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Cindy Tolle v. Peter Lev

September 28, 2011

CINDY TOLLE,
PLAINTIFF AND APPELLANT,
v.
PETER LEV, DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE WARREN G. JOHNSON Judge

The opinion of the court was delivered by: Zinter, Justice

CONSIDERED ON BRIEFS ON AUGUST 22, 2011

[¶1.] Cindy Tolle sued Peter Lev for damages for failing to transfer ownership of a cabin situated on land owned by the government in a national park. She also sued Lev for tortious interference with a business relationship she claimed with an employer. The circuit court granted summary judgment on both claims. We affirm the dismissal of the tortious interference claim but reverse and remand on the claim for damages for failure to transfer the cabin.

Facts and Procedural History

[¶2.] Tolle worked as a mountaineering guide at Exum Mountain Guides and School of Mountaineering, Inc. (Exum) in Wyoming. Lev also worked for Exum as a guide, and he served on Exum's Board of Directors (Board).

[¶3.] In 2000, Tolle agreed to sell real property in Lawrence County, South Dakota to Lev and Christine Coolidge. During the preliminary discussions relating to this sale, Lev agreed to transfer ownership of his guide cabin to Tolle when Lev retired from Exum. The cabin was a plywood structure located on land owned by the National Park Service in Grand Teton National Park. Tolle claims that because of Lev's agreement to transfer the cabin, she reduced her sale price of the Lawrence County property by $25,000.

[¶4.] A written purchase agreement dated May 18, 2000, was executed finalizing the Lawrence County sale. According to the purchase agreement, Tolle agreed to sell the property to Coolidge and Lev as tenants in common for $131,590. The written agreement did not reflect how the sales price had been negotiated, and the agreement did not mention the oral statement that Lev would transfer the guide cabin in Wyoming. Further, the purchase agreement contained an integration clause merging all prior negotiations and representations into the final written agreement. On August 17, 2000, Tolle signed a warranty deed conveying the property to Lev and Coolidge. The deed also made no mention of the cabin. [¶5.] In 2005, Lev sent Tolle an email confirming his agreement to transfer ownership of the cabin to Tolle. The email read:

You are right to be bummed for me not (so far) indicating I would not [sic] keep up my end of the bargain about you getting my cabin as part of the land deal we had. . . . I did make that agreement with you. But I haven't left Exum yet. . . . As long as I was still at Exum I had no intention of giving up the place; you knew that. P When Lev retired from Exum in 2009,*fn1 Tolle learned that Lev had already sold the cabin to his niece for $1,000.

[¶6.] Tolle apparently threatened litigation because on April 7, 2009, Lev sent an email to Jack Turner, President of the Exum Board, and Cyndi Hargis, Secretary of the Board. In the email, Lev disclosed that Tolle was threatening litigation for the loss of the cabin. Lev told Turner that Lev needed to know sale prices for similar guides' camp cabins.*fn2 Turner responded stating he would get back to Lev on prices, but thought Lev did not owe Tolle anything because the cabins belonged to Exum. Turner also wrote: "If there is something on paper, then you should copy it to us for our attorney to look at. If Cindy [Tolle] gets too nasty, send her to me." Lev responded twice, admitting there had been an agreement, adding more details about the cabin dispute, and stating that his plan was to have no further communications with Tolle, though he expected to be sued by her.*fn3 Turner replied on April 8, volunteering: "I will deal with Cindy [Tolle] this afternoon in a letter to the [B]oard. Cindy has been messing with Exum, the Exum board, and the Exum cabins for over a decade now, and I'm going to end it."

[¶7.] Later on April 8, Turner emailed the Board about Tolle's employment with Exum. Tolle's claim of employment with Exum started that year in February, when Exum sent letters inviting their guides to return for the upcoming season. Exum had not sent a letter to Tolle, who had guided for Exum in past seasons, so she contacted two members of the Board, Mark Newcomb and Nat Patridge. Newcomb responded on March 12 with an email telling Tolle that she should return to Exum and guide. Turner learned of the invitation and was concerned about Tolle's return. In his April 8 email to the Board, Turner disclosed several problems Tolle caused in the past and his concern about hiring her for the upcoming season. These concerns were unrelated to the cabin transfer issue. He asked the Board members to vote on whether to rescind the offer of employment to Tolle and not hire her in future years. The Board conducted a conference call on the matter. The Board, including Lev, unanimously voted to rescind the offer of employment.*fn4

Turner then sent Tolle a letter notifying her Exum was not going to employ her.

[¶8.] Tolle subsequently commenced this action. In her first count, Tolle sought $25,000 from Lev under a theory of promissory estoppel for failing to transfer the cabin. Tolle claimed damages in the amount of $25,000 because that was the amount by which she claimed she reduced the price of the Lawrence County property in return for the agreement to transfer the cabin. In her second count, Tolle sought damages for tortious interference with her claimed business relationship (employment) with Exum.

[ΒΆ9.] Lev moved for summary judgment arguing that Tolle's cabin claim was barred by the statute of frauds, the doctrine of merger, and the parol evidence rule. The court ruled that Tolle's claim was barred by the statute of frauds, specifically SDCL 53-8-2(1) and (3). Lev also moved for summary judgment on Tolle's tortious interference claim. The court ruled that "there [were] no genuine issues of material fact in the record to support one or more of the ...


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