#29676, #29687-aff in pt & rev in pt-JMK 2023 S.D. 10
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
ROBERT LAMB and ANNETTE LAMB, Plaintiffs and Appellants,
v.
PAUL WINKLER, as Personal Representative of the Estate of BEVERLY ANN WINKLER, a/k/a BEVERLY WINKLER, Deceased, Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA
THE HONORABLE MICHAEL W. DAY Judge
THOMAS E. BRADY of Lynn, Jackson, Shultz & Lebrun, P.C. Spearfish, South Dakota Attorneys for plaintiffs and appellants.
COURTNEY R. CLAYBORNE of Clayborne, Loos & Sabers, LLP Rapid City, South Dakota Attorneys for defendant and appellee.
CONSIDERED ON BRIEFS FEBRUARY 14, 2022 OPINION FILED 03/01/23 #29676, #29687
KERN, Justice
[¶1.] Robert and Annette Lamb (Lambs) sued Paul Winkler (Winkler), the
personal representative of Beverly Winkler’s estate, in tort for damages arising
from a motor vehicle accident in which Beverly sustained fatal injuries. The circuit
court granted partial summary judgment to the Lambs, holding that Beverly was
negligent per se. The parties proceeded to a bench trial on the issue of damages,
and the circuit court awarded damages to the Lambs. The Lambs appeal from the
circuit court’s amended judgment, which assessed the Lambs’ total damages,
prejudgment interest, and costs at $36,498.80. The Lambs contend that the circuit
court erred as a matter of law by finding that the Lambs’ tractor was damaged in
the accident and then not awarding any compensation for the tractor’s loss in value.
We affirm in part and reverse in part.
Facts and Procedural History
[¶2.] At 6:20 p.m. on October 26, 2016, a vehicle operated by Beverly
Winkler rear-ended a tractor operated by Robert Lamb that was towing farming
equipment on U.S. Highway 212 near Belle Fourche in Butte County, South
Dakota. At the time of the collision, Robert was driving a 1982 895 Versatile
Tractor and towing a 726 John Deere Mulch Finisher, a type of cultivating and
tilling machine. Robert was traveling approximately 20 miles per hour, while
Beverly was traveling approximately 65 miles per hour. Prior to the collision,
Robert observed Beverly driving behind him at a distance. His attention then
turned to a pickup passing an oncoming car in front of him, causing Robert to
consider driving into the ditch in order to avoid the side-by-side oncoming vehicles.
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However, the pickup finished passing the car and returned to its proper lane before
Robert needed to take any action. Shortly after the oncoming car and pickup
passed, Beverly collided with the rear end of the finisher. There was no evidence of
braking at the scene, and a blood test showed that Beverly’s blood alcohol content
was 0.16 at the time of the collision. Beverly sustained severe injuries upon impact
and was life flighted to Rapid City Regional Hospital. Unfortunately, Beverly did
not survive.
[¶3.] Upon impact, Robert was knocked back in his seat and temporarily
rendered unconscious from hitting his head on the back window of the tractor.
After traveling approximately 250 feet, Robert regained consciousness. The engine
of the tractor was roaring from RPMs revving, and the tractor had left the road and
was traveling through the ditch. There was no evidence of a skid at the point of
collision, supporting the inference that the force from the accident went through the
rear end of the tractor.
[¶4.] The impact sheared the one and three-eighths inch steel hitch pin off
the tractor, disconnecting the finisher from the tractor. Upon impact, Beverly’s car
went under the finisher, causing shearing on several of the finisher’s spring-tooth
harrows, pushing its shovels into one of its tires, and bending its beams.
[¶5.] Following the accident, Robert was taken to the emergency room at
Regional Hospital in Sturgis, reporting mid-back soreness. Dr. Hermann provided
an assessment of “MVA (motor vehicle accident) with lower thoracic discomfort
without evidence of severe injury.” The parties stipulated that Robert incurred
$3,270 in medical expenses stemming from the accident. Robert complained of
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ongoing numbness in his arm, but no medical testimony was provided to
substantiate a claim that the condition related to the accident.
[¶6.] On October 27 or 28, 2016, the Lambs used the tractor to tow the
damaged finisher approximately one quarter mile from the accident site to their
farmyard. The tractor and finisher remained unmoved from the Lambs’ farmyard
throughout the remainder of the case. The Lambs, however, needed functional
equipment by March 2017 to timely plant their crops. They inquired about a short-
term rental for a tractor but ruled out that option after learning the cost would
range from $10,000–$15,000. Concerned with the timeline for repairs of their
damaged tractor, with the availability of necessary parts, and that costs might
exceed the value of the tractor, the Lambs chose to forego having it inspected and
repaired, instead deciding to buy a replacement tractor and finisher. The Lambs
conducted an internet search and traveled through South Dakota, Nebraska, and
Iowa to inspect available equipment.
[¶7.] On February 23, 2017, the Lambs purchased a 936 Versatile Tractor
from an equipment dealer in Onida, South Dakota, at a total cost of $32,395. The
936 Versatile was a newer model purchased to replace the Versatile Tractor that
was in the accident. The Lambs had originally purchased the 1982 895 “fixer
upper” Versatile in April 2011 for $18,500. At trial, the Lambs testified that they
had invested $20,536.11 into transporting, fixing, improving, and maintaining the
tractor between 2011 and 2016, as reflected on their spreadsheet admitted as
Exhibit 20 at trial. The circuit court found that, when properly maintained, a
tractor can appreciate in value over time. In Robert’s opinion, the tractor was
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worth $39,000 before it was damaged in the accident. 1 With the exception of the
age of the two tractors, they were essentially identical, with roughly the same
operating hours, horsepower, engine, transmission, and tires. Robert asserted that
the amount of damages owed to the Lambs resulting from damage to their tractor
was $36,500, or the estimated value of $39,000 prior to the accident less the salvage
value of $2,500 claimed by the Lambs.
[¶8.] On March 1, 2017, the Lambs purchased a 726 John Deere Field
Finisher to replace the damaged finisher. The total cost of the 726 Finisher was
$22,990. Additionally, the Lambs paid $1,250 for the delivery of the finisher and
another $1,250 for repairs, service, and maintenance prior to placing it into use.
However, the circuit court discounted the Lambs’ asserted improvements to the
finisher, which were detailed in a handwritten list setting forth the costs for
repairs, service, and maintenance—this list was dated on or around December 3,
2019, well over two years after the Lambs had purchased the replacement finisher.
The Lambs purchased the original finisher that was damaged in the accident for
$17,888 in March 2013. They asserted the salvage value of the damaged finisher
was $2,500.
[¶9.] The Lambs filed a complaint against Winkler as the personal
representative of Beverly’s estate on June 13, 2017, alleging that Beverly
negligently caused the Lambs’ damages in the collision. On May 15, 2019, the
circuit court entered partial summary judgment in favor of the Lambs, holding that
1. Robert appears to have arrived at this sum by adding the purchase price of the tractor to the asserted investments reflected in Exhibit 20. ($18,500 + $20,536.11 = $39,036.11). -4- #29676, #29687
Beverly was negligent per se by driving with a blood alcohol content of 0.16, which
is twice the legal limit, and that her negligence was the legal cause of the October
26, 2016 collision.
[¶10.] The circuit court held a bench trial on the Lambs’ claims for damages
on November 23, 2020, both parties having waived their right to a jury trial. No
evidence or testimony was provided to support a theory of contributory negligence,
and Winkler waived affirmative defenses. Robert Lamb, Annette Lamb, and Scott
Merrow, the owner of an equipment dealership with over a decade of experience in
diesel engine repair work, provided testimony in support of the Lambs’ claims for
damages.
[¶11.] Robert farmed a “160-acre [parcel] of land east of Nisland” and owned,
operated, and maintained various types of farm equipment as part of his operation.
He repaired his own equipment and was familiar with the mechanics of
transmissions, differentials, and diesel engines. He “has been involved in farming
throughout his life” and has extensive “experience with welding and metal
fabrication through” previous employment. Robert testified that, in his opinion, the
tractor’s market value at the time of the accident was $39,000, but the costs of
repair to make the tractor operational after the accident were likely to be as much
as $51,000.
[¶12.] In Robert’s opinion, “the cost to inspect the tractor and repair known
damage was, at minimum, $31,700.” Regarding known damage to the tractor,
Robert testified that the damage to the center pivot or articulating joint was readily
observable. He did not present any written cost estimates for this repair. Rather,
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Robert testified that he priced the cost for this repair “when we were trying to
assess whether we could fix the tractor or not[.]” “[I]f I remember right, it was $300
a [hole]” to bore the holes out. He further explained that he believed they had
counted eighteen holes for a machinist to bore. In discussing additional claimed
labor to perform this work, Robert testified that he believed it would take two and
one-half days to take the articulating joint apart. “And speaking to the shops, they
say you can pound on them pins–if they’ve been smashed in there like that, you can
pound on them for two to three days to get them out.” Robert further testified that
the cost per hour for labor was $90 to $100 “[a]nd it was open ended.” Robert also
noted that the hitch pin had been sheared off in the collision, but he did not testify
regarding the cost of replacing the hitch pin. The remaining portion of the $31,700
was Robert’s expected cost to disassemble, inspect, and reassemble parts of the
transmission, differentials, and planetaries to determine if they were in fact
damaged and to replace the batteries.
[¶13.] The Lambs also provided testimony from Merrow, an expert in diesel
engine repair and “the owner of Bickle’s Truck and Diesel in Belle Fourche.”
Merrow has more than a decade of experience performing diesel engine repair and
overhauling work. Merrow testified that the range of damages to the tractor engine
could be anywhere from $2,800 to his worst-case scenario of $23,034.83. However,
in Merrow’s opinion, a full inspection would be required to ascertain the extent of
the damage—an inspection he was not asked to perform. Merrow noted that the
specific type of engine in the tractor, an 855 Cummins, is susceptible to serious,
even catastrophic internal damage when overrun, and this damage can potentially
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occur within just a few seconds. Based on Robert’s recounting of the accident, the
tractor’s engine was overrun for several seconds immediately following the accident.
On cross-examination, however, Merrow conceded that the fact that the Versatile
Tractor was used to tow the finisher back to the farmyard from the accident site
was indicative of less rather than more damage to the engine. Merrow additionally
testified that he had noticed damage to the pivot in his cursory inspection of the
tractor engine.
[¶14.] At the conclusion of the trial, the court took the matter under
advisement, directing the parties to file post-trial submissions. In their proposed
findings of fact and conclusions of law, the Lambs requested damages of $36,500 for
the tractor, $20,500 for the finisher, medical expenses of $3,270 plus prejudgment
interest, and $75,000 in damages for Robert’s pain and suffering.
[¶15.] The court entered its findings of fact and conclusions of law on March
22, 2021, followed by a judgment on May 7, 2021, awarding the Lambs a total of
$25,270. This sum consisted of “$20,500 for damages associated with the finisher,”
“$3,720 for medical expenses,” and “$1,500 for general personal injury damages.” 2
The court held that “the Lambs have failed to meet their burden of proof with
respect to the diminution of value and cost of repairs for the 895 Versatile tractor.”
The court stated, “[w]ithout concrete evidence obtained through an inspection, [it
was] unable to speculate as to the value of the tractor following the collision.”
Although the court recognized that Robert had testified to the existence of some
2. The court ordered prejudgment interest on the damages portion of the judgment. -7- #29676, #29687
damage to the tractor and the cost of inspecting, repairing, or replacing certain
parts of the tractor, the court declined to make any findings of fact as to those costs
of repair or replacement, implicitly rejecting Robert’s opinion, including his
testimony regarding the cost of repairing the pivot. 3 The court found that because
“Robert did not support his estimate by obtaining an inspection” it could not
speculate as to the value of the tractor following the collision because no evidence
beyond Robert’s opinion had been presented. As such, the court awarded no
damages to the Lambs for the tractor.
[¶16.] The Lambs filed a motion for reconsideration on May 10, 2021, arguing
that because the court found that the tractor had some damage but was not totaled,
it erred by not awarding the known costs of repair, which they argued equated to at
least $24,300. Additionally, the Lambs requested a recalculation of the
prejudgment interest to which they were entitled and claimed that as the prevailing
party, they were entitled to costs. Following a hearing on May 25, 2021, the court
entered an amended judgment, awarding the Lambs a total of $36,498.80,
consisting of $29,783.97 for damages associated with the finisher including
prejudgment interest, $4,750.91 for medical expenses including prejudgment
interest, $1,500 for general personal injury damages, and $463.92 for costs. The
court, however, declined to reconsider its decision to award nothing for damage to
the tractor.
3. In its findings of fact, the circuit court noted that Robert had asserted certain costs, but it declined to make any findings as to what those costs actually were. -8- #29676, #29687
[¶17.] The Lambs appeal, asking whether the circuit court erred by finding
that their tractor was damaged but awarding nothing in damages. 4
Standard of Review
[¶18.] Pursuant to SDCL 15-6-52(a), factual findings are examined under the
clearly erroneous standard. “In applying the clearly erroneous standard, . . . [t]he
question is not whether this [C]ourt would have made the same findings that the
trial court did, but whether on the entire evidence we are left with a definite and
firm conviction that a mistake has been committed.” Fin-Ag, Inc. v. Feldman Bros.,
2007 S.D. 105, ¶ 19, 740 N.W.2d 857, 862–63 (alteration in original) (quoting Am.
Bank & Tr. v. Shaull, 2004 S.D. 40, ¶ 11, 678 N.W.2d 779, 783). Further, “[o]n
review, this Court defers to the circuit court, as fact finder, to determine the
credibility of witnesses and the weight to be given to their testimony.” Hubbard v.
City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499, 511. In keeping with this stance,
“[t]he credibility of the witnesses, the import to be accorded their testimony, and the
weight of the evidence must be determined by the trial court, and [this Court gives]
due regard to the trial court’s opportunity to observe the witnesses and examine the
evidence.” Id. (first alteration in original) (quoting Baun v. Estate of Kramlich,
2003 S.D. 89, ¶ 21, 667 N.W.2d 672, 677). Conversely, “[c]onclusions of law are
reviewed under a de novo standard, ‘with no deference to the trial court’s
conclusions of law.’” Koopman v. City of Edgemont by Dribble, 2020 S.D. 37, ¶ 13,
4. Winkler filed a notice of review raising the issue whether the circuit court erred in allowing the undisclosed testimony of the Lambs’ “experts.” The issue was subsequently withdrawn by Winkler. -9- #29676, #29687
945 N.W.2d 923, 926 (quoting Estate of Henderson v. Estate of Henderson, 2012 S.D.
80, ¶ 9, 823 N.W.2d 363, 366).
Analysis and Decision
[¶19.] As we noted in Wright v. Temple, “[f]or the breach of an obligation not
arising from contract, the measure of damages . . . is the amount which will
compensate for all the detriment proximately caused thereby, whether it could have
been anticipated or not.” 2021 S.D. 15, ¶ 42, 956 N.W.2d 436, 449–50 (quoting
SDCL 21-3-1). In cases like the Lambs’, where the negligence of one individual
causes damage to the motor vehicle of another, this Court has recognized as proper
two methods of measuring damages—reasonable cost of repair and the diminution
in the vehicle’s fair market value. 5 Under the reasonable cost of repair rule, “the
proper measure of damages is the cost of repairs and the value of its use during the
time it is being repaired.” Joseph v. Kerkvliet, 2002 S.D. 39, ¶ 10, 642 N.W.2d 533,
536 (quoting Thormahlen v. Foos, 163 N.W.2d 350, 353 (S.D. 1968)), superseded on
other grounds by rule, SDCL 19-19-103, as recognized in Wright, 2021 S.D. 15, ¶ 47,
956 N.W.2d at 452. Alternatively, under the diminution in value rule, if the cost of
repairs is greater than the diminution in value, a property owner may recover the
difference in the property’s fair market value immediately before the accident and
5. In cases “[w]here the law furnishes no legal rule for measuring damages, the amount rests largely within the discretion of the [fact finder]. However, the discretion of the [fact finder] is not an arbitrary, unbridled, or unlimited one[]” and shall adhere to our rules regarding fact of damage and proving amount of damages by reasonable certainty. 25 C.J.S. Damages § 107, Westlaw (database updated Feb. 2023); see also Big Rock Mountain Corp. v. Stearns-Roger Corp., 388 F.2d 165, 170 (8th Cir. 1968) (applying South Dakota law). In addition, an award of damages must adhere to generally applicable principles articulated in SDCL chapter 21-1. -10- #29676, #29687
immediately after the accident. Reed v. Consolidated Feldspar Corp., 71 S.D. 189,
196, 23 N.W.2d 154, 157 (1946); see also Big Rock Mountain Corp. v. Stearns-Roger
Corp., 388 F.2d 165, 168 (8th Cir. 1968) (applying South Dakota law). But, “a
property owner is entitled to full market value only if the property is totally
destroyed in the accident.” Joseph, 2002 S.D. 39, ¶ 10, 642 N.W.2d at 536; 22 Am.
Jur. 2d Damages § 293 Westlaw (database updated Feb. 2023).
[¶20.] The Lambs submit that they are entitled to $39,000 minus the tractor’s
salvage value of $2,500 for an award of damages totaling $36,500. They base this
calculation on Robert’s estimate that the cost to inspect and repair the tractor
would have been “more than $50,000[,]” which exceeds Robert’s estimate for the
tractor’s pre-collision fair market value. The Lambs contend that this calculation is
consistent with the measure of damages identified in Wright. See Wright, 2021 S.D.
15, ¶ 43, 956 N.W.2d at 450 (observing that damages for injury can be determined
by the lesser of two calculations). 6 Alternatively, and as they asserted in their
motion for reconsideration, the Lambs argue that they were “at least entitled to
6. The Court in Wright quoted the circuit court’s jury instructions on damages, including that reasonable compensation for damage to personal property can be determined by:
Reasonable compensation for damage to [plaintiff’s] property, determined by the lesser of two measures: (1) The difference between the fair market value of the property immediately before the occurrence and immediately after the occurrence; or (2) The reasonable expense of making any necessary repairs to the damaged property, plus the difference, if any, in the fair market value of the property immediately before the occurrence and its fair market value immediately after repair.
2021 S.D. 15, ¶ 43, 956 N.W.2d at 450 (quoting South Dakota Civil Pattern Jury Instruction 50-20-10). -11- #29676, #29687
judgment for damages” that they believe are reflected in the circuit court’s findings,
namely “the costs to be incurred to inspect for damage and to repair some damage
as known” to the tractor of $24,300 and to the pivot in the sum of $7,400 for a total
of $31,700. 7
[¶21.] Proving damages is “an essential element for recovery.” McKie v.
Huntley, 2000 S.D. 160, ¶ 20, 620 N.W.2d 599, 604. The existence of damages must
be shown by a preponderance of the evidence. Rumpza v. Zubke, 2017 S.D. 49, ¶ 19,
900 N.W.2d 601, 607–08 (citing McKie, 2000 S.D. 160, ¶ 20, 620 N.W.2d at 604)
(stating the burden to prove compensatory damages and applying the standard to a
contractual dispute). When determining a damages amount, “[f]acts must exist and
be shown by the evidence which afford a basis for measuring the loss of the plaintiff
with reasonable certainty.” Weekley v. Prostrollo, 2010 S.D. 13, ¶ 26, 778 N.W.2d
823, 830 (alteration in original) (quoting Drier v. Perfection, Inc., 259 N.W.2d 496,
506 (S.D. 1977)). This Court has defined a reasonable certainty as ‘“proof of a
rational basis for measuring loss,’ without requiring the trier of fact to speculate.”
ISG, Corp. v. PLE, Inc., 2018 S.D. 64, ¶ 29, 917 N.W.2d 23, 33 (quoting Kreisers Inc.
v. First Dakota Title Ltd. P’ship, 2014 S.D. 56, ¶ 40, 852 N.W.2d 413, 424).
7. The court entered the following findings summarizing Robert’s and Merrow’s testimony estimating damages and the cost of repairing the tractor: Finding of Fact (FF) 20-$5,400 to inspect and re-install transmission; FF 21-$2,000 to remove and re-install tires; FF 22-$6,400 to inspect, repair, and replace planetaries; FF 23-$3,200 to inspect and repair differentials; FF 24-$700 to replace batteries; FF 27-$6,600 (rounded) Merrow’s estimated cost to open and inspect engine including rod and main bearings. -12- #29676, #29687
Robert Lamb’s Testimony
[¶22.] As a preliminary matter, we address the Lambs’ argument that the
evidence establishing the cost of repairs and fair market value of the tractor went
uncontested at trial. Here, the source of the Lambs’ valuation for the tractor pre-
and post-collision is solely Robert’s opinion, and the Lambs’ contention that the cost
of repairs was greater than the fair market value of the tractor was also largely
based on Robert’s testimony.
[¶23.] It is well settled that a property owner is qualified to testify regarding
the value of his or her property. Wright, 2021 S.D. 15, ¶ 39, 956 N.W.2d at 449
(citing Behrens v. Wedmore, 2005 S.D. 79, ¶ 65, 698 N.W.2d 555, 580). Indeed, in its
conclusions of law, the circuit court found Robert qualified to render his opinion as
to value, to the extent that he established foundation for his opinion. However, a
court, sitting as the fact finder in a bench trial, is not required to adopt a property
owner’s valuation wholesale. Although the property owner may inform the fact
finder as to his opinion of value, the fact finder, not the witness, makes the ultimate
determination. Specifically, “[t]he credibility of the witnesses, the import to be
accorded their testimony, and the weight of the evidence must be determined by the
trial court, and we give due regard to the trial court’s opportunity to observe the
witnesses and examine the evidence.” Hubbard, 2010 S.D. 55, ¶ 26, 784 N.W.2d at
511 (alteration in original) (quoting Baun, 2003 S.D. 89, ¶ 21, 667 N.W.2d at 677);
cf. State v. Buchholtz, 2013 S.D. 96, ¶ 28, 841 N.W.2d 449, 459 (explaining, in the
context of expert witness testimony, that “[a]n expert’s role is to ‘assist the trier of
fact to understand the evidence or to determine a fact in issue[]’ . . . not to tell the
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trier of fact what to decide, shifting responsibility from the decision maker [here,
the circuit court] to the expert.”) (internal citation omitted).
[¶24.] In support of their contention that Robert’s valuation is controlling
because it was uncontroverted, the Lambs cite Roden v. General Cas. Co. of
Wisconsin, which states, “facts proven by uncontradicted testimony not inherently
improbable should be taken as conclusively established.” 2003 S.D. 130, ¶ 16, 671
N.W.2d 622, 626 (quoting Nat’l Bank of Com. of N.Y. v. Bottolfson, 55 S.D. 196, 225
N.W. 385, 386 (1929)). However, Robert’s testimony regarding the cost of repairing
the tractor, the fair market value of the tractor pre- and post-collision, and whether
the costs of repair exceeded the fair market value was controverted—Robert was
cross-examined extensively on the issue. See Wright, 2021 S.D. 15, ¶ 41, 956
N.W.2d at 449. 8 Furthermore, the Lambs, as plaintiffs, bore the burden of proving
their damages. Winkler had no obligation to present his own witness(es) to dispute
Robert’s opinions.
[¶25.] Winkler’s cross-examination of Robert and the testimony Robert gave
on cross-examination significantly undermine the Lambs’ assertion on appeal that
Robert’s opinions and valuations were “uncontradicted.” Specifically, Robert
8. In Wright, this Court evaluated the defendant’s contentions regarding the plaintiff’s valuations, even though the defendant presented no witnesses. Id. We stated, “[Defendant] did not offer independent testimony regarding the fair market value of the plane prior to or after the 2014 crash. Nevertheless, through cross-examination of [Plaintiff] and [Plaintiff’s witness], [Defendant] established that no offers were made to purchase the plane at the $75,000 price. He then argued that [Plaintiff’s] estimated value was too high.” Id. Thus, Wright instructs that a defendant need not present his or her own witness to controvert a plaintiff witness’s testimony. Cross-examination of the plaintiff’s witness is sufficient to render the witness’s testimony “controverted.” -14- #29676, #29687
responded, “Correct” to Winkler’s question on cross-examination that “the old
tractor still sits in your yard. You don’t know right now if it’s operational, correct?”
(Emphasis added.) Winkler asked Robert, “[a]nd so you don’t know if that tractor is
operational or what it would get to make it run, do you?” to which Robert responded,
“No.” (Emphasis added.) In addition, Robert gave the following explanation on
cross-examination for his decision not to obtain an estimate for repairing the
tractor:
Q: And at that point, you made the determination that you didn’t want to spend any money on that old tractor because at the time, the farm economy was in a slump and you felt that it was probably cheaper to replace it than repair it, is that correct? A: Well, we made some assumptions on checking out what was out there, yes. And it what [sic] was going to take to put it in and we wondered—I mean, in our mind, we wondered what the reliability was going to be putting that thing in the field. ... Q: And you never did get a bid for repairing the tractor, is that correct? A: A written bid, no. But we verbally talked to the shop foreman at Advanced Equipment and we talked to Bickle’s and we talked to a kid at Hersruds in Sturgis.
None of the individuals who Robert alleged provided a verbal bid testified at trial
other than Merrow, who worked for Bickle’s, and Robert did not relay the amount of
their verbal bids. Therefore, Robert’s valuation was not a “fact proven by
uncontradicted testimony” that may be, under Roden, taken by a court as
conclusively established.
Market Value Damages
[¶26.] Here, the Lambs contend on appeal that they should receive $36,500 in
damages for the tractor, which they considered destroyed based on Robert’s
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estimated cost of repairs exceeding Robert’s estimated fair market value for the
tractor. The bulk of the damages sought by the Lambs for the tractor related to
their claim that the tractor’s powertrain 9 was likely damaged by the force of the
collision. The Lambs argue that “the obvious damage to the articulating joint
[pivot] and hitch pin represented undisputed evidence of significant damage to the
internal parts of the various drivetrain components.” But the Lambs chose not to
have an inspection done to determine the extent of the internal damage, if any, or
costs of repairs to the entire tractor. Robert merely opined as to what the inspection
costs would have been and what damage may have been uncovered had an
inspection been conducted. The circuit court was not bound to accept his opinion in
full as to either the cost of inspection or as to what damage might have been
discovered.
[¶27.] The Lambs did provide testimony from Merrow, an expert in diesel
engine repair, who testified that there was a high probability that something was
seriously wrong with the tractor’s engine after the crash. Merrow determined that
the cost of inspecting and repairing the engine could range anywhere from $2,800 to
$23,034.83. However, Merrow agreed that the only way to “find out [what’s]
happened and the consequences of it” was “by pulling the whole top end of the
engine off and inspecting everything.” Merrow did not conduct that detailed
inspection. Notably, on cross-examination, Merrow agreed that when he conducted
his initial cursory inspection, he was able to start the tractor, and he ran it for “just
9. The powertrain consists of the engine and the drivetrain, which includes the following components: transmission, differentials, final drive, axels, and each wheel’s planetaries. -16- #29676, #29687
a brief moment.” He further agreed that he could not “say one way or another”
where the repairs to the tractor engine would fall along his cost spectrum of $2,800
to $23,034.83 and that making that determination was not something that he was
hired to do.
[¶28.] Merrow additionally conceded on re-cross-examination that the tractor
being capable of pulling the finisher from the accident scene back to the Lambs’
property “certainly bode[d well] for it being less damage[d] than more damage[d],” a
fact the circuit court found to be indicative of “substantially less damage”
considering the testimony about the catastrophic damage that might otherwise
occur when a Cummins engine is overrun.
[¶29.] Based upon this record, the resolution of the bulk of the Lambs’ claim
for damages to the tractor turns on whether there was proof the engine and
transmission were in fact destroyed or in need of extensive repairs. The circuit
court acknowledged in its findings that it was probable that the tractor suffered
some damage to its powertrain, but without an inspection of the tractor, the circuit
court determined that it could not “hypothesize as to its potential diminution in
value.” The court, therefore, concluded that the Lambs “failed to meet their burden
of proof with respect the diminution in value and cost of repairs” for the tractor.
“This [C]ourt is not free to disturb the lower court’s findings unless it is satisfied
that they are contrary to a clear preponderance of the evidence.” Fin-Ag, Inc., 2007
S.D. 105, ¶ 19, 740 N.W.2d at 863 (alteration in original) (quoting Am. Bank & Tr.,
2004 S.D. 40, ¶ 11, 678 N.W.2d at 783). Further, “[d]oubts about whether the
evidence supports the court’s findings of fact are to be resolved in favor of the
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successful party’s ‘version of the evidence and of all inferences fairly deducible
therefrom which are favorable to the court’s action.’” Id. We are not convinced on
this record that the court’s underlying findings were clearly erroneous or that the
court erred in concluding that the Lambs had failed to meet their burden of
providing a basis to measure their damages with reasonable certainty such that the
court would not be required to speculate.
Cost of Repair Damages
[¶30.] The Lambs alternatively argue that the circuit court erred by not
assessing monetary relief for the cost of repairs for specific damage to the tractor
that was observable and had been “proven by a preponderance, as set forth in the
findings of fact.” Here, the court found by a preponderance of the evidence that the
batteries, articulating joint, and hitch pin had been damaged in the collision. And
unlike any damage to the powertrain, this damage was apparent without further
inspection and went uncontested by Winkler at trial.
[¶31.] Specifically, the court found that “when the Lambs attempted to start
their tractor the day after the collision, the batteries were dead . . . and [Robert]
estimated the cost to replace them would be $700.” The court also found that
“Merrow observed damage to the pivot [articulating joint]. This damage is
significant because it is necessary to machine and drill new bushings to repair the
damage.” Robert testified that the cost to perform this work would be $7,400. The
court’s findings also acknowledged damage to the hitch pin. “As a result of the
impact, a one and three-eighths inch steel pin that connected the finisher to the
tractor was sheared.” Accordingly, based upon these findings, if evidence in the
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record provided a rational basis for measuring loss without requiring the court to
speculate as to the amount, it should have awarded damages in the amount
necessary to cover the tractor’s proven repair costs.
[¶32.] First, we assess whether there was a rational basis to award damages
for the dead battery. At trial, Robert estimated that the cost to replace the battery
would be $700. This figure was not challenged on cross-examination or refuted
through opposing counsel’s evidence. We conclude this uncontroverted evidence
provided the circuit court a reasonable basis on which to award damages for the cost
of a new battery without resorting to speculation. Therefore, the circuit court
clearly erred by not awarding the Lambs the $700 needed to replace the battery.
[¶33.] Second, the Lambs argue that Robert’s testimony regarding the cost to
repair the articulating joint provided a rational basis to award damages in the
amount of $7,400. However, the court concluded otherwise when it determined that
“the Lambs have failed to meet their burden of proof with respect to the . . . cost of
repairs” for the tractor. Robert’s estimate of damages for the repair of the
articulating joint was based on his recollection of what he claimed some
unidentified person, at an unidentified machine shop, told him it would cost to bore
holes to repair the articulating joint. Aside from the $300 per hole figure, the rest of
Robert’s testimony is based on wide-ranging estimates for labor and repair costs.
Robert did not present a written estimate, nor did he call the person who purported
to give him the figures that he used for his estimate.
[¶34.] On these facts, the court could have rejected Robert’s testimony
supporting his estimate, or the court could have found that Robert’s estimate
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required the circuit court to speculate concerning the cost of repairs. “An award of
damages is a factual issue to be determined by the [fact finder].” Lord v. Hy-Vee
Food Stores, 2006 S.D. 70, ¶ 31, 720 N.W.2d 443, 454 (citing Roth v. Farner-Bocken
Co., 2003 S.D. 80, ¶ 26, 667 N.W.2d 651, 662). The circuit court did not clearly err
in finding that the Lambs did not prove their claim for damages for the articulating
joint.
[¶35.] Third, we determine there was no rational basis to support an award of
damages for the hitch pin. While the circuit court and both parties acknowledged
that the hitch pin was damaged, it does not appear, from the record, that the Lambs
provided any information regarding the cost of replacing the hitch pin. Without
evidence addressing the cost of a new hitch pin, the circuit court would have no
basis for measuring the loss with reasonable certainty and would have to speculate
as to an appropriate damages amount. For this reason, the circuit court did not err
by awarding zero damages for the hitch pin.
[¶36.] Accordingly, we remand the matter back to the circuit court for the
sole purpose of entering an order awarding damages for the battery consistent with
this opinion.
[¶37.] Affirmed in part, reversed in part.
[¶38.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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