#26672-rev & rem-SLZ

2014 S.D. 4

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                                   ****
EDWARD L. HUMBLE,                         Plaintiff and Appellant,

     v.

RUSS WYANT,                               Defendant and Appellee.


                                   ****

                 APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                   PERKINS COUNTY, SOUTH DAKOTA

                                   ****

                   THE HONORABLE JOHN W. BASTIAN
                            Retired Judge

                                   ****

JOHN W. BURKE of
Thomas, Braun, Bernard & Burke, LLP
Rapid City, South Dakota                  Attorneys for plaintiff
                                          and appellant.


RICHARD E. HUFFMAN
MICHAEL V. WHEELER of
DeMersseman Jensen Tellinghuisen
 & Huffman, LLP
Rapid City, South Dakota                  Attorneys for defendant
                                          and appellee.

                                   ****

                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 4, 2013

                                          OPINION FILED 02/05/14
#26672

ZINTER, Justice

[¶1.]        Edward L. Humble (Humble) sued Russ Wyant (Wyant) for specific

performance of Humble’s option to purchase a ranch owned by Wyant. Wyant

counterclaimed for rent. The circuit court denied specific performance, finding that

Humble failed to satisfy certain option conditions before the option expired. The

court also found for Wyant on his counterclaim for rent. Humble appeals both

decisions. We reverse the judgment on the counterclaim and remand for further

findings on specific performance.

                            Facts and Procedural History

[¶2.]        This case involves a dispute between family members over ownership

of a 4,820 acre ranch in Perkins County. A lengthy recitation of the facts is

necessary to understand the parties’ relative fault with regard to the failure of the

conditions of the option to purchase.

[¶3.]        The property, owned by Wyant since 2005, is known as Humble Ranch.

Prior to Wyant’s ownership, the ranch was owned by Edward F. Humble and Bessie

Humble. Edward F. and Bessie had five children: Karen, Donnalee, Bruce, Galen,

and Edward L. Humble (the plaintiff and appellant). Wyant is Karen’s son and the

nephew of appellant Humble. Wyant worked on the ranch during the summers

when he was in high school. Wyant now lives in Wyoming and operates

construction companies there and in Montana.

[¶4.]        Edward F. Humble died in 1992. Bruce, who had been living on and

operating the ranch since the early 1980s, acquired a half interest in the ranch.




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The remaining half interest was owned by Bruce’s mother, Bessie. Bruce continued

to operate the ranch after Edward F. Humble’s death.

[¶5.]        Under Bruce’s management, the ranch began to struggle financially.

In 2001, in response to a bank foreclosure, the Humble family held a meeting.

Humble and Wyant both attended. As a result of the meeting, Wyant agreed to loan

Bruce $190,500 to pay the bank note that was in default and bring other financial

obligations current. In return for the loan, Wyant received a promissory note from

Bruce. The note required annual payments of $25,000. Bruce made only one

payment of $22,184.

[¶6.]        In 2005, Humble contacted Wyant about the continuing financial

difficulties with the ranch. Humble feared the ranch could be lost. He also felt

Bruce should no longer operate the ranch. After another family meeting, it was

agreed that Wyant would purchase both Bruce’s and Bessie’s interests and give

Humble an option to purchase the ranch. Wyant subsequently acquired both

interests and gave Humble a two-year option to purchase.

[¶7.]        After Wyant acquired Bessie’s and Bruce’s interests, Humble’s son

Casey moved onto and began operating the ranch pursuant to an agreement among

Wyant, Humble, Casey, and other family members. Casey testified that prior to

moving onto the ranch, he and Wyant discussed whether to enter into a contract or

other writing regarding Casey’s occupancy. Wyant declined, indicating: “Until we

get something closed, run it like it’s your own.” After 2005, Casey maintained the

buildings, corrals, fences, and the house on the ranch. He also made improvements.

Casey indicated that he did not pay rent to Wyant because Wyant never requested


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it. Casey did, however, testify that he made “exchanges” with Humble, including

“some cash, some not, not – not nothing that said ‘rent’ on a check.” Casey testified

that he assumed once Humble exercised the option, rent payments would belong to

Humble.

[¶8.]        The two-year option period commenced when Wyant provided Humble

with a statement of Wyant’s investment in the ranch, which would be used to

establish the purchase price. Wyant provided the statement on January 10, 2006,

two months later than required by the option. Humble did not dispute the

statement amount or object to its untimeliness. Consequently, the option

agreement would expire on January 10, 2008.

[¶9.]        After receiving the investment statement, Humble or Casey contacted

Wyant and orally advised him that Humble was exercising the option. In April

2006, the parties then met at Pioneer Bank and Trust (the bank). Humble, Wyant,

Casey, Clay Birkeland of the bank, and Scott Nielson of the Farm Service Agency

(FSA) were present. The purpose of the meeting was to discuss commercial

financing terms that Humble could obtain to purchase the ranch.

[¶10.]       The financing terms discussed consisted of a $200,000 FSA loan

payable over 40 years at 5.625% interest. The balance of the purchase price

(approximately $530,000) would be financed by the bank over 30 years at 7.5%

interest. However, the FSA would not commit to participation because it wanted to

further investigate whether the title to the ranch was clouded.

[¶11.]       After the meeting, Wyant, Humble, and Casey met outside the bank

and further discussed financing. Humble and Casey testified that Wyant promised


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to notify them within twenty-four hours whether he would exercise his right under

the option to match the proposed commercial financing. Wyant testified he was “not

sure” if he had agreed to provide that notice. There is no dispute that Wyant did

not contact Humble or Casey the next day with a financing decision. Wyant’s

attorney, Richard Huffman, did, however, procure a title insurance commitment in

the amount of $750,000 naming Humble as a new purchaser of the property.

[¶12.]       There was no communication between Humble and Wyant for several

weeks following the meeting at the bank. Humble testified that during that time,

he reread the option agreement and noticed that exercise of the option was required

to be in writing. Therefore, Humble prepared a written notice exercising the option

to purchase. He sent it to Wyant on June 30, 2006, and Wyant acknowledged its

receipt.

[¶13.]       The option agreement was subject to conditions that are central to this

dispute. The first provided that following exercise of the option, “Russ Wyant and

Edward Humble shall enter into a Purchase Agreement within thirty days.” The

second provided that “if the option [was] exercised, the Seller [had] the option of

matching Buyer[’s] proposed financing on the same terms and conditions and

thereafter the Seller shall be come [sic] the lender.” The option further provided:

“Closing shall take place within six (6) months following the execution of the

Purchase Agreement following the exercise of the option however closing must take

place prior to the end of the option period.” None of these conditions were satisfied

before the option agreement expired. The parties’ efforts to satisfy the conditions

are reflected in the following facts and circumstances.


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[¶14.]       The record reflects that by early August 2006, slightly more than

thirty days after Humble exercised the option, no purchase agreement had been

executed as required. Humble subsequently hired attorney Jeff Collins to complete

the purchase. On October 4, 2006, Collins sent a letter to Wyant summarizing the

progression of the events since the meeting at the bank. Collins also claimed that

Wyant was in default for failing to enter into a purchase agreement. Collins

indicated that he would draft a purchase agreement and send it the following week;

however, he did not send an agreement. Wyant’s attorney, Huffman, responded to

Collins’s letter. Huffman indicated that Wyant intended to convey the land

pursuant to the option agreement. Huffman also asked Collins to provide

information regarding the financing terms Humble had available.

[¶15.]       On October 27, 2006, Collins provided Huffman the financing

information discussed at the April 2006 meeting at the bank. Although Wyant had

requested loan commitment letters, Collins explained that neither the bank nor the

FSA would provide a commitment until a purchase agreement was in place. Collins

did, however, note that he had received emails from the bank and the FSA restating

the financing terms that were discussed at the bank.

[¶16.]       Two weeks later, on November 13, Collins sent another letter to

Huffman, asking, “If you could advise as to your client’s position with regard to

financing, I am hopeful we can put together a Purchase Agreement and finalize the

sale of this matter.” On November 22, Collins also sent Huffman the two emails

Collins had received from the bank and the FSA restating the financing terms

discussed at the bank meeting.


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[¶17.]      Collins did not receive a response from Huffman. Therefore, Collins

wrote to Huffman on December 4, 2006, inquiring about Wyant’s decision to finance

the sale. Collins also stated that he would provide a draft purchase agreement

within a week. However, no purchase agreement was sent.

[¶18.]      Humble’s file was then transferred to Haven Stuck, another attorney

in Collins’s office. On February 14, 2007, Stuck sent a letter to Huffman. Stuck

restated the financing terms that had been previously discussed. He also enclosed a

proposed purchase agreement and suggested a closing date of April 10, 2007.

[¶19.]      Stuck’s letter was not answered by Huffman. Consequently, Stuck

sent another letter to Huffman on March 5, 2007, asking for a “good faith response”

from Wyant. Stuck indicated he would commence litigation if nothing was received

in three days. Huffman responded to the letter by email the next day. Huffman

indicated that he had been unable to reach Wyant. The email also included a

recapitulation of Wyant’s investment expenses that Huffman had received from

Wyant.

[¶20.]      Three days later, Huffman faxed a letter to Stuck stating that Wyant

had “concerns” about the sale. Wyant stated that he wanted to ensure the ranch

was kept in the family. The letter explained that “[Wyant] would not have stepped

up and paid the kind of money he has paid and continue to make payments for

expenses while [Humble] and [Casey] have been using the property free of charge, if

his intention was not to make sure his property stays in the Humble family.”

Wyant was also concerned that it appeared to him the terms of the option

agreement were changing, and a change would require the approval of the other


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Humble relatives. Finally, Wyant had concerns about the lack of “terms” of the

financing. Wyant wanted to know:

             Is there other collateral? Is there any money being put down?
             What is the security for the loans? Is there an operating line of
             credit that goes with it? Are there other guarantees? Is there a
             cross collateralization agreement or will there be?

Huffman concluded the letter by recommending that Humble, Casey, and Wyant

“sit down and go over the entirety of the transaction.”

[¶21.]       The following day Stuck forwarded Huffman’s letter to Humble and

Casey. Stuck then faxed a responsive letter to Huffman. The letter stated:

             Casey and [Humble] have not been using the property free of
             charge as both you and I have included interest in our
             calculations. They intended to complete this purchase almost
             one year ago and the delay is entirely due to your client.

             I am not aware of what terms you believe have changed. Please
             set out specifically any terms you believe have changed from the
             original deal.

             With regard to the financing: there is no other collateral; there
             is no money being put down; the security for the loans is this
             real estate only; there is no operating line of credit tied to these
             loans, although they have an operating line; the guarantors will
             be [Humble], Connie, and Casey; and there is no cross-
             collateralization agreement.

Stuck concluded by requesting a good faith response from Wyant to the offer and

agreement to purchase that Stuck had sent in February 2007. On March 21, 2007,

Huffman responded to Stuck by letter stating that Huffman had drafted a different

purchase agreement for Wyant to review.

[¶22.]       On April 7, 2007, without the knowledge of their attorneys, Humble,

Wyant, Casey, and Humble’s wife met in Sturgis. The purpose of the meeting was

to discuss the purchase and financing. The circuit court noted that this appeared to

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be the first time the parties had personal contact since Humble exercised the option

in June 2006. At the conclusion of the meeting, Humble and Casey advised Wyant

they would let him know “within a week” whether they would purchase the ranch.

Humble and Casey did not provide that notice. But two days later, on April 9,

Stuck sent an email to Huffman acknowledging the parties’ meeting in Sturgis and

asking Huffman to “provide a specific response” to Humble’s proposed purchase

agreement “or to provide a purchase agreement that is agreeable to Wyant.”

[¶23.]       On April 9, Wyant complied. He drafted and signed his own purchase

agreement. Wyant would later testify that he did not like the agreements drafted

by Stuck or Huffman. Wyant also indicated that he signed the purchase agreement

because he questioned whether Humble was truly interested in buying the ranch.

Wyant sent his purchase agreement to Huffman, who forwarded it to Stuck on April

12, 2007. Although Humble received Wyant’s purchase agreement the next day,

Humble never objected or responded to Wyant’s signed agreement.

[¶24.]       There was no further communication between the parties until August

2007, when Humble retained a new lawyer, Thomas Tobin. Tobin wrote to Huffman

advising him that Humble and Casey were “ready, able, and willing” to complete

the purchase. However, Humble did not sign a purchase agreement.

[¶25.]       On December 27, 2007, a little more than two weeks before the option

was scheduled to expire, Tobin sent another letter to Huffman indicating Humble’s

desire to complete the purchase. Tobin stated that Humble had secured all

necessary financing although the details were not disclosed. Tobin alleged that any

time periods not met under the option agreement were the fault of Wyant. Tobin


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also advised that Humble was ready to close on 48-hour notice. The record is not

clear whether Huffman or Wyant responded. But again, there is no dispute that

Wyant’s proposed purchase agreement was not signed by Humble, Humble made no

counterproposals or objections to Wyant’s purchase agreement, and no further

negotiations occurred between Humble and Wyant. The option agreement

ultimately expired on January 10, 2008, without a purchase agreement having been

executed.

[¶26.]         Humble initiated this action for specific performance in June 2008.

Wyant counterclaimed, alleging that Humble owed Wyant rent for the time Casey

operated the ranch. A court trial was held in August 2012. 1

[¶27.]         The circuit court denied Humble’s request for specific performance.

The court concluded that the option agreement had expired, and “while there was

evidence that both parties did not comply with the option agreement, [Humble]’s

noncompliance was material.” With respect to the purchase agreement condition,

the court noted that no purchase agreement was ever completed even though Wyant

provided Humble with a signed purchase agreement. With respect to the financing

condition, the court indicated that Humble “clearly had the burden to establish

financing terms that were of sufficient specificity to be matched by the defendant,”

yet Humble failed to do so. The circuit court found that the FSA would not finance

any portion of the loan due to a cloud on the title. And without a guarantee from

the FSA, the circuit court found that there was no evidence the bank or any other


1.       Humble’s attorney on appeal, John Burke, entered his notice of appearance
         on behalf of Humble on September 3, 2011. Burke represented Humble at
         trial.

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bank would finance the entire purchase. In sum, the court concluded that Humble

‘“has not fully and fairly performed all the conditions precedent on his part’ and

therefore specific performance cannot be enforced in his favor” under SDCL 21-9-5. 2

With respect to the counterclaim, the court found that Wyant and Humble had an

implied or express contract requiring Humble to pay Wyant rent from October 1,

2005—the time “Humble” had possession—until March 1, 2013. The court awarded

Wyant $334,153.52 in rent and prejudgment interest. Humble appeals both

decisions.

                                     Decision

Specific Performance

[¶28.]         Humble argues that the circuit court erred in declining to specifically

enforce the timely exercised option. “An option contract is an irrevocable offer by

the owner to sell on specified terms and creates a power of acceptance in the

optionee.” Advanced Recycling Sys., L.L.C. v. Se. Props. Ltd. P’ship, 2010 S.D. 70, ¶

12, 787 N.W.2d 778, 783 (citations omitted). “Although an option to purchase real

estate is initially unilateral in nature, upon timely acceptance it becomes a

mutually binding contract capable of enforcement and subject to the same rules as a

bilateral contract.” Kuhfeld v. Kuhfeld, 292 N.W.2d 312, 314 (S.D. 1980) (citing

Renner v. Crisman, 80 S.D. 532, 536, 127 N.W.2d 717, 719 (1964)).

[¶29.]         In this case, neither party contests the court’s finding that the option

was timely exercised. Therefore, both Humble and Wyant became parties to a



2.       The court also determined that time was not of the essence in fulfilling these
         terms of the option contract.

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mutual, bilateral agreement. See Kuhfeld, 292 N.W.2d at 314. However, “[s]pecific

performance is an equitable remedy . . . .” Lamar Adver. of S.D., Inc. v. Heavy

Constructors, Inc., 2008 S.D. 10, ¶ 10, 745 N.W.2d 371, 375 (quoting Amdahl v.

Lowe, 471 N.W.2d 770, 773 (S.D. 1991)). To determine whether specific

performance is appropriate, the court must “balance the equities present in the

case.” Metro Motors v. Nissan Motor Corp., 339 F.3d 746, 750 (8th Cir. 2003). “The

equities of each fact situation” in an action for specific performance “are of

paramount importance.” Cook v. Rezek, 89 S.D. 667, 671, 237 N.W.2d 18, 20

(1975). 3

[¶30.]         In denying Humble’s request for specific performance, the circuit court

applied SDCL 21-9-5. That statute generally prohibits specific performance in favor

of a party who has not fully and fairly performed a condition precedent. The statute

provides:

               Specific performance cannot be enforced in favor of a party who
               has not fully and fairly performed all the conditions precedent
               on his part to the obligation of the other party, except when his
               failure to perform is only partial, and either entirely immaterial
               or capable of being fully compensated; in which case specific
               performance may be compelled, upon full compensation being
               made for the default.

SDCL 21-9-5.


3.       “We review a circuit court’s decision regarding an equitable remedy under the
         abuse of discretion standard.” McCollam v. Cahill, 2009 S.D. 34, ¶ 6, 766
         N.W.2d 171, 174 (citations omitted). “We review the circuit court’s findings of
         fact under the clearly erroneous standard.” Id. (citing In re Estate of Smid,
         2008 S.D. 82, ¶ 11, 756 N.W.2d 1, 5-6). “A trial court’s finding is clearly
         erroneous if, after reviewing the entire evidence, we are left with the definite
         and firm conviction that a mistake has been made.” In re Estate of Pringle,
         2008 S.D. 38, ¶ 18, 751 N.W.2d 277, 284 (quoting In re Estate of Dokken, 2000
         S.D. 9, ¶ 10, 604 N.W.2d 487, 490-91).

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[¶31.]         The court denied specific performance, reasoning that Humble had not

fully and fairly performed all the conditions precedent of the option agreement.

Humble argues that the circuit court erred because it placed a greater burden on

him to perform the conditions of the agreement and did not adequately consider

whether Wyant frustrated Humble’s ability to comply. We disagree because, in

balancing the equities necessary for equitable relief, the court expressly

acknowledged that both parties did not comply with the option agreement. The

court denied specific performance because Humble’s noncompliance was “material.”

[¶32.]         The record supports the circuit court's findings. Both Humble’s and

Wyant’s acts and omissions contributed to the failure to enter into a purchase

agreement before the option agreement expired. 4 Neither party even proposed a

purchase agreement until February 2007, six months after the time required for the

parties to finalize the purchase agreement. Thereafter, Wyant failed to sign or

provide objections to Humble’s proposed agreement. But just two days after the

April 2007 meeting in Sturgis, Wyant drafted a purchase agreement, signed it, and

delivered it to Humble. Although Tobin later claimed that Humble was willing to

close before the option expired, Humble did not sign, object, or even respond to




4.       Humble also argues that the circuit court erred in concluding that the option
         had expired. After the option was exercised, the resulting agreement
         required the parties to close the sale prior to the end of the option period.
         Although the court found that time was not of the essence in fulfilling two
         conditions, the option clearly expired two years after Wyant provided his
         investment expenses. The circuit court did not err in concluding that the
         option expired on January 10, 2008.

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Wyant’s signed purchase agreement. 5 Thus, the circuit court did not clearly err in

finding that Humble’s noncompliance was material.

[¶33.]         The court also found that Humble failed to perform the second

condition by failing to provide terms of commercial financing that were actually

available to him. The circuit court found that “[Humble had] not provided [Wyant]

with a viable financing plan and [had] not produced or provided any evidence, in

any form, reflecting the terms of an actual loan commitment. Thus, [Wyant] has

been left without a financing arrangement to match.” These findings are not clearly

erroneous.

[¶34.]         As the circuit court noted, the only financing terms ever disclosed by

Humble were those discussed during the April 2006 meeting at the bank. But there

is no dispute that those terms were not available because the FSA would not

commit to financing after its discovery of the cloud on the title. And without the

FSA financing, there was no evidence that the bank would have financed the entire

loan on any identified terms. Ultimately, Humble failed to identify any terms of

actually available financing.




5.       At trial, Humble argued that he should not be faulted for failing to sign
         Wyant’s purchase agreement because it was materially defective. More
         specifically, Humble stated that he was unwilling to sign Wyant’s proposed
         purchase agreement because it did not describe what property he would be
         purchasing for more than $700,000. Wyant contended that his proposed
         purchase agreement described the property because the proposed purchase
         agreement incorporated the option. We agree with Wyant. Further, if
         Humble actually believed the agreement was defective, he had some
         obligation to respond, object, or take some further act to finalize a purchase
         agreement before the option expired.

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[¶35.]         Considering all of the facts, the circuit court did not clearly err in

finding that Humble was the party who was materially at fault for the failure of the

conditions. And because Humble was the party who was materially at fault, the

court did not abuse its discretion in denying specific performance. 6

[¶36.]         Humble, however, argues that even if he was materially at fault for the

failure of the conditions precedent, the circuit court erred in failing to consider the

part of SDCL 21-9-5 that allows specific performance if the defaulting party’s

failure to perform is partial and the other party is capable of being fully

compensated. See SDCL 21-9-5 (providing that specific performance may be

enforced against a defaulting party “when his failure to perform is only partial, and

either entirely immaterial or capable of being fully compensated; in which case

specific performance may be compelled, upon full compensation being made for the

default”).

[¶37.]         Humble raised this issue before the circuit court. But the record does

not reflect that the court considered whether specific performance was appropriate

under this exception. We therefore remand for findings of fact, conclusions of law,

and reconsideration of specific performance under this exception. 7 The court must



6.       Humble argues that Wyant made it difficult for him to obtain a loan
         commitment letter because a purchase agreement was a precondition to
         obtaining a commitment letter. But as previously noted, it was Humble who
         declined to sign, object, or respond to the only purchase agreement that was
         ever signed by either party.

7.       Because we are remanding on this issue, we do not address Humble’s
         argument that the circuit court erred in failing to require Wyant to pay
         $46,000 if the option terminated without Humble’s purchase of the property.
         This issue should also be considered on remand.

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consider: (1) whether Humble partially performed; and if so, (2) whether Wyant is

capable of being fully compensated for Humble’s failure to fully perform. We

remand for further proceedings consistent with this opinion. 8

Counterclaim

[¶38.]         Humble argues that the court erred in finding for Wyant on his

counterclaim for rent and prejudgment interest. The court awarded damages on the

theory that Wyant and “Humble” had an express or implied contract requiring

Humble to pay rent while Casey occupied and operated the ranch.

[¶39.]         A contract can either be express or implied, but not both. SDCL 53-1-

3. “An express contract is one, the terms of which are stated in words. An implied

contract is one, the existence and terms of which are manifested by conduct.” Id.

“An express contract results when the parties mutually express an intent to be

bound by specific terms and conditions.” Weitzel v. Sioux Valley Heart Partners,

2006 S.D. 45, ¶ 22, 714 N.W.2d 884, 892 (quoting Werner v. Norwest Bank S.D.,

N.A., 499 N.W.2d 138, 141 (S.D. 1993)). Unlike an express contract:

               A contract is implied in fact where the intention as to it is not
               manifested by direct or explicit words by the parties, but is to be
               gathered by implication or proper deduction from the conduct of
               the parties, language used, or acts done by them, or other
               pertinent circumstances attending the transaction.

Id. (quoting Setliff v. Akins, 2000 S.D. 124, ¶ 12, 616 N.W.2d 878, 885).




8.       Because Judge Bastian retired, additional evidence may be considered in the
         discretion of the court if a different circuit judge hears this case. If retired
         Judge Bastian hears the matter, further proceedings should be confined to
         the existing record.

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[¶40.]         The circuit court first concluded that Humble and Wyant had expressly

contracted for rent. The court determined that an express contract was found in

“[t]he agreement to have Casey occupy the ranch[, which] is derived from the option

contract upon which [Humble] has sought specific performance.” The existence of

an express contract is a question of law that we review de novo. Lane v. Travelers

Indem. Co., 1997 S.D. 58, ¶ 12, 563 N.W.2d 423, 425.

[¶41.]         An express contract requires mutually expressed “intent to be bound

by specific terms and conditions.” Weitzel, 2006 S.D. 45, ¶ 22, 714 N.W.2d at 892

(quoting Werner, 449 N.W.2d at 141). Although the court concluded that an express

contract to pay rent arose from the agreement to have Casey occupy the ranch as a

part of the option to purchase, neither the agreement nor the option contains any

term requiring Humble to pay rent during the time that Wyant allowed Casey to

occupy and operate the ranch. 9 On the contrary, the option suggested that no rent

was contemplated. Paragraph 5 of the option only required that Humble pay Wyant

“a reasonable return on his investment, not to exceed ten (10) percent per annum” if

Humble purchased the property, a fact that did not occur. Moreover, in 2005, Casey

asked Wyant about writing a lease. Wyant declined, and then instructed Casey:

“Until we get something closed, run it like it’s your own.” Wyant did not refute this

testimony. Wyant further admitted that the Humbles had offered to lease the


9.       The court may have been referring to the family purchase agreement by
         which Wyant was to purchase Bessie’s 50% interest. That agreement did
         provide that Wyant would “have a Humble relative run the [ranch] until the
         expiration of the Option Agreement.” However, there is also no language in
         that purchase agreement evidencing an agreement between Wyant and
         Humble for Humble to pay rent during Casey’s occupation and operation of
         the ranch.

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#26672

ranch from him in 2005, and had actually faxed a proposed lease to him with a

rental rate of $7.00 per acre. But the lease was not executed. Because there is no

evidence of language expressly obligating Humble to pay Wyant rent, the circuit

court erred in concluding that an express contract required Humble to pay rent.

[¶42.]       Alternatively, the court found that there was “substantial evidence” of

an implied contract. “We look to the totality of the parties’ conduct to learn whether

an implied contract can be found.” Setliff, 2000 S.D. 124, ¶ 13, 616 N.W.2d at 885

(quoting In re Estate of Regennitter, 1999 S.D. 26, ¶ 12, 589 N.W.2d 920, 924). “The

existence and governing terms of any implied contract present questions of fact . . .

.” Holland v. FEM Elec. Ass’n, Inc., 2001 S.D. 143, ¶ 6, 637 N.W.2d 717, 719

(quoting Jurrens v. Lorenz Mfg. Co. of Benson, Minn., 1998 S.D. 49, ¶ 9, 578 N.W.2d

151, 154).

[¶43.]       In finding the existence of an implied contract, the circuit court

reasoned that “[Humble] has always been treated and considered as the party in

possession of the ranch.” This finding does not support the existence of an implied

contract with Humble. There is no dispute that during the relevant times in

question, Casey was the party who was occupying and operating the ranch pursuant

to an oral agreement with Wyant. As the circuit court found, Casey moved onto and

operated the ranch pursuant to the 2005 family agreement, an agreement to which

Wyant was a party. Furthermore, as previously noted, when Wyant was specifically

asked about a written lease, he declined, telling Casey (not Humble) to “run [the

ranch] like it’s your own.” Therefore, even if possession of the premises suggested




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some type of agreement to pay rent, the implied agreement was with Casey, not

Humble.

[¶44.]       Wyant, however, argues, and the court found, that the existence of an

implied contract should be found because Casey made exchanges or payments to

Humble over the seven years that Casey occupied and operated the ranch.

Specifically, the court relied on Casey’s statement that he made exchanges with

Humble, which included “some cash, some not, not – not nothing that said ‘rent’ on

a check.” The court indicated that Humble exercised control over the ranch during

the relevant time period and received a direct financial benefit as a result of Casey’s

occupancy.

[¶45.]       These facts do not support the existence of an implied contract with

Humble. First, although Casey may have derived an economic benefit from

occupying and operating the ranch, the court did not identify what economic benefit

Humble received. The only benefit that may have arisen would have been that

suggested in Casey’s one statement about some “exchanges” between Casey and

Humble. But that testimony was vague and insufficient to suggest that Humble

had impliedly agreed to pay rent to Wyant for Casey’s use and operation of the

ranch from 2005 until March 1, 2013. Moreover, Wyant’s conduct directly

contradicted a finding of implied contract with Humble. Wyant, through counsel,

confirmed that the ranch would be occupied and operated without rent no matter

who was considered to be occupying and operating the premises. In his March 2007

letter to Humble’s attorney, Wyant’s attorney confirmed that “[Wyant] would not

have stepped up and paid the kind of money he has paid and continue to make


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payments for expenses while [Humble] and [Casey] have been using the property

free of charge if his intention was not to make sure his property stays in the Humble

family.” Wyant also never requested a rent payment. On the contrary, he declined

Casey’s suggestion of a written agreement and he declined to enter into a written

rental agreement when one was faxed to him.

[¶46.]         In finding an implied contract and in determining the amount owed,

the circuit court also relied on Humble’s post-trial brief in which counsel argued

that if Humble prevailed on his request for specific performance, “Humble shall also

pay [Wyant] pecuniary compensation . . . plus $244,615.00 (interest/rent from

October 1, 2005 – December 31, 2012) . . . .” Humble contends that this argument

does not evidence conduct of the parties reflecting an implied contract for Humble to

pay Wyant rent. We agree. This argument was asserted to reflect the amount of

interest or pecuniary compensation that Wyant was entitled to receive under the

option agreement if specific performance had been granted, an event that did not

occur. 10

[¶47.]         Ultimately, the evidence does not support a finding of implied contract.

And even if it did, any such contract was with Casey, who occupied and operated

the ranch pursuant to an agreement with Wyant. The court’s finding that Humble

impliedly agreed to pay rent is not supported by the evidence.

[¶48.]         We reverse the counterclaim and remand for additional findings on

specific performance.


10.      Under paragraph 5 of the option, Humble was obligated to pay Wyant “a
         reasonable return on his investment, not to exceed ten (10) percent per
         annum” if Humble exercised the option.

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[¶49.]      GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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