Clements v. Gabriel

¶1(dissenting).

¶2Both the Clements and the Gabriels were represented by counsel when the contract was written. Counsel for each party had an opportunity to review the writing. Attorney Adam, representing the Clements, thoroughly reviewed the contract. The written agreement in question was drafted following a dinner meeting at which all parties, together with Attorney Freiberg, were present. True, Attorney Freiberg drafted the contract, but in accordance with the information he received from the Clements and Gabriels. Due to the input of Attorney Adam, who reviewed the contract, two provisions of the draft were deleted. This type of procedure is very common in the practice of law. It is conceptual folly to therefore assume that there existed an inequality of bargaining power between these parties. To suggest otherwise is to totally discount Attorney Adam's participation in drafting the agreement, which is a preposterous conclusion. The entire purpose of construing an ambiguous agreement against a drafter thereof is intended to adjust for an inequality of bargaining power existing. Atwater Creamery Co. v. Western National Mutual Insurance Co., 366 N.W.2d 271, 277 (Minn.1985).

¶3The majority states: “The rule of construction does not change because the Clements attorney reviewed the document.” I strongly disagree with this language, as does a vast number of other jurisdictions who have encountered this issue. See, Homac, Inc. v. DSA Financial *486Corp., 661 F.Supp. 776 (E.D.Mich.1987) (The justification for applying such a rule pales in a situation where the terms of an agreement resulted from a series of negotiations between experienced drafters); Spatz v. Nascone, 368 F.Supp. 352 (W.D.Pa.1973); Consumers Ice Company v. United States, 475 F.2d 1161, 201 Ct.Cl. 116 (1973); Kaiser Aluminum & Chemical Corporation v. United States, 388 F.2d 317, 181 Ct.Cl. 902 (1967); Carter v. Certain-Teed Products Corp., 200 F.2d 754 (8th Cir.1953); United States v. Continental Oil Company, 237 F.Supp. 294 (W.D.Okl.1964) ( ... exception is where a contract is the result of the joint efforts of attorneys or negotiators, then it is not to be construed against either party); Kinney v. Capitol-Strauss, Inc., 207 N.W.2d 574 (Iowa 1973); Beck v. F. W. Woolworth Co., Ill F.Supp. 824 (N.D. Iowa 1953) (that rule is likewise inapplicable where the instrument is prepared with the aid and approval, and under scrutiny of legal counsel for both of the contracting parties); Centennial Ent., Inc. v. Mansfield Dev. Co., 193 Colo. 463, 568 P.2d 50 (1977); Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 592 P.2d 74 (1979) (general rule, interpretation against the draftsman, has less force when the other party has taken an active role in the drafting process, or is particularly knowledgeable.) In sum, where all parties to a contract are knowledgeable, there is no reason for imposing sanctions against either party.

¶4Adam is a very good lawyer; so is Frei-berg. Both have been prominent lawyers in this state for many years; in point of fact both have served together on the State Board of Bar Examiners for many years. This Board is responsible for administering the State Bar Examination and grading the Bar Examinations. Both of these lawyers for many years have graded essay questions so it can be assumed that they are highly competent attorneys.1 Again, I repeat, this contract was approved by both of these lawyers; if the contract is ambiguous, both lawyers were involved in creating an ambiguity.

¶5There is not one scintilla of evidence to suggest that the Gabriels offered this contract to the Clements on a “take it or leave it basis.” See Hicks v. Brookings Mall Inc., 353 N.W.2d 54, 56 (S.D.1984). Under the facts of this case, the old time honored rule construing ambiguities against the drafter simply has no application. Unfortunately, the majority opinion has misconstrued the application of this time honored rule because the Gabriels (through attorney Freiberg) should not be characterized as the drafters. Freiberg cannot be characterized as having taken advantage of Adam. The contract in question was the result of both Freiberg’s and Adam’s efforts, acting for their clients, and should not be construed against either party.2 To suppose otherwise, and to hold otherwise, is to do academic violence to the majority rule in the United States as reflected by the seven authorities I have cited above. Lawyers, in tens of thousands of offices, daily have their secretaries type contracts, which result from give and take situations with their respective clients (meeting of the minds). Surely, simply because the contract is typed in one lawyer’s office after there has been joint effort and conferences by the parties with their counsel, does not turn the geographic location of the contract into the “scrivener’s” office. It is reversible error to instruct the jury on this rule because it was highly prejudicial in the jury instructions, to the Gabriels. It appears *487the jury was tacitly directed to find in favor of the Clements in all their claims.

¶6Nor do I agree with the trial court’s establishing prejudgment interest on a reduced judgment, totally silent as to the rationale of the trial court reducing the verdict. As a member of the reviewing court, am I not entitled to know why the trial court reduced the verdict? The Amert decision, cited in the majority opinion, is bad law. Fluctuating claims for damages are, inherently, not certainty. Contrariwise, they are uncertainty. I dissented in Amert because of the conflicting demands of the plaintiff. True to my previous expressions, I dissent here because of the total uncertainty of the Clements’ demands. During discovery, the Clements characterized their damage claim as “roughly $50,766.04.” During trial, the Clements contended they had $69,236.75 coming; the jury verdict was $50,853.39; an amended complaint lodged by the Clements failed to seek a certain damage amount in terms of dollars and cents; finally the coup de grace, is that the trial judge, without any explanation, lopped off over $2,000.00 of the jury’s verdict.3 SDCL 21-1-11, requiring the damages be certain or capable of being made certain by calculation, which is vested in him on a particular day, before pre-judgment interest may be awarded, has been shattered by the Amert and Hageman decisions. If a defendant in any given case, does not know what sum he owes; or if a plaintiff has variant figures of claimed damages before the trial, during the trial and after the trial, how can it be reasoned that defendant is responsible on a certain date, for a given amount of money upon which fixed interest would bear? It is this simple: if the indebtedness is not known or cannot be readily ascertained, an affixation of interest, as of a certain date, is pure conjecture. Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F.2d 550 (8th Cir.1989); Van Dyke v. Cobum Inters., Inc., 873 F.2d 1094 (8th Cir.1989); Heer v. State, 432 N.W.2d 559 (S.D.1988); First Nat’l. Bank v. Kehn Ranch, Inc., 394 N.W.2d 709 (S.D.1986); Twin City Testing En’g. Lab., Inc. v. Smith, 393 N.W.2d 456 (S.D.1986); Winterton v. Elverson, 389 N.W.2d 633 (S.D.1986); Cargill, Inc. v. Elliott Farms, Inc., 363 N.W.2d 212 (S.D.1985); Arcon Constr. Co. v. S.D. Cement Plant, 349 N.W.2d 407 (S.D.1984). Beka, the old granddaddy of this Court, cited by the majority opinion, has been torn asunder by Amert and Hageman. In Beka, interest was allowed on damages for breach of contract because the contractors’ testimony was uncontradicted.

¶7I fully appreciate that there appears to exist some conflict in the decisions of this Court on pre-judgment interest. It is extremely difficult to apply SDCL 21-1-11 to each factual scenario. In the instant case, when the trial judge lopped off $2,000 of the jury’s verdict, how can it be said that “damages certain” or “capable of being made certain” was “vested on a particular day?”