#25913-a-JKM 

2011 S.D. 66 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

GREAT WESTERN BANK, Plaintiff and Appellee, 

 

v. 

THOMAS E. BRANHAN and 

ROBIN E. BRANHAN, Defendants and Appellants. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

CODINGTON COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE RONALD K. ROEHR 

Judge 

* * * * 

JAMES ROBY of 

Green, Roby, Oviatt, Cummings 

 & Linngren, LLP 

Watertown, South Dakota Attorneys for plaintiff 

 and appellee. 

RICHARD D. CASEY 

HEATH OBERLOH 

RYLAND DEINERT of 

Lynn, Jackson, Shultz & Lebrun, PC 

Sioux Falls, South Dakota Attorneys for defendants 

and appellants. 

 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 22, 2011 

 OPINION FILED 09/28/11
#25913 

-1- 

MEIERHENRY, Retired Justice 

[¶1.] Thomas and Robin Branhan (Branhans) appeal from an order of the 

Third Judicial Circuit Court, holding that Great Western Bank (Great Western) is 

entitled to a $39,810 capital call repayment from Glacial Lakes Corn Processors 

(Glacial Lakes). Branhans argue that they are entitled to the repayment because 

they paid the capital call on which the repayment was based, and because the 

repayment would give Great Western more than it agreed to under the parties’ 

settlement agreement. We affirm. 

Facts and Procedural Background 

[¶2.] In February 2008, Branhans borrowed money from Great Western for 

the construction and financing of a new home in Watertown. At the time, Thomas 

Branhan was employed as the CEO of Glacial Lakes. As collateral for the loan, 

Branhans gave Great Western a security interest in their shares of Glacial Lakes 

stock. A short time later, Thomas’s employment with Glacial Lakes ceased, and the 

Branhans defaulted on their loan. They were also unable to pay a capital call of 

$0.06 per share that Glacial Lakes instituted against all outstanding stock in 

December 2008. In order to protect its security interest in the Glacial Lakes stock, 

Great Western paid the $46,660 capital call on Branhans’ behalf. This amount was 

added to Branhans’ outstanding loan. 

[¶3.] Great Western subsequently brought a foreclosure action against 

Branhans. In a written agreement, the parties agreed that Great Western would 

accept $1,063,799 to settle all amounts Branhans owed. As payment, Great 

Western gave Branhans credit for $670,000 for the sale of the home, leaving a 
#25913 

-2- 

balance of $393,799. Additionally, Branhans had until April 1, 2010, to use their 

best efforts to sell the Glacial Lakes stock, but agreed to surrender and transfer to 

Great Western all their rights to the stock they were unable to sell. On April 1, 

unsold stock remained, and the circuit court valued the remaining unsold stock at 

$256,507.10. This amount was credited to Branhans, leaving a balance of 

$137,291.90 owed to Great Western. The circuit court entered a deficiency 

judgment for this amount. In December 2010, Great Western issued a satisfaction 

of judgment, indicating that Branhans had paid the deficiency judgment. 

[¶4.] In September 2010, Glacial Lakes announced a proposed repayment of 

its December 2008 capital call. Glacial Lakes made half of the repayment in 

November 2010, and pledged to repay the remaining half by August 2011. In 

response, Branhans filed a motion to determine which party was entitled to the 

capital call repayments. The circuit court concluded that Great Western owned the 

stock and was therefore entitled to the repayments. Branhans appeal. 

Analysis and Decision 

[¶5.] The facts in this case are not in dispute. Branhans challenge only the 

trial court’s legal conclusions. When conclusions based on undisputed facts are 

challenged on appeal, we review the conclusions of law de novo without deference to 

the trial court. Osman v. Karlen and Assocs., 2008 S.D. 16, ¶ 15, 746 N.W.2d 437, 

442-43 (citing Fin-Ag, Inc. v. Feldman Bros., 2007 S.D. 105, ¶ 19, 740 N.W.2d 857, 

862-63. 

[¶6.] Branhans claim that they fully repaid Great Western for the amount of 

the deficiency judgment, and that Great Western would receive more than it was 
#25913 

-3- 

entitled to under the settlement agreement if it received Glacial Lakes’ capital call 

repayment. Branhans claim that since Great Western added the original capital 

call to their loan, which they satisfied, they should receive the Glacial Lakes’ 

repayment. Essentially, they claim that their original payment of the capital call 

entitles them to the repayment of that capital call. Great Western claims it is 

entitled to the repayment because ownership of the stock had transferred and 

repayment was incident to ownership. 

[¶7.] Branhans dispute that the settlement agreement transferred stock 

“ownership” to Great Western. Instead, they contend that the agreement only 

allowed Great Western to take possession of the stock and sell it in order to reduce 

the amount of Branhans’ debt. Branhans’ argument, however, is contrary to the 

unambiguous language of the settlement agreement, in which Branhans clearly 

agreed to transfer all of their interest in the unsold Glacial Lakes stock to Great 

Western. Paragraph 6(e) of the agreement provides: 

In the event some or all of the Borrowers’ [Glacial Lakes] stock 

remains unsold as of April 1, 2010, and the $399,799.00 loan 

obligation balance remains unpaid in whole or in part, then and 

in that case, the Borrowers shall surrender and transfer to the 

Bank all rights in and to all of the [Glacial Lakes stock] 

remaining unsold. 

(Emphasis added.) By the terms of the agreement, Great Western obtained “all 

rights in and to all of [Branhans’] remaining unsold” Glacial Lakes stock as of April 

1, 2010. The agreement did not reserve any of Branhans’ ownership rights to the 

stock or future capital call repayments. In fact, Branhans admit in their brief to the 

Court: “[n]ow that the full amount [of the deficiency judgment] has been paid and 
#25913 

-4- 

the [j]udgment has been satisfied, [Great Western] gets to keep the stock and sell it 

. . . .” 

[¶8.] The circuit court determined ownership of the shares transferred to 

Great Western on April 1, 2010, and that the repayment of the capital call was a 

benefit of ownership. The circuit court rejected Branhans’ argument that the 

capital call repayment constituted double payment to Great Western. The circuit 

court reasoned that “[w]hen the bank acquired the shares, it acquired all the 

potential gains and losses associated with stock ownership, including possible 

repayment of the capital call or possible nonpayment thereof.” We agree with the 

circuit court. Both parties made concessions as part of the settlement agreement. 

Transferring ownership of the shares was part of the agreement. The benefit of 

capital call repayment transferred with the shares. Consequently, Great Western 

was entitled to the capital call repayment. 

[¶9.] Affirmed. 

[¶10.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

SEVERSON, Justices, concur. 

[¶11.] WILBUR, Justice, did not participate.