Date: 06-11-2022

Case Style:

POWERS v. POWERS and PREVAILING WINDS, LLC

Case Number: 2022 S.D. 25

Judge:

Patricia J. DeVaney

DAVID KNOFF

Court:

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

On appeal from The CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

Plaintiff's Attorney: R. SHAWN TORNOW

Defendant's Attorney:

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Description:

Pierre, SD - Real Estate lawyer represented Defendants and Appellees with interpretation of a right of first refusal.

In 2003, Jerome and Dennis jointly purchased roughly 630 acres of
land in Bon Homme and Charles Mix counties for less than fair market value on a
contract for deed from Jerome’s parents/Dennis’s grandparents. Thereafter, Jerome
and Dennis farmed the property together. In 2005, Jerome sought to sell his
interest in the property because he was facing a prison sentence related to illegal
drug activity. Jerome testified that he wanted to keep the property in the family
and not burden his wife with debt. He also testified that his siblings did not want
to purchase his interest in the property, but that Dennis, who was 22 years old at
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the time, expressed interest. In the spring of 2005, Jerome quitclaimed his interest
in the property and assigned his interest in the contract for deed to Dennis. Dennis
paid Jerome the amount that Jerome had paid on the contract, and then Dennis
became responsible for the remaining amount due on the entire contract for deed.
[¶3.] As part of the transfer of ownership, Jerome and Dennis executed a
“First Right of Refusal” (ROFR).1 The ROFR provides in relevant part:
SECTION TWO
FIRST RIGHT OF REFUSAL
In the event GRANTOR [Dennis] offers the above-described
property, or any interest therein, for sale, transfer or
conveyance, GRANTOR shall not sell, transfer, or convey the
above-described property, nor any interest therein, unless and
until he shall have first offered to sell such property or any
interest therein, to GRANTEE [Jerome]. If GRANTOR intends
to make a bona fide sale of the above-described property, or any
interest therein, he shall give to GRANTEE written notice of
such intention, which notice shall contain the basic terms and
conditions demanded by GRANTOR for the sale of such
property.
Within thirty (30) days of receipt of such notice and
information, GRANTEE [Jerome] shall either exercise his First
Right of Refusal by providing written notice of his acceptance to
GRANTOR [Dennis], or waive his First Right of Refusal by
failing to provide GRANTOR with such written notification of
his acceptance or rejection of the First Right of Refusal within
such time.
SECTION THREE
TERMS
Should GRANTOR [Dennis] accept the offer of GRANTEE
[Jerome] to purchase the property, it shall be on the following
terms:
1. Jerome and Dennis executed two rights of first refusal because the property
was located in two counties. The relevant language in each document is
identical.
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1. GRANTEE shall pay GRANTOR the sum of $420.00 per
acre, which shall be paid in cash or cash equivalent at
closing.
2. GRANTOR shall convey fee title, which title shall be
merchantable, as shown by abstract or title insurance.
3. Closing shall take place within thirty (30) days of
GRANTOR delivering title insurance or abstracts to the
property.
4. GRANTEE shall have possession of the property at
closing.
If GRANTEE [Jerome] fails to exercise his First Right of
Refusal, GRANTOR [Dennis] may proceed to sell, transfer and
convey the property to any other person or entity free from any
restrictions of this Agreement.
[¶4.] After the purchase, Dennis continued to personally farm the property.
He testified that he converted 230 acres from pastureland into more valuable,
tillable cropland. He also testified that he and Jerome entered into an oral
agreement whereby Jerome could use the property for his hunting business. In
2006 or 2007, Dennis gave an easement to the B-Y Water District to install a
pipeline to deliver rural water to his residence on the property. Jerome testified
that he was aware that the pipe was being installed but not that an easement was
involved.
[¶5.] In 2010, Dennis decided to stop farming the land himself and began to
pursue other business interests. He planned to lease the land to third parties and
claimed that he talked about his plan with his grandfather and Jerome. In 2011,
Dennis entered into an oral lease agreement with a third party for the property.
Jerome testified that he was aware of this lease. In 2012, Dennis paid off the
balance on the contract for deed. He then deeded a one-half interest in the property
to his wife, April, via warranty deed. Between 2013 and 2017, Dennis and April
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entered into multiple financing agreements related to the property. Dennis also
entered into additional lease agreements with third parties for the property after
the 2011 lease. Jerome testified that he was aware that Dennis leased the property
to other third parties after 2011.
[¶6.] In 2017, Prevailing Wind applied for a permit from the South Dakota
Public Utilities Commission for a wind farm, which involved obtaining lease
agreements and easements from property owners in Bon Homme and Charles Mix
counties. Dennis was interested in participating in Prevailing Wind’s project and
was given a draft of the wind energy lease and easement agreement. Jerome, on
the other hand, did not support Prevailing Wind’s application request and attended
public meetings to voice objections against the project because, in his view, it would
cause adverse health effects and have a negative impact on his hunting business.
In 2018, Dennis and April entered into a wind energy lease and easement
agreement (Agreement) with Prevailing Wind. The parties dispute whether Dennis
and Jerome discussed the terms of the ROFR prior to Dennis and April signing the
Agreement, but it is undisputed that Dennis’s decision strained Jerome and
Dennis’s relationship.
[¶7.] Prevailing Wind was aware of the ROFR and, in 2019, requested that
Jerome consent to the Agreement between Prevailing Wind and Dennis and April.
Jerome refused, and in June 2019, he brought suit against both Dennis and
Prevailing Wind. He alleged that Dennis’s act of entering into the Agreement
triggered the ROFR and that Dennis breached the ROFR by failing to first offer the
entire property for sale to Jerome. Jerome sought declaratory relief, requesting
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that the circuit court find the ROFR enforceable and order specific performance as
the remedy. Jerome also alleged that because of Dennis’s breach of the ROFR, he is
entitled to purchase the property “unencumbered” by Prevailing Wind’s lease and
easement. Finally, Jerome requested that the court void the Agreement because, in
his view, it was obtained in violation of the ROFR.
[¶8.] Prevailing Wind’s answer asserted affirmative defenses, including
waiver, laches, and that Jerome’s claims were barred by the statute of limitations.
In a separate answer, Dennis asserted multiple defenses, including that the ROFR
is void as an unreasonable restraint on alienation. After taking deposition
testimony from Dennis and Jerome, Prevailing Wind filed a motion for summary
judgment stating that the motion “is supported by the accompanying” statement of
undisputed material facts, affidavits, and “all of the filings and proceedings herein.”
Prevailing Wind also filed a brief, labeled as a “memorandum in support.” Dennis
filed a joinder, indicating that he “has and does join” Prevailing Wind’s motion for
summary judgment and memorandum in support and later filed a joinder in
Prevailing Wind’s reply brief.
[¶9.] The summary judgment motion and Jerome’s opposition to the same
centered on the interpretation of the ROFR. Prevailing Wind argued that the
language in Section Two, referring to the sale, transfer, or conveyance of “any
interest therein,” means only fee simple sales, transfers, or conveyances. As
support, Prevailing Wind relied on the language of the ROFR as a whole and, in
particular, pointed to the remaining language in the ROFR referencing a sale of the
property and that the property was to be conveyed to Jerome in “fee title.” In
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response, Jerome claimed that Prevailing Wind’s interpretation rewrites or adds
words to the ROFR. Focusing on the language of Section Two, he asserted that the
ROFR unambiguously provides that Dennis cannot sell, transfer, or convey any
interest in the property unless and until he offers to sell the property to Jerome.
[¶10.] Prevailing Wind alternatively argued that summary judgment would
be appropriate because the undisputed material facts establish that the ROFR, as
interpreted by Jerome, is an unreasonable restraint on alienation. Prevailing Wind
also asserted that Jerome failed to timely commence his claim under the ROFR,
waived his right to enforce the ROFR, and should otherwise be barred from
enforcing the ROFR based on laches. In response, Jerome claimed that he timely
commenced his suit and that the restraint is reasonable as a matter of law. He
alternatively asserted that there are material issues of fact in dispute on the
reasonableness of the restraint and on Prevailing Wind’s affirmative defenses.
[¶11.] Following a hearing on Prevailing Wind’s motion, the circuit court
issued a memorandum decision. It noted that the “dispute hinges on the phrase ‘or
any interest therein’” in Section Two of the ROFR and explained that summary
judgment would be appropriate on all claims if the ROFR applies only to an interest
in fee title because “[t]here is no dispute that fee ownership has not been
transferred.” The circuit court examined the phrase “any interest therein” in the
context of the entire ROFR. The court determined that the language in Section
Three “is helpful in analyzing the intent of the” ROFR. In particular, the court
noted that Section Three refers to transferring fee interest from Dennis to Jerome.
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[¶12.] Ultimately, the court concluded that the ROFR “clearly contemplates
only a fee simple sale of the real estate or a portion (in fee) of the real estate.” The
court then stated that this interpretation “is consistent with the inaction of Jerome
when he had knowledge of the property being leased in the past (which he now
claims is a violation of the [ROFR]).” Alternatively, the circuit court determined
that even if the ROFR is ambiguous or applies to interests transferred in less than
fee, “this would, as a matter of law, render the [ROFR] void as a restraint against
alienation.” The court noted that under Jerome’s interpretation of the ROFR, in
order to avoid the risk of having to sell the entire property to Jerome for far less
than fair market value, Dennis is prohibited, absent Jerome’s permission, from
doing anything other than farming the property himself.
[¶13.] The court granted Prevailing Wind’s motion, joined by Dennis, for
summary judgment based on the court’s determination that the ROFR is
unambiguous and intended “to apply to fee interest transfers of the property.”
Jerome appeals, claiming that the circuit court could not enter summary judgment
in favor of Dennis when he did not join Prevailing Wind’s statement of undisputed
material facts or file his own. Jerome further asserts that the circuit court erred in
its interpretation of the ROFR and thereby erred in granting Prevailing Wind’s
motion for summary judgment.2
2. Jerome also contends that there are material issues of fact in dispute
precluding summary judgment on the alternative determination that the
ROFR is void as an unreasonable restraint on alienation. Because of our
ruling on the first two issues, it is unnecessary to address this additional
argument.
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Standard of Review
[¶14.] As this Court recently explained, “[o]n review of a decision granting
summary judgment, ‘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.’” Olson v. Berggren, 2021 S.D. 58, ¶ 12,
965 N.W.2d 442, 447 (quoting Hanna v. Landsman, 2020 S.D. 33, ¶ 21, 945 N.W.2d
534, 541). Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” SDCL 15-6-56(c).
Analysis and Decision
1. Whether the circuit court could enter summary
judgment in favor of Dennis when he did not join
Prevailing Wind’s statement of undisputed material
facts or file his own.
[¶15.] Jerome first raises a procedural matter, contending that because
Dennis did not specifically join Prevailing Wind’s statement of undisputed material
facts or file his own statement of undisputed material facts, he could not obtain
summary judgment in his favor. He directs this Court to the language in SDCL 15-
6-56(c)(1) that “[a] party moving for summary judgment shall attach to the motion a
separate, short, and concise statement of the material facts as to which the moving
party contends there is no genuine issue to be tried.”
[¶16.] “We review legal questions arising under the rules of civil procedure de
novo, utilizing our established rules for statutory construction.” Leighton v.
Bennett, 2019 S.D. 19, ¶ 7, 926 N.W.2d 465, 467–68 (citing Moore v. Michelin Tire
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Co., Inc., 1999 S.D. 152, ¶ 16, 603 N.W.2d 513, 519–20). In Discover Bank v.
Stanley, this Court identified that “SDCL 15-6-56 provides the procedure for when
and how a motion for summary judgment may be filed with a circuit court.” 2008
S.D. 111, ¶ 18, 757 N.W.2d 756, 762. Applying rules of statutory interpretation, the
Court concluded that the use of the word “shall” in SDCL 15-6-56(c)(1) means that
the party moving for summary judgment must attach a statement of undisputed
material facts to the motion.3 Id. ¶ 24, 757 N.W.2d at 763–64.
[¶17.] Here, Prevailing Wind was the moving party and was thus required to,
and did, include a statement of undisputed material facts as required by SDCL 15-
6-56(c)(1). By joining Prevailing Wind’s motion for summary judgment and its
memorandum in support, Dennis thereafter joined by implication Prevailing Wind’s
accompanying statement of undisputed material facts, many of which were
referenced in the memorandum. While joining parties could specify that they are
not joining certain arguments or statements made in the other party’s motion, brief,
or the accompanying documents, no such limitation was set forth in Dennis’s joinder
here.
3. In Discover Bank, this Court noted that “[t]he party opposing a motion for
summary judgment should not have to guess at what its opponent plans to
present in court.” 2008 S.D. 111, ¶ 25, 757 N.W.2d at 764. We further noted
that if the moving party does not file the statement of undisputed material
facts, the opposing party is denied “the opportunity to submit his mandatory
statement controverting” the moving party’s statement of undisputed facts.
Id. ¶ 26. Neither concern is present here. Prevailing Wind, the moving
party, provided a statement of undisputed material facts informing Jerome
about what would be presented in court, and Jerome had an opportunity to
respond and submitted his statement controverting certain alleged
undisputed material facts.
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[¶18.] However, Jerome further asserts that notwithstanding the fact that
Dennis joined Prevailing Wind’s summary judgment motion, because Prevailing
Wind is not a party to the breach of contract claim related to Dennis’s failure to give
the required notice under the ROFR, the circuit court could not grant Dennis
summary judgment on this particular claim. While such an argument may have
merit in other scenarios, here, whether Dennis was required to give notice under
the ROFR (and thus whether a breach occurred) depends directly on the
interpretation of the ROFR or, alternatively, on whether the ROFR is void as an
unlawful restraint on alienation. When the circuit court concluded that the ROFR
does not apply to sales, transfers, and conveyances of less than fee simple interest
or, in the alternative, that the ROFR is void as an unlawful restraint against
alienation, Jerome’s breach of contract claim against Dennis failed as a matter of
law, regardless of whether Dennis joined in Prevailing Wind’s summary judgment
motion.
2. Whether the circuit court erred in its interpretation
of the ROFR and thereby erred in granting
Prevailing Wind’s motion for summary judgment.
[¶19.] Jerome asserts that the circuit court erroneously interpreted the
ROFR to apply only to fee simple sales, transfers, or conveyances in whole or in
part. He claims that the ROFR unambiguously provides in Section Two that the
right of first refusal is triggered if Dennis intends to sell, transfer, or convey “any
interest therein” and notes the absence of any language limiting such transactions
to those involving a sale in fee simple to a third party. Thus, in Jerome’s view, the
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circuit court, in direct contravention of this Court’s rules of contract interpretation,
added words to the ROFR that the parties did not include.4
[¶20.] “Contract interpretation is a question of law reviewable de novo.”
Laska v. Barr (Laska I), 2016 S.D. 13, ¶ 5, 876 N.W.2d 50, 52 (quoting Ziegler
Furniture & Funeral Home, Inc. v. Cicmanec, 2006 S.D. 6, ¶ 14, 709 N.W.2d 350,
354). This Court gives no deference to the circuit court’s interpretation; “we can
review the contract as easily as the” circuit court. Com. Tr. & Sav. Bank v.
Christensen, 535 N.W.2d 853, 856 (S.D. 1995). “When interpreting a contract, this
Court looks to the language that the parties used in the contract to determine their
intention.” McKie Ford Lincoln, Inc. v. Hanna, 2018 S.D. 14, ¶ 9, 907 N.W.2d 795,
798 (quoting Charlson v. Charlson, 2017 S.D. 11, ¶ 16, 892 N.W.2d 903, 908). This
Court has also said that “to ascertain the terms and conditions of a contract, we
4. Jerome also contends that the court improperly relied on parol evidence,
namely Jerome’s deposition testimony, to ascertain the parties’ intent. A
review of the court’s memorandum decision reflects that it did refer to
inconsistencies in Jerome’s deposition testimony. However, the court did not
use this extrinsic evidence to rewrite or alter the terms of the ROFR or to
determine the parties’ intent. See, e.g., Edgar v. Mills, 2017 S.D. 7, ¶ 29, 892
N.W.2d 223, 231 (providing that it is improper to use parol evidence to
rewrite or add words to an unambiguous contract). Rather, the court
determined the parties’ intent based on the language in the ROFR. See Black
Hills Excavating Servs., Inc. v. Retail Const. Servs., Inc., 2016 S.D. 23, ¶ 10,
877 N.W.2d 318, 322 (noting that when a contract is unambiguous, the intent
of the parties is to be derived from within the four corners of the contract). In
particular, the court relied on the language from Sections Two and Three, not
on extrinsic evidence, when it determined that the parties intended the
ROFR to apply only to transfers in fee. It was only after this determination
that the court identified that its interpretation was consistent with Jerome’s
deposition testimony that he did not take action under the ROFR when he
had knowledge of Dennis leasing the property in the past.
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examine the contract as a whole and give words their plain and ordinary meaning.”
Id. (emphasis added) (citation omitted).
[¶21.] Based on a review of the language of the ROFR as a whole, the circuit
court properly rejected Jerome’s interpretation. Section Two provides that if Dennis
offers for sale, transfer, or conveyance, the property or any interest therein, he must
first offer “to sell such property or any interest therein” to Jerome. (Emphasis
added.) The next sentence then provides that if Dennis “intends to make a bona
fide sale” of the property or any interest therein, he must give written notice to
Jerome of the terms and conditions he is demanding “for the sale of such property.”
(Emphasis added.) Although Jerome contends that the phrase “any interest
therein” includes easements and leases, granting an easement or entering into a
lease with a third party are not transactions commonly characterized as a “sale,
transfer, or conveyance.” Moreover, the phrase “any interest therein” cannot be
read in isolation from the entire ROFR. As used in the following sentence, the
phrase “property or any interest therein” precedes language referring to Dennis’s
bona fide sale of “such property”; thus, it is clear that this paragraph refers to a
sale, transfer, or conveyance of an ownership interest in the property. Finally,
under Section Three, the terms of the sale to Jerome once he exercises his right “to
purchase the property” require Dennis to convey “fee title” to Jerome. (Emphasis
added.)
[¶22.] However, Jerome takes issue with any reliance on the language in
Section Three when interpreting Section Two. In his view, Section Three “only
becomes applicable” after Dennis provides Jerome, under Section Two, the required
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notice in writing that he intends to sell, transfer, or convey the property or any
interest therein. Jerome then contends that the triggering event in Section Two has
yet to occur because Dennis never gave Jerome written notice of his intent to sell,
transfer, or convey any interest in the property, and thus Section Three is
immaterial.
[¶23.] Jerome’s argument confuses a court’s review of the terms of a contract
to determine the parties’ intent with a review of the terms of a contract to
determine whether the underlying facts establish that a breach has occurred. The
question at this juncture is not whether a triggering event occurred under the
ROFR such that other provisions within the contract are implicated. Rather, this
Court must determine whether, as asserted by Jerome, the language of the ROFR
evinces the parties’ intent that it applies to sales, transfers, and conveyances of the
property in less than fee simple interest, or whether, as determined by the circuit
court, the language of the ROFR indicates the parties’ intent that it applies only to
transfers in fee.5 To answer this question, “[w]e must ‘give effect to the language of
the entire contract[,] and particular words and phrases are not interpreted in
5. Although we reject Jerome’s request to read Section Two in isolation and his
interpretation of this Section to include leases and easements, we note that
Jerome’s interpretation of Section Two does not support his view that the
ROFR would then give him the right to purchase the entire property in the
event Dennis intends to transfer or convey only an interest in the property.
Section Two provides that Dennis cannot sell, transfer, or convey the
property or any interest in the property until he offers “to sell such property
or any interest therein” to Jerome. (Emphasis added.) This language (read in
isolation) suggests that Jerome would only have a right to purchase the same
interests Dennis conveyed to Prevailing Wind—a wind energy lease and
easement.
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isolation.’” Lillibridge v. Meade Sch. Dist., 2008 S.D. 17, ¶ 12, 746 N.W.2d 428, 432
(emphasis added) (citation omitted).
[¶24.] Applying the rules of contract interpretation here, the ROFR as a
whole indicates that the parties intended the ROFR to apply only to sales, transfers,
and conveyances of the property or any interest therein in fee simple. Because it is
undisputed that Dennis’s Agreement with Prevailing Wind did not involve a sale,
transfer, or conveyance in fee, the circuit court properly granted Prevailing Wind’s
motion for summary judgment on all claims.

Outcome: Affirmed

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