#25931-aff in pt, rev in pt & rem-SLZ 

2011 S.D. 65 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

CINDY TOLLE, Plaintiff and Appellant, 

 

v. 

PETER LEV, Defendant and Appellee. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

PATRICK M. GINSBACH of 

Farrell, Farrell & Ginsbach, PC 

Hot Springs, South Dakota Attorneys for plaintiff 

 and appellant. 

TIMOTHY R. JOHNS of 

Johns & Kosel, Prof. LLC 

Lead, South Dakota Attorneys for defendant 

 and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 22, 2011 

 OPINION FILED 09/28/11
-1-

#25931

ZINTER, Justice

[¶1.] Cindy Tolle sued Peter Lev for damages for failing to transfer 

ownership of a cabin situated on land owned by the government in a national park. 

She also sued Lev for tortious interference with a business relationship she claimed 

with an employer. The circuit court granted summary judgment on both claims. 

We affirm the dismissal of the tortious interference claim but reverse and remand 

on the claim for damages for failure to transfer the cabin.

Facts and Procedural History

[¶2.] Tolle worked as a mountaineering guide at Exum Mountain Guides 

and School of Mountaineering, Inc. (Exum) in Wyoming. Lev also worked for Exum 

as a guide, and he served on Exum’s Board of Directors (Board).

[¶3.] In 2000, Tolle agreed to sell real property in Lawrence County, South 

Dakota to Lev and Christine Coolidge. During the preliminary discussions relating 

to this sale, Lev agreed to transfer ownership of his guide cabin to Tolle when Lev 

retired from Exum. The cabin was a plywood structure located on land owned by 

the National Park Service in Grand Teton National Park. Tolle claims that because 

of Lev’s agreement to transfer the cabin, she reduced her sale price of the Lawrence 

County property by $25,000.

[¶4.] A written purchase agreement dated May 18, 2000, was executed 

finalizing the Lawrence County sale. According to the purchase agreement, Tolle

agreed to sell the property to Coolidge and Lev as tenants in common for $131,590. 

The written agreement did not reflect how the sales price had been negotiated, and 

the agreement did not mention the oral statement that Lev would transfer the
#25931

-2-

guide cabin in Wyoming. Further, the purchase agreement contained an 

integration clause merging all prior negotiations and representations into the final 

written agreement. On August 17, 2000, Tolle signed a warranty deed conveying 

the property to Lev and Coolidge. The deed also made no mention of the cabin.

[¶5.] In 2005, Lev sent Tolle an email confirming his agreement to transfer

ownership of the cabin to Tolle. The email read:

You are right to be bummed for me not (so far) indicating I 

would not [sic] keep up my end of the bargain about you getting 

my cabin as part of the land deal we had. . . . I did make that 

agreement with you. But I haven’t left Exum yet. . . . As long as 

I was still at Exum I had no intention of giving up the place; you 

knew that.

. . .

P

When Lev retired from Exum in 2009,

1 Tolle learned that Lev had already sold the 

cabin to his niece for $1,000.

[¶6.] Tolle apparently threatened litigation because on April 7, 2009, Lev 

sent an email to Jack Turner, President of the Exum Board, and Cyndi Hargis, 

Secretary of the Board, disclosing that Tolle was threatening litigation for the loss 

of the cabin. In the email, Lev also told Turner that Lev needed to know sale prices 

for similar guides’ camp cabins.2 Turner responded stating he would get back to 

 

1. Lev sold the last of his shares in January 2009 and resigned from the Board 

in July 2009.

2. Lev’s first April 7 email stated:

Cindy Tolle is strong-arming me saying I owe her considerable 

money for the cabin (in addition to which I originally paid for 

her farm). She says the cabin is rightfully hers, and I had no 

right to sell it to Kim. This time she is serious. What I need to 

(continued . . .)
#25931

-3-

Lev on prices, but thought Lev did not owe Tolle anything because the cabins 

belonged to Exum. Turner also wrote: “If there is something on paper, then you 

should copy it to us for our attorney to look at. If Cindy [Tolle] gets too nasty, send 

her to me.” Lev responded twice, admitting there had been an agreement, adding 

more details about the cabin dispute, and stating that his plan was to have no 

further communication with Tolle, though he expected to be sued by her.

3 Turner 

________________________

(. . . continued)

know is what have been the various sale prices for guides camp 

cabins to date, as far as you know.

. . .

P

3. Lev’s first responsive email on April 7 stated:

Thanks for your reply. Unfortunately the present issue is that 

Cindy says she sold the farm to me and Chris at below normal 

price (that isn’t true; I have the valuations from then) and I 

agreed to give her the cabin in exchange. Double unfortunately, 

I did some years ago (2005) in an email (which she kept and just 

sent back to me) saying that I had told her when we purchased 

the farm in 1999 she could have the cabin when I left, but there 

was never as far as either me or Chris can remember a cost deal 

relating to the farm sale. I may be screwed; that is why I 

wanted to know what the sale prices for the cabins have been. A 

few years ago when this first came up I wrote her that she 

overcharged us for the two additional lots (according to local 

valuations) and therefore we didn’t owe her anything, cabin or 

whatever. She has just written me that the sale of those lots 

were our tough luck and I still owe her the cabin or money (she 

hasn’t yet said how much). I am also getting a lawyer.

She is getting ugly.

P

Lev’s second responsive email on April 8 stated:

See below. Tolle is reading what I said about the difference in 

the cost of the original farm property in 2000 backwards; I paid 

her $25,000 more than what it was assessed at (I have the 

(continued . . .)
#25931

-4-

replied on April 8, volunteering: “I will deal with Cindy [Tolle] this afternoon in a 

letter to the [B]oard. Cindy has been messing with Exum, the Exum board, and the 

Exum cabins for over a decade now, and I’m going to end it.”

[¶7.] Later on April 8, Turner emailed the Board about Tolle’s employment 

with Exum. Tolle’s claim of employment with Exum started that year in February, 

when Exum sent letters inviting their guides to return for the upcoming season. 

Exum had not sent a letter to Tolle, who had guided for Exum in past seasons, so 

she contacted two members of the Board, Mark Newcomb and Nat Patridge. 

Newcomb responded on March 12 with an email telling Tolle that she should return 

to Exum and guide. Turner learned of the invitation and was concerned about 

Tolle’s return. In his April 8 email to the Board, Turner disclosed several problems 

Tolle caused in the past and his concern about hiring her for the upcoming season. 

These concerns were unrelated to the cabin transfer issue. He asked the Board 

members to vote on whether to rescind the offer of employment to Tolle and not hire 

her in future years. The Board conducted a conference call on the matter. The 

Board, including Lev, unanimously voted to rescind the offer of employment.4 

Turner then sent Tolle a letter notifying her Exum was not going to employ her.

________________________

(. . . continued)

original assessment). My plan for moving forward is to not 

respond to this email, and have no further communication with 

her, ever. I expect her to sue me (or her lawyer husband).

P

4. Lev admitted in his affidavit that he participated in the Board’s conference 

call discussion, but stated that he “just listened” except for responding to two 

points: (1) he came to Tolle’s defense regarding her guiding and safety skills, 

and (2) after a lengthy discussion at which time consensus about not 

(continued . . .)
#25931

-5-

[¶8.] Tolle subsequently commenced this action. In her first count, Tolle 

sought $25,000 from Lev under a theory of promissory estoppel for failing to 

transfer the cabin. Tolle claimed damages in the amount of $25,000 because that 

was the amount by which she claimed she reduced the price of the Lawrence County 

property in return for the agreement to transfer the cabin. In her second count, 

Tolle sought damages for tortious interference with her claimed business 

relationship (employment) with Exum.

[¶9.] Lev moved for summary judgment arguing that Tolle’s cabin claim was 

barred by the statute of frauds, the doctrine of merger, and the parol evidence rule. 

The court ruled that Tolle’s claim was barred by the statute of frauds, specifically 

SDCL 53-8-2(1) and (3). Lev also moved for summary judgment on Tolle’s tortious 

interference claim. The court ruled that “there [were] no genuine issues of material 

fact in the record to support one or more of the elements constituting [Tolle’s]

tortious interference with a contractual relationship claim.” Tolle appeals both 

rulings.

Decision

[¶10.] 1. Whether the circuit court erred in granting summary judgment

on Tolle’s promissory estoppel claim.

[¶11.] “This Court reviews a grant of summary judgment ‘to determine 

whether the moving party has demonstrated the absence of any genuine issue of 

material fact and entitlement to judgment on the merits as a matter of law.’”

________________________

(. . . continued)

employing Tolle was reached, he agreed to vote in response to Turner’s 

request for unanimity because Lev had yet to speak up. Tolle did not refute 

this affidavit.
#25931

-6-

Johnson v. Sellers, 2011 S.D. 24, ¶ 11, 798 N.W.2d 690, 694 (quoting DRD Enters., 

L.L.C. v. Flickema, 2010 S.D. 88, ¶ 10, 791 N.W.2d 180, 183-84). “The circuit court’s 

conclusions of law are reviewed de novo.” Id. “All reasonable inferences drawn 

from the facts must be viewed in favor of the non-moving party.” Gail M. Benson 

Living Trust v. Physicians Office Bldg., Inc., 2011 S.D. 30, ¶ 9, 800 N.W.2d 340, 

342-43. Nevertheless, the party challenging summary judgment “must substantiate 

his allegations with sufficient probative evidence that would permit a finding in his 

favor on more than mere speculation, conjecture, or fantasy.” Schwaiger v. Mitchell 

Radiology Assocs., P.C., 2002 S.D. 97, ¶ 7, 652 N.W.2d 372, 376. “We will affirm the 

circuit court’s ruling on a motion for summary judgment when any basis exists to 

support its ruling.” United Bldg. Centers v. Ochs, 2010 S.D. 30, ¶ 10, 781 N.W.2d 

79, 82.

Statute of Frauds

[¶12.] The circuit court dismissed Tolle’s cabin claim, relying on the statute 

of frauds, SDCL 53-8-2(1) and (3). Subsection (1) prohibits enforcement of an oral 

agreement “that by its terms is not to be performed within a year from the making 

thereof.” Subsection (3) prohibits enforcement of an oral agreement “for sale of real 

estate.” These types of oral agreements are “not enforceable by action unless the 

contract or some memorandum thereof is in writing and subscribed by the party to 

be charged.” SDCL 53-8-2.

[¶13.] Tolle argues that SDCL 53-8-2 does not bar her claim because Lev’s 

2005 email was a sufficient writing and because the cabin agreement was for the 

sale of personal property, not real estate. We agree with both contentions. The 
#25931

-7-

2005 email was a written confirmation of the agreement subscribed by Lev5 that

satisfied the writing requirement in SDCL 53-8-2. Additionally, SDCL 53-8-2(3) is 

inapplicable because the agreement was for the sale of personal property. The 

record reflects that these cabins were routinely transferred for nominal sums 

among guides while working for Exum. The record also reflects that the transfers 

included no interest in real estate – the land was owned by the National Park 

Service and could not be sold by Lev.6

Merger

[¶14.] Lev argues that the doctrine of merger bars Tolle from claiming that 

Lev agreed to transfer the cabin as a part of the consideration for the Lawrence 

County property. Lev points out that the purchase agreement contained an 

integration clause, and neither the purchase agreement nor the warranty deed 

mentioned any obligation to transfer the cabin. The doctrine of merger provides:

“[U]pon delivery and acceptance of an unambiguous deed, all prior negotiations and 

agreements are deemed merged within.” Estate of Fisher v. Fisher, 2002 S.D. 62, ¶ 

 

5. “The writing requirement of the statute of frauds ensures reliable evidence is 

presented before a contract[ual] obligation is enforced against one of the 

parties to the contract.” Northstream Invs., Inc. v. 1804 Country Store Co., 

2007 S.D. 93, ¶ 11, 739 N.W.2d 44, 48. “[T]he term ‘subscribed’ contained in 

SDCL 53-8-2 may include a typewritten name or other symbol of 

authentication where the party intends such act to be his or her signature on 

the document.” Id. ¶ 14. Peter Lev does not dispute that he intended to sign 

the email by typewriting “P” at the end of the email.

6. Tolle also argues that the statute of frauds is not a defense where a party can 

prove promissory estoppel. See Jacobson v. Gulbransen, 2001 S.D. 33, ¶ 26, 

623 N.W.2d 84, 90-91 (stating that an agreement is not subject to the statute 

of frauds when there is proof of promissory estoppel). In light of our ruling, 

we do not address this argument.
#25931

-8-

15, 645 N.W.2d 841, 846. Lev also points out that under the integration clause in 

the purchase agreement, the parties’ written agreement became the complete and 

final statement of the parties’ obligations.

[¶15.] Tolle argues that the collateral contract exception to the doctrine of 

merger applies.

7 There are two tests to determine if the collateral contract

exception applies: “(1) whether the collateral contract forms an integral part of the 

principal purpose of the deed, namely conveyance of title and quantity of land, and 

(2) whether the parties intended the contract to be collateral.” Hammerquist v. 

Warburton, 458 N.W.2d 773, 776 (S.D. 1990).

[¶16.] In this case, the principal purpose of the purchase agreement and deed 

was to convey title to Lawrence County real property. The oral agreement to 

transfer the cabin in the Grand Tetons involved personal property in Wyoming, 

making the cabin agreement a collateral contract unnecessary to convey title to the

Lawrence County property. Additionally, the parties clearly intended the cabin 

agreement to be collateral to the Lawrence County sale because the cabin transfer 

was not to take place until Lev retired at some unknown point in the future. The 

cabin agreement and the Lawrence County property agreement also involved 

different parties. We conclude that the cabin agreement was a collateral contract,

and neither the doctrine of merger nor the integration clause defeated Tolle’s claim

to enforce the oral agreement.

 

7. Tolle also argues that where the doctrine of promissory estoppel can be 

applied, merger cannot be used to defeat the claim. We do not address this 

argument because we conclude that the collateral contract exception applies.
#25931

-9-

Parol Evidence

[¶17.] Lev argues that Tolle is attempting, by the admission of parol 

evidence, to vary the consideration term of the purchase agreement. The parol 

evidence rule, as codified in SDCL 53-8-5, provides that “[t]he execution of a 

contract in writing, whether the law requires it to be written or not, supersedes all 

the oral negotiations or stipulations concerning its matter which preceded or 

accompanied the execution of the instrument.” However, in this case, Tolle is not 

seeking to use Lev’s oral statements to vary any term of the written agreement to 

sell the Lawrence County land. She is seeking to use the statements to prove a 

collateral oral agreement to transfer personal property. Moreover, Lev’s emails 

were authored after the written purchase agreement and deed. The parol evidence 

rule does not bar conduct and discussions that occur after parties execute a 

contract. Hofeldt v. Mehling, 2003 S.D. 25, ¶ 11, 658 N.W.2d 783, 787.

[¶18.] We reverse the circuit court’s grant of summary judgment on Tolle’s 

promissory estoppel claim regarding the cabin.

[¶19.] 2. Whether the circuit court erred in granting summary judgment 

on Tolle’s claim for tortious interference with a business

relationship.

[¶20.] The circuit court granted Lev’s motion for summary judgment, 

concluding there were no genuine issues of material fact to support one or more of 

the elements of tortious interference. There are six elements a plaintiff must prove 

to sustain a claim of intentional interference with a business relationship: “(1) the 

existence of a valid contractual relationship, (2) intentional interference with that 

relationship, (3) by a third party, (4) accomplished through improper means or for 

an improper purpose, (5) a causal effect between the interference and damage to the 
#25931

-10-

relationship, and (6) damages.” Gruhlke v. Sioux Empire Fed. Credit Union, Inc., 

2008 S.D. 89, ¶ 12, 756 N.W.2d 399, 406. Tolle carried the burden of proving each

of these elements. See id.

[¶21.] Tolle argues that, in resisting summary judgment, she produced

sufficient evidence to support a claim for tortious interference. Tolle alternatively 

claims that she introduced sufficient evidence to create genuine issues of fact for a 

trial on the elements necessary for tortious interference.

[¶22.] The party resisting summary judgment is required to “show that they 

will be able to place sufficient evidence in the record at trial to support findings on 

all the elements on which they have the burden of proof.” Lawrence Cnty. v. Miller, 

2010 S.D. 60, ¶ 14, 786 N.W.2d 360, 367. The resisting party cannot overcome a 

motion for summary judgment with mere general allegations and denials. Id. Lev 

argues that Tolle’s showing in opposition of summary judgment involved nothing 

more than unsupported statements and speculation, which are not sufficient to 

create a genuine issue of material fact. See id. We hold that Tolle failed to meet 

her responsive burden of placing sufficient evidence in the record to support 

findings in her favor on element two (intentional interference) and element five

(causation).

[¶23.] Tolle relies on the emails between Lev and Turner, and Turner’s email 

to the Board to establish intentional interference and causation. But there is no 

indication in the record that Lev knew, at the time of his emails to Turner, that 

Tolle had been offered a guide position at Exum for the 2009 guiding season. 

Without such knowledge, Lev could not have intended his emails to Turner to 
#25931

-11-

interfere with any prospective employment relationship Tolle may have had with 

Exum. Moreover, Lev’s emails merely requested information about prior cabin 

sales and disclosed the nature of the dispute so he could collect evidence to defend 

against Tolle’s impending suit. Lev made no mention of Tolle’s employment, and

there is no suggestion he requested Turner or the Board to do anything with respect 

to Tolle’s employment. This record does not even create an inference that Lev’s

emails requesting historical cabin sale information were attempts to intentionally 

interfere with Tolle’s employment relationship.

[¶24.] With respect to causation, we acknowledge that Lev did vote as a 

director on the decision to rescind the offer of employment. We also acknowledge 

that Turner made a passing reference to the cabin dispute in his email to the Board. 

But the record reflects that Turner’s email and the Board discussion concerned 

numerous and substantial Tolle employment problems that were unrelated to the 

cabin. Moreover, Tolle did not contest the affidavits of Turner and Hargis

indicating that the Board’s decision had nothing to do with any dispute between Lev 

and Tolle. Tolle failed to identify any evidence, other than argument and 

speculation, even suggesting that Lev’s emails were the legal cause of the Board’s 

decision to rescind Exum’s invitation to Tolle.

[¶25.] We affirm the circuit court’s grant of summary judgment on Tolle’s 

tortious interference claim.

[¶26.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON, 

Justices, concur.

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