Wright v. Temple

• Citation: 2021 S.D. 15
• Decision Date: 03 March 2021
• Docket Number: #28989,#28967
• Parties: THOMAS R. WRIGHT, Plaintiff and Appellee, v. CURTIS TEMPLE, Defendant, Third-Party Plaintiff and Appellant, and KEN MERRILL, Third-Party Defendant and Appellee.
• Court: Supreme Court of South Dakota

2021 S.D. 15

THOMAS R. WRIGHT, Plaintiff and Appellee, v. CURTIS TEMPLE, Defendant, Third-Party Plaintiff and Appellant,andKEN MERRILL, Third-Party Defendant and Appellee.

#28967

#28989

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED APRIL 21, 2020

March 3, 2021

#28967, #28989-aff in pt & rev in pt-PJD

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA

THE HONORABLE HEIDI LINNGREN Judge

KENNETH E. BARKER

Belle Fourche, South Dakota

Attorney for plaintiff

and appellee.

TERRY L. PECHOTA

Rapid City, South Dakota

Attorney for defendant, third-

party plaintiff and appellant.

KATELYN COOK of

Gunderson, Palmer, Nelson

& Ashmore, LLP

Rapid City, South Dakota

Attorneys for third-party

defendant and appellee.

DEVANEY, Justice

[¶1.] In this suit involving damage caused to an airplane, the owner of the plane, Thomas Wright, obtained a jury verdict against Curtis Temple for negligence, breach of contract, and deceit. The jury awarded Wright $34,144.84 in damages on each claim. The jury further found Temple liable to his flight instructor, Ken Merrill, for breach of contract, deceit, and fraud, but the jury did not award Merrill any damages. The circuit court entered a judgment in favor of Wright for $102,434.52 plus prejudgment interest and costs. Temple appeals, asserting the circuit court erred in allowing service by publication, in instructing the jury on damages, and in entering a judgment with duplicative damages. Temple further contends the evidence is insufficient to sustain the jury's verdict in favor of Wright on the breach of contract and negligence claims. By notice of review, Wright asserts the circuit court erred in denying his motion to submit his punitive damages claim to the jury. We affirm in part, reverse in part, and remand on the issue of damages.

Factual and Procedural Background

[¶2.] Thomas Wright owned a 1978 Citabria airplane that he inherited from his father. Wright housed the plane in a hangar at Black Hills Aero in Spearfish, South Dakota. Ted Miller owns and operates Black Hills Aero. Wright authorized Miller to rent the airplane for an hourly fee and to sell the plane.¹ Prior to the accident in question, Wright listed the plane for sale in a trade publication for $75,000.

[¶3.] Curtis Temple is a rancher residing within the Pine Ridge Indian Reservation. He wanted to purchase an airplane and learn to fly so he could observe and count the cattle on his ranch. Temple was not a licensed pilot and had never taken flying lessons, but his property contained a hangar and a dirt runway. At some point Temple learned that the Citabria was for sale at Black Hills Aero, and Temple contacted Miller to express interest in purchasing it.

[¶4.] In June 2014, Temple met Miller at Black Hills Aero to see if the Citabria would be suitable for use on his ranch. Temple brought along Denny Kauer, a pilot and friend whom Miller knew as a customer of Black Hills Aero. Miller explained to Temple that in order to fly the plane, Temple needed to employ a licensed pilot and obtain insurance for the plane. According to Miller, he had also told Temple to employ Bob McNew as a flight instructor because McNew was covered by the insurance Wright carried on the plane. Both McNew and Miller were listed as authorized pilots on Wright's insurance policy. Temple did not recall any conversation with Miller about obtaining insurance or the requirement that he fly with McNew.

[¶5.] Temple requested that Miller allow Kauer to fly the plane to Temple's ranch. Miller's ordinary practice for renting Wright's airplane was to have the interested party fill out a written agreement and provide proof of insurance. However, Miller explained that he allowed Kauer and Temple to leave with Wright's plane without any agreement in writing because Temple was a potential buyer, and Miller knew that Kauer owned an airplane and had insurance covering any airplane that he flew.

[¶6.] While the plane was at Temple's ranch, Miller called Temple on more than one occasion to discuss the sale of the plane and to ask Temple whether he had obtained insurance. According to Miller, Temple told him he was looking for or getting quotes on insurance policies. Temple claimed no recollection of these conversations. Miller explained that although it was apparent to him that Temple had not yet obtained insurance, he allowed Temple to keep the plane while contemplating whether to buy it because he believed Temple would be flying with McNew, who was covered under Wright's insurance policy.

[¶7.] However, rather than contacting McNew for instruction, Temple contacted Ken Merrill, an experienced pilot and instructor with approximately 15,000 hours of flight experience, including 4,000 hours as an instructor. Merrill agreed to provide flight instruction to Temple during their first meeting at Temple's hangar on July 2, 2014. According to Merrill, he told Temple that in order to fly with him, Temple needed to obtain insurance on the airplane. Merrill contacted an insurance agent in Fargo, North Dakota, to provide Temple a quote. Merrill gave the agent Temple's contact information so that the quote could be sent directly to Temple. Merrill then began instructing him.

[¶8.] Merrill instructed Temple on at least six occasions starting on July 2, 2014, and documented each flight in his pilot's log. Prior to their third flight, when Merrill determined Temple was ready to start assuming some control of the airplane, Merrill asked Temple whether he had obtained insurance. According to Merrill, Temple assured him that he had. Temple, however, testified that he did not recall this conversation. It is undisputed that Temple did not obtain insurance.

[¶9.] In mid-July, Merrill left on vacation for a week. When he returned, Merrill learned that Temple had flown with McNew while he was away. Merrill also noticed that the windsock on Temple's runway was missing. Temple explained to Merrill that during a flight with McNew, they had veered off the runway and struck the windsock, causing some minor damage to the plane. The damage was repaired the same day at Black Hills Aero, and although McNew's insurance would have covered the cost of this damage, Temple paid for it himself.

[¶10.] Merrill continued to instruct Temple after his return from vacation, and on July 25, 2014, the accident at issue occurred. According to Merrill, Temple had control of the plane while taxiing down the runway and during the takeoff process. The plane had two in-line seats, where the student would sit in the front and the instructor behind. Each seat had full controls including throttle, rudder, and brakes. As they attempted takeoff, Merrill noticed the plane was not accelerating as it should. It appeared to Merrill that Temple had not applied full throttle, which should have been done at the end of the runway before takeoff. Merrill, believing there was sufficient time to reach airspeed, made the quick decision to apply full power. However, the plane did not reach the necessary airspeed and it crashed into a ravine at the end of the runway, causing considerable damage to the plane.

[¶11.] Merrill explained at trial that during the taxiing process, both the rudder and the brakes are used to keep the airplane straight. But during takeoff, the brakes are not used because that would interfere with the application of the throttle to reach full power in order to achieve airspeed. Although he could not see or feel whether Temple was applying his brakes, Merrill concluded that Temple's application of the brakes was the only explanation for why the airplane did not gain sufficient acceleration. Merrill testified that in hindsight, he should have aborted the takeoff. However, he maintained that if Temple had not had his feet on the brakes, they would have had sufficient runway space to reach airspeed. Temple, on the other hand, denied using the brakes during takeoff and maintained that Merrill, as the instructor, had ultimate control of the plane.

[¶12.] Following the accident, Merrill called the insurance agent to whom he had referred Temple to report the accident. The agent advised Merrill that there was no insurance coverage because "Temple had never sent a check." The airplane was then transported to Black Hills Aero where it was later repaired. Meanwhile, Wright called Temple multiple times, identifying himself as the owner of the airplane and requesting compensation, but each time he called, Temple hung up.

[¶13.] After Wright's attempts to obtain compensation from Temple were unsuccessful, he decided to bring suit against him. Wright's attorney initially mailed a summons and complaint to Temple's attorney to see if Temple would sign an admission of service, but Temple's attorney advised that he could not arrange service upon Temple. On December 1, 2014, Wright filed his summons and complaint alleging that he suffered damages resulting from Temple's negligence. Over the course of the next year and a half, Wright's attorney made several attempts to personally serve Temple, all of which were unsuccessful. During this same timeframe, Temple's attorney mailed to Wright's counsel a motion to dismiss and answer, alleging insufficient service of process, but counsel did not file this document with the circuit court.

[¶14.] On May 3, 2016, Wright moved for service by publication and the circuit court granted his motion. Wright's summons was published in the Lakota Country Times, a newspaper in Martin, a town which borders the Pine Ridge Indian Reservation, for four consecutive weeks starting on June 2, 2016. Wright thereafter amended his complaint, adding claims of breach of contract, promissory estoppel, deceit, fraud, and conversion, and requesting punitive damages.

[¶15.] On August 3, 2017, Temple filed the motion to dismiss and answer that was previously sent to Wright's counsel. Therein, he alleged insufficient service of process and lack of subject matter and personal jurisdiction. However, before...