#26523-a-JKK

2013 S.D. 66

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

LAW CAPITAL, INC

a/k/a LAW CAPITAL, Plaintiff and Appellant,

v.

DIANE KETTERING, PERSONAL

REPRESENTATIVE OF THE 

DOUGLAS R. KETTERING ESTATE, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

HUTCHINSON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GLEN W. ENG

Judge

* * * *

DAVID M. HOSMER

Yankton, South Dakota Attorney for plaintiff

and appellant. 

WILLIAM FULLER of

Fuller & Williamson, LLP

Sioux Falls, South Dakota Attorneys for defendant 

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON APRIL 22, 2013

OPINION FILED 08/21/13
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KONENKAMP, Justice

[¶1.] This is a legal malpractice case against a deceased attorney’s estate. 

The circuit court granted summary judgment for the estate. 

Background

[¶2.] In December 2005, Thomas Konrad urgently needed $225,000. No 

bank would lend him the money. He discussed his problem with Attorney Douglas 

Kettering, who had performed legal services for him in the past. Kettering told 

Thomas that he knew a person who could lend him the money: Bob Law of Law 

Capital, Inc. (Law). In addition to their attorney-client relationship, Law and 

Kettering had been partners in at least one of Law’s business ventures. During 

Kettering’s conversation with Law about a loan for Thomas, Law asked whether 

there would be collateral for the loan. Kettering told Law that there was a “half 

section of ground clear,” referring to Thomas’s parents’ land. In agreeing to the 

loan, Law dictated its terms: Thomas would repay $225,000 plus $20,000 in interest 

by January 15, 2006, and then $500 per day until Thomas paid the debt in full. 

[¶3.] Around the same time, Thomas was having marital problems. He 

feared that his wife, in their impending divorce, might gain an interest in his 

parents’ land when they died. Thomas’s parents, Norman and Leola Konrad, were 

farmers who owned an unencumbered 320 acres. Thomas shared his concern with 

his parents and suggested that they have Kettering draft the necessary paperwork 

to protect their land. The Konrads later testified that they remembered meeting 

with Kettering at his office in August 2005, and signing documents they thought 

would protect their land from Thomas’s wife. 
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[¶4.] On December 15, 2005, Thomas and his parents went to Kettering’s 

office and executed the promissory note and mortgage Kettering drafted, whereby 

the Konrads provided the collateral for Thomas’s $225,000 loan from Law. Thomas 

later claimed that he, alone, went into Kettering’s office, signed the note and 

mortgage, received a check for $225,000, and returned to his vehicle. His parents 

then went inside and signed paperwork. Thomas could not verify what his parents 

signed, and the Konrads could not remember what they signed. But their 

signatures appear on the note and mortgage, and they do not dispute that the 

signatures are theirs. Neither the Konrads nor Thomas left Kettering’s office with 

copies of the note or mortgage. Kettering recorded the mortgage with the 

Hutchinson County Register of Deeds. 

[¶5.] On March 9, 2006, Thomas paid Law $25,000 on the note. He never 

made another payment. Law claimed that for several years he asked Kettering to 

collect the unpaid portion of the note from Thomas and that Kettering assured Law 

that he would. But Kettering took no action against Thomas. In late 2008, Law

went to the Konrads’ home and told Norman that the note he and his wife had 

signed with Thomas was in default. According to Law, Norman acted as though he 

knew nothing of any note or mortgage. 

[¶6.] On April 23, 2009, at age fifty-five, Kettering passed away. Seven 

months later, Law retained counsel and brought suit to enforce the note and 

mortgage against Thomas and the Konrads. In his answer, Thomas asserted an 

affirmative defense: the note and mortgage were void because Kettering failed to 

disclose his attorney-client and business relationship with Law and failed to obtain 
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a waiver of this conflict of interest. Law amended his complaint to add the Douglas 

A. Kettering Estate as a defendant. In the Konrads’ answer to Law’s amended 

complaint, they asserted that Kettering fraudulently induced them into signing the 

note and mortgage. 

[¶7.] Law reached a settlement with Thomas and the Konrads. In exchange 

for $220,000 and an agreement to assist Law in his litigation against the Kettering 

Estate, Law released the mortgage on the Konrads’ land. Law then sought to 

recover from the Estate the amounts outstanding on the note, asserting that 

Kettering’s acts voided the note and mortgage, and, therefore, the Estate was liable 

to Law for the interest due on the note: $925,456.14. 

[¶8.] In moving for summary judgment, the Estate argued that Law could 

have legally enforced the note and mortgage regardless of Kettering’s conflict of 

interest. The circuit court denied the motion. In its second motion for summary 

judgment, the Estate argued that regardless of Kettering’s failure to obtain a 

waiver of any conflict of interest, Kettering had not fraudulently induced the 

Konrads into signing the note and mortgage; consequently, Law could have enforced

the note and mortgage against the Konrads. The court granted summary judgment

for the Estate. Law appeals asserting that the court erred as a matter of law when 

it failed to void the note and mortgage on the “substantial and material evidence of 

Kettering’s conflict of interest and his fraudulent inducement[.]”

Analysis and Decision

[¶9.] Law contends that had Thomas and the Konrads defended the suit, 

they would have been able to void the note and mortgage, which would have 
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extinguished their legal obligations to Law. Now standing in their shoes, Law

maintains that Kettering committed legal malpractice when he failed to disclose to 

Thomas his conflicting attorney-client relationship, thus violating the public policy 

of this State and consequently voiding the note and mortgage. Law further 

contends that Kettering fraudulently induced the Konrads into signing these 

documents, also making them void. With the note and mortgage void, Law argues 

the Estate is liable to him for the interest he would have recovered had Kettering 

not acted negligently or fraudulently. 

[¶10.] As in all summary judgment appeals, we review de novo whether there 

were any genuine issues of material fact and whether the moving party was entitled 

to judgment as a matter of law. SDCL 15-6-56(c); Horne v. Crozier, 1997 S.D. 65, ¶ 

5, 565 N.W.2d 50, 52. A contract is unlawful if it violates “an express provision of 

law or . . . the policy of express law[.]” See SDCL 53-9-1. “Public policy is found in 

the letter or purpose of a constitutional or statutory provision or scheme, or in a 

judicial decision.” Niesent v. Homestake Mining Co., 505 N.W.2d 781, 783 (S.D. 

1993) (citations omitted). Whether a contract violates public policy is a question of 

law, reviewable de novo. Jasper v. Smith, 540 N.W.2d 399, 403 (S.D. 1995).

[¶11.] Law argues that the public policy of this State forbids the enforcement 

of a contract created by an attorney who committed legal malpractice by being in a 

dual and adverse relationship with two clients, without their consent. As this Court 

wrote more than seventy years ago, “[T]hat which tends to debase the learned 

professions is at war with the public interest and is therefore contrary to public 

policy.” See Bartron v. Codington Cnty., 68 S.D. 309, 327, 2 N.W.2d 337, 345 (1942). 
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A claim for legal malpractice is established when a party proves: (1) an attorneyclient relationship giving rise to a duty; (2) the attorney, either by an act or failure 

to act, violated or breached that duty; (3) the attorney’s breach proximately caused 

injury to the client; and (4) actual injury, loss, or damage. Himrich v. Carpenter, 

1997 S.D. 116, ¶ 11, 569 N.W.2d 568, 571 (citation omitted). 

[¶12.] No one disputes that Kettering had an attorney-client relationship 

with both Thomas and Law. Kettering’s dual relationship conflicted, at the very 

least, because both clients would have presumably wanted the most advantageous 

lending agreement. This conflict, then, imposed a duty on Kettering to inform 

Thomas that he had an attorney-client relationship with Law, that it might conflict 

with his attorney-client relationship with Thomas, and that he needed to obtain 

Thomas’s informed, written consent. See SDCL ch. 16-18, app. Rule 1.7 (a), (b) 

(South Dakota Rules of Professional Conduct). Accepting Thomas’s assertion that

Kettering never told him of Kettering’s relationship with Law, Kettering breached 

his duty to Thomas. 

[¶13.] Yet, as this Court has cautioned ever since territorial days, “‘The 

power of courts to declare a contract void for being in contravention of sound public 

policy, is a very delicate and undefined power; and, like the power to declare a 

statute unconstitutional, should be exercised only in cases free from doubt.’” Sch.

Dist. No. 61 v. Collins, 6 Dakota 145, 41 N.W. 466, 468 (1889) (citation omitted); 

Anderson v. Craven, 57 S.D. 168, 231 N.W. 538, 539 (S.D. 1930). Would Thomas 

have not used Kettering’s services or declined to execute the note and mortgage had 

he known of Kettering’s relationship with Law? On this question, there is 
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considerable doubt. Thomas testified that due to the urgency of the situation, the 

specific reason for the urgency he could not recall, he did not read the note or 

mortgage. He said, “I was not aware of the terms of the promissory note and I 

wasn’t aware of anything — I just signed the papers and picked up the check.” In 

his deposition, he could not “say positively” whether he would have signed the note 

had he actually known its terms. And he could not recall whether, at the time, he 

understood when it was to be repaid. Needing the money and saying that he 

trusted Kettering that the loan was okay, Thomas had simply signed the 

documents. South Dakota adheres to the rule “that a party to a lawsuit cannot 

claim the benefit of a version of relevant facts more favorable to his own contentions 

than he has given in his own testimony.” Connelly v. Sherwood, 268 N.W.2d 140, 

141 (S.D. 1978) (citation omitted). Standing in Thomas’s shoes, Law is bound by 

Thomas’s testimony.

[¶14.] Acknowledging Kettering’s conflict of interest, the taking of a $225,000 

loan while heedless of its terms invokes no manifest public policy to justify 

invalidating the loan on the ground one’s lawyer had a conflict of interest. 

Moreover, our courts look askance at those signing a contract without reading it and 

knowing its conditions and then using such ignorance as a basis to evade the 

contract’s obligations. LPN Trust v. Farrar Outdoor Adver., Inc., 1996 S.D. 97, ¶ 13, 

552 N.W.2d 796, 799 (citation omitted). This is essentially Thomas’s claim: his 

attorney told him the note and mortgage were okay; therefore, he neither read the 

documents nor understood how he was to repay the loan. Contractual obligations 

should not dissolve on such flimsy substance. Indeed, Law points us to no authority 
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that, on these facts, compels voiding the note and mortgage. “Until firmly and 

solemnly convinced that an existent public policy is clearly revealed,” this Court’s 

duty is ‘‘to maintain and enforce contracts [rather] than to enable parties thereto to 

escape from their obligation on the pretext of public policy[.]” Bartron, 68 S.D. at

323, 2 N.W.2d at 344 (quoting Baltimore & Ohio Sw. Ry. Co. v. Voigt, 176 U.S. 498, 

505, 20 S. Ct. 385, 387, 44 L. Ed. 560 (1900)). Contrary to Law’s insistence, 

therefore, the contract between Law and Thomas did not contravene public policy

solely because it was drafted by an attorney who failed to disclose a conflicting 

attorney-client relationship. Thus, we see no error in granting summary judgment 

against Law on his claim that Thomas would have been able to void the note and

mortgage on public policy grounds.

[¶15.] We next address Law’s claim that Kettering fraudulently induced the 

Konrads into signing the note and mortgage. Fraudulent inducement entails

willfully deceiving persons to act to their disadvantage. Johnson v. Miller, 2012 

S.D. 61, ¶ 13, 818 N.W.2d 804, 808. Deceit is defined in SDCL 20-10-2 as: 

(1) The suggestion, as a fact, of that which is not true, by one 

who does not believe it to be true; 

(2) The assertion, as a fact, of that which is not true, by one who 

has no reasonable ground for believing it to be true; 

(3) The suppression of a fact by one who is bound to disclose it, 

or who gives information of other facts which are likely to 

mislead for want of communication of that fact; or 

(4) A promise made without any intention of performing. 

Although questions of fraud and deceit are normally questions of fact for a jury, 

such claims “may never be presumed and left to mere speculation or conjecture.” 

Estate of Elliot v. A & B Welding Supply Co., Inc., 1999 S.D. 57, ¶ 19, 594 N.W.2d 
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707, 710 (citation omitted). “[W]hen there is no evidence to support the submission 

of a question to the jury, it is improper to do so.” Rist v. Karlen, 90 S.D. 426, 431, 

241 N.W.2d 717, 720 (S.D. 1976) (citation omitted). 

[¶16.] Norman and Leola Konrad testified in their depositions and by 

affidavit that they “were told the documents [they signed] would, in fact, keep 

[their] ex-daughter-in-law [ ] from inheriting [their] property.” They insisted they 

would have never signed the note and mortgage had they known their land was 

collateral for Thomas’s $225,000 loan. They did not recall signing the note and 

mortgage on December 15, 2005, in Kettering’s office, and therefore attested that 

they “were the victims of fraud or trickery[.]” Norman and Leola rely on their 

history of never borrowing money from others and only lending “very small amounts 

to [their] sons for very short periods of time.” 

[¶17.] Still, the theory that Kettering fraudulently induced the Konrads into 

signing the note and mortgage rests on mere speculation. The Konrads do not 

remember signing the note and mortgage and do not remember being in Kettering’s 

office on December 15. This is not a case like Hauck v. Crawford, where a 

landowner was tricked by sleight of hand into signing a mineral deed, because here 

there is no evidence that Kettering prevented the Konrads from reading the 

documents or manipulated them to prevent the Konrads from realizing what they 

signified. See 75 S.D. 202, 204-05, 62 N.W.2d 92, 93 (1953). Undeniably, the note 

the Konrads signed was entitled “Promissory Note,” in bold print, and was only two 

pages long. The mortgage they signed was entitled “Collateral Real Estate 

Mortgage,” also in bold print, and listed Law as the “Lender.” 
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[¶18.] In the end, Law’s claim hinges on the supposition that the Konrads’ 

frugal lifestyle — neither lending much money to their children nor borrowing 

money themselves — means that Kettering must have defrauded them. We never 

presume fraud or lightly infer it. See Commercial Credit Equip. Corp. v. Johnson, 

87 S.D. 411, 416, 209 N.W.2d 548, 551 (1973), disavowed for other reasons by 

Aschoff v. Mobil Oil Corp., 261 N.W.2d 120, 125 (S.D. 1977). The circuit court did 

not err in granting summary judgment against Law on the claim of fraudulent 

inducement.

[¶19.] Affirmed.

[¶20.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and 

WILBUR, Justices, concur.