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Huether v. Mihm Transp. Co.

Supreme Court of South Dakota

December 23, 2014

CURTIS HUETHER, Plaintiff and Appellant,

Considered on Briefs November 17, 2014

Page 855


SCOTT R. SWIER, BROOKE SWIER SCHLOSS, Swier Law Firm, Prof. LLC, Avon, South Dakota, Attorneys for plaintiff and appellant.

SABRINA L. SAYLER, Crary, Huff, Ringgenberg, Hartnett & Storm, PC, Dakota Dunes, South Dakota, Attorneys for defendants and appellees Mihm and Paul Radloff.

SCOT D. MANNSCHRECK, Vermillion, South Dakota, Attorney for defendant and appellee Rod Spartz.

SEVERSON, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and WILBUR, Justices, concur.


Page 856


[¶1] Curtis Huether brought this action alleging fraudulent misrepresentation and deceit and civil conspiracy against David Bisson, Mihm Transportation Co. (Mihm), Paul Radloff, Rod Spartz, and Jeff Dietrich (collectively Defendants). Bisson did not defend the lawsuit, and as a result, the circuit court entered a default summary judgment against him for fraudulent misrepresentation and deceit in the amount of $100,004 in actual damages and $1,000,000 in punitive damages. A jury trial was held on the remaining claims against Defendants. The jury found in favor of Huether on the civil conspiracy claim as to Mihm and Radloff. The jury awarded Huether $1,891 against Mihm and $500 against Radloff, and the circuit court imposed joint and several liability for the total jury award ($2,391) against Mihm and Radloff. Huether appeals asserting that the circuit court erred in failing to impose upon Bisson, Mihm, and Radloff joint and several liability for the totality of the summary judgment award, including punitive damages, and in denying his motion for judgment as a matter of law against Spartz. We affirm.

Facts and Procedural History

[¶2] In September 2008, Bisson contacted Huether with a proposed deal wherein Huether would purchase 70 " open" (i.e., non-pregnant) heifers from Bisson at $1,425 per head (totaling $99,750), Huether would breed the open heifers, and then Bisson would purchase the " springing" (i.e., impregnated) heifers from Huether at $2,000 per head (totaling $140,000). Huether and Bisson had entered a written agreement in the past, and the two proceeded under an understanding similar to the terms of the prior agreement. Although Bisson promised a written contract, none was provided or entered into. Bisson hired Mihm to transport the

Page 857

heifers from Indiana to Huether's farm in Hutchinson County, South Dakota. Mihm contracted with Radloff to transport the heifers and sent load information to Radloff. Radloff transported the heifers to Huether and, upon arrival to Huether's farm on September 9, 2008, Radloff gave Huether the heifers' health certificates and the transportation bill, which totaled $2,391. Huether did not review the health certificates at that time.

[¶3] Bisson called Huether a few days after the heifers arrived and arranged for Bisson and Bisson's veterinarian, Jeff Dietrich, to dehorn some of the heifers and further " work" the heifers on September 24, 2008, even though Huether would not be at his farm that day. Bisson assured Huether that he did not need to be present. Huether alleged at trial that Bisson and Dietrich altered the heifers' identification tags that day so that the heifers would appear to originate from South Dakota.

[¶4] In January of 2009, some of the heifers began calving early.[1] As a result, Huether called a local veterinarian to examine the heifers in March of 2009, and the veterinarian ascertained that some of the supposedly open heifers were actually pregnant when Radloff delivered them in September of 2008. In addition, the veterinarian or the veterinarian's assistant noticed that the heifers' identification tags appeared to have been altered or removed. Huether then examined the health certificates that accompanied the heifers when they were delivered by Radloff. Huether's examination revealed that the heifers' state of origin, ages, identification information, cosignor and cosignee information, and interstate movements appeared to be falsified or altered.

[¶5] Huether alerted the South Dakota State Veterinarian and the United States Department of Agriculture, both of which began investigating. The State investigator, Dr. Mendel Miller, found that the heifers' identifications and health certificates were incorrect, the heifers' medical information could not be verified, and the heifers' origin could not be determined. As a result, the State quarantined the heifers until they were tested for tuberculosis. The heifers could not be sold or moved while in quarantine. Huether could have had the heifers tested for tuberculosis shortly after the quarantine began, but chose not to do so until more information could be gathered about the heifers' origin.

[¶6] On June 1, 2009, while the heifers were under quarantine, Huether's attorney received a letter from Mihm and Radloff. The letter stated that the heifers actually came from Spartz's farm in Goodwin, South Dakota. Later that same day, when Huether and his attorney called Mihm about the letter, Mihm, and later Radloff, admitted the letter was a lie. Mihm claimed that Bisson had told him what to write. Mihm also claimed that the heifers were from Indiana, so within a matter of hours, Mihm gave two different accounts of the heifers' origin. Radloff asserted that he did not know that Bisson had directed Mihm to write the letter, but Mihm and Radloff admitted they knew the letter was false when it was sent.

[¶7] Having failed to ascertain the origin of the heifers from Mihm or Radloff, Huether and Dr. Miller followed up on a possible lead in Spartz. Spartz was a grain and beef farmer and had a long-standing business relationship with Bisson. Spartz, too, lied about the origin of the heifers, claiming the heifers had indeed come from his farm. Huether believed that Bisson directed Spartz to lie about the origin of the heifers as ...

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