Orr v. Cook

2011 SD 31, 800 N.W.2d 353, 2011 S.D. 31, 2011 S.D. LEXIS 60, 2011 WL 2582825
CourtSouth Dakota Supreme Court
DecidedJune 29, 2011
Docket25777, 25794
StatusPublished
Cited by2 cases

This text of 2011 SD 31 (Orr v. Cook) 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
Orr v. Cook, 2011 SD 31, 800 N.W.2d 353, 2011 S.D. 31, 2011 S.D. LEXIS 60, 2011 WL 2582825 (S.D. 2011).

Opinion

*355 GILBERTSON, Chief Justice.

[¶ 1.] For several years, the parties had a partnership agreement to conduct a cow-calf operation. They sold the cows and calves in the spring of 2007. The parties disagreed on the disbursement of the proceeds. The trial court determined the value of the born and unborn calves based on a variation of an expert’s testimony. Cook challenges the trial court’s valuation and other reimbursements on appeal. We affirm in part and reverse in part.

FACTS

[¶2.] Richard Orr and Sheldon Cook orally formed a partnership in 2002 to conduct a cow-calf operation. Under the arrangement, Cook would purchase cows and Orr would provide an area to keep them. Orr was also responsible for the cows’ care, including feeding and calving. After Cook sold the calves, 60% of the gross proceeds were paid to Orr and 40% to Cook. Orr paid 60%'of post-weaning feed and veterinarian bills for the calves and Cook paid 40%. Cook was solely responsible for all veterinarian bills for any cows or bulls. The partnership operated under this arrangement until the spring of 2007.

[¶ 3.] On March 29, 2007, Cook sold 240 cows, including 67 cow-calf pairs, 40 “open” or not-pregnant cows, 132 pregnant cows, and one sick calf. 1 Cook received $230,935.00 from the sale. Orr sued Cook, disputing the reimbursement amount Cook owed him from that sale and for the cost of feeding and caring for the cows during the winter of 2007. Before trial, the parties entered into a stipulation, leaving only two issues remaining for trial: 1) the value of the calves, born and unborn; and 2) the amount of reimbursement Cook owed Orr for feed and veterinarian costs for the calves.

[¶4.] At trial, experts for both Cook and Orr testified regarding the valuation of the livestock sold, and, consequently, the amount of reimbursement Cook owed Orr. Evidence was also presented regarding the cost of feed and veterinarian bills. The trial court awarded Orr $41,614.56. After judgment was entered, Orr moved for prejudgment interest and costs. The trial court denied Orr’s request because it was made for the first time in his Application for Taxation of Disbursements.

[¶ 5.] On appeal, the issues presented are:

1. Whether the trial court was clearly erroneous in determining the value of the calves.
2. Whether the trial court was clearly erroneous in determining the amount of reimbursement Cook owed Orr for feed and veterinarian costs.

By notice of review, Orr challenges:

3. Whether the trial court erred in denying prejudgment interest and costs.

STANDARD OF REVIEW

[¶ 6.] Whether the trial court used the correct method for determining the value of property is a question of law reviewed de novo. In re Dissolution of Midnight Star Enters., L.P., 2006 S.D. 98, ¶ 7, 724 N.W.2d 334, 336. However, we review the trial court’s valuation of property under the clearly erroneous standard. Id. “We will declare a finding of fact clearly erroneous only if we are definitely and firmly convinced that a mistake has *356 been made.” Lien v. Lien, 2004 S.D. 8, ¶ 14, 674 N.W.2d 816, 822 (citing First Nat’l Bank in Brookings v. Kuechenmeister, 2002 S.D. 9, ¶ 12, 639 N.W.2d 184, 187).

ANALYSIS

[¶ 7.] 1. Whether the trial court was clearly erroneous in determining the value of the calves.

[¶8.] When the herd was sold in May 2007, 67 calves had already been born. They were sold with their mothers as pairs. For the 67 pairs, Cook received $87,785.00, which is an average of $1,310.22 per pair. There were 132 pregnant cows, which sold for a total of $143,150.00, or an average of $1,084.47. There were also 40 “open” cows, meaning they were not pregnant. They sold for $22,769.38, which is an average of $569.23 each. One sick calf was sold for $125.00.

[¶ 9.] Both parties had experts testify at trial regarding valuation of the calves. Bruce Naasz testified as an expert for Orr. He stated that an unborn calf has a value because “the cow is the factory and the calf is the product. The value of the cow is directly related to the value of the calf.” After examining the sales sheets, Naasz used the cow and cow-calf pair sale prices to determine the value of just the calves, born and unborn. He subtracted the average value of an open cow from the average value of a cow-calf pair to determine the average value of the born calves ($1,310.22 — $569.23 = $740.99). To determine the average value of the unborn calves, he subtracted the average value of the open cow from the average value of the pregnant cow ($1,084.47 — $569.23 = $515.24).

[¶ 10.] Cook’s expert, Frank Kralicek, Jr., testified that the value of a newborn calf was $125.00, based on the actual sale of a calf on March 29, 2007, for that amount and his personal experience in the cattle market. He disagreed with Naasz’s valuation that a calf could be worth $740.99 because a calf would not actually be bought for that amount on the market. Kralicek testified that the cow of a cow-calf pair is the “big value” because buyers know that the cow has successfully been bred and likely could be again. He also disagreed that an unborn calf had any value. Kralicek again stated that it is the cow demonstrating that she can be bred that makes her worth more than an open cow.

[¶ 11.] On appeal, Cook concedes he owes Orr money for the 67 newly born calves, although they dispute the amount. Cook contends, however, that the unborn calves are not assets of the partnership, and he therefore does not have to pay Orr a portion of their sale amount. Under their oral agreement, Cook retained ownership of the cows and calves at all times, and then he paid Orr 60% of the sale proceeds from the calves. He argues that the 132 unborn calves were never sold because they were part of the cow and had no market value. Cook also asserts that Naasz’s methodology is flawed because it “failed to utilize actual market sales or to test the market sale with his common sense.”

[¶ 12.] Orr responds that Cook raises the issue whether the unborn calves were partnership assets for the first time on appeal. He argues that the parties stipulated that the unborn calves were partnership assets but disagreed on whether they had any value. Additionally, Orr defends the trial court’s findings on the values of the born and unborn calves.

[¶ 13.] At the stipulation hearing, counsel for Cook stated that the agreement was to ask the court to “identify the value of the 2007 spring calves.” The parties fur *357 ther clarified that they intended to present evidence as to the value of both born and unborn calves. The record does not indicate any discussion, argument, or evidence regarding whether the unborn calves were partnership assets. Rather, the evidence, testimony, and argument all relate to the value of the unborn calves, indicating that the court and parties were operating under the assumption that the unborn calves were partnership assets.

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Bluebook (online)
2011 SD 31, 800 N.W.2d 353, 2011 S.D. 31, 2011 S.D. LEXIS 60, 2011 WL 2582825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orr-v-cook-sd-2011.