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Lamar Advertising of South Dakota, Inc. v. Heavy Constructors

October 6, 2010

LAMAR ADVERTISING OF SOUTH DAKOTA, INC., PLAINTIFF AND APPELLANT,
v.
HEAVY CONSTRUCTORS, INC. AND EPIC OUTDOOR ADVERTISING, LLP, DEFENDANTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, HONORABLE JOHN J. DELANEY Judge.

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS ON AUGUST 24, 2010

[¶1.] Lamar Advertising of South Dakota, Inc. (Lamar) failed to adhere to the one-year deadline imposed by SDCL 15-30-16 in which to conclude proceedings on a matter remanded by this Court. Heavy Constructors, Inc. (Heavy), the defendant in the matter, moved to dismiss. The trial court heard arguments in which Lamar contended it had good cause for not having proceedings within a year. The trial court granted Heavy's motion to dismiss. Lamar appeals. We affirm.

FACTS

[¶2.] The underlying litigation relevant to this appeal was filed by Lamar against Heavy and Epic Outdoor Advertising (Epic) for breach of contract in 2003. Lamar Outdoor Adver. of S.D., Inc. v. Heavy Constructors, Inc. , (Lamar I ), 2008 S.D. 10, 745 N.W.2d 371. In that action, Lamar's motion for specific performance was denied. Id . ¶ 6, 745 N.W.2d at 374. The trial court also determined that Lamar would be able to recover damages representing "the difference between the fair market value of the unexpired term of the lease (market rent) and the rent reserved in the lease (the contract rent)." Id . Lamar appealed the trial court's order granting Epic's motion for summary judgment and the damages measure. Id . ¶ 9, 745 N.W.2d at 374-75. We affirmed the motion for summary judgment, but reversed and remanded the issue of the measure of damages for retrial in an order dated February 6, 2008. Id . ¶ 24, 745 N.W.2d at 380.

[¶3.] On March 31, 2008, Lamar filed a Notice of Status Hearing with the trial court in order to set a new trial date. At a hearing on April 14, 2008, a two-day trial on the matter was scheduled for September 10-11, 2008. Both parties filed pre-trial submissions and Lamar submitted Plaintiff's Supplemental Jury Instructions in anticipation of trial. Lamar scheduled the deposition of Heavy's expert witness, Ken Simpson, which was taken on July 17, 2008. Heavy later cancelled the deposition of Lamar's expert witness originally scheduled for July 31, 2008. Heavy also failed to examine documents made available by Lamar at its counsel's office under a discovery request prior to the September 10-11, 2008, trial date.

[¶4.] On September 4, 2008, Heavy served a Motion for Continuance of Trial Date. Heavy's motion stated the purpose of the continuance was to explore settlement opportunities and provide Heavy with additional time to review discovery documents at the office of Lamar's counsel. Lamar did not oppose the motion to continue the trial. The trial court signed the order continuing trial and it was filed on September 5, 2008.

[¶5.] On September 9, 2008, Heavy sent a settlement proposal to Lamar via email. On October 4, 2008, Lamar sent Heavy an email asking whether a resolution could be reached. On October 17, 2008, Heavy replied via email that it was in the process of negotiating with third parties and would respond once an offer was in place.

[¶6.] On January 22, 2009, Lamar once again inquired of Heavy whether there would be additional efforts to resolve the matter. On February 8, 2009, Heavy once again sent a settlement proposal via email. On March 2, 2009, Lamar again inquired about settlement options, to which Heavy replied that day by providing the same emails originally sent and dated September 9, 2008, and February 8, 2009.

[¶7.] On August 19, 2009, Lamar scheduled a status hearing. On October 7, 2009, Heavy filed its Motion to Dismiss for failure to comply with the provisions of SDCL 15-30-16, which provides:

In every case on appeal, in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had therein within one year from the date of such order in the Supreme Court, or in default thereof, the action shall be dismissed, unless upon good cause shown the court shall otherwise order.

On October 26, 2009, a hearing was held on Heavy's motion to dismiss. At that time, the trial court tentatively scheduled trial on the matter for February 17-18, 2010, in the event it denied Heavy's motion.

[¶8.] At the hearing, Lamar argued that its attempts to settle the matter and the email exchanges between the two parties were evidence that the case had not been abandoned. It also argued that it did not schedule a trial due to the ongoing viable settlement attempts. Lamar further contended that it was unable to schedule a trial because Heavy's counsel served in the state legislature during January and February, and was unavailable during June and July due to a vacation. Heavy argued that its counsel did not invoke unavailability under the South Dakota Code for his service in the legislature and, thus, Lamar was not precluded from scheduling trial in January or February. While recognizing the courtesy extended by Lamar in not scheduling trial while Heavy's counsel was on vacation, Heavy also noted that the case could have been set for trial and another attorney from his firm could have handled the matter.

[ΒΆ9.] The trial court issued its ruling via email on November 2, 2009, granting Heavy's motion. Findings of fact and conclusions of law were filed by the trial court in which it incorporated its November 2, 2009, email. The trial court noted that SDCL 15-30-16 requires proceedings, meaning a new trial, be completed within one year of the date of the Supreme Court's remand order. Such proceedings were not completed and absent "good cause," the trial court noted it was required to grant Heavy's motion. The trial court concluded that the contacts and communications between Lamar and Heavy did not rise to the level of extraordinary events necessary to ...


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