CONSIDERED ON BRIEFS ON JANUARY 8, 2018
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DAVISON
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. SMITH Judge
MICHAEL E. UNKE Salem, South Dakota Attorney for plaintiff
DOUGLAS M. DEIBERT MELISSA R. JELEN Caldwell, Sanford,
Deibert & Garry LLP Sioux Falls, South Dakota Attorneys
for defendant and appellee, Larry Weisser.
Kayla Fluth sued Larry Weisser and Schoenfelder Construction,
Inc., (Schoenfelder) to recover damages for flooding in her
basement caused by a waterline leak on Weisser's
property. Prior to trial, Schoenfelder made an offer of
judgment for $7, 500. Fluth accepted, Schoenfelder paid
Fluth, and Fluth filed a satisfaction of judgment. Weisser
then moved for summary judgment, arguing a satisfaction of
judgment discharges all other joint tortfeasors from
liability. The circuit court granted the motion, and Fluth
appeals. We reverse in part and affirm in part.
and Procedural History
On June 3, 2012, a disgruntled tenant set off a gas explosion
in the basement of one of Weisser's Mitchell, South
Dakota rental properties. The explosion lifted the house off
its foundation and caused extensive damage to the interior.
After visiting the site, Weisser contacted Schoenfelder to
demolish the home and grade the property to normal elevation.
Shortly after Schoenfelder began tearing down the house,
Weisser met with Brian Wendelboe, the Mitchell Water
Distribution Department foreman. City officials had attempted
to access the waterline themselves the night of or day after
the explosion, but tree roots obstructed access to the
shutoff valve at the curb. When deposed, Wendelboe claimed he
told Weisser that the waterline accessing the property needed
to be shut off by a licensed plumber at either the
street-curb valve or at the water main beneath the street.
Wendelboe also claimed he told Weisser that the waterline
could be bent over and hammered shut only as a temporary fix.
According to Wendelboe, when he asked Weisser how he intended
to deal with shutting the water off permanently, Weisser
responded, "Let's not worry about it right
Weisser shut off the water in the basement and had the water
meter removed. During demolition work on July 3, 2012,
Schoenfelder broke the waterline. Schoenfelder bent the pipe
over and hammered it shut to temporarily lessen the flow of
water. Weisser then hired Krohmer Plumbing to shut off the
water permanently at the curb. Schoenfelder dug up the curb
stop, and Krohmer attempted to reach the shutoff valve.
However, the tree again rendered the shutoff valve
inaccessible. Schoenfelder claims that Weisser instructed
Schoenfelder to "finish the job, cover it up."
Weisser did not subsequently contact the City of Mitchell to
have the tree removed or have the water valve shut off.
The following spring, Fluth noticed water penetrating her
basement. After tearing out the boards and sheet rock on the
west wall, Fluth discovered extensive water damage. On June
28, 2013, Fluth contacted law enforcement after seeing water
pooling on Weisser's empty lot. Wendelboe called Weisser
and informed him of the situation, and Weisser again hired
Krohmer to shut off the water. The Mitchell Parks and
Recreation Department cut down the tree in front of the
property, enabling Krohmer to access the shutoff valve at the
curb. Fluth has not experienced any further trouble with
ground water entering her basement.
Fluth subsequently brought suit against Weisser and
Schoenfelder, alleging fraud and negligence. In her
January 21, 2015 amended complaint, Fluth alleged the leak
caused water to enter her basement, damaging her property and
promoting growth of mold hazardous to her family's
health. Fluth sought compensatory and punitive damages.
The court scheduled a three-day trial to begin on June 29,
2016. On June 2, 2016-just weeks before trial-Schoenfelder
made Fluth an offer of judgment for $7, 500. On June 15,
2016, Fluth accepted Schoenfelder's offer, and
Schoenfelder later remitted the funds. On July 18, 2016,
Fluth filed a satisfaction of judgment.
On June 22, 2016, Fluth, having obtained permission from the
court, filed a second amended complaint dismissing
Schoenfelder as a defendant and adding claims of deceit and
"intentional, willful, wanton, and malicious
conduct" against Weisser. Fluth again requested
compensatory and punitive damages. The court rescheduled the
trial for January 2017 to allow the parties time to complete
additional pretrial proceedings. On October 13, 2016, Weisser
moved for partial summary judgment on the issues of punitive
damages and on Fluth's theories of deceit, fraudulent
concealment, and "intentional, willful, wanton, and
malicious conduct." At a November 16, 2016 motions
hearing, the circuit court granted Weisser's motion for
partial summary judgment on the issues of deceit and
fraudulent concealment. However, it denied Weisser's
motion to dismiss Fluth's claim of "intentional,
willful, wanton, and malicious conduct" and her request
for punitive damages. The court also allowed discovery of
Weisser's financial information prior to trial but barred
the jury from considering the issue of proportionate fault,
stating that SDCL 15-8-17 only authorized a pro-tanto offset.
On November 30, 2016, Weisser moved the circuit court to
permit either a cross-claim or a third-party action against
Schoenfelder. On December 15, 2016, Weisser filed another
motion for summary judgment pursuant to SDCL 15-6-56(c)(2).
Weisser argued that Fluth discharged all other joint
tortfeasors from liability when she satisfied her claim with
On January 3, 2017, Fluth and Weisser attended a hearing on
Weisser's motions. Schoenfelder's counsel also
appeared at the hearing. The court orally denied
Weisser's motion to permit a cross-claim or third-party
action against Schoenfelder, reasoning that "allowing [a
third-party action] at this late hour with trial next week
and with a party already resolving their exposure through a
satisfaction of judgment greatly prejudices that party . . .
." As to Weisser's motion for summary judgment, the
court observed that the case presented a question of first
impression. Citing the "well-settled rule"
established in other jurisdictions that "satisfaction of
one judgment precludes action against another joint
tortfeasor," the court granted summary judgment. The
court set forth its rulings in an order dated January 6,
2017. Fluth appeals, raising the following issue for our
1. Whether the circuit court erred by granting Weisser's
motion for summary judgment. Weisser, by notice of review,
raises several additional issues, which we consolidate as
2. Whether Weisser is entitled to a pro-rata offset on the
negligence claim as determined by a jury, and whether Weisser
should have been permitted to bring a cross-claim or
third-party action against Schoenfelder.
3. Whether the circuit court should have granted
Weisser's motions for partial summary judgment on
Fluth's request for punitive damages for Weisser's
alleged intentional, willful, wanton, and malicious conduct.