JOE BERBOS and LISA BERBOS, individuals, JOE BERBOS REAL ESTATE LIMITED PARTNERSHIP, a South Dakota Limited Partnership, and JOE BERBOS MANAGEMENT, LLC, a South Dakota Limited Liability Company, Plaintiffs and Appellees,
NICK BERBOS, an individual, BERBOS FARMS GENERAL PARTNERSHIP, a South Dakota General Partnership, NICK BERBOS REAL ESTATE LIMITED PARTNERSHIP, a South Dakota Limited Partnership, Defendants and Appellees, NICK BERBOS MANAGEMENT, LLC, a South Dakota Limited Partnership, and VICTORIA PERRY, individually, and CRAIG PERRY and JAMES PERRY, Surviving Trustees of the Trust created by the Last Will and Testament of Gerald Perry, Deceased, Applicants and Appellants.
CONSIDERED ON BRIEFS ON OCTOBER 1, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge
J. MOREHEAD of Woods, Fuller, Shultz & Smith, P.C. Sioux
Falls, South Dakota Attorneys for plaintiffs and appellees.
RASMUSSEN of Siegel, Barnett & Schutz, LLP, Aberdeen,
South Dakota Attorneys for defendants and appellees.
CARLYLE RICHARDS of Richards, Tonner, Oliver, Fischbach &
Dell, LLP, Aberdeen, South Dakota Attorneys for applicants
GILBERTSON, Chief Justice
Landowners Victoria Perry, Craig Perry, and James Perry
(Appellants) entered into a farm lease/cash rent agreement
with Berbos Farms General Partnership (Berbos Farms). Joe and
Lisa Berbos and Nick Berbos were partners in Berbos Farms.
Appellants sued Berbos Farms to recover unpaid cash rent
under the lease for the year 2015. During discovery in that
litigation, Appellants realized Joe and Lisa had filed a
separate action in circuit court to dissolve Berbos Farms.
Appellants moved to intervene in the partnership dissolution
action seeking to preserve their right to payment of the 2015
cash rent in case Berbos Farms was dissolved. The circuit
court denied the Appellants motion and they appeal. We
and Procedural History
Appellants own and manage approximately 900 acres of cropland
in Edmunds County. On January 4, 2013, Appellants entered
into a farm lease/cash rent agreement with Berbos Farms. Nick
signed the one-page lease on behalf of Berbos Farms. Berbos
Farms took possession of the farmland for three years: 2013,
2014, and 2015. Appellants claim Berbos Farms made timely
payments on all cash rent required by the lease until
November 1, 2015. At that time, Appellants claim Berbos Farms
failed to pay the agreed cash rent of $56, 196.
Appellants sued Berbos Farms and Nick and Joe individually to
recover the 2015 cash rent payment. Appellants commenced
discovery and deposed Joe and Lisa. During Joe's
deposition on March 30, 2017, Appellants discovered that: (1)
Nick was no longer representing Berbos Farms in obtaining
rental land in South Dakota; (2) the relationship between
Nick and Joe had become tense; and (3) Joe and Lisa had
commenced a lawsuit to dissolve Berbos Farms in April 2014.
Appellants moved for summary judgment, but the circuit court
denied the motion on October 5, 2017. As of the date of this
appeal, the action to recover the cash rent is still pending
in circuit court.
Based on the information obtained in Joe's deposition,
the Appellants moved to intervene as a matter of right
pursuant to SDCL 15-6-24(a)(2) and attached a proposed
complaint in the Berbos Farms partnership dissolution lawsuit
on January 16, 2018. The proposed complaint in intervention
raised the same claims as the Appellants asserted in the
lawsuit to recover the unpaid cash rent. Joe and Nick opposed
the motion to intervene. On March 2, 2018, the circuit court
held a hearing and denied the motion because: (1) there was a
pending lawsuit that had no relation to the partnership
dissolution; (2) allowing the intervention would open the
door to any creditor or individual with claims against Berbos
Farms to join the dissolution lawsuit; and (3) permitting the
intervention would allow Appellants to unnecessarily discover
the net worth and financial holdings of Berbos Farms. On
March 9, 2018, the circuit court entered a written order
denying the motion. Appellants appeal the circuit court's
order and ask this Court to review whether the circuit court
abused its discretion in denying the motion to intervene.
We review a circuit court's denial of a motion to
intervene for an abuse of discretion. In re Estate of
Olson, 2008 S.D. 126, ¶ 4, 759 N.W.2d 315, 318.
"An abuse of discretion refers to a discretion exercised
to an end or purpose not justified by, and clearly against
reason and evidence." O'Day v. Nanton, 2017
S.D. 90, ¶ 17, 905 N.W.2d 568, 572 (quoting Kaiser
v. Univ. Physicians Clinic, 2006 S.D. 95, ¶ 29, 724
N.W.2d 186, 194).
"South Dakota's court rule SDCL 15-6-24(a)(2) is
almost identical to Federal Rule of Civil Procedure 24(a) . .
. . [and] governs intervention as a matter of right . . .
." Olson, 2008 S.D. 126, ¶ 5, 759 ...