#27145-a-DG

2015 S.D. 4

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
LAURA PETERS,                               Plaintiff and Appellant,

      v.

GREAT WESTERN BANK, INC.,                   Defendant and Appellee.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                   THE HONORABLE ROBERT GUSINSKY
                               Judge

                                   ****


TODD A. SCHWEIGER
Rapid City, South Dakota                    Attorney for plaintiff
                                            and appellant.

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



                                   ****




                                            CONSIDERED ON BRIEFS ON
                                            JANUARY 12, 2015
                                            OPINION FILED 01/28/15
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GILBERTSON, Chief Justice

[¶1.]         Laura Peters appeals the circuit court’s denial of her motion to compel

discovery on Great Western Bank (the Bank), as well as the court’s granting of

summary judgment in favor of the Bank. She asserts that the Bank was required to

join her as a defendant in two foreclosure actions and that additional time for

discovery was necessary for her to answer the Bank’s motion for summary

judgment. We affirm.

                           Facts and Procedural History

[¶2.]         In March 2003, Peters obtained a default judgment against Barker &

Little, Inc. (BLI)—a South Dakota corporation. 1 BLI was a general partner in

Barker & Little Limited Partnership III (BLLP). Doug Hamilton owned or operated

BLI and BLLP, as well as a number of other entities including Barker & Little

Manufactured Homes, Inc. (BLMHI). BLI was the operating entity for the

management of rental properties, including property titled to BLLP. The Bank

extended a line of credit to BLI secured, in part, by mobile homes and rent-to-own

contracts owned by BLMHI.

[¶3.]         In 2008, the Bank initiated foreclosure proceedings against BLLP and

BLMHI. In its action against BLLP, the Bank sought to foreclose on a real estate

mortgage; against BLMHI, the Bank sought to recover the mobile homes and rent-

to-own contracts used as collateral on the line of credit extended to BLI. Because of

BLI’s relationship with both entities, the Bank named BLI as a codefendant in each



1.      We affirmed the circuit court’s refusal to set aside this judgment in Peters v.
        Barker & Little, Inc., 2009 S.D. 82, 772 N.W.2d 657.

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action. The Bank and Hamilton privately negotiated a settlement agreement.

Pursuant to that agreement, the various Hamilton-owned entities transferred real

and personal property to the Bank. The Bank did not join Peters as a defendant or

otherwise notify her of these foreclosure actions.

[¶4.]        Upon learning of the Bank’s foreclosure actions involving BLI, Peters

initiated this action against the Bank, alleging fraud, conversion, deceit, and unjust

enrichment. Peters made a motion to compel discovery, and the Bank responded

with a motion for summary judgment. The circuit court granted the Bank’s motion

and denied Peters’s motion as moot. Peters appeals, raising two issues:

             1.     Whether the Bank was required to join Peters as a defendant in
                    its foreclosure actions against BLI, BLLP, and BLMHI.

             2.     Whether the circuit court should have granted Peters additional
                    time for discovery prior to ruling on the Bank’s motion for
                    summary judgment.

                                Standard of Review

[¶5.]        Our standard of review on summary judgment is as follows:

             In reviewing a grant or a denial of summary judgment under
             SDCL 15-6-56(c), we must determine whether the moving party
             demonstrated the absence of any genuine issue of material fact
             and showed entitlement to judgment on the merits as a matter
             of law. The evidence must be viewed most favorably to the
             nonmoving party and reasonable doubts should be resolved
             against the moving party. The nonmoving party, however, must
             present specific facts showing that a genuine, material issue for
             trial exists. Our task on appeal is to determine only whether a
             genuine issue of material fact exists and whether the law was
             correctly applied. If there exists any basis which supports the
             ruling of the trial court, affirmance of a summary judgment is
             proper.

Saathoff v. Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804 (quoting Pellegrino v.

Loen, 2007 S.D. 129, ¶ 13, 743 N.W.2d 140, 143). We review “[a] circuit court’s

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refusal to grant additional discovery prior to awarding summary judgment . . . for

abuse of discretion.” Stern Oil Co. v. Border States Paving, Inc., 2014 S.D. 28, ¶ 24,

848 N.W.2d 273, 281.

                              Analysis and Decision

[¶6.]        Peters alleges the Bank committed conversion and was unjustly

enriched by obtaining property to which she had a superior claim. She also alleges

that the Bank committed fraud and deceit by failing to name her as a defendant.

However, the only persons that a foreclosure plaintiff must join as a defendant,

under South Dakota law, are those who have “an interest in, or lien on, the

mortgaged property as of the date of filing the action[.]” SDCL 21-49-15. Thus, all

of Peters’s causes of action are premised on the assertion that Peters had a claim to

the foreclosure property; consequently, all of Peters’s causes of action turn on the

same question: Whether Peters had an interest in, or lien on, property included in

the Bank’s foreclosure actions against BLI, BLLP, and BLMHI as of the date the

Bank filed those actions.

[¶7.]        Peters argues that her status as a judgment creditor of BLI gave her

an “interest”—within the meaning of SDCL 21-49-15—in the foreclosure property

because that property could have been sold to satisfy her judgment. As noted above,

South Dakota law requires “[a]ll persons having an interest in, or lien on, the

mortgaged property as of the date of filing the action . . . be named as defendants in

the action.” SDCL 21-49-15. We have not previously construed the meaning of

“interest” as it appears in SDCL 21-49-15. Therefore we apply our usual approach

to statutory construction.


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             The purpose of statutory construction is to discover the true
             intention of the law, which is to be ascertained primarily from
             the language expressed in the statute. The intent of a statute is
             determined from what the Legislature said, rather than what
             the courts think it should have said, and the court must confine
             itself to the language used. Words and phrases in a statute
             must be given their plain meaning and effect.

City of Rapid City v. Estes, 2011 S.D. 75, ¶ 12, 805 N.W.2d 714, 718 (quoting State

ex rel. Dep’t of Transp. v. Clark, 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162). Further,

the Legislature has commanded that “[w]ords used [in the South Dakota Codified

Laws] are to be understood in their ordinary sense[.]” SDCL 2-14-1.

[¶8.]        The meaning of the word “interest,” as used in SDCL 21-49-15, is more

restrictive than Peters suggests. Dictionaries seem to offer two types of definitions

for the word “interest.” The first definition broadly describes “[t]he object of any

human desire”; the second, “all or part of a legal or equitable claim to or right in

property[.]” Black’s Law Dictionary 934 (10th ed. 2014). There is no doubt that

Peters desired access to the foreclosure property in order to satisfy her judgment.

However, it is difficult to imagine that an actual lienholder would have had any less

of a desire to obtain that property. Thus, a definition of “interest” broad enough to

include a general judgment creditor would also include lienholders. However, the

inclusion of the phrase “or lien on” in SDCL 21-49-15 clearly indicates that two sets

of persons must be joined as defendants: (1) those with an interest in the mortgaged

property; and (2) those with a lien on the mortgaged property. If the second set is

defined as a subset of the first—i.e., if the word “interests” is defined in such a way

that includes lienholders—then the phrase “or lien on” is redundant. Because “[w]e

assume that the Legislature intended that no part of its statutory scheme be


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rendered mere surplusage[,]” Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 6, 620

N.W.2d 198, 201, we reject Peters’s broad interpretation of the word “interest.” We

think it clear that the Legislature intended SDCL 21-49-15 to require the joining of

persons who have a legal claim to, or lien on, the property subject to foreclosure

itself, rather than merely a money judgment that might be satisfied by the sale of

that property.

[¶9.]         Peters does not have an interest in the foreclosure property. Peters

has not asserted any legal claim to, or right in, the property itself—e.g., she does

not purport to hold any present or future estate in, or option to purchase, the

foreclosure property. Instead, Peters simply obtained a default money judgment

against BLI entitling her to the payment of $24,230.90. Such a judgment does not,

in itself, give Peters a right to BLI’s property. We decided a similar issue well over

a century ago in Yetzer v. Young, 3 S.D. 263, 52 N.W. 1054 (1892). In that case, a

judgment creditor sought to intervene in a foreclosure action brought by a third

party against her judgment debtor. At the time, section 4886 of the Dakota

Compiled Laws permitted a person to intervene in a lawsuit if that person had “an

interest in the matter in litigation[.]” Id. at 267, 52 N.W. at 1055. 2 The plaintiff

asserted “that as a simple judgment creditor she had such ‘an interest in the matter

in litigation’ as entitled her to intervene[.]” Id. She argued that “the object of [the

third party’s] action was to get possession of the goods, to appropriate them to the

payment of their alleged mortgage, and thus reduce and divert the fund out of

which she might otherwise collect her judgment, and that she was directly


2.      The current intervention statutes are found at SDCL 15-6-24(a) to -24(c).

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interested in preventing this.” Id. We rejected the plaintiff’s argument, noting that

“[t]he subject-matter of the litigation was [the third party’s] right to take the goods

under their mortgage. It went only to the possession. In this question [plaintiff]

could not be concerned, unless she had some interest in the goods that might be

affected by such change of possession.” Id. Here, like in Yetzer, Peters’s interest in

the foreclosure property is not a direct claim of right to the property itself; rather,

the property merely constitutes a “fund out of which she might otherwise collect her

judgment[.]” Id. Similarly, we hold that Peters did not have an interest in the

foreclosure property at issue here within the meaning of SDCL 21-49-15.

[¶10.]       Yetzer notwithstanding, Peters argues that our decision in First Nat’l

Bank of Eden v. Meyer, 476 N.W.2d 267 (S.D. 1991), supports the proposition that

she had a constitutionally and statutorily protected right to notice in these

foreclosure actions. In Meyer, a bank “sought to quiet title to real property it

acquired as a result of a tax deed proceeding.” 476 N.W.2d at 268. At the time,

applicable South Dakota law did not entitle lienholders to notice of intent to take a

tax deed. Id. at 270. Based on this, the bank moved for summary judgment. The

circuit court denied the motion and “held that South Dakota’s statutory scheme for

taking tax deeds was constitutionally deficient because it failed to provide notice to

judgment lienholders.” Id. at 269. We affirmed the circuit court and explicitly held

“that known or readily ascertainable judgment lienholders are entitled to the same

notice as a mortgagee.” Id. at 270 (emphasis added). This holding was based on the

United States Supreme Court’s decision in Mullane v. Cent. Hanover Bank & Trust

Co., which states: “An elementary and fundamental requirement of due process in


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any proceeding which is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections.” 339 U.S. 306,

314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950) (emphasis added). As we discussed

above, while Peters has a property interest in her money judgment against BLI, she

did not have an interest in the foreclosure property itself. Thus, although the

settlement agreement may have reduced the fund out of which Peters’s judgment

might have been paid, it did nothing to deprive Peters of her actual property

interest.

[¶11.]       Because Peters did not have an interest in the foreclosure property,

SDCL 21-49-15 would have required the Bank to join her as a defendant only if she

had a lien on that property. As we said in Yetzer:

             A general creditor, either contract or judgment, may not [attack
             a conveyance as fraudulent]. He must first become interested in
             the particular property he desires to reach, by attaching his
             claim to it. In case of real estate, this may be done in this state
             by docketing a judgment in the proper county, or, in case of
             personal property, by levying an execution or attachment.

3 S.D. at 268, 52 N.W. at 1055. The procedure for acquiring a judgment lien on real

property is essentially the same today as it was in 1892.

             When a judgment has been docketed with a clerk of the circuit
             court, it shall be a lien on all the real property, except the
             homestead, in the county where the same is so docketed, of
             every person against whom any such judgment shall be
             rendered, . . . and no judgment shall become a lien on real
             property as herein provided unless it be docketed in the county
             where the land is situated.

SDCL 15-16-7. Because SDCL 15-16-5 requires the docketing of a money judgment

with the clerk of the circuit court issuing the judgment, such a lien is automatically

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created for any of the judgment debtor’s real property located in the county in which

the judgment was obtained. As we indicated in Yetzer, however, such is not the case

in regard to personal property. 3 S.D. at 268, 52 N.W. at 1055. This remains true

today.

               When the officer has made a levy upon any personal property
               pursuant to the provisions of this code, he shall have a lien
               thereon for all purposes essential to carrying out the execution,
               but no execution shall constitute any lien upon personal
               property until an actual levy upon such property has been made
               thereunder.

SDCL 15-18-30. Therefore we must determine whether there is any genuine issue

of material fact as to whether any of the foreclosure property was: (1) real property

owned by BLI and located in Pennington County—the county in which Peters

obtained her default judgment 3—or (2) personal property of BLI that Peters levied.

[¶12.]         There does not appear to be any genuine dispute as to whether or not

BLI held title to any real property. In its motion for summary judgment and

accompanying submissions, the Bank plainly stated that BLI did not own any real

estate involved in the foreclosure actions. Peters seems to agree with this

statement, stating in her reply that she did “not dispute that [the] real estate

[involved in the foreclosure actions] was titled to Barker & Little Limited

Partnership III.” Additionally, the following colloquy occurred at the summary

judgment hearing:




3.       Peters does not assert that she docketed her money judgment against BLI in
         any other county. Therefore she could not have had a lien against real
         property outside of Pennington County, and any information regarding BLI-
         owned real estate outside of Pennington County is irrelevant to this case.

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             [The Court]: Now, it appears that there’s no dispute that the
             property that was foreclosed on by the bank was owned only by
             Barker & Little Limited Partnership III, but you are disputing
             that, though. I mean, it seems to me that in your response to
             the statement of undisputed material facts you are agreeing that
             the only property involved was titled to the limited partnership,
             not Barker & Little, Inc., the parent company, so to speak.
             Help me out here.
             [Peters’s Attorney]: Your Honor, I agree that after the door
             opened on these private negotiations that resolved these two
             foreclosure actions there were two properties that were
             transferred. One was the property of Barker & Little Limited
             Partnership III that was subject to foreclosure. Another
             property was transferred that was not subject to foreclosure.
             ....
             [The Court]: Was the property that was not subject to
             foreclosure owned by Barker & Little, Inc.?
             [Peters’s Attorney]: No . . . .

[¶13.]       Despite these admissions, Peters maintains, in her briefs to this Court,

“that what property was transferred in the foreclosures remain[s] unknown, and

that Peters therefore dispute[s] Bank’s claim that no [BLI] real property had been

transferred.” We have said that “proof of a mere possibility is never sufficient to

establish a fact.” Estate of Elliott ex rel. Elliott v. A&B Welding Supply Co., 1999

S.D. 57, ¶ 16, 594 N.W.2d 707, 710. Instead, “[w]hen challenging a summary

judgment, the nonmoving party must substantiate his allegations with sufficient

probative evidence that would permit a finding in his favor on more than mere

speculation, conjecture, or fantasy.” Id. (quoting Himrich v. Carpenter, 1997 S.D.

116, ¶ 18, 569 N.W.2d 568, 573) (internal quotation marks omitted). Peters’s

speculation that there might have been BLI-owned real estate transferred to the

Bank, coupled with her admission that the only real estate known—or hinted—to



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have been transferred was not titled to BLI, is not a presentation of specific facts.

Peters’s dispute, therefore, is not genuine.

[¶14.]       Although Peters does not genuinely dispute that BLI did not hold title

to the property transferred to the Bank in the settlement agreement, she claims

that BLI still “owned” the property because BLI was the only general partner in

BLLP. According to Peters, BLI “had a 100% partnership interest in the shell

entity, [BLLP], to which involved real estate was titled. Moreover, [BLI] and

[BLLP] were both shell entities and mere alter-egos of Douglas Hamilton, so that

those corporate and partnership veils can be pierced, if necessary, in the instant

action.” We do not address Peters’s assertion that she could pierce “those corporate

and partnership veils.” However, even if Peters established that BLLP should be

held liable for the actions of its general partner, such would only extend liability for

Peters’s money judgment against BLI to BLLP; the title status of partnership

property would not be directly affected. SDCL 48-7A-203 (“Property acquired by a

partnership is property of the partnership and not of the partners individually.”);

SDCL 48-7A-501 (“A partner is not a co-owner of partnership property and has no

interest in partnership property which can be transferred, either voluntarily or

involuntarily.”). More importantly, SDCL 21-49-15 applies only to “persons having

an interest in, or lien on, the mortgaged property as of the date of filing the

action . . . .” (Emphasis added.) Even if Peters had a theory for imputing liability to

BLLR that would succeed at trial, she has offered no authority to support the

retroactive imposition of a lien in contravention of the clear timing requirements of

SDCL 21-49-15. Therefore there is no genuine issue of material fact that Peters did


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not have a lien on real property transferred to the Bank in the settlement

agreement on the date the Bank filed the foreclosure actions.

[¶15.]       Finally, we must determine whether there is a genuine issue of

material fact as to whether Peters had an established lien on any personal property

involved in the settlement agreement. Peters’s attorney argued at the summary

judgment hearing that “Ms. Peters could have, if she had notice of this action,

obtained a charging order so that any property that was left over after the

satisfaction of the bank . . . could have been claimed . . . due to her judgment.” As

noted above, a general partner does not “own” partnership property. The only

property that could have been the subject of a charging order would have been BLI’s

transferrable interest in BLLP, SDCL 48-7A-504—i.e., BLI’s share of the profits

and losses of the partnership and BLI’s right to receive distributions, SDCL 48-7A-

502. Once again, however, Peters does not claim to have ever previously

undertaken the steps required to obtain a charging order or lien against any

personal property. Therefore BLLP’s liability for Peters’s money judgment against

BLI, even if established in the future, is immaterial to the question of whether or

not Peters had a lien on personal property transferred to the Bank in the settlement

agreement on the date the Bank filed the foreclosure actions.

[¶16.]       Nevertheless, Peters asserts that a full accounting of all personal

property involved in the settlement agreement is necessary in order to determine

whether or not any of BLI’s personal property was transferred to another party.

Peters argues that “since Bank’s entire case, and the trial court’s grant of summary

judgment, rest upon unproven assertions about what property was not involved in


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the foreclosures, discovery of the totality of what property was involved should have

been permitted, prior to any summary judgment.” Peters misperceives the basis of

the circuit court’s ruling. As we noted above, a judgment lien arises on personal

property after “an actual levy upon such property has been made[.]” SDCL 15-18-

30. Whether or not personal property was involved in the settlement agreement is

immaterial unless Peters can show that she had an established lien on any personal

property. In her statement regarding undisputed material facts, Peters plainly

states, “Certainly no property of any kinds [sic] was successfully levied on. The

return of execution does not ‘specifically note’ that no personal property was levied

on, there is merely a blank space in which the Sheriff did not positively indicate

levy on personal property.” The Bank does not have the burden of proving Peters

failed to levy; rather, Peters has the burden of proving that she levied on personal

property. Because Peters did not provide any evidence that she had levied any

personal property—and, in fact, admitted the contrary—a full accounting of the

personal property involved in the settlement agreement is necessarily immaterial to

her action. Therefore there is no genuine issue of material fact on this issue.

[¶17.]       Finally, Peters asserts the circuit court erred in denying her motion to

compel discovery prior to granting the Bank’s motion for summary judgment.

“SDCL 15-6-56(f) . . . provides that a party opposing a motion for summary

judgment is entitled to conduct discovery when necessary to oppose the motion.

Under that rule, the facts sought through discovery must be ‘essential’ to opposing

summary judgment . . . .” Dakota Indus., Inc. v. Cabela’s.Com, Inc., 2009 S.D. 39, ¶

6, 766 N.W.2d 510, 512. Such facts are only essential if


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             the Rule 56(f) affidavit . . . include[s] identification of “the
             probable facts not available and what steps have been taken to
             obtain” those facts, “how additional time will enable the
             nonmovant to rebut the movant’s allegations of no genuine issue
             of material fact,” and “why facts precluding summary judgment
             cannot be presented” at the time of the affidavit.

Stern Oil Co., 2014 S.D. 28, ¶ 26, 848 N.W.2d at 281-82 (quoting Anderson v. Keller,

2007 S.D. 89, ¶ 32, 739 N.W.2d 35, 43 (Zinter, J., concurring)). Even if Peters

genuinely disputed whether BLI owned real property in Pennington County, such

information would have been publicly available. Her “[m]ere speculation that there

is some relevant evidence not yet discovered [does not] suffice” to extend the time

for discovery. Id. ¶ 28, 848 N.W.2d at 282 (quoting 11 James W. Moore et al.,

Moore’s Federal Practice § 56.102[2] (3d ed. 2013)). Further, Peters did not allege

that she docketed her judgment in any other county. Finally, Peters did not allege

that she took the necessary steps to create a lien or interest in the personal property

of any of the Hamilton entities. Because Peters “did not articulate probable facts

relevant to [the existence of a lien on BLI’s real or personal property] that could

have been developed with additional discovery[,]” id., the circuit court did not abuse

its discretion in denying Peters’s motion as moot.

                                     Conclusion

[¶18.]       Peters does not have an interest in the foreclosure property at issue.

Because there is no evidence that BLI owned real property located in Pennington

County, that Peters docketed her judgment in any other county, or that Peters ever

levied any personal property, Peters did not present any evidence to the circuit

court that would prove the existence of a judgment lien against any property.

Consequently, Peters did not have an interest in, or lien on, the foreclosure property

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on the date the Bank filed its foreclosure actions. Therefore there are no genuine

issues of material fact, the Bank was entitled to judgment as a matter of law, and

the circuit court did not abuse its discretion in denying Peters additional time for

discovery. We affirm.

[¶19.]       ZINTER, SEVERSON, WILBUR, Justices and KONENKAMP, Retired

Justice, concur.

[¶20.]       KERN, Justice, not having been a member of the Court at the time this

action was assigned to the Court, did not participate.




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