Honomichl v. Modlin

477 N.W.2d 599, 1991 S.D. LEXIS 179, 1991 WL 242498
CourtSouth Dakota Supreme Court
DecidedNovember 20, 1991
Docket17329
StatusPublished
Cited by18 cases

This text of 477 N.W.2d 599 (Honomichl v. Modlin) 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
Honomichl v. Modlin, 477 N.W.2d 599, 1991 S.D. LEXIS 179, 1991 WL 242498 (S.D. 1991).

Opinions

MILLER, Chief Justice.

Ben and Susan Honomichl, d/b/a Custom Sales (Custom Sales), brought action seeking to recover $8,881.48 for repairs performed on vehicles owned by Roger Mod-lin. Custom Sales appeals from the trial court’s judgment awarding it only $4,685.48, asserting that from the evidence presented at trial, it should have received a larger award based on an hourly rate and that it should have also been awarded storage costs and prejudgment interest. We affirm in part, reverse in part, and remand.

FACTS

Custom Sales is an automobile body repair business located in Jefferson, South Dakota. Sometime in late 1988 or early 1989, Modlin brought two vehicles, a 1986 Blazer and a 1987 Ford pickup, to Custom Sales to be repaired. Modlin also delivered a 1987 Ford Dually to Custom Sales a few months later for repairs.

A dispute arose over the price of the repairs. Custom Sales alleged that it was to be paid $25 per hour plus parts. Modlin claimed they orally agreed on a fixed price for the repairs. Ultimately, Custom Sales initiated this action to recover $8,881.48 (reflecting a credit of $2,950 already paid). Modlin answered and counterclaimed, alleging Custom Sales owed him $1,080 for trees he planted at the Honomichl residence.

The trial court found there was an oral contract between the parties, and that Mod-lin owed Custom Sales $9,175.48 for work and materials provided. The court allowed Modlin credit of $3,500 for sums already paid, plus a credit of $990.00 for the trees. The trial court refused to award costs of storage or prejudgment interest. Custom Sales appeals.

ISSUE I

WHETHER THE AMOUNT OF THE JUDGMENT WAS APPROPRIATE.

[600]*600Custom Sales’ first argument is that the trial court was clearly erroneous in setting the amount of the judgment, asserting that by a clear preponderance of the evidence it was entitled to a judgment of $8,260.42. However, the record does not contain proposed findings of fact and conclusions of law, or objections to Modlin’s proposed findings by Custom Sales. See SDCL 15--6-52(a).

Under the settled law of this state, “[t]he failure of an appellant to object to findings of fact and conclusions of law and to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment.” Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991) (emphasis added); GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 443 (S.D.1983); Application of Veith, 261 N.W.2d 424, 425 (S.D.1978). Accordingly, on review, this court may only determine whether the trial court’s conclusions of law and its order and judgment are supported by the findings of fact.

We have reviewed the salient findings and determine that they support the conclusions of law.

ISSUE II

WHETHER THE TRIAL COURT’S CONCLUSION DENYING PREJUDGMENT INTEREST IS SUPPORTED BY THE FINDINGS.

The trial court found that Custom Sales was not entitled to prejudgment interest because “there was no sum certain which could be reasonably calculated based upon the facts and the contradictory testimony of both parties.”

SDCL 21-1-13.1, cited by Custom Sales as its sole authority for the availability of prejudgment interest, does not apply in this case. That statute applies only to those actions commenced on or after July 1,1990. SDCL 21-1-13.2. This action was commenced May 18, 1989, therefore, the controlling statute is SDCL 21-1-11, which reads as follows:

Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. (Emphasis added.)

We recently addressed the issue of prejudgment interest in Clements v. Gabriel, 472 N.W.2d 480 (S.D.1991), by stating: “The prevailing party is entitled to prejudgment interest only if damages are certain or capable of being made certain by calculation; prejudgment interest is not to be awarded if the damages are uncertain until determined by the trier of fact.” Id. at 484 (citing First Nat. Bank of Minneapolis v. Kehn Ranch, Inc., 394 N.W.2d 709 (S.D.1986); Twin City Testing & Engineering Lab. v. Smith, 393 N.W.2d 456 (S.D.1986)).

The problem which presents itself is, when are damages “certain or capable of being made certain by calculation?”

If this Court has been caught up with confusion, it is not alone in the jurisdictions of this Union. It should not bear the brunt of deep censure. Courts throughout the land are struggling with prejudgment interest. Court declarations on this subject have been an academic pilgrimage. Each particular set of facts seems to create a new hazard.

S.D. Bldg. Auth. v. Geiger-Berger Assoc., 414 N.W.2d 15, 26 (S.D.1987) (Henderson, J., concurring specially). In Arcon Const. Co. v. S.D. Cement Plant, 405 N.W.2d 45, 47 (S.D.1987), Justice Wuest, writing for this court, stated: “Often this statutory language has been difficult for the courts to apply to the variety of cases. It has also undoubtedly been difficult for attorneys to advise their clients on whether they are entitled to prejudgment interest on their contract claims.”

As noted earlier, the state legislature recently enacted SDCL 21-1-13.1, which applies to actions commenced after July 1, [601]*6011990.1 The new statute addresses more specifically some of the difficult issues which often arise with prejudgment interest. Perhaps the new statute will eliminate some of the uncertainty courts and attorneys have had in applying the rule.

Prejudgment interest may be denied on the theory that when a person who is liable does not know what sum he owes, he cannot be in default for not paying. Clements, 472 N.W.2d at 485-86 (citing Beka v. Lithium Corporation of America, 77 S.D. 370, 92 N.W.2d 156 (1958)); Heer v. State, 432 N.W.2d 559, 562 (S.D.1988).

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Honomichl v. Modlin
477 N.W.2d 599 (South Dakota Supreme Court, 1991)

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Bluebook (online)
477 N.W.2d 599, 1991 S.D. LEXIS 179, 1991 WL 242498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/honomichl-v-modlin-sd-1991.