, 157 (S.D.1983) (citing Matter of Estate of Nelson, 330 N.W.2d 151 (S.D.1983)); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n, 264 N.W.2d 905 (S.D.1975). One purpose of res judicata is to prevent parties......
  • Dakota Plains Ag Center, LLC v. Smithey, No. 24976.
    • United States
    • Supreme Court of South Dakota
    • 26 Agosto 2009
    ...properly raised and determined in a prior action." Id. (citing Matter of Estate of Nelson, 330 N.W.2d 151 (S.D.1983); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm'n, 264 N.W.2d 905 (S.D.1978)). Res judicata also requires that the court in ......
  • Request a trial to view additional results

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