VAN DE WALLE & ASSOCIATES, L.L.C., v. EDITH BUSEMAN 2003 SD 70
Annotate this CaseVAN DE WALLE & ASSOCIATES, L.L.C.,
formerly known as John Van De Walle
d/b/a JOHN VAN DE WALLE & ASSOCIATES
Plaintiff and Appellee,
v.
EDITH BUSEMAN,
Defendant and Appellant.
[2003 SD 70]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Lincoln County, South Dakota
Hon. Stuart L. Tiede, Judge
GARY L. PASHBY
LISA HANSEN MARSO of
Boyce, Greenfield, Pashby & Welk, L.L.P.
Sioux Falls, South Dakota
Attorneys for plaintiff and appellee.
RICK JOHNSON
SANDY STEFFEN of
Johnson, Eklund, Nicholson,
& Peterson
Gregory, South Dakota
Attorneys for defendant and appellant.
Considered on Briefs April 28, 2003
Opinion Filed 6/11/2003
#22535
SABERS, Justice
[¶1.] Van De Walle & Associates, L.L.C. (Van De Walle) brought suit against Edith Buseman seeking payment for architectural services. Van De Walle later brought a summary judgment motion which was granted on July 10, 2002. Buseman filed a notice of appeal claiming there were genuine issues of material fact whether: 1) Van De Walle should recover its entire claim under an implied contract theory; and 2) what agreement, if any, the parties had for payment.
FACTS[¶2.]In 1996 Buseman contacted Van De Walle requesting architectural services for a project known as “Hilda’s Heritage Home and Silver Threads Apartments.” The assisted living facility was to be constructed in Gregory, South Dakota, on land owned by Buseman and her husband.[1] After meeting to discuss the Gregory project, Van De Walle sent Buseman a proposal letter outlining the architectural and other services he would provide. He then began providing those services. In July 1996, Van De Walle sent Buseman a standard agreement contract for her signature, but Buseman never signed. Despite the lack of a formal written contract, Van De Walle provided architectural services beginning in April 1996 and continuing through the fall of 1998. During that time, Van De Walle submitted drawings and did other architectural and engineering work. Buseman used Van De Walle’s drawings in her efforts to apply for a HUD guaranteed bank loan to finance the project.
[¶3.] In December 1996, Van De Walle sent two bills to Buseman totaling approximately $16,000. The bills together covered services provided by Van De Walle from mid April 1996 through November 1996. Thereafter, Van De Walle sent numerous invoices to Buseman detailing the services he was providing. Van De Walle billed Buseman for services provided through June 23, 1998. The total billed to Buseman was $21,149.16. Buseman never paid any of Van De Walle’s bills, nor did she contest any of the bills. Buseman never indicated that she did not believe she owed the money nor did she ever inform Van De Walle that he needed to submit the bill to another party. Buseman did, however, pay the invoices that Van De Walle sent her for work done on the project by ATS Engineering and RF Sayer Surveying. She stated in her deposition that she paid those bills in accordance with her agreement with the shareholders in the Gregory Assisted Living LLC[2] that she would be reimbursed with an interest in the LLC.
[¶4.] When Buseman could not get a loan guarantee through HUD, the plans done by Van De Walle were scrapped, financing was obtained through community efforts and the project was scaled down significantly. Today, there is a 30-unit assisted living facility named Silver Threads Residential Home. The architectural work on the existing building was not performed by Van De Walle.
[¶5.] Throughout her brief, Buseman argues facts that are unsupported by the record. First, she argues that “HUD financing was a pre-requisite for the project.” Second she argues that Van De Walle “at all times knew that the assisted living project in Gregory was premised upon approval of HUD financing.” She uses these factual statements as the underlying premise for her argument that Van De Walle agreed to perform the services with the knowledge that he would be paid only in the event that HUD guaranteed the financing. Because the record does not support these assertions, we will disregard them in accordance with SDCL 15-26A-60(5).[3]
[¶6.] When he did not receive payment for his services, Van De Walle commenced this suit against Buseman on May 4, 2001. The trial court granted Van De Walle’s motion for summary judgment and judgment was entered in his favor in the amount of $21,149.16. Buseman appeals. We affirm.
STANDARD OF REVIEW[1] . Buseman testified at her deposition that this was the second time she had worked with Van De Walle. Buseman hired Van De Walle for a similar project called Hilda’s Heritage Home that she had constructed in Lennox, South Dakota. Buseman paid Van De Walle for his work on the Lennox project.
[2] . In 1999, the Busemans sold the land on which the facility is located to Gregory Assisted Living, LLC in exchange for an ownership interest in the LLC that owns and operates the facility. Gregory Assisted Living, L.L.C. has since been replaced by Silver Threads Residence, L.L.C.
[3] . SDCL 15-26A-60(5) provides the requirements for an appellant’s brief, it states in part that, “[t]he facts must be stated fairly, with complete candor, and as concisely as possible.” The statute further provides, “[e]ach statement of a material fact shall be accompanied by a reference to the record where such fact appears.”
[4] . For example, at pages 33 and 34 of her deposition, which was not taken until November 13, 2001, Buseman states,
we discussed-I remember we discussed payment, and he was told that the HUD—when the project was completed, he would be paid from the HUD monies. So up until that time, I did not—I figured he knew that he was going to be paid by HUD, and apparently he did because he would have had me sign—from the very beginning he would have had me sign something saying in June I want to be paid so much, in August I want to be paid so much, and we would sign an agreement that he would be paid accordingly as he—as he worked with the project. He did not do that.
Despite this assertion that Van De Walle knew it would be paid “by HUD,” there is no record support for the proposition. First, the argument ignores the reality that Van De Walle executed and sent Buseman a standard agreement contract when he commenced work and it ignores over twenty invoices sent to Buseman by Van De Walle over a two-year period. Furthermore, Buseman is unable to point to any meeting or communication between the parties to support the assertion that there was such an oral understanding.
Assuming the above assertions by Buseman to be correct, as we are required to do on summary judgment, they do not establish, as Buseman now claims, that Van De Walle agreed that payment was contingent on HUD approval. Her assertions, at best, only go to the timing and source of payment.
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