#27807-r-SLZ
2017 S.D. 4
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DAVID KNIGGE, Plaintiff and Appellant,
v.
B & L FOOD STORES, INC. and
ESTATE OF ROBERT ALLEN
KNIGGE, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
SPINK COUNTY, SOUTH DAKOTA
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THE HONORABLE TONY L. PORTRA
Judge
****
STEPHANIE E. POCHOP of
Johnson Pochop & Bartling
Gregory, South Dakota Attorneys for plaintiff
and appellant.
KRISTEN M. KOCHEKIAN of
Gillette Law Office, PC
Redfield, South Dakota Attorneys for defendants
and appellees.
****
ARGUED ON
JANUARY 10, 2017
OPINION FILED 02/01/17
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ZINTER, Justice
[¶1.] David Knigge entered into an oral employment contract with his
brother, Robert Knigge, to manage a grocery store that was owned by Robert and
his wife Lynette. David entered into the contract in part because Robert had cancer
and a limited time to live. The contract allegedly included a severance payment to
David if Lynette desired to end David’s employment after Robert’s death. Robert
died five months after the contract was negotiated, and Lynette terminated David’s
employment two months later. When Lynette refused to pay the severance, David
sued to enforce the agreement. The circuit court granted summary judgment
dismissing the suit. The court ruled that the oral contract was unenforceable under
the statute of frauds. Because this contract was not governed by the statute of
frauds, we reverse and remand.
Facts and Procedural History
[¶2.] Robert was a shareholder in corporations that operated grocery stores
in Redfield, South Dakota (B & L Food Stores, Inc.), Linton, North Dakota (K & B
Foods, Inc.), and Oakes, North Dakota (K & J Foods, Inc.). The B & L stock was
owned by Robert and Lynette. Robert actively managed all three stores. Lynette
did not participate in management of the Redfield store before Robert’s death.
[¶3.] In October 2011, Robert was diagnosed with stage 4 glioblastoma, a
form of brain cancer. He was given approximately eighteen months to live. In
November 2012, Robert asked his brother David if he would be interested in
managing the Oakes store—which was then being managed by Kalie, Lynette’s
daughter from a prior marriage. At that time, David had worked for the State as a
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certified public accountant in Pierre for thirty years. Robert and David orally
agreed that David would manage the Oakes store without a salary and would have
the option to purchase the store for $200,000. When Kalie left the Oakes store
prematurely, David resigned from his accounting position and used accrued
vacation leave to maintain a steady income while he transitioned to his new
position. He put his home up for sale and commuted to Oakes to manage the store
on weekends.
[¶4.] Robert’s condition deteriorated, and in January 2013, he was informed
that further treatment was unavailable. According to David, Robert wished to
maintain the Redfield store as a legacy for his children 1 but felt that his son Jason
was not ready to manage it. Because Robert had limited time to live and could not
manage the store himself, he asked David to close the Oakes store, move to
Redfield, and manage the Redfield store. David accepted the oral employment offer,
abandoned his plans to manage and purchase the Oakes store, 2 moved in with
Robert and Lynette until he could find a suitable home, and began managing the
Redfield store in March 2013. According to David, the contract terms included a
$70,200 salary, a bonus based on the store’s performance, reimbursement for half of
1. Robert and Lynette had four children together, who were all minors at
Robert’s death. Robert and Lynette also had adult children from prior
marriages. Robert had one adult son, Jason. Robert included two of
Lynette’s adult children, Kalie and Keith, in the business.
2. Both Robert and David agreed to close the Oakes store. In his deposition,
David testified that they “look[ed] at the Oakes store and . . . decided that it
was run down, the equipment was bad, . . . 40 percent of the inventory was
outdated, the parking lot needed to be replaced and it would just take too
much in the resources to have to continue on with the Oakes store.”
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David’s health insurance costs, 3 the opportunity to invest in future stores, and a
$100,000 severance payment if David was terminated for any reason. The terms of
the contract were never reduced to writing.
[¶5.] Lynette did not participate in Robert’s negotiations with David, but
she overheard Robert discussing contract terms on the phone with David, including
David’s salary and the possibility of a bonus. She contended that she never heard
Robert mention a severance package or that David would receive health insurance
benefits. She did, however, acknowledge the possibility that Robert had other
negotiations regarding David’s employment.
[¶6.] Robert died in June 2013. David continued managing the Redfield
store until Lynette terminated his employment in August 2013, approximately five
months after David’s employment began and seven months after the contract was
formed. Although Lynette learned of the existence of the severance agreement from
two associates approximately a week before she terminated David, she refused to
pay David the severance. David subsequently sued B & L and Robert’s estate
(Defendants) for breach of contract.
[¶7.] Defendants did not dispute the existence of the employment contract.
They did, however, dispute the existence of terms providing for both health
insurance and the severance payment. They moved for summary judgment,
arguing that the oral employment contract was unenforceable under the one-year
provision of the statute of frauds. See SDCL 53-8-2(1). They contended that the
contract could not be performed within one year because it was tied to longer term
3. B&L did not offer benefits, including health insurance, to other employees.
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contingencies: either David’s retirement in ten to fifteen years, or one of Robert and
Lynette’s children reaching the age of majority and taking over the business. They
also contended that promissory estoppel did not remove the contract from the
statute. David responded that the contract did not fall within the statute because it
could have been performed within one year. David pointed out that Robert was
dying, he and Lynette had a strained relationship, and he agreed to the severance
payment because he did not want to force Lynette to continue employing him after
Robert’s death. He also contended that promissory estoppel removed the agreement
from the statute.
[¶8.] The circuit court agreed with Defendants and granted their motion for
summary judgment. It ruled that the oral contract was unenforceable under the
statute of frauds because it could not be performed within one year. The court
found that the contract was for an unspecified term of years and tied to
contingencies that could not occur in one year: David’s retirement in ten to fifteen
years or Robert’s children reaching adulthood and taking over management of the
store. The court also ruled that promissory estoppel did not apply because “[t]he
loss of the opportunity to buy the Oakes store for $200,000 [did] not appear to be a
substantial economic loss given the number of problems that [David] identified with
that store.” David appeals.
Decision
[¶9.] The statute of frauds, codified in SDCL 53-8-2, renders certain oral
contracts unenforceable. The one-year provision of the statute precludes
enforcement of an oral “agreement that by its terms is not to be performed within a
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year from the making thereof.” SDCL 53-8-2(1). 4 However, an oral contract that
could be performed within one year is not within the statute. See Trovese v.
O’Meara, 493 N.W.2d 221, 222 (S.D. 1992); see also 9 Richard A. Lord, Williston on
Contracts § 24:3 (4th ed.) (database updated May 2016) (“A promise . . . is not
within the statute if at the time the contract is made there is a possibility in law
and in fact that full performance such as the parties intended may be completed
before the expiration of a year.”).
[¶10.] Thus, oral employment contracts for a specified term of years are
within the statute if the employment will not end within one year from the time the
parties entered into the contract. Trovese, 493 N.W.2d at 222 (stating that a
contract for one-year term, entered into one week before employment began, was
within the statute because it could not be performed for one year and one week);
Brown v. Wis. Granite Co., 47 S.D. 635, 201 N.W. 555, 556-57 (1924) (stating that a
contract for one-year term, entered into two months before employment began, was
within the statute because it could not be performed for one year and two months).
And a contract of employment for an indefinite term falls within the statute if the
evidence is clear that the parties intended a long-term contract with no expectation
4. The one-year provision does not “prohibit the making of a contract that by its
terms is not to be performed within one year,” but rather makes such
contracts unenforceable unless reduced to writing and signed by the party to
be charged. Trovese v. O’Meara, 493 N.W.2d 221, 222 (S.D. 1992). Some of
our cases have stated that an oral contract that violates the statute is invalid.
See, e.g., Harriman v. United Dominion Indus., Inc., 2005 S.D. 18, ¶ 15,
693 N.W.2d 44, 49. However, the statute provides that such oral agreements
are unenforceable, not invalid. SDCL 53-8-2. See generally Jones v.
Pettigrew, 25 S.D. 432, 127 N.W. 538, 539-41 (1910) (discussing the difference
between unenforceability and invalidity under former statute rendering such
contracts invalid).
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that performance would be complete within one year. Harriman v. United
Dominion Indus., Inc., 2005 S.D. 18, ¶ 20, 693 N.W.2d 44, 49. Termination of
employment alone, however, does not remove an oral employment contract from the
statute of frauds, even if termination in fact occurred within one year. See id.;
Trovese, 493 N.W.2d at 222; Brown, 47 S.D. 635, 201 N.W. at 557. The question is
whether the parties intended in law and fact that the contract could be fully
performed before the expiration of a year.
[¶11.] Here, the circuit court ruled that David’s oral contract fell within the
statute because it was tied to contingencies that could not occur within one year
(David’s retirement or the minor children reaching majority and taking over the
business). However, the court failed to address the additional contingency that
formed the basis for the alleged $100,000 severance agreement: Lynette ending
David’s employment after Robert’s impending death. On a motion for summary
judgment, “[t]he evidence must be viewed most favorably to the nonmoving party
and reasonable doubts should be resolved against the moving party.” Karst v. Shur-
Co., 2016 S.D. 35, ¶ 15, 878 N.W.2d 604, 612. Viewing the evidence in the light
most favorable to David, the nonmoving party, Robert and David contemplated that
this contract could be completed within one year.
[¶12.] According to David, he and Robert were concerned about David’s
employment after Robert’s impending death. David testified that they had
specifically considered that Lynette and David had a strained relationship, that she
might not want David to manage the store after Robert’s death, and that they
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contemplated that David would not continue to manage the store if that was
Lynette’s wish. Additionally, although the parties did not know for certain when
Robert’s death would occur, there is no dispute that Robert had a very limited time
to live when he made the contract with David. Indeed, Robert was fifteen months
into his eighteen-month prognosis and had been informed that no further treatment
was available. Viewing this evidence in a light most favorable to David, David and
Robert specifically contemplated David’s termination occurring within one year.
Under these facts, the contemplated early termination was a method of completing
David’s performance. Thus, this case is unlike Harriman, Trovese, and Brown,
where early termination did not constitute complete performance of the agreements.
In this case, early termination was contemplated and therefore the contract “by its
terms” could have been performed in law and fact within one year. 5 The circuit
court erred in ruling that the contract was unenforceable under the statute of
frauds. Because there are disputes of material fact regarding the existence of the
5. The Defendants’ reliance on Harriman is misplaced. In that case, “it [was]
clear from the record that the parties did not intend a permanent or lifetime
contract. Rather, the parties intended a contract of some unspecified term of
years tied to contingencies other than Harriman’s lifetime.” Harriman,
2005 S.D. 18, ¶ 20, 693 N.W.2d at 49. Further, there was no contingency that
would take the contract out of the statute. Indeed, the employee’s own
testimony showed that the contract by its terms could not be performed
within one year. See id. ¶ 30, 693 N.W.2d at 50-51 (Zinter, J., concurring).
David’s contract, however, allegedly contained a specific contingency that
could occur within one year (Lynette ending the employment relationship
after Robert’s death), which would complete David’s performance, triggering
B & L’s obligation to make the severance payment.
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severance term, we reverse and remand for further proceedings not inconsistent
with this opinion. 6
[¶13.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
6. David also argues that promissory estoppel should apply to defeat the statute
of frauds. Because we conclude that the alleged severance agreement, if
found to exist by the trier of fact, is not unenforceable under the statute of
frauds, we need not consider David’s additional argument.
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