City of Madison v. Bailey-Laffey Construction

495 N.W.2d 95, 20 U.C.C. Rep. Serv. 2d (West) 629, 1993 S.D. LEXIS 8, 1993 WL 16395
CourtSouth Dakota Supreme Court
DecidedJanuary 27, 1993
Docket17833
StatusPublished
Cited by1 cases

This text of 495 N.W.2d 95 (City of Madison v. Bailey-Laffey Construction) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Madison v. Bailey-Laffey Construction, 495 N.W.2d 95, 20 U.C.C. Rep. Serv. 2d (West) 629, 1993 S.D. LEXIS 8, 1993 WL 16395 (S.D. 1993).

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

After Bailey-Laffey Asphalt, Inc.1 (Bailey-Laffey) ceased operations and auctioned its assets, appellee Jebro, Inc. (Jeb-ro), a supplier for Bailey-Laffey, commenced this lawsuit to collect debts from Bailey-Laffey. Several other parties, who are not parties to this appeal, intervened asserting rights to the auction proceeds. On April 4, 1991, appellant Vantol Surety Company (Vantol) moved for summary judgment claiming priority to the funds by virtue of possessing an assignment of the auction proceeds from Bailey-Laffey. Jeb-ro filed a cross-motion for summary judgment, alleging it had priority because of an execution lien against the fund. All of these facts are developed more fully below. Both motions were denied.

On December 24, 1991, the trial court granted Jebro’s second motion for summary judgment and ruled against all other parties to the litigation. Vantol filed notice of appeal on February 12, 1992. Vantol and Jebro are now the only parties to this appeal. Vantol raises three issues which have been condensed to the two issues below:

I. Did the trial court err in granting summary judgment to Jebro, thus denying Vantol subrogation rights against the principal after full performance of its surety bonds, but prior to other claims against the principal? We hold that it did not.
II. Did Vantol have a valid, perfected security interest which gives it superi- or rights to the funds? We hold that it did not.
We affirm.

FACTS

In 1989, Vantol issued a Performance and Payment Bond to Bailey-Laffey to secure $26,791.00 for a street improvement project in the City of Madison. Jebro supplied $18,276.42 in materials to Bailey-Laf-fey for use in the City of Madison project.

Unable to pay its suppliers, Bailey-Laf-fey ceased operations and scheduled an auction sale of its equipment in early 1990. On or about February 14, 1990, Dallas Laf-fey, an officer of Bailey-Laffey, executed an “Assignment of Proceeds of Disbursement Auction Sale” to reimburse Vantol for any amounts to be paid by Vantol to cover suppliers under the bonds. First National Bank of Brookings, South Dakota2 was designated as clerk for the auction and custodian of the proceeds. Dallas Laffey, not Bailey-Laffey Asphalt, Inc., is listed as the assignor of the auction proceeds on the document.

Unaware of this document, on March 23, 1990, Jebro entered into a written agreement with Bailey-Laffey to assure that Jebro would receive proceeds remaining after satisfaction of the bank’s secured claim.

Following the auction on April 4, 1990, $28,776.78 remained in the auction fund after paying the bank’s secured claims. Jebro then demanded those proceeds to pay debts Bailey-Laffey owed to Jebro. The bank, in its capacity as custodian of the proceeds, refused to pay Jebro. After failing to reach any agreement for the distribution of the funds, Jebro commenced this lawsuit. On June 20,1990, Vantol responded by paying the proceeds of the City of Madison bond to the Lake County Clerk of Courts for distribution to the creditors. The following day, the clerk issued a $42,-447.89 judgment lien in Jebro’s favor against Bailey-Laffey for all debts owed to Jebro. This judgment represented the contractor’s failure to make payment for the asphalt and other materials Jebro supplied to Bailey-Laffey. After Jebro received a pro-rata share of the bond in the amount of [97]*97$16,856.90, Bailey-Laffey’s debt to Jebro was $30,750.90, including interest.

As a result of this lawsuit, several other parties intervened to lay claim to the auction fund. On December 19, 1991, the trial court granted summary judgment to Jebro awarding it the entire amount in the fund. Vantol followed with this appeal.

DECISION

I. The trial court did not err in granting summary judgment.

Upon granting summary judgment for Jebro, the trial court awarded Jebro the entirety of the fund in dispute holding that Vantol could not assert subrogation rights to the fund because that would put the appellant in competition with the other creditors. When reviewing a grant of summary judgment, we premise our decision on the principle that affirmance of such a judgment is proper if there exists any basis which would support the trial court’s ruling. Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983).

In support, we find Wieland v. Westcott, 64 S.D. 552, 268 N.W. 904 (1936) to be directly on point. Wieland involved the dissolution of a partnership with the surety paying the bond to cover the debts of the business. However, the debts exceeded the assets and the surety claimed entitlement to a pro rata reimbursement with the other creditors. In denying recovery to the surety, this Court held that generally, a surety may not claim subrogation against an insolvent debtor until the claims of creditors against the debtor have been paid in full. Id. 268 N.W. at 905. Thus, Vantol is prohibited from asserting subrogation rights until the claims against Bailey-Laffey have been satisfied.

We emphasize this prohibition includes even those debts not covered by the bond. “The same policy against permitting a surety to compete with the creditor for the insolvent debtor’s assets requires that the surety be denied subrogation to security given to a creditor for several debts for only one of which the surety is obligated.” Id. Under this holding, because Jebro is a secured creditor with some claims covered by the surety bond, Jebro is entitled to recover all of its claims against Bailey-Laffey before Vantol can assert subrogation rights.

With the law to support the trial court’s findings, we hold that the trial court did not err in granting summary judgment to Jebro, thus denying Vantol’s subrogation rights to the debtor’s funds.

II. Vantol’s alleged secured interest does not create superior rights to the funds.

By way of further legal contention to claim these funds, Vantol purports to possess a valid, perfected security interest either through possession of the auction sale proceeds or through an assignment by Bailey-Laffey, with said interest being superior to Jebro’s equitable lien. This issue is reviewable because Vantol raised the issue in its “Resistance to Appellee’s Second Motion for Summary Judgment.”

When First National Bank, at Vantol’s request, coordinated the auction of Bailey-Laffey’s assets, the bank placed the proceeds in an account. With the bank acting as bailee to Vantol, Vantol claims to have an interest in the money because it possesses the funds through its bailee. See SDCL 57A-9-305. In the alternative, Dallas Laf-fey executed an “Assignment of Proceeds of Disbursement Auction Sale” to reimburse Vantol for any amounts paid by Van-tol to suppliers under the City of Madison Performance and Payment Bond. Because the agreement was executed prior to Jeb-ro’s lien, Vantol asserts first rights to the funds. See SDCL 57A-9-203.

Once again, this Court looks to Wieland for the applicable law which held:

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Related

City of Madison v. Bailey-Laffey Construction
495 N.W.2d 95 (South Dakota Supreme Court, 1993)

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495 N.W.2d 95, 20 U.C.C. Rep. Serv. 2d (West) 629, 1993 S.D. LEXIS 8, 1993 WL 16395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-madison-v-bailey-laffey-construction-sd-1993.