interpreting § 37-5-3 and holding that the “just provocation” standard “requires some sort of misconduct or shortcoming on the part of the dealer,” and rejecting the *863 manufacturer’s argument it could meet the standard where a termination was in good faith
How later courts described this case
- interpreting § 37-5-3 and holding that the “just provocation” standard “requires some sort of misconduct or shortcoming on the part of the dealer,” and rejecting the *863 manufacturer’s argument it could meet the standard where a termination was in good faith
- holding that no fiduciary relationship existed between IH and one of its dealers
- holding "just provocation [under § 37-5-3] requires some sort of misconduct or shortcoming on the part of the dealer."
- upholding summary judgment that no fiduciary relationship existed between International Harvester and one of its dealers
Written by the judges who cited it.
The opinion
HENDERSON, Justice
(specially concurring).
Spiritually, I agree with the “Supplement to Opinion for Clarification Purposes Only.” However, I disapprove of this type of appellate procedure in the South Dakota Supreme Court. SDCL 15-24-4; SDCL 15-30-5.
Per the Clerk of Court’s docket, this case was to be remitted on August 19, 1987; once a case had been remitted, this Court loses jurisdiction and cannot recall it except in case of fraud, mistake, or inadvertence. Lesmeister v. Dewey County, 75 S.D. 360 , 65 N.W.2d 136 (1954). This case, per the Clerk’s docket, has not been returned to the lower court. SDCL 15-30-11. Per SDCL 15-30-5, a rehearing has not been granted, yet a “Supplement to Opinion for Clarification Purposes Only” is rendered.
Are we adopting a new type of appellate procedure in the Supreme Court whereby we officially change an opinion without benefit of granting a petition for rehearing? If so, I object to same, absent an applicable appellate procedural rule. Sources of appellate procedure have, historically, been by statutes or Supreme Court Rules. Later, the rules become “codified.” Appeals are a procedure. Appeals are creatures of statute. Investment Rarities, Inc. v. Bottineau County Water Resource, 396 N.W.2d 746, 748 (N.D.1986). Accord: Spanish Wells Prop. Owners Ass’n v. Board of Adjustment, 357 S.E.2d 487, 488 (S.C.App.1987), reflecting that appeals are creatures of statute and are unknown to the common law. If this Court will now, in futuro, modify its previous decision by “Supplement to Opinion for Clarification Purposes Only,” we are striking out on uncharted waters. In my opinion, it would be wise, before this type of opinion is issued, that both parties be granted oral input which they have not, heretofore, had upon rehearing.
Expressing these views, I do not forsake an inherent power of this Court to rectify obvious technical errors on opinions ther-ebefore announced and filed. We are going, in this case, beyond superficially treating a technical error by correction. We are modifying this opinion by deviation of thought process — from the previously expressed opinion. Therein, we subjectively treat the merits differently.