#29298-a-PJD 2021 S.D. 52
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** GERALD PAWELTZKI, Plaintiff and Appellee,
v.
ROGER PAWELTZKI and LAWRENCE PAWELTZKI, Defendants and Appellants.
****
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK COUNTY, SOUTH DAKOTA
THE HONORABLE CHRIS GILES Judge
TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for plaintiff and appellee.
MITCHELL A. PETERSON JUSTIN T. CLARKE MICHAEL L. SNYDER of Davenport, Evans, Hurwitz, & Smith, LLP Sioux Falls, South Dakota Attorneys for defendants and appellants.
**** ARGUED APRIL 27, 2021 OPINION FILED 09/08/21 #29298
DEVANEY, Justice
[¶1.] After farming with his brothers for over three decades, Gerald
Paweltzki brought suit in 2012 to dissolve their farming partnership. He also
asserted claims against his brothers for breach of contract and breach of fiduciary
duty. Lawrence Paweltzki and Roger Paweltzki agreed that dissolution was
warranted; however, they denied that Gerald was entitled to any other relief and
asserted multiple counterclaims based on Gerald’s alleged misappropriation of
partnership assets. The procedural history of this case is complex and lengthy,
spanning approximately eight years. However, this appeal concerns only whether
the circuit court erred in denying Lawrence and Roger’s 2013 motion to enforce a
purported settlement agreement and to compel arbitration, and whether the circuit
court erred in dismissing Lawrence and Roger’s claim for unjust enrichment after a
January 2020 trial. We affirm.
Factual and Procedural Background
[¶2.] Gerald, Lawrence, and Roger Paweltzki are brothers and have farmed
together in McCook County, South Dakota, for multiple decades. Gerald is the
oldest, and in the 1970s, he and Lawrence informally began farming together as the
Paweltzki Brothers Partnership (the Partnership). They shared profits and losses,
as well as the labor necessary for the farming operation. Roger joined the
Partnership in the 1980s and equally shared in the farm work, profits, and losses.
[¶3.] When the Partnership began, Gerald managed the books and
continued to do so for 22 years thereafter. He was also primarily responsible for
handling the Partnership’s relationship with the bank and other financial matters.
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However, all three brothers could charge on Partnership accounts with vendors,
charge expenses at businesses, and use Partnership checks for business purchases.
They each took an agreed-upon monthly draw from the Partnership account in
addition to their one-third share of the partnership profits.
[¶4.] The brothers also owned land that they each farmed personally. The
brothers used Partnership equipment on their personal farms, and the Partnership
paid for the fuel. In addition, the Partnership routinely paid each brother’s
personal income taxes.
[¶5.] In the 1980s, Lawrence and his wife, Alyce, who at the time worked at
the bank where the Partnership did business, became suspicious that Gerald was
using Partnership money and assets for unauthorized personal reasons. Lawrence
claimed that he tried to talk to Gerald about it, but Gerald would walk away from
him. Lawrence took no additional action to prevent Gerald’s alleged misconduct.
[¶6.] At some point in the 1990s, it was decided that Lawrence would handle
the Partnership books and records with Alyce’s help. According to Lawrence and
Alyce, they continued to believe Gerald misappropriated funds and that some of his
expenditures were “obviously not partnership expenses[,]” but they did not confront
him about any particular charges. They also testified that nothing changed in
terms of how the business operated after they took over the books. Therefore,
Gerald continued to charge materials, products, supplies, and services on behalf of
the Partnership; he still had full and complete access to the business checking
account; and he continued to handle the business’s financial matters with the bank.
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[¶7.] Eventually, in 1997, the brothers signed a written Partnership
agreement, requiring, among other things, that Partnership funds only be
withdrawn for Partnership use and benefit. According to Lawrence and Alyce, the
bank required this document because of concerns relating to Gerald’s illicit activity.
However, the brothers testified that after executing the agreement, they did not
change how they operated. Each of them continued to have the Partnership pay
their personal income taxes and continued to use Partnership assets in their
personal farming operations.
[¶8.] In 2002, it was decided that Roger would handle the Partnership
books. He testified that although control of the books changed, the brothers did not
make any other changes to how they handled the Partnership’s financial matters.
All three could still write checks on the account, charge items to the Partnership,
and pay bills on behalf of the Partnership. Roger conceded that he had the
opportunity each time he received a bill to conclude that it was not a Partnership
bill, but he never did so.
[¶9.] In the fall of 2011, Gerald told his brothers that he was getting too old
to continue milking the cows each morning and would be stopping his daily dairy
chores. Lawrence and Roger then decided to cut Gerald off from the Partnership
financially. They opened a new Partnership bank account in their names only,
stopped Gerald’s monthly draw, and terminated his access to Partnership funds.
[¶10.] In October 2012, Gerald filed a lawsuit against Lawrence and Roger
for dissolution of the Partnership and distribution of assets. He also asserted
claims for breach of contract and breach of fiduciary duty. In their answer,
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Lawrence and Roger indicated that they too desired dissolution, but they denied
that Gerald was entitled to the other relief sought in his complaint. They further
alleged that Gerald embezzled and misused Partnership assets for personal use in
violation of the Partnership agreement and filed counterclaims alleging breach of
contract, breach of fiduciary duty, civil theft, conversion, and unjust enrichment. In
his reply to the counterclaims, Gerald asserted, among other defenses, that the
doctrine of laches barred any right of recovery.
[¶11.] Before engaging in discovery, the parties attempted to settle their
claims against each other and dissolve the Partnership. They participated in
mediation on February 15, 2013, with attorney Lon Kouri as the mediator.
According to an email Kouri sent to counsel for the parties at the conclusion of the
mediation, “the parties have agreed to dismiss the pending litigation, including the
counterclaim, with prejudice, all parties bearing their respective costs, fees and
expenses[,]” and “[a]s consideration for the dismissal, the parties agree to the
[identified] disposition of partnership property[.]” The email then identified terms
of disposition related to real property, equipment, crop insurance, livestock, crop
inventory/receivables, miscellaneous debts/assets, Gerald’s personal property, and
leased land. Kouri’s email also indicated that “[a]ny other miscellaneous
partnership assets or debts not mentioned herein or which may be
acquired/incurred during close out will be split between Larry, Gerald and Roger.”
[¶12.] Following this mediation, the parties could not resolve issues raised by
Gerald related to equipment he believed should not have been identified as
Partnership equipment. The parties also could not resolve issues related to
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Gerald’s belief that he owned certain bins and other items and his belief that items
should be identified as fixtures rather than personal property. The parties
participated in a second mediation on April 23, 2013, with Kouri again serving as
the mediator. The second mediation addressed matters not addressed in the first
mediation and attempted to resolve the issues Gerald expressed following the first
mediation.
[¶13.] After the second mediation, a staff member from Kouri’s office emailed
a copy of a draft “Settlement Memorandum” to counsel incorporating the settlement
terms set forth in Kouri’s email after the first mediation. The document also
identified that Gerald was to be given specific pieces of equipment and that the
parties agreed to distribute the remaining Partnership equipment “by way of a
draft[,]” whereby each brother would pick a piece of equipment from an agreed-upon
equipment inventory “until all the equipment on the list has been chosen.” Neither
counsel for Gerald nor counsel for Lawrence and Roger, or the parties themselves,
ever signed the draft settlement agreement. Nevertheless, the parties began
carrying out the settlement terms by dividing Partnership property between them.
[¶14.] Although the parties were able to complete part of the equipment
draft, issues about the distribution of equipment and real estate continued to arise
between them, along with issues relating to the division of ongoing Partnership
expenses and income. The record contains multiple emails between counsel on
these issues, including spreadsheets prepared by counsel identifying the potential
disposition of the remaining Partnership property. An email from Gerald’s counsel
in June 2013, noted, “As we continue our back-and-forth on these issues, it appears
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we may be approaching an impasse on several of the items. Perhaps we should
simply schedule a couple days to arbitrate these issues with Lon Kouri . . . .” In an
email in October 2013, counsel for Lawrence and Roger asked, “So what happened
to your client’s agreement to arbitrate any unresolved issues?” Counsel for Gerald
replied that there was no agreement to arbitrate, but if there was, it “was certainly
contingent upon the overall agreement of pushing this to an amicable resolution.”
Gerald’s counsel further noted that although the parties had tried to work toward
an agreement on the issues between them, “[u]nfortunately, as the last several
months have proven, an agreement cannot be reached.”
[¶15.] In December 2013, Lawrence and Roger filed a motion to enforce the
purported settlement agreement and to compel arbitration. In an affidavit in
response to the motion, Gerald acknowledged that the parties had agreed, during
the first mediation, on a process for dividing Partnership equipment and had agreed
to a division of the Partnership’s real property and debt. However, he claimed that
his agreement to these terms was based on information given to him at that
mediation, information which in his view did not reflect the full picture. For
example, he explained that his agreement to give Lawrence and Roger all livestock
was based on his belief that certain fat cattle had been sold prior to the mediation
and that the proceeds would be used to reduce the Partnership debt. He further
claimed that following the April 2013 mediation, multiple issues arose between the
parties such as: whether grain bins, fencing, and gates constituted fixtures on the
real property to be divided; whether the agreement to divide the Partnership debt
was contingent on Lawrence and Roger not continuing to increase it; whether hay
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inventory would be divided in thirds; and whether the equipment draft included
debt for the equipment.
[¶16.] The circuit court held two hearings on Lawrence and Roger’s motion,
the second of which included live testimony by Kouri. In June 2014, the court
issued a memorandum decision and later entered findings of fact and conclusions of
law denying Lawrence and Roger’s motion. The court determined that Lawrence
and Roger did not meet their burden of proving that the parties had “a meeting of
the minds on all of the issues material to the resolution of the partnership.” The
court further determined that the parties did not agree to submit all remaining
issues to arbitration. Alternatively, the court denied Lawrence and Roger’s motion
to enforce the settlement and compel arbitration because, according to the court,
“[e]ven if a complete agreement had been reached,” “there were several material
mistakes of fact between” the parties that “would support rescission of the
contract[.]”
[¶17.] After the court denied the motion, the parties continued to divide the
Partnership’s real property and certain assets, but Lawrence and Roger then filed a
second motion to enforce the purported settlement agreement. They noted that they
were not seeking to compel arbitration; rather, they were requesting that the court
reconsider its prior decision given that “the grand total of [Gerald’s] disagreement
with the terms under which the parties agreed to split a multi-million-dollar farm
partnership comes to, at most, $30,000 to $35,000.” They explained that they had
“studied” Gerald’s affidavit submitted in response to their first motion to enforce the
purported agreement and the court’s findings of fact and conclusions of law denying
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enforcement. They then identified what they believed to be Gerald’s view of the
disputed matters related to the dissolution of the Partnership and requested that
the court simply accept their characterization of Gerald’s view and thereafter
enforce the purported settlement agreement, including the parties’ agreement to
release their claims against each other.
[¶18.] The court held a hearing on January 16, 2015, and at the conclusion of
the hearing, the court reiterated that it had previously denied enforcement because
the parties had not agreed on essential terms related to wrapping up, in totality,
the Partnership. The court remarked, “At that time the agreement was presented
as being one of resolving the entirety of the partnership agreement . . . . There was
never any indication that the agreement or the partnership could be divided in
piecemeal. There was never a meeting of the minds on that.” However, the court
identified that since the mediation, the parties had divided certain real property
and had drafted equipment, and by this conduct, the parties had ratified those
particular terms of the purported agreement. The court issued an oral ruling,
followed by findings of fact and conclusions of law, directing the parties to execute
the documents necessary to convey the agreed-upon real estate and agreed-upon
drafted equipment.
[¶19.] After the hearing, Gerald filed a motion requesting that the circuit
court determine, among other things, what constitutes a fixture on the real property
the court had ordered to be transferred following the January 2015 hearing. The
court held a hearing and issued a ruling determining whether grain bins, propane
tanks, fencing, and other items constituted fixtures or personal property. However,
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the disputes related to the division of Partnership property continued thereafter,
and the parties returned to court on various motions to enforce the court’s orders.
[¶20.] Amongst those proceedings before the circuit court, the parties were
also attempting to adopt a process to distribute specific items of Partnership
machinery, equipment, and supplies. Although they had attempted to memorialize
the terms of a draft process in a “Draft Items Settlement Agreement,” they
ultimately could not agree on a writing. In September 2016, Lawrence and Roger
filed a motion for the circuit court to enforce their version of the agreement. Gerald,
now represented by new counsel, objected, asserting that no enforceable agreement
existed governing the draft process because Lawrence and Roger rejected the
version of the agreement he had signed.
[¶21.] The circuit court held a hearing on December 8, 2016, and thereafter
entered an order enforcing the version of the draft process agreement signed by
Gerald. That version specifically identified the following issues which were not
encompassed or impacted by the agreement: “(a) property previously resolved or
transferred per . . . prior court decisions or orders . . . ; (b) ‘true-up’ items[ 1] owned
by the Partnership, which include, but are not limited to, fuel, chemicals, livestock,
crops, and the particular items [the court] determined were not affixed to real
property (panels, gates, posts, corral fencing, and electronic fencing); (c) Jerry’s
legal claims against Larry and Roger as set forth in the [c]omplaint [including his
1. Counsel for Lawrence and Roger explained that “[t]he concept of the true-up” involved dividing “things that couldn’t really be divided.” As it pertains to these items, counsel suggested that the parties would present evidence on their value, and the court would determine each partner’s one-third share.
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Partnership draw to which he claims he was entitled]; and (d) Larry and Roger’s
legal claims against Jerry as set forth in their [c]ounterclaim.”
[¶22.] Approximately a year later, Lawrence and Roger filed a third motion
for the court to enforce the purported settlement agreement reached by the parties
following the February and April 2013 mediations. 2 They claimed that the parties
had since settled many of the disputed issues between them. They then argued that
“there was no disagreement” between the parties after the 2013 mediations as to
the items noted in the December 2016 order as the remaining issues needing to be
litigated, i.e., the livestock, crops, and the parties’ claims against each other. In
particular, they claimed “as far back as the original mediation on February 15,
2013,” Gerald agreed to allow Lawrence and Roger to keep the livestock and crops
and to release his legal claims against them in exchange for Lawrence and Roger’s
release of the embezzlement claim. Although Lawrence and Roger noted that the
Partnership fuel inventory, oil inventory, and the gates/posts/fences/panels still
needed to be trued up, they informed the circuit court that “for purposes of this
motion,” they “will accept [Gerald’s] position and will pay [Gerald] $12,302 for these
remaining true-up items if it means everything else is resolved and this case is
dismissed.” They further requested, in accord with their view of the purported 2013
settlement agreement, that the court enter an order directing that they be entitled
to keep the livestock and crops and related proceeds and that the parties be
required to release their claims against each other.
2. Prior to this motion, the case had been assigned to a different judge because of the previous judge’s appointment to the South Dakota Supreme Court.
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[¶23.] At the conclusion of a hearing in November 2017, the circuit court
denied the motion but allowed the parties to conduct further discovery and
potentially renew the motion at a later time. After conducting discovery, including
depositions, Lawrence and Roger renewed their motion, raising the same
arguments as to why the purported settlement agreement should be enforced. The
court again denied their motion, indicating that it had reviewed the voluminous
record covering the six years of litigation and had determined that while there was
a narrowing of the issues between the parties, there was not a “global” agreement
that the court could enforce. The court once again reaffirmed that the remaining
issues to be addressed at trial included: (1) the valuation of Partnership livestock,
crops, and remaining small items of property so that the court could determine the
true-up amount Gerald was due for his one-third share; (2) Gerald’s legal claims
against Lawrence and Roger for breach of fiduciary duty and breach of contract; and
(3) Lawrence and Roger’s legal claims for breach of contract, breach of fiduciary
duty, civil theft, and conversion, and their equitable claim of unjust enrichment.
[¶24.] A six-day jury trial commenced in January 2020. The jury was tasked
with resolving the legal claims between the parties, including both the contract and
tort claims, while the issues related to the dissolution of the Partnership and
Lawrence and Roger’s claim for unjust enrichment were to be resolved by the court.
[¶25.] As to Gerald’s breach of contract and breach of fiduciary duty claims,
Lawrence and Roger denied that their conduct harmed Gerald to the extent he
alleged, but they admitted at trial that they each took $25,000 as a draw on the
Partnership account during the time when Gerald was still a one-third owner of the
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Partnership and agreed that Gerald was entitled to recover $25,000. On their
claims against Gerald, Lawrence and Roger asserted that Gerald misappropriated
over $1,000,000 in Partnership assets, starting before 2000 and continuing to 2011.
They presented evidence to the jury attempting to show that this alleged conduct
constituted a breach of contract, breach of fiduciary duty, civil theft, and conversion,
and further relied on this same evidence to prove their equitable claim of unjust
enrichment.
[¶26.] Ultimately, the jury returned a verdict in favor of Gerald on his breach
of contract and breach of fiduciary duty claims, awarding him $25,000 in damages.
The jury did not find in favor of Lawrence and Roger on any of their legal claims,
and the court issued findings of fact and conclusions of law denying Lawrence and
Roger relief on their unjust enrichment claim. The circuit court also issued findings
of fact and conclusions of law identifying the value of the remaining Partnership
assets and previously paid expenses, along with a judgment awarding Gerald his
one-third share of certain items.
[¶27.] Lawrence and Roger appeal, challenging the circuit court’s denial of
their 2013 motion to enforce the purported settlement agreement and to compel
arbitration and the circuit court’s 2020 denial of relief on their claim for unjust
Analysis
1. Whether the circuit court erred in denying Lawrence and Roger’s 2013 motion to enforce the purported settlement agreement and to compel arbitration.
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[¶28.] Lawrence and Roger contend the circuit court erroneously concluded
that the parties did not reach an enforceable agreement following the February and
April 2013 mediations. They note that no one objected to the terms specified in
Kouri’s draft agreement following the second mediation or otherwise indicated that
the terms did not accurately, clearly, and unambiguously reflect the terms agreed
upon by the parties. They also direct this Court to Kouri’s testimony, which, in
their view, supports that the parties had mutually agreed on all essential terms of
the agreement, including the release of all claims against each other and an
agreement to arbitrate what they deemed to be any remaining minor issues. 3
3. On appeal, Gerald argues for the first time that the circuit court erred in considering mediation communications in violation of the Uniform Mediation Act (the UMA). See SDCL ch. 19-13A. He asserts that Kouri’s evidence should be disregarded, while Lawrence and Roger contend that Gerald forfeited his right to rely on the UMA by not making this argument to the circuit court. They alternatively claim that the UMA does not apply here because there is no dispute the parties waived any privilege that could have been created by the UMA. Although Gerald did not raise a UMA violation before the circuit court, we note that it is clear from the record that the admission of Kouri’s testimony did not violate the UMA. Kouri did not disclose a mediation communication as the term is defined in SDCL 19-13A- 2(2). His testimony fit within the parameters of SDCL 19-13A-7(b)(1), which allows mediators to disclose “whether the mediation occurred or has terminated, whether a settlement was reached and if so the terms thereof[.]” It is likewise clear from the record that Gerald waived any privilege that would have existed. Under SDCL 19-13A-4, mediation communications are “not subject to discovery or admissible in evidence in a proceeding unless waived . . . as provided by § 19-13A-5.” (Emphasis added.) A privilege “may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation[.]” SDCL 19-13A-5. At the conclusion of the first hearing on the motion to enforce, the circuit court suggested Kouri testify “as to what his understanding of the arbitration agreement was” and counsel for Gerald replied, “I wouldn’t have any objection[.]” Gerald then elicited testimony from Kouri concerning the mediation.
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[¶29.] “A settlement agreement is contractual in nature and subject to the
same rules of construction as contracts.” In re Estate of Neiswender, 2003 S.D. 50, ¶
15, 660 N.W.2d 249, 252. Therefore, “[a]n agreement exists when the following
elements are present: (1) the parties are capable of contracting; (2) the parties
consent to the agreement; (3) the agreement is for a lawful object; and (4) the
parties have sufficient cause or consideration.” Id. (citing SDCL 53-1-2). Here, the
only element at issue is whether the parties consented to the purported agreement.
“Consent of the parties to a contract must be free, mutual and communicated by
each to the other.” Id. ¶ 16 (citing SDCL 53-3-1). “Consent is not mutual unless the
parties all agree upon the same thing in the same sense.” SDCL 53-3-3. Thus,
“[t]here must be mutual assent or a meeting of the minds on all essential elements
or terms in order to form a binding contract.” Read v. McKennan Hosp., 2000 S.D.
66, ¶ 23, 610 N.W.2d 782, 786 (citation omitted).
[¶30.] Whether consent is mutual “is determined by considering the parties’
words and actions[,]” see Estate of Neiswender, 2003 S.D. 50, ¶ 20, 660 N.W.2d at
253, and when in dispute, “[w]hether the parties had a meeting of the minds is a
question of fact” for the circuit court to determine, see Melstad v. Kovac, 2006 S.D.
92, ¶ 21, 723 N.W.2d 699, 707. We therefore review the circuit court’s findings of
fact under the clearly erroneous standard of review. Id.; Estate of Neiswender, 2003
S.D. 50, ¶ 13, 660 N.W.2d at 252.
[¶31.] In denying Lawrence and Roger’s motion, the circuit court noted that
the parties participated in mediation in an attempt to resolve the disputes that
arose between them and to resolve the pending litigation. The court further noted
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Gerald’s acknowledgement “that an ‘apparent’ agreement was negotiated at the
time of the second mediation[.]” However, as asserted by Gerald and acknowledged
by Lawrence and Roger, the court found that there were a number of issues related
to the Partnership wrap-up that were not resolved at either mediation, despite the
parties’ agreement on many Partnership issues. Some of the unresolved issues
identified by the court concerned the Partnership’s personal property including
“gates and panels, augers, add-on pieces to various equipment, dairy equipment,
and miscellaneous tools.” The court further noted a disagreement as to “various
partnership and personal expenses, such as payment of real estate taxes, utilities,
rent, use of fuel inventory, fat cattle receipts, and the division of hay inventory.” In
the court’s view, these matters were “material to the partnership wrap-up[,]” and
because they were unresolved, “there was not a mutual understanding between the
parties.” Ultimately, the court concluded that Lawrence and Roger did not meet
“their burden to show that there was a meeting of the minds on all of the issues
material to the resolution of the partnership.”
[¶32.] On appeal, Lawrence and Roger assert that the circuit court clearly
erred in concluding that there was not a meeting of the minds on all essential terms
of the parties’ agreement. First, they fault the circuit court for relying “on an after-
the-fact affidavit filed by [Gerald], wherein [he] claimed there were a number of
contingencies to the parties’ settlement agreement and various ‘misunderstandings’
he had about what, in fact, the parties agreed.” 4 Second, they claim that the
4. Lawrence and Roger note that the circuit court found Gerald not credible, which in their view, further supports that the circuit court erred in relying on (continued . . .) -15- #29298
evidence shows that Gerald “never expressed any genuine disagreement that the
parties had reached an agreement to divvy up the Partnership’s crops and livestock,
in addition to its real property, along with the parties mutually exchanging a
release and dismissal of each other’s claims.” In their view, those were the essential
terms of the parties’ purported agreement. They further assert that any
disagreement Gerald had, which related to only a small percentage of the overall
Partnership value (about one-half or 1% of the total value of the Partnership), were
de minimis and not material. We address each argument in turn.
[¶33.] First, Lawrence and Roger’s reference to the alleged de minimis value
of the items disputed by Gerald is made only in the context of the overall value of
the Partnership to be dissolved. This is problematic because the purported
settlement agreement they seek to enforce would also require the parties to dismiss
their respective claims against each other. What may seem minor when considering
only the Partnership dissolution might nevertheless be material to the resolution of
the parties’ other claims, which revolved around the manner in which the
Partnership had operated over the years. In any event, Lawrence and Roger have
not cited authority for the proposition that when the monetary value of an
unresolved matter is small in percentage as compared to the total value of the
business to be dissolved via the parties’ purported agreement, the unresolved terms
must be considered non-essential to the agreement. There are many potential
________________________ (. . . continued) Gerald’s claim that matters remained unresolved. However, that credibility determination was made six years later by a different judge following the trial. The court, in denying the December 2013 motion to enforce and to compel arbitration, did not make a specific credibility determination.
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reasons why a particular contract term might be essential to a party, not all of
which must hinge upon monetary value. This is particularly so when a purported
agreement, like the one here, involves an attempt to dissolve in its entirety a
longstanding, but continuing, business operation with inventories that are not
static, while also attempting to reach an agreement to dismiss the several separate,
but related, claims the business owners asserted against each other. Therefore,
while Lawrence and Roger’s proposition might hold true in some cases, the
circumstances of each case control.
[¶34.] Second, while the circuit court did rely on Gerald’s affidavit in
concluding that there was no meeting of the minds on the terms essential to the
parties’ agreement, the record reveals the court also relied on the written
submissions by all parties, as well as the live testimony of Kouri. For example, the
court indicated that the spreadsheet exhibit submitted by Lawrence and Roger
“supports Gerald’s claims of a number of unresolved issues between the parties,
even following the second mediation.” The court also relied on emails between
counsel for the parties, which began after the second mediation and continued into
November 2013. Our review of these emails supports the court’s determination that
the parties continued negotiating the terms each side was willing to agree on to
dissolve the Partnership so that both sides would then dismiss their claims against
each other. 5 See, e.g., Liebig v. Kirchoff, 2014 S.D. 53, ¶ 41, 851 N.W.2d 743, 753
5. For example, in one email from counsel for Gerald, his attorney wrote, “Everything since February was done with the hope that we could actually reach an agreement. Unfortunately, as the last several months have proven, an agreement cannot be reached. With seemingly every step forward, we (continued . . .) -17- #29298
(concluding that a meeting of the minds did not exist in light of continued
negotiations on terms essential to the agreement). Finally, as further support for
why there were “‘essential terms’ that had not been agreed to[,]” the court relied on
Kouri’s testimony that the parties had attempted to put a process in place to
address any unresolved issues going forward.
[¶35.] Nevertheless, Lawrence and Roger further assert the circuit court
overlooked the fact that the parties had begun carrying out the terms of the
settlement agreement following the second mediation. In their view, this
demonstrated that the parties understood that they had reached a settlement
agreement and also showed that the parties ratified the purported settlement
agreement. On the contrary, the court specifically considered that the parties
transferred certain property after the April mediation and observed that the parties
appeared to reach an understanding as to the division of some of the Partnership
property. However, the court did not find that this conduct ratified the parties’
purported agreement to the extent that Lawrence and Roger suggested, i.e., that it
would resolve the pending litigation between the parties.
[¶36.] Notably, a critical term of the parties’ purported settlement was the
alleged agreement to submit any unresolved Partnership issues to arbitration. But
in denying the motion to enforce the purported settlement agreement, the court
found that the evidence showed, “at most[,]” “a discussion between the attorneys
________________________ (. . . continued) collectively take 1 if not 2 back.” Gerald’s counsel then suggested, “Selling it all at auction and splitting the proceeds is the only way to get this resolved, pure and simple.”
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and Kouri about possibly arbitrating any issues remaining following the second
mediation.” On appeal, Lawrence and Roger contend the circuit court erred in
concluding that the parties did not agree to arbitrate. However, a review of the
record supports the court’s determination. During the hearing, the court asked
Kouri the pointed question whether there was an agreement to arbitrate or just
discussions. Kouri replied, “There were discussions, Judge.” As this Court has
previously recognized, “If an agreement leaves open essential terms and calls for the
parties to agree and negotiate in the future on essential terms, then a contract is
not established.” Weitzel v. Sioux Valley Heart Partners, 2006 S.D. 45, ¶ 23, 714
N.W.2d 884, 892. Moreover, the purported settlement agreement contains no terms
related to arbitration, and Lawrence and Roger have not identified evidence in the
record to support a determination that when Gerald’s counsel was referring to
arbitration in his emails following the mediation, he had authority to bind Gerald.
See generally Melstad, 2006 S.D. 92, ¶ 12, 723 N.W.2d at 704 (referring to an
attorney’s authority to settle on behalf of a client as dependent on evidence
supporting that the client gave such authorization).
[¶37.] Finally, it is important to view the materiality of the unresolved issues
related to the Partnership dissolution through the lens of what was transpiring in
2013. At that time, the parties appeared to acknowledge the need for a further
arbitration before all the other pending claims between them could be dismissed.
The fact that the court later ruled on several of these disputes, and additional
property was thereafter transferred, should not obscure the significance of these
unresolved issues at the time the court denied Lawrence and Roger’s 2013 motion.
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Lawrence and Roger fail to recognize that these disputes, which they deem to be
“minor,” impeded the parties’ ability in 2013 to carry out the larger components of
the purported agreement, including the transfer of at least some of the real estate
and the completion of the equipment draft, both of which were necessary to reach a
settlement resolving all the pending claims. The materiality of these unresolved
issues becomes even more apparent in the absence of an agreement to arbitrate
future issues.
[¶38.] Because Lawrence and Roger have not established that the circuit
court clearly erred in finding that there was not a meeting of the minds on all
essential terms, we affirm the circuit court’s decision denying Lawrence and Roger’s
December 2013 motion to enforce the purported settlement agreement and to
compel arbitration. 6
6. Although not briefed by the parties, but of further note, during oral argument, when asked what remedy they are seeking if this Court agrees that the circuit court erred, counsel for Lawrence and Roger asserted that the proper remedy would be to reverse the jury’s $25,000 award to Gerald on the breach of contract and fiduciary claims, which were supposed to be dismissed per the purported settlement, and also reverse the circuit court’s award to Gerald of one-third of the value of the livestock and crops because Gerald had agreed that Lawrence and Roger were to receive those items. Counsel further suggested that the circuit court’s remaining determinations after trial on the other true-up items (which largely favored Lawrence and Roger) could remain intact. But this suggestion ignores the final component of the purported agreement requiring any remaining unresolved matters to be resolved by arbitration—a resolution which may or may not have resulted in the same true-up determinations as those ultimately reached by the circuit court. A conclusion that the circuit court erred in finding no enforceable agreement in 2013 would therefore necessitate a reversal of the court’s 2020 judgment following the trial and a remand for further proceedings consistent with the settlement terms.
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2. Whether the circuit court erred in denying Lawrence and Roger relief on their claim for unjust enrichment.
[¶39.] Lawrence and Roger claim the circuit court erroneously determined
that their unjust enrichment claim is barred by the doctrine of laches. Gerald
disagrees, but he further asserts that “once the jury ruled on Lawrence and Roger’s
legal claims, the law prohibit[ed] them from presenting the identical claims in the
form of the equitable remedy of unjust enrichment to the trial court.” More
specifically, he claims that because Lawrence and Roger had available to them an
adequate remedy at law for the exact same injury for which they sought equity,
they could not obtain relief from the circuit court on the equitable theory of unjust
[¶40.] In response, Lawrence and Roger contend that this Court should
decline to consider Gerald’s further argument because he did not raise it before the
circuit court. It is true that Gerald did not raise this particular argument below. 7
________________________ (. . . continued) We further note that the court’s order denying the 2013 motion to enforce the purported settlement contains an alternative ruling that Gerald would be entitled to a rescission on the grounds of mistake of fact as to several later discovered matters even if the parties had agreed upon the essential terms. Lawrence and Roger have not appealed this alternative ruling, and it is not easy to discern the import of this ruling given the subsequent rulings issued by the court. In any event, because we have determined that the circuit court properly denied enforcement of the purported agreement, we need not contemplate the effect of the alternative ruling on this appeal or what an unwinding of the clock might look like if the purported settlement agreement had been deemed enforceable.
7. Instead, the parties’ focus before the circuit court appeared to be on the avoidance of a duplicative recovery. For example, prior to trial, counsel for Lawrence and Roger explained that although they would be presenting the (continued . . .) -21- #29298
However, Lawrence and Roger have had an opportunity to respond to Gerald’s
argument in their reply brief, and although we generally do not address issues for
the first time on appeal, “this is merely a rule of procedure and not a matter of
jurisdiction.” State v. Chant, 2014 S.D. 77, ¶ 7, 856 N.W.2d 167, 169 (quoting Sharp
v. Sharp, 422 N.W.2d 443, 445 (S.D. 1988)); see also In re J.D.M.C., 2007 S.D. 97, ¶
27, 739 N.W.2d 796, 805; State v. Gard, 2007 S.D. 117, ¶ 16, 742 N.W.2d 257, 261
(noting that the parties both fully briefed the issue). Thus, we have “discretion to
disregard the general rule of administration[,]” particularly when, as here, “the
question raised for the first time is one of substantive law which is not affected by
any factual dispute, for under such circumstances the parties may present the issue
as thoroughly in the appellate court as it could have been presented below.” See
Sharp, 422 N.W.2d at 445. Moreover, even if Gerald had not raised this issue on
appeal, the initial question in determining whether the court erred in denying
Lawrence and Roger’s unjust enrichment claim, is whether, as a matter of law, they
could seek the equitable remedy of unjust enrichment when they had available to
them an adequate remedy at law.
[¶41.] A claim of “[u]njust enrichment contemplates an involuntary or
nonconsensual transfer, unjustly enriching one party.” Johnson v. Larson, 2010
S.D. 20, ¶ 8, 779 N.W.2d 412, 416. “An enrichment is unjust if it ‘lacks an adequate
________________________ (. . . continued) same evidence to support their request for relief on the unjust enrichment claim and their request for a favorable jury verdict on their legal claims, they would elect a remedy in the event both the jury and the court decided these claims in their favor. On appeal, Lawrence and Roger similarly focus their argument on the notion that the rules of civil procedure allow them to assert legal and equitable claims, so long as they do not recover duplicate damages.
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legal basis; [i.e.,] it results from a transaction that the law treats as ineffective to
work a conclusive alteration in ownership rights.’” Dowling Fam. P’ship v. Midland
Farms, 2015 S.D. 50, ¶ 24, 865 N.W.2d 854, 864 (quoting Restatement (Third) of
Restitution & Unjust Enrichment § 1 cmt. b (2011)). A request for relief because of
unjust enrichment sounds in equity, see Hofeldt v. Mehling, 2003 S.D. 25, ¶ 14, 658
N.W.2d 783, 788, and it is well settled that “[a]n essential element to equitable
relief is the lack of an adequate remedy at law.” Rindal v. Sohler, 2003 S.D. 24, ¶
12, 658 N.W.2d 769, 772.
[¶42.] Here, Lawrence and Roger had available to them an adequate remedy
at law against Gerald via their claims for breach of contract, breach of fiduciary
duty, civil theft, and conversion. Thus, they could not seek equitable relief for the
same alleged wrong. Whether Gerald benefited from his use of Partnership
property in a manner that was inequitable is inherently dependent on whether his
use of the property was in violation of either the informal or written Partnership
agreement. See, e.g., Burch v. Bricker, 2006 S.D. 101, ¶ 18, 724 N.W.2d 604, 609
(rejecting a claim for unjust enrichment because such “remedy is unavailable when
the rights of the parties are fixed by the terms of a written contract”). An equitable
remedy is therefore not available because the parties’ conduct is governed by an
existing legal relationship.
[¶43.] Lawrence and Roger note that the elements necessary to prove their
legal and equitable claims are not identical. They therefore contend that so long as
they do not recover duplicate damages, they could pursue both legal and equitable
theories of relief on the same conduct giving rise to their legal and equitable claims.
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On the contrary, regardless of whether the elements of their legal claims (breach of
contract, breach of fiduciary duty, civil theft, and conversion) and equitable claim of
unjust enrichment differ, there would be no basis for equity to step in here because
the law provided Lawrence and Roger an adequate remedy for Gerald’s alleged
conduct. And despite their suggestion to the contrary, the fact that the jury found
they did not prove their legal claims does not afford Lawrence and Roger a second
bite of the apple to seek equitable relief for the exact same conduct. As one court
explained, “Equity generally will not provide relief where an adequate remedy at
law existed and defendant was denied that relief for appropriate legal reasons.”
Mosebach v. Blythe, 282 N.W.2d 755, 761 (Iowa Ct. App. 1979). Because the circuit
court could not, as a matter of law, render equitable relief under the circumstances,
we affirm the circuit court’s judgment denying Lawrence and Roger relief on their
unjust enrichment claim. 8
[¶44.] Affirmed.
[¶45.] KERN, SALTER, and MYREN, Justices, and GILBERTSON, Retired
Chief Justice, concur.
[¶46.] JENSEN, Chief Justice, deeming himself disqualified, did not
participate.
[¶47.] GILBERTSON, Retired Chief Justice, sitting for JENSEN, Chief
Justice, disqualified.
8. Because of our determination that equitable relief could not be afforded when Lawrence and Roger had an adequate remedy at law, as they did here, we deem it unnecessary to address the merits of the circuit court’s ruling that the unjust enrichment claim was barred by the doctrine of laches.
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