"But it's not in writing...."

 "But it's not in writing!"  It's a myth that everyone seems to have heard before:  a contract is no good if you don't have it on paper.

The good news:  this myth isn't true.  A contract is an agreement, not a document.  Some contracts are oral, and some are written.  Some are signed, and some are back-and-forth emails.  Some are never discussed, but are just "implied" or "assumed", based on how the parties acted.

And sometimes, there are two contracts at issue:  the written contract, and the oral agreement reached before everything was written down.  In law, the oral agreement reached before the written contract is called the "parol agreement".  (For history and language buffs, the word 'parol' originated in the context of the promises a war prisoner would make prior to being released from captivity, and, literally meant, "giving your word".)

The idea works the same way in the law, as well.  If someone gives their verbal "word", a court can enforce those promises in the same way as a written contract.  And if the written agreement doesn't explain exactly what the parties intended, a court can look at the prior negotiations and agreements.

An opinion issued this week briefly discussed parol agreements, and restated the rule that, usually, a written agreement replaces an oral agreement.  See, Kjerstad Realty v. Bootjack Ranch.  The case involved a dispute between a realtor, demanding a commission, and the property seller, who refused to pay the commission (because the ranch was sold to a neighbor to whom the realtor didn't actually "show" the property).  The case was sent back for a jury trial.

In general, it is better to have written agreements.  Often, however, we take each other's "word", instead.  And the law will treat those promises the same as if they are written down.  So if you hear someone say the magic phrase, "But it's not in writing", tell them the good news:  it doesn't have to be.   

Zimmer, Duncan and Cole is located in Sioux Falls and Parker, and serves all of South Dakota including the following counties, cities and towns:

Minnehaha County: Sioux Falls, Brandon, Dell Rapids, Hartford, Garretson, Crooks, Baltic, Valley Springs, Colton, Humboldt, Sherman, Corson. Lincoln County: Canton, Beresford, Lennox, Hudson, Harrisburg, Fairview, Worthing, Shindler, Tea, Moe, Norway Center. Turner County: Parker, Chancellor, Centerville, Hurley, Davis, Viborg, Dolton, Irene, Marion, Monroe. McCook County: Salem, Bridgewater, Spencer, Unityville, Canistota. Lake County: Madison, Chester, Winfred, Franklin, Nunda, Ramona, Wentworth. Moody County: Colman, Egan, Trent, Ward. Brookings County: Brookings, Arlington, Volga, Elkton, White, Aurora, Bruce. Davison County: Mitchell, Ethan, Loomis, Mount Vernon. Beadle County: Huron, Wolsey, Iriquois, Cavour, Hitchock. Hutchinson County: Parkston, Freeman, Menno, Tripp. Union County: North Sioux City, Beresford, Elk Point, Alcester, Jefferson. Bon Homme County: Tyndall, Scotland, Springfield, Avon, Tabor. Yankton County: Yankton, Volin, Gayville, Mission Hill, Lesterville. Spink County: Redfield. Hughes County: Pierre. Stanley County: Fort Pierre.

Contractors Beware! Careless Mistakes Can Cost You Your Mechanic's Lien

Careless mistakes in your mechanic's lien can make it worthless. A cautionary example from a recent South Dakota Supreme Court case.

An Ounce of Prevention....

Benjamin Franklin coined the old saying, "An ounce of prevention is worth a pound of cure."  It's a piece of wisdom applicable to so many areas of life:  Eating well is much cheaper than a doctor's care later on.  Regular auto tune-ups can save thousands compared to an overhaul.

It's wisdom that applies in the world of small business, as well.  I encourage all of my business clients to make it a habit of consulting with their accountant, insurance agent, banker, and attorney (in that order).  Each of those professionals is trained to spot problem-areas before they turn ugly. 

Unfortunately, what happens too often is that the client was not consulting any of these professionals, and by the time the problem arrives at the law office, it has turned into a nasty business dispute, or full-blown litigation. The problem might have been prevented months or years earlier with an hour or two of consultation with an advisor.

In the legal realm, the issues often include employment contracts (and hiring and firing); misunderstandings about a business partnership (profit sharing; loss allocation; duties of partners; etc.); muddy and vague real estate leases; a do-it-yourself contract for deed (or any other do-it-yourself legal document); disgruntled minority shareholders; and any number of contract disputes. 

Of course, careful planning cannot avoid all future problems......but it certainly is the best medicine to minimize them. 

Whether it is "prevention" or "cure" that you need, the first step is to do something about it.  This month, make it your goal to keep your business heading in the right direction by having a conversation with your accountant, insurance agent, banker, and attorney (in that order).  If you need a referral or recommendation, we know some top-notch accountants, insurers, and bankers.

And, if you're facing a dispute that seems headed for litigation, it is always better to call the lawyer sooner, rather than later.  Often, a creative settlement can avoid a lawsuit entirely.  Or, if a jury trial is unavoidable, the time to begin preparing is right now.

It Couldn't Happen Here...Right?

Man held in jail without hearing. No probable cause. Right to be presented before a magistrate.

Sobriety Checkpoint Warnings - via txt msg

The Highway Patrol will send you a text message to alert you about sobriety checkpoints in your county.

Click here for more information, and to sign up.

Avoid a DUI.  Call a cab.  Designate a driver.  Don't drive.  Help keep our roads safe.

No Common Law Marriage In SD

South Dakota does not recognize common law marriage within the state.

Recent SD Supreme Court Estate Ruling

This blog explains what the terms "Personal Representative" and "fiduciary duty" mean in the context of a will contest case.

Read the Fine Print!

Always remember to read the fine print, especially when signing an insurance contract.

SD Supreme Court Wrongful Death Suit

On September 16, 2009, the South Dakota Supreme Court affirmed an order for a new trial in a wrongful death suit.  The Court held that because a juror discussed his knowledge of a Google search before the trial, the jury was tainted and a new trial was justified. 

In this case, Russo v. Takata Corp., the driver of a Geo Tracker who was driving to school was killed when her car slid off the side of the road and flipped nearly three times.  Because the driver was a minor, her mother brought suit against Takata Corp., a seatbelt manufacturer, alleging that the seatbelt malfunctioned and failed to operate properly.  After deliberations, the jury found in favor of Takata.  

Prior to the trial, a prospective jury member performed a Google search of Takata.  This juror made it through pretrial questioning, and ended up on the jury for the trial.  During deliberations, the juror stated that he had done a Google search of Takata, and discovered that Takata had never been sued before.  Since this information was received outside of the actual case, the Court held that it may have unfairly influenced other jurors.  

The facts of this case are certainly unfortunate.  We often take our children’s safety for granted as they travel to school everyday.  It is the duty of parents to make sure their children wear their seatbelts.  In this case, the parents performed their duty, but the seatbelt manufacturer may have failed to live up to their end of the deal.  This situation is precisely where parents need to reach out to an advocate to ensure the safety of their loved ones.  A verdict in favor of the plaintiff will not bring back the young girl who lost her life, but perhaps it would save the lives of other children in the future.  

US Supreme Court Ruling on Student Rights

The United States Supreme Court recently decided that public school officials are now limited in their ability to search students for drugs or other harmful items.  In Safford United School District v. Redding, the Supreme Court ruled that school official searches of the inter-clothing and undergarments of a student, in other words a strip search, will be pretty much prohibited from here on out under the United States Constitution.

The Court did not change the right of public school officials to search students’ back packs, notebooks, and other belongings along with their outer-clothing and pockets based upon reasonable suspicion.

This is a particularly difficult problem for school officials and for students and their parents.  It is also a good example of how difficult these cases are.  Certainly, the school officials want to provide a safe school environment for their students, faculty, and staff.  On the other hand, the United States Constitution protects all people, including students, from unreasonable searches and seizures.  This case points out the difficult issues that Courts, prosecutors, and defense attorneys face on these issues. 

The bottom line here is that students do enjoy some Constitutional protection from unreasonable searches and seizures, and they are not susceptible to the whims of school administrators.  Student searches by school officials require, at a minimum, at least reasonable suspicion of illegal activity before any search can be conducted. 

New US Supreme Court Ruling on Admissible Evidence

In Menandes Diaz v. Massachusetts, the United States Supreme Court recently decided that the United States Constitution required state prosecutors who want to offer crime lab reports as evidence at trial, to have the particular expert testify in person at the trial and be subject to cross-examination by the Defendant’s Lawyer.  Interestingly, the Supreme Court indicated that defense lawyers must assert the right to confront and cross-examine the expert witness before the State has to produce the witness to testify at trial.

What this means in South Dakota is that any prosecution expert trial witness who does a lab report, chemical analysis, finger prints analysis, blood spatter patterns analysis, blood chemistry analysis, gun, bullet, and really any other form of physical evidence subject to analysis by a laboratory must be supported by a witness and available for cross-examination.  This is typically how it is done anyway at trial, but there may be certain lab reports that are generally relied upon as part of other testimony.

There is no question that this decision will give defense lawyers another avenue to protect their client’s rights by cross-examining certain witnesses that might not otherwise have had to testify.  Defense Lawyers need to make sure they assert these rights.

New SD Supreme Court Personal Injury Ruling

This week I am switching gears to talk about an interesting personal injury case that was just ruled on by the South Dakota Supreme Court.  In Klutman v. Sioux Falls Storm, the South Dakota Supreme court affirmed the trial court’s ruling in favor of the plaintiff, Gaylen Klutmen

Gaylen was 17 at the time of a Sioux Falls Storm promotional season kick-off event.  At one point during the event, children were invited to come on to the turf and play an informal game of touch-football.  The participants didn’t sign waivers and received no warning regarding the condition of the field.  After only a few plays in the game, Gaylen was running the ball up the field when he came to a sudden halt and fell backwards.  Gaylen had his foot caught in the turf, which caused a severe knee injury.  The trial court held the Storm liable for damages, and the SD Supreme Court affirmed this ruling.

So what’s the moral of the story?  Well, the answer to that question is two-fold.  First, it serves as a reminder to every person and business that they may be held liable for negligence for accidents that happen on his or her property.  Second, no one expects a life altering accident to happen to them in a situation as innocent as a promotional event.   But let’s face it: accidents do happen, and when they do you need an attorney to ensure you receive the damages you are entitled to. 

New South Dakota Supreme Court Decision on Voluntary Statements

Last week we talked about the protection the 4th Amendment gives you from warrantless searches by police officers.  Now nothing has changed in that department, but what you might not know is that there are a certain set of events which trigger this 4th Amendment protection.  In other words, there are certain circumstances where you aren’t protected from search and seizure.

On June 24, 2009, the South Dakota Supreme Court ruled in State v. Iversen that the stop and arrest of James Iversen was constitutional.  Iversen was convicted of driving or controlling a vehicle with a prohibited blood alcohol level. What makes this case unique is that at the time of the stop, at 1:30 am, Iversen was in his parked pickup with his headlights off and his engine running.  Because there had been some theft in the area recently, a police officer pulled his patrol car behind Iversen, and focused his spotlight on Iversen’s pickup.  When the officer approached the truck, Iversen voluntarily rolled his window down.  At this point the officer smelled alcohol, and initiated his arrest.

So why was the officer authorized to perform this arrest?  Here was a man simply sitting in a parked car with his engine on.  The SD Supreme Court ruled that, in fact, Iversen was free to leave at any moment.  Because he voluntarily rolled his window down, he allowed himself to be questioned, giving the officer reasonable suspicion for an arrest.  Remember, if you are not under arrest, you may leave without talking to police. 

New US Supreme Court ruling on warrantless vehicle searches

On April 21, 2009, the United States Supreme Court decided a very important case that directly affects your individual rights.  Arizona v Gant establishes an important controlling precedent regarding police performing warrantless searches.  This decision holds that the Fourth Amendment requires police officers to demonstrate an actual and continuing threat to their safety, or a need to preserve evidence related to the crime of the arrest in order to justify a warrantless search of a vehicle after the driver and occupants have been arrested and secured. 

THE EVICTION PROCESS

A basic summary of the eviction process in South Dakota - Commercial, Ag, and Residential

Celebrating Our Independence - July 4th

There will be no shortage of grand celebrations today, July 4th.  And for good reason.  Even back in July of 1776, John Adams, in a letter to his wife, predicted that the signing of the Declaration of Independence would "be celebrated, by succeeding generations, as the great anniversary festival."  However, Adams thought July 2nd would be the "big day", because that was when the Continental Congress voted for independence....in the typical style of politicians, it took two full days of debating to hammer out the details.  Finally, on July 4th, the document was released to the public.  And the rest, of course, is history.

Although it's not nearly as festive as fireworks, every year I download a copy of the Declaration of Independence and read it.  The famous line we all recognize is "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The passages that follow, however, often get forgotten, and for me they are a pleasant reminder about how my career as a lawyer is connected to the struggle for freedom they started so long ago.  Part of the tyranny of King George involved his repeated attempts to limit the power of the courts, and also "For depriving us in many cases, of the benefits of Trial by Jury". 

After their long battle for independence, the Colonists eventually established an independent court system, along with the right of everyone to a jury trial for criminal and civil cases...in other words, protection for everyone whose life, liberty, or property was at risk.  For me, it is an honor to serve as an attorney, because we are vehicles for helping carry out the intent of that ancient document, one client at a time, and, when necessary, one jury trial at a time.

As part of your celebration today, I invite you take a few quiet minutes and read the text that started our revolution for freedom.  Happy Independence Day.