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Berggren v. Schonebaum

Supreme Court of South Dakota

December 20, 2017

JOHN BERGGREN, Plaintiff,
v.
JEFF SCHONEBAUM d/b/a SCHONEBAUM QUARTER HORSES, Defendant, and LAWRENCE MEENDERING, Defendant and Appellee.

          Argued On November 7, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT GREGORY COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge

          JAKE FISCHER SCOTT SWIER MICHAEL A. HENDERSON of Swier Law Firm, Prof. LLC Corsica, South Dakota Attorneys for former plaintiff attorney Jake Fischer and appellant.

          GEORGE F. JOHNSON of Johnson Pochop & Bartling Law Office Gregory, South Dakota Attorneys for defendant and Appellee.

          KERN, Justice

         [¶1.] Lawrence Meendering filed a motion to disqualify opposing counsel Jake Fischer for an alleged violation of the South Dakota Rules of Professional Conduct. Meendering also sought attorney's fees from Fischer for costs incurred in bringing the motion. The circuit court, citing our decision in Jacobson v. Leisinger, 2008 S.D. 19, 746 N.W.2d 739 (Leisinger II), granted the motion. In imposing fees, the court reasoned that sanctions were appropriate because the motion to disqualify was "other litigation" resulting from Fischer's alleged ethical violation. We reverse.

         Facts and Procedural History

         [¶2.] In 2009, Meendering loaned Jeff Schonebaum approximately $17, 000 to purchase a stud horse named Peppy from Heaven (Peppy). In April 2013, Schonebaum sold Peppy to John Berggren for approximately $11, 000. Berggren intended to use Peppy to artificially inseminate other horses. However, an appraisal of Peppy's semen indicated it was unsatisfactory and too thin to freeze. In January 2014, Berggren sued Schonebaum, claiming Schonebaum misrepresented Peppy's ability to breed. Fischer of Swier Law Firm represented Berggren in the matter.

         [¶3.] Sometime later in 2014, Meendering paid a visit to Schonebaum regarding personal loans Meendering made to him. Meendering, suspecting Schonebaum would not settle the remaining debts, visited an attorney in Wagner, South Dakota, on the return trip home. The attorney expressed his disinterest in the case and recommended Meendering contact the Swier Law Firm in Avon, South Dakota. Later that day, Meendering drove to Avon and met with Fischer in an unscheduled visit. Meendering claims the two discussed the money he loaned Schonebaum. According to Meendering, Fischer failed to disclose that he represented Berggren in a lawsuit against Schonebaum.

         [¶4.] On January 13, 2015, Fischer deposed Schonebaum. During the deposition, the following exchange occurred:

Q. Do you know Lawrence Mendring [sic]?
A. Yeah.
Q. Who is he?
A. He's my banker.

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