Wright v. Temple

#30173-a-PJD

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   …

THOMAS R. WRIGHT,                           Plaintiff and Appellee,

      v.

CURTIS TEMPLE,                              Defendant and Appellant.

                                   …

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

                                   …

                    THE HONORABLE HEIDI LINNGREN
                               Judge

                                   …


KENNETH E. BARKER
Belle Fourche, South Dakota                 Attorney for plaintiff
                                            and appellee.


JAMES P. HURLEY
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.

                                   …

                                            CONSIDERED ON BRIEFS
                                            APRIL 25, 2023
                                            OPINION FILED 07/12/23
#30173

DEVANEY, Justice

[¶1.]         This is the second appeal concerning damage caused to an airplane

owned by Thomas Wright. In the first appeal, we concluded that the circuit court

erred in instructing the jury on damages and that the error prejudiced the

defendant, Curtis Temple. Wright v. Temple (Wright I), 

, 

, 452–53. On remand for a new trial on the limited issue of damages,

the circuit court issued a memorandum decision awarding Wright $131,735.67 in

damages, prejudgment interest, and costs. Temple appeals, challenging the court’s

damages award and decision to award prejudgment interest. In response to an

order to show cause by this Court, Temple and Wright also address the question

whether we lack appellate jurisdiction because Temple did not serve the notice of

the appeal and docketing statement on a third-party defendant. We conclude we

have jurisdiction and affirm on the merits.

                      Factual and Procedural Background

[¶2.]         Because the issues in this appeal are limited to the circuit court’s

award of damages and prejudgment interest and this Court’s appellate jurisdiction,

only the factual and procedural history relevant to those issues will be related. A

more detailed summary of the evidence and testimony presented in the original

trial relating to the underlying claims can be found in Wright I, 

, 

.

[¶3.]         Wright was the owner of a 1978 Citabria airplane that he listed for

sale in a trade publication for $75,000. Temple learned that the plane was for sale

and arranged a meeting in June 2014 with Wright’s agent, Ted Miller, to discuss


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purchasing the plane for use on his ranch. Temple was not a pilot, but there was a

hangar and dirt runway on his property, and he wanted to learn how to fly. Miller

agreed to allow Temple to rent the plane while considering whether to purchase it

and while learning how to fly it. This agreement was contingent on Temple

obtaining insurance coverage for the plane and employing a licensed pilot as his

instructor.

[¶4.]         Temple hired Ken Merrill to be his flight instructor. After a few

sessions, Merrill determined that Temple could assume more control of the

airplane, but before allowing him to do so, he asked Temple whether he had

obtained insurance coverage for the plane. Although Temple assured him that he

had, it is undisputed that he never obtained such insurance.

[¶5.]         On July 25, 2014, during one of his flying sessions with Merrill,

Temple had control of the plane while taxiing on the runway and during takeoff. As

they attempted to take off, Merrill noticed that Temple was not accelerating the

plane as he should, so Merrill applied full power to the throttle in an attempt to

reach the necessary flight speed. This attempt was not successful, and the plane

crashed into a ravine at the end of the runway. The crash caused significant

damage to the plane.

[¶6.]         After the accident, Wright contacted Temple multiple times to request

compensation for the plane, but each time he called, Temple would hang up.

Ultimately, Wright decided to repair the Citabria and spent $79,083.02 in doing so.

Once Wright repaired the plane, he sold it on May 25, 2016, for $52,500, which he




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claimed was less than the fair market value of the plane. Wright testified that he

sold the plane so he could stop the ongoing expense of owning it.

[¶7.]        Eventually, Wright filed suit against Temple, and in his amended

complaint filed in 2016, he asserted causes of action for negligence, breach of

contract, promissory estoppel, deceit, fraud, and conversion. Temple filed a third-

party complaint against Merrill, alleging negligence and seeking contribution in the

event he was found liable for damages to Wright. In his answer, Merrill asserted

counterclaims against Temple, seeking damages for negligence, deceit, fraud,

breach of contract, and promissory estoppel.

[¶8.]        After a three-day trial in February 2019, the jury found in favor of

Wright on his claims against Temple for negligence, breach of contract, and deceit

and awarded him $34,144.84 on each claim. The jury did not find Merrill to be a

joint tortfeasor; it instead found Temple liable to Merrill for breach of contract,

deceit, and fraud but did not award him any damages. In a post-trial motion,

Temple requested a new trial asserting multiple issues. Relevant here, he claimed

that the amount of damages the jury awarded on each claim should not be

aggregated and instead that the $34,144.84 amount reflected the total damages

awarded because the damages were the same under each of Wright’s alternative

legal theories. In response, Wright asserted that the amounts awarded on each

separate claim should be added together to arrive at the total award. The circuit

court denied Temple’s motion for a new trial but resolved the parties’ damages

dispute by accepting Wright’s argument. The court entered a judgment in the

amount of $102,434.52, plus prejudgment and post-judgment interest and costs.


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[¶9.]        Temple appealed, raising multiple issues, including that the circuit

court erred in instructing the jury on damages and in determining the total award

due to Wright. At trial, the parties had proposed two different instructions on

damages. Temple objected to Wright’s proposed instruction, claiming that it did not

set forth the proper measure of damages and that it improperly instructed the jury

to arrive at separate awards under different legal theories for the same claimed

damages. Wright argued that both his and Temple’s instructions were proper, and

the circuit court ultimately gave both parties’ instructions over Temple’s objection.

[¶10.]       On appeal, we concluded that Wright’s proposed instruction contained

an erroneous statement of the law and was inconsistent with Temple’s proposed

instruction. In particular, we noted:

             First, unlike [Temple’s instruction], [Wright’s proposed
             instruction] did not include the general measure of property
             damage encompassed in SDCL 21-1-6 (difference in fair market
             value before and after the event in question) and, instead, only
             provided the alternative measure of damages, which appears to
             be based upon the cost of repair plus depreciation. Second, it
             fails to include the limiting term “reasonable” when referring to
             the cost of repair, a concept born out of the case law which is the
             genesis of this alternative measure of damages. Third, and
             perhaps most problematic, is the . . . paragraph . . ., which
             directed the jury to subtract the amount Wright received from
             the sale of the plane—purportedly to arrive at an amount
             representing the diminution in value of the plane after repair—
             despite the fact Wright had conceded at trial that he sold the
             plane for an amount below its fair market value. Subtracting
             this amount received from the subsequent sale would have
             reduced the offset and artificially increased the damage amount.
             It was up to the jury, as the finder of fact, to determine the fair
             market value of the plane both before and after the crash based
             upon the evidence received at trial.

Wright I, 

, 956 N.W.2d at 451–52.



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[¶11.]       We further concluded that Temple was prejudiced by the circuit court’s

erroneous instruction and decision to aggregate the jury’s separate but identical

$34,144.84 awards for a total damage award of $102,434.52. Id. ¶ 50, 956 N.W.2d

at 452. We therefore remanded for “a new trial on the limited issue of damages . . .

to allow the finder of fact to apply the proper law when determining the

compensation due to Wright.” Id. ¶ 53, 956 N.W.2d at 453. We affirmed on all the

other issues Temple raised pertaining to the jury’s liability determinations.

[¶12.]       On remand, a jury trial was originally scheduled for June 13, 2022, to

determine the issue of Wright’s damages, but Wright and Temple filed a joint

motion requesting that the circuit court, “[i]n the interest of judicial economy and

efficiency,” decide the issue of damages on the existing record, the parties’ proposed

stipulated facts, and written arguments. After considering the motion, the court

entered an order cancelling the scheduled jury trial and adopting Wright and

Temple’s proposed procedure for determining the issue of damages. The court noted

that the parties waived the presentation of further live witness testimony and

waived submission of findings of fact and conclusions of law.

[¶13.]       In his submissions, Wright asserted that the fair market value of the

Citabria before the accident was $75,000 and that after the accident it had a $3,000

salvage value. He based the $3,000 salvage value on his trial testimony that after

the accident, but prior to the plane being repaired, the plane had a salvage value

between $2,000 and $4,000. Wright requested that the circuit court award him

$72,000 in damages as well as $68,195.82 in prejudgment interest at the statutory




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rate from July 25, 2014 (the date of the accident) to June 13, 2022 (the original date

of the jury trial on remand), and $2,904.99 in costs.

[¶14.]       In his submissions, Temple agreed that the proper measure of

damages would be the difference in the fair market value of the Citabria before and

after the accident. However, he asserted that “[t]he salvage value does not apply in

determining damages because Wright testified that after the 2014 crash, he elected

not to recoup the salvage of the plane . . . and instead decided to repair it at a cost of

approximately $79,000.” In Temple’s view, the amount Wright sold the plane for

after the accident, $52,500, reflects what a willing buyer would pay and the actual

market value of the Citabria after the accident. He then argued that after

subtracting $52,500 from the fair market value of the plane before the accident

($75,000), the proper damage amount would be $22,500. He further claimed that

interest should only accrue from and after the date the circuit court enters a

judgment on damages.

[¶15.]       After considering the record evidence and the parties’ submissions, the

circuit court issued a memorandum decision. Quoting Wright I and other cases

from this Court on the proper measure of property damages, the court determined

that Wright’s compensation would be “the reasonable cost of restoration, unless

such cost is greater than the diminution of value . . . in which case the difference in

market value before and after the injury [is] the proper measure of damages.” Ward

v. LaCreek Elec. Ass’n, 

, 

 (citation omitted);

Wright I, 

, 956 N.W.2d at 452.




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[¶16.]       In considering these alternative measures for determining damages,

the court found the fair market value of the plane before the accident to be $75,000

based on the evidence that Wright listed the plane for sale for that amount and

found a willing buyer—Temple. In further reliance on Wright’s testimony, the court

determined the fair market value of the plane after the accident “is evidenced by the

salvage value, which is $3,000.” Using these values, the court determined that the

diminution in value after the crash was $72,000. Although Wright elected to have

the plane repaired at a cost of $79,083.02, because the cost of repair exceeded the

plane’s diminution in value after the accident, the court concluded that the proper

measure of damages under the circumstances would be the difference between the

fair market value of the Citabria before and after the accident. The court therefore

awarded Wright $72,000 in damages. The court also determined that Wright is

entitled to prejudgment interest at the statutory rate from the date of injury to the

date of the jury trial on damages was to be held—7 years and 328 days—in the

amount of $56,830.68. To this amount, the court added the previously awarded

costs in the amount of $2,904.99. The court entered a total judgment in favor of

Wright for $131,735.67.

[¶17.]       Temple appeals, challenging both the circuit court’s damages award

and its award of prejudgment interest.

                              Analysis and Decision

This Court’s appellate jurisdiction

[¶18.]       Before examining the issues raised by Temple on appeal, the question

whether this Court has appellate jurisdiction must be addressed. While Temple


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timely filed his notice of appeal from the circuit court’s judgment, his certificate of

service did not indicate that third-party defendant Merrill had been served with the

notice of appeal and docketing statement. Therefore, on November 29, 2022, this

Court issued an order to show cause why the appeal should not be dismissed for

failure to serve each party in accord with SDCL 15-26A-4(3).

[¶19.]         In his response to the order to show cause, Temple argued that he was

not required to serve Merrill with the notice of appeal. He noted that because this

Court’s remand was limited to the issue of damages between Wright and Temple,

Merrill and his counsel did not appear or participate in the remand proceedings. To

support his contention that Merrill was no longer a party on remand, counsel for

Temple attached an email from Merrill’s counsel, dated December 9, 2022, stating

the following:

               As we discussed, my client was effectively “dismissed” from the
               case following the Supreme Court’s first opinion on this matter.
               Because of this, and because you’ve indicated there is nothing in
               the appeal that would have any bearing or impact on my client, I
               do not feel the need to receive copies of any additional appellate
               briefing that may occur.[ 1]

[¶20.]         This Court, having received no response from Wright, did not resolve

the jurisdictional question. Rather, we issued an order taking the jurisdictional

issue under advisement and directing the appeal to proceed. The order directed




1.       Although Temple offered an alternative argument that he had in fact
         accomplished timely service on Merrill’s counsel via his filing of his notice of
         appeal via Odyssey, we need not address this issue given our determination
         that Merrill was no longer a party to these proceedings after this Court’s
         remand.
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Wright to address the jurisdictional issue in his appellate brief and advised that

Temple may respond in his reply brief.

[¶21.]        In his brief on appeal, Wright asserts that this Court lacks appellate

jurisdiction because Merrill was never dismissed as a party and the notice

requirements of SDCL 15-26A-4(3) are mandatory. He further claims that it is

immaterial that Merrill did not appear or participate in the proceedings on remand,

relying on our decision in Lake Hendricks Improvement Ass’n v. Brookings County

Planning & Zoning Commission, 

, 

 (dismissing

cross-appeal for failure to serve a party even though the party did not appear in

circuit court).

[¶22.]        Under SDCL 15-26A-4(3), “[t]he appellant, or his or her counsel, shall

serve the notice of appeal and docketing statement on counsel of record of each party

other than appellant, or, if a party is not represented by counsel, on the party at his

or her last known address.” (Emphasis added.) The “[f]ailure to timely serve and

file a notice of appeal is jurisdictionally fatal to the appeal.” In re Reese Trust, 

, ¶ 5, 

. Also, “[i]t is the rule in this state that

jurisdiction must affirmatively appear from the record and this Court is required

sua sponte to take note of jurisdictional deficiencies, whether presented by the

parties or not.” In re L.R., 

, 

 (quoting State v.

Phipps, 

 (S.D. 1987)).

[¶23.]        In determining who is entitled to service of a notice of appeal and

docketing statement, we have specifically rejected the argument that the right “to

service of a notice of appeal is contingent upon the party’s actual appearance and


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participation in the proceedings before the circuit court.” 2 Reese Trust, 

, ¶¶ 14–15, 

. However, none of our past cases have involved a

subsequent appeal after a limited remand from an initial appeal. There is no

question that while a new trial on issues concerning liability or other matters in the

first appeal could have impacted Merrill given Temple’s third-party claims and

Merrill’s counterclaims, because of the limited scope of our remand in Wright I, the

matters between Temple and Merrill could not be relitigated; therefore, the

determination of damages owed by Temple to Wright would not have any impact on

Merrill. See In re Conditional Use Permit Granted to Van Zanten, 

,

¶ 13, 

 (“When the scope of remand is limited, the entire case is

not reopened, but rather, the lower tribunal is only authorized to carry out the

appellate court’s mandate.”). Because our decision in Wright I effectively ended any

further litigation involving Merrill, Temple was not required to serve Merrill with

notice of this second appeal. We thus have appellate jurisdiction.



2.    While not dispositive, once Wright and Temple agreed to a procedure for
      submitting the remaining damages issue to the circuit court on remand,
      Merrill was dropped from the captions of the pleadings filed thereafter, and
      the circuit court’s orders and judgment likewise identify only Wright and
      Temple as parties. See Reese Trust, 

, ¶ 6, 776 N.W.2d at 833–
      34 (looking to the parties named in the captions on the pleadings and other
      legal documents in the record below to determine who is a party that must be
      served); Lake Hendricks, 

, ¶ 5 n.5, 

 n.5 (same);
      In re Estate of Geier, 

, 

 (same).
      However, we have also acknowledged that depending on the nature of the
      proceedings, the captioning on such documents may not necessarily identify
      all the parties; therefore, it may be necessary to examine the law governing
      the particular proceeding to identify the parties entitled to notice. Reese
      Trust, 

, ¶ 6, 

 (examining law on cy pres
      proceedings to determine who is a party); Estate of Geier, 

,
      

 (examining the law governing who must be served in
      estate litigation).
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The circuit court’s damage award

[¶24.]       Temple does not challenge the circuit court’s method of calculating

damages—subtracting the fair market value of the Citabria after the accident from

the fair market value of the plane before the accident. Rather, he contends the

court erred in using the salvage value of the Citabria as the fair market value of the

plane after the accident. Citing SDCL 10-6-104, a statute applicable to the

determination of property values for taxation purposes, Temple claims that the

salvage value “was not established at trial as the fair market value of the airplane

after the injury” because there was no evidence presented that “the injured airplane

was offered for sale in an open market and that it brought a price in money in a fair

sale between a willing buyer and a willing seller, each acting prudently and with

full knowledge of the relevant facts.” In his view, because Wright sold the plane for

$52,500 after the accident, this value constitutes the only evidence of the fair

market value of the plane after the accident. He thus contends Wright was entitled

to $22,500 in damages ($75,000 minus $52,500) and that by using the salvage value

of the plane, the circuit court “inflated” the damage award by $49,500.

[¶25.]       “[T]he amount of damages to be awarded is a factual issue to be

determined by the trier of fact.” Peska Props., Inc. v. N. Rental Corp., 

, 

, 755 (alteration in original) (citation omitted). We review fact

findings for clear error, and as such, the circuit court’s “findings on damages will

not be disturbed on appeal unless they are clearly erroneous.” 

 (citation omitted).

“In applying this standard, we will overturn the findings of the trial court only

when, after review of all the evidence, we are left with a definite and firm conviction


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that a mistake has been made.” 

 (quoting Tri-State Refin. & Inv. Co. v. Apaloosa

Co., 

 (S.D. 1990)).

[¶26.]       “We have said that ‘the ultimate purpose behind allowance of damages

for breach of contract is to place the injured party in the position he or she would

have occupied if the contract had been performed, or to “make the injured party

whole.”’” Wright I, 

, 956 N.W.2d at 449 (quoting Stern Oil Co. v.

Brown, 

, ¶ 16, 

). “In estimating the damage to

property, . . . the value of such property to the owner is deemed to be its market

value at the time and in the market nearest to the place where it was located at the

time of the damage.” SDCL 21-1-6.

[¶27.]       Although as noted by Temple, “fair market value” and “salvage value”

may be defined differently, either value may be used, depending on the

circumstances, to show the diminution in value of an item of property after it has

been damaged. Salvage value is defined as “[t]he value of an asset after it has

become useless to the owner; the amount expected to be obtained when a fixed asset

is disposed of at the end of its useful life.” Black’s Law Dictionary (11th ed. 2019).

Fair market value is defined as “[t]he price that a seller is willing to accept and a

buyer is willing to pay on the open market and in an arm’s-length transaction; the

point at which supply and demand intersect.” 

 In cases in which an item of

property is so damaged that it can no longer be used, its diminution in value is

determined by subtracting the salvage value from the fair market value before it

was damaged. See 22 Am. Jur. 2d Damages § 295 (updated 2023).




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[¶28.]         Here, although the extensive damage to the plane rendered it useless,

Wright elected to repair it. Therefore, this case presents a scenario where

alternative measures of damages could be considered, and determining which

measure is most appropriate is dependent on the particular facts of each case.

Because Wright’s $79,083 repair costs exceeded the diminution in the plane’s value

resulting from the crash, the circuit court did not err by declining to apply the cost

of repair measure of damages. See Rupert v. City of Rapid City, 

,

 (citation omitted) (providing that using the cost of repair

damages is appropriate “unless such cost is greater than the diminution in value”);

Lamb v. Winkler, 

, ¶ 19, 

, 405 (same). Instead, the

court calculated Wright’s damages by determining the difference between the fair

market value of the plane prior to the crash and the salvage value that could have

been recouped had the repairs not been undertaken.

[¶29.]         Temple’s suggestion that rather than subtracting the salvage value

when calculating the diminution in the plane’s fair market value, the court should

have subtracted the $52,500 sale price Wright received for the plane after it was

repaired only makes sense when applying the cost of repair measure of damages. 3



3.       In addition to the necessity of considering the cost of repair when
         determining the alternative measure of damages, when applying this
         measure of damages, it is questionable whether the $52,500 Wright received
         from the sale of the plane after it was repaired truly represents its fair
         market value. This Court has approved a jury instruction defining fair
         market value of personal property as “what a willing seller, under no
         compulsion to sell, and a willing buyer, under no compulsion to buy, would
         arrive at as the purchase price of the [item].” Rensch v. Riddle’s Diamonds
         Rapid City, Inc., 

 (S.D. 1986) (emphasis added).
         Wright’s unopposed testimony that he sold the repaired plane to “stop the
         bleeding” indicates that he felt compelled to sell it.
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This measure must include compensation not only for the diminution in value after

repair but also the amount reasonably expended for the repair. In the case at hand,

such a calculation would result in a higher damages award than the one Temple is

challenging in this appeal. 4 Given the facts presented, the circuit court did not err

in the method it chose to calculate Wright’s damages.

The circuit court’s decision to award prejudgment interest

[¶30.]         Temple contends that the circuit court erred in awarding prejudgment

interest because, in his view, the damages were uncertain until the circuit court

decided the damages issue on remand. 5 However, under SDCL 21-1-13.1, a person

entitled to damages “is entitled to recover interest thereon from the day that the

loss or damage occurred, except during such time as the debtor is prevented by law,

or by act of the creditor, from paying the debt.” When applying this statute, this

Court has made clear that “South Dakota statutes require an award of prejudgment

interest on compensatory damages, calculated ‘from the day that the loss or damage

occurred[.]’” JAS Enters., Inc. v. BBS Enters., Inc., 

, ¶ 45, 

 (alteration in original) (quoting SDCL 21-1-13.1). Therefore,

“[p]rejudgment interest is now mandatory, not discretionary[,]” and the circuit court



4.       When adding the difference between the fair market value of the plane before
         the crash and the amount for which it sold after being repaired ($75,000
         minus $52,500) to the cost of repair ($79,083.02), the damages award would
         be $101,583.02.

5.       Temple relies on SDCL 21-1-11. However, this statute was repealed in 2014.
         And even if the statute had not been repealed, it would not apply in this case
         because under SDCL 21-1-13.2, “[t]he provisions of § 21-1-13.1 apply to any
         suit commenced on or after July 1, 1990. The provisions of §§ 21-1-11 and 21-
         1-13 apply to any suit commenced before July 1, 1990.” Wright commenced
         suit after July 1, 1990.
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properly awarded Wright prejudgment interest from the date the damage occurred.

See Alvine v. Mercedes–Benz of N. Am., 

, ¶ 29, 

.

[¶31.]      Affirmed.

[¶32.]      JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.




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