Dacy v. Gors

SABERS, Justice

(dissenting).

We should maintain the freeze on these funds to preserve them for the rightful owner, prevent harm and avoid multiple lawsuits.1

A basic premise of the law is that a person cannot profit from her own wrong. The law also prevents an employee from taking advantage of her employer.2 Ionia Klein knew she was taking advantage of her position as an employee and she knew she was doing wrong because she lied about the time and circumstances of the claimed purchase. This is not based on employer’s version, but hers. She cannot claim a more favorable version of the facts than her own testimony.3

Klein neither participated in nor won the lottery drawing because she knew the ticket was a winner before she took possession of it. Since she took no risk in acquiring the ticket, as to her, there was no lottery.4 Because the ticket was issued but not sold at 8:00 p.m. on April 6, 1991, the employer’s account was responsible to pay for it at the time of the drawing and the employer became the winner of the lottery.

Since it is clear that Klein is not the owner, irreparable harm will occur to the owner if the first installment of $500,000 is released to her. Therefore, the owner is entitled to maintain the status quo,5 and, *582there being no adequate remedy at law,6 injunctive relief is appropriate. To hand the check over to Klein under these circumstances, although it may be more popular, would constitute a clear abuse of discretion.7 One cannot mask this abuse of discretion by failing to make the obvious findings and legal conclusions.

Despite this, to avoid claimed temporary hardship to Ionia Klein and her husband, who terminated their employment upon “winning” the lottery, I would vote to let Klein obtain a monthly amount of $1,000 from these lottery funds during the pend-ency of the action. Any amounts obtained would be subject to repayment when ownership is conclusively determined.

. Further harm from additional lawsuits could result from releasing these funds. Robin Parsons, the clerk from whom the ticket was ordered, has already started a lawsuit claiming ownership. The presently unknown person who is said to have "refused” the ticket, among others, could also jump into the fray.

Under the majority opinion in McFarland v. McFarland, No. 17043, slip op. (S.D. May 29, 1991) relating to “tracing of funds,” the rightful owner of the ticket could bring more lawsuits to trace and recover these presently frozen funds against Klein’s lawyers, bankers and any other paid creditors. If we permit the funds to be released to Klein, it could produce a trial lawyers' "Valhalla."
In view of the rare opportunity this Court has to prevent this kind of wasteful litigation, a decision to permit the release of the funds to Klein will rank high on the historical list of legal opportunities known and blown. Releasing these funds solves no problems, only creates more problems.

. Brown County v. Zerr, 67 S.D. 516, 295 N.W. 289, 291-292 (1940); Lucey v. Vilhauer, 64 S.D. 54, 264 N.W. 203, 206-207 (1935) overruled on other grounds, Morrell Livestock Co. v. Stockman's Comm’n Co., 77 S.D. 114, 86 N.W.2d 533, 536 (1957); Restatement (Second) of Agency §§ 389, 390 (1958).

. Miller v. Stevens, 63 S.D. 10, 256 N.W. 152, 155 (1934).

. Horan v. State, 220 Cal.App.3d 1503, 270 Cal. Rptr. 194, 196 (1990).

. SDCL 15 — 6—62(f). POWER OF SUPREME COURT NOT LIMITED.

The provisions in § 15-6-62 do not limit any power of the Supreme Court to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the *582status quo or the effectiveness of the judgment subsequently to be entered.

. An inadequate remedy at law is a prerequisite to injunctive relief. Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 265 (S.D.1985). Even when a potential injury is reducible to a money judgment, the remedy may be inadequate at law if the judgment would be uncollectible. TriState Generation v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986); Central States v. Admiral Merchants Motor Freight, Inc., 511 F.Supp. 38, 43 (D.Minn.1980), aff'd, 642 F.2d 1122 (8th Cir.1981); Michael-Curry v. Knutson Shareholders, 423 N.W.2d 407, 409-410 (Minn. App.1988). See also 42 Am,Jur.2d Injunctions § 49 (1969) (“[A]n injury is irreparable ... where, from the ... financial condition of the person committing it, it cannot be readily, adequately, and completely compensated [ ] with money").

. Schmalz v. Scully, 49 S.D. 424, 207 N.W. 221, 222 (1926) ("While the question of continuing an injunctional order during the pendency of this action is addressed to the discretion of the trial court, such discretion is a legal discretion and not an arbitrary one”).