Teegardin v. Noillim Enterprise, Inc., s. 14862

• Decision Date: 16 January 1986
• Docket Number: Nos. 14862,14865,s. 14862
• Citation: 385 N.W.2d 106
• Parties: Ex Parte Myron E. TEEGARDIN, Plaintiff and Appellant, v. NOILLIM ENTERPRISE, INC., a South Dakota Corporation; Macon, Inc., a South Dakota Corporation; Sheridan Heights, Inc., a South Dakota Corporation; Knecht Industries, Inc., a South Dakota Corporation; Knecht Lumber Company; Street Heating and Sheet Metal, Inc., a South Dakota Corporation; First Federal Savings and Loan Association, a Federal Savings and Loan Association; and Johnnie L. Francis, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 106

385 N.W.2d 106

Ex Parte Myron E. TEEGARDIN, Plaintiff and Appellant, v. NOILLIM ENTERPRISE, INC., a South Dakota Corporation Macon, Inc., a South Dakota Corporation; Sheridan Heights Inc., a South Dakota Corporation; Knecht Industries, Inc. a South Dakota Corporation; Knecht Lumber Company; Street Heating and Sheet Metal, Inc., a South Dakota Corporation First Federal Savings and Loan Association, a Federal Savings and Loan Association; and Johnnie L. Francis, Defendants and Appellees.

Nos. 14862, 14865.

Supreme Court of South Dakota.

Considered on Briefs Jan. 16, 1986.

Decided April 2, 1986.

Myron E. Teegardin, pro se.

J. Crisman Palmer, of Gunderson & Palmer, W.A. McCullen of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendants and appellees; Daniel E. Ashmore, of Gunderson & Palmer, Rapid City, on brief.

FOSHEIM, Chief Justice.

Myron Teegardin appeals from two dismissal orders. We reverse.

Myron and his wife Gloria filed suit on February 5, 1982, against several contractors and financers and alleged they were negligent in the construction of the couple's new home. Teegardins sought reimbursement for sums they expended in replacing the heating and cooling system, correcting mistakes and finishing construction. Defendants Macon, Inc., Sheridan Heights, Inc., Knecht Industries, Inc., Knecht Lumber Company, and Street Heating and Sheet Metal, Inc., all answered. Nollim Enterprises, Inc., and Johnnie L. Frances did not answer. Teegardins were originally represented by Attorney Steven Schwafel of Rapid City. On Teegardins' behalf, Schwafel sought default against non-answering Defendants and a jury trial with those Defendants who answered. This prompted a belated answer from Defendant-First Federal, four months after the complaint was served.

The next action revealed in the record was a notice on September 2, 1982, by First Federal of its intent to depose Gloria. This was followed by Myron's notice of his pro se appearance and discharge of Schwafel, filed March 8, 1984. Myron requested and was granted leave to continue in forma pauperis because he was an inmate in the South Dakota penitentiary. Myron sent interrogatories to Gloria and some Defendants, requested production of documents, and sought joinder (as a plaintiff) of a corporation he and Gloria had formed which was headquartered in the new home. He then motioned to compel discovery and requested a default judgment and a judgment on the pleadings. Defendant-Street Heating eventually answered the interrogatories, objected to the joinder and request for default judgment, and motioned for dismissal. A hearing was scheduled for November 19, 1984, at Street Heating's request.

The record next shows a copy of a Quit Claim Deed dated September 22, 1982, transferring all of Myron's interest in the home to Gloria. ¹

In November, 1984, Myron again requested production of documents from Gloria and filed an affidavit which denied the validity of the quit claim deed, recognized that Gloria no longer wished to pursue the action, and stated that affiant wanted to continue his claims. He was denied permission to attend the hearing.

By letter opinion entered on November 21, 1984, the trial court judge recited the case history, denied Myron's various motions, and dismissed the suit against Street Heating. Other Defendants then paralleled Street Heating's action and sought dismissal of the suit against them. All argued that Myron no longer had an interest in the property since he had quit claimed it to Gloria and that Gloria no longer wished to pursue the action.

Another hearing was held and the action was dismissed in December, 1984, against remaining Defendants who had answered and motioned for dismissal. An order reflecting the decisions expressed in the letter opinion of November 21 was also filed.

This appeal by Myron is from the two dismissal orders (consolidated for appeal). No transcripts of either the November or December hearings are available. The trial court approved a statement of the proceedings filed by Myron pursuant to SDCL Sec. 15-26A-54 and further noted that no testimony was received at either hearing.

Myron first argues that the trial court erred in ruling that attorney Schwafel withdrew from the case. He contends that provisions of SDCL Sec. 16-18-31 were not followed and that no order was issued permitting Schwafel to withdraw.

There appears to be no merit to this argument. Myron admits in his motion to appear pro se that Schwafel was "discharged." Therefore, SDCL Sec. 16-18-31, which requires a court order for an attorney to withdraw, is not applicable.

The heart of Myron's appeal is that he was improperly dismissed from the action. He denies the validity of the quit claim deed and claims the trial court erroneously deprived him of an opportunity to be heard.

Defendants Macon, Inc., Sheridan Heights, Inc., Knecht Industries, Inc., Knecht Lumber Company, Street Heating and Sheet Metal, Inc., and First Federal Savings and Loan Association, Respondents, essentially argue that the trial court properly dismissed the action because Myron transferred his interest in the property to Gloria, the only remaining real party in interest, SDCL Sec. 15-6-17(a), and she no longer wishes to pursue the action. Relying on SDCL Sec. 15-6-25(c), ² they conclude that since Myron transferred his interest in the home after the action was commenced, the court in its discretion could dismiss him.

Defendants' reliance on Cranmer v. Howard, 45 S.D. 218, 183 N.W. 124 (1921), ³ is misplaced. In Cranmer, this court said that a party having no actual interest in a...