Judicial Estoppel Bars a Statute-of-Frauds Defense to Loan Indebtedness Previously Sworn to in Earlier Litigation

1. Introduction

In Fischer v. Fischer-Olson, 2026 S.D. 39, the South Dakota Supreme Court affirmed a jury verdict awarding $849,550 to Jeffrey Fischer, Allison Fischer, and Fischer Farms Partnership (collectively, “Fischer Farms”) on claims seeking repayment of purported family-and-business loans made to Missy Fischer-Olson, Reed J. Olson, and Excel Underground, Inc. (collectively, “Excel”).

The appeal presented two instruction-related issues—whether the jury should have been instructed on the statute of frauds (SDCL 53-8-2(4)) and whether the jury should have been instructed that contract damages must be proven with “reasonable certainty.” Fischer Farms cross-appealed the circuit court’s denial of prejudgment interest.

The most consequential feature of the opinion is the Court’s use of judicial estoppel to prevent Excel from asserting a statute-of-frauds defense after Excel had earlier relied on sworn testimony about borrowing more than $1 million from family to support a substantial damages claim in prior litigation.

2. Summary of the Opinion

  • Statute of frauds instruction: Affirmed. The Court concluded the statute-of-frauds issue did not require a jury instruction in these circumstances and, in any event, judicial estoppel barred Excel from using the statute of frauds to defeat repayment of indebtedness it previously acknowledged under oath to obtain an advantage in earlier litigation.
  • Damages “reasonable certainty” instruction: Affirmed. The given instruction tracked SDCL 21-2-1’s “clearly ascertainable” limitation on contract damages and, even if exclusion of additional language were error, Excel failed to show prejudice.
  • Prejudgment interest: Affirmed denial. Although SDCL 21-1-13.1 makes prejudgment interest mandatory when applicable (and the statutory rate would apply absent a contract rate), Fischer Farms waived the claim by failing to request an instruction or special interrogatory to determine the date of loss/default, a disputed fact.

3. Analysis

A. Precedents Cited

1) Jury-instruction standards and preservation

  • State v. Rouse, 2025 S.D. 29, ¶ 42, 23 N.W.3d 467, 480: The Court reiterated the dual standard—abuse of discretion for the trial court’s decision to grant/deny a specific instruction, but de novo review for whether the instructions “as a whole” accurately state the law.
  • Grynberg v. Citation Oil & Gas Corp., 1997 S.D. 121, ¶ 32, 573 N.W.2d 493, 503, and Mealy v. Prins, 2019 S.D. 57, ¶¶ 39–40, 934 N.W.2d 891, 902: These cases supplied the doctrinal backbone for the prejudgment-interest waiver holding: verdict forms are treated like instructions, parties must object to omissions, and when the date of loss is disputed, fact-finding must be obtained through the verdict (often by special interrogatory).
  • Hauck v. Clay Cnty. Comm'n, 2023 S.D. 43, ¶ 4 n.4, 994 N.W.2d 707, 709 n.4: Cited for waiver principles—arguments not raised below are generally waived.

2) Statute of frauds: purpose, sufficiency of writings, and who decides

  • Jacobson v. Gulbransen, 2001 S.D. 33, ¶¶ 17, 26, 623 N.W.2d 84, 89–90: The Court relied on Jacobson for two key propositions: (i) the statute of frauds serves an evidentiary function and may be satisfied by a “memorandum,” not necessarily the agreement itself; and (ii) it “will not ... be used to work an injustice.”
  • Northstream Invs., Inc. v. 1804 Country Store Co., 2007 S.D. 93, ¶ 11, 739 N.W.2d 44, 48: Reinforced the evidentiary rationale for the writing requirement—reliable evidence before enforcement.
  • Cambron v. Moyer, 519 N.W.2d 381 (Iowa 1994): Excel invoked Cambron for the proposition that statute-of-frauds applicability is for the jury; the Court distinguished it, emphasizing Cambron’s recognition that courts may decide compliance as a matter of law when facts are undisputed.
  • Ziegler Furniture & Funeral Home, Inc. v. Cicmanec, 2006 S.D. 6, ¶ 14, 709 N.W.2d 350, 354: Used to situate interpretation of writings as generally a question of law.
  • Out-of-state authorities the Court cited for the proposition that whether a writing satisfies the statute of frauds is a question of law: Doss & Harper Stone Co., Inc. v. Hoover Bros. Farms, Inc., 191 S.W.3d 59, 62 (Mo. Ct. App. 2006); May Trucking Co. v. Nw. Volvo Trucks, Inc., 241 P.3d 729, 737 (Or. Ct. App. 2010); Westside Est. Agency, Inc. v. Randall, 211 Cal. Rptr. 3d 119, 130 (Cal. Ct. App. 2016); Young v. Adams, 830 N.E.2d 138, 141 (Ind. Ct. App. 2005); Blair v. Brownson, 197 S.W.3d 681, 683 (Tenn. 2006).
  • J. Clancy, Inc. v. Khan Comfort, LLC, 2021 S.D. 9, ¶ 18, 955 N.W.2d 382, 389, and Melford Olsen Honey, Inc. v. Adee, 452 F.3d 956, 962 (8th Cir. 2006): These framed the division of labor: disputed facts about whether parties entered the contract are for the jury, but the court makes the preliminary legal determination about whether writings satisfy the statute of frauds.

3) Judicial estoppel: integrity of the judicial process

  • Healy Ranch P'ship v. Mines, 2022 S.D. 44, ¶¶ 53–54, 978 N.W.2d 768, 782–83, and Hayes v. Rosenbaum Signs & Outdoor Advert., Inc., 2014 S.D. 64, ¶ 13, 853 N.W.2d 878, 882: Supported the Court’s ability to raise judicial estoppel sua sponte and emphasized the doctrine’s function in protecting the integrity of adjudication.
  • Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 S.D. 82, ¶ 34, 700 N.W.2d 729, 738: Distinguished judicial estoppel from other estoppels—no privity or reliance required.
  • Wyman v. Bruckner, 2018 S.D. 17, ¶ 12, 908 N.W.2d 170, 175: Supplied the commonly used factors: clear inconsistency, judicial acceptance, and unfair advantage/detriment.
  • The special concurrence (Justice Salter) further contextualized the doctrine with: Regalado v. Mathieson, 2004 S.D. 87, ¶ 17, 684 N.W.2d 67, 73; Thompson v. Summers, 1997 S.D. 103, ¶ 24 n.8, 567 N.W.2d 387, 395 n.8; Moeller v. Weber, 2004 S.D. 110, ¶ 44 n.4, 689 N.W.2d 1, 15 n.4 (dicta); New Hampshire v. Maine, 532 U.S. 742, 751 (2001) (factors not inflexible); Edwards v. Aetna Life Ins., 690 F.2d 595, 599 (6th Cir. 1982) (protecting the judiciary); Keathley v. Buddy Ayers Constr. Inc., No. 25-6, 2026 WL 1686028, 608 U.S. ___, at *4 (June 11, 2026) (integrity/risk of inconsistent determinations); State v. St. Cloud, 465 N.W.2d 177, 180 (S.D. 1991) (intentional inconsistency/perversion of judicial machinery); In re Airadigm Commc'ns, Inc., 616 F.3d 642, 661 (7th Cir. 2010) and Levinson v. United States, 969 F.2d 260, 264 (7th Cir. 1992) (chameleonic litigants); Branch Banking & Tr. Co. v. Pac. Life Ins., 645 F. App'x 387, 391 (6th Cir. 2016) (judicial acceptance need not be merits victory).

4) Contract damages and prejudice

  • Von Sternberg v. Caffee, 2005 S.D. 14, ¶ 18, 692 N.W.2d 549, 555: Used to support the sufficiency of the trial court’s contract-damages instruction without the requested “reasonable certainty” language.
  • Smith v. WIPI Grp., USA, Inc., 2023 S.D. 48, ¶ 57, 996 N.W.2d 368, 383; ISG, Corp. v. PLE, Inc., 2018 S.D. 64, ¶ 26, 917 N.W.2d 23, 32: Cited for the “reasonable certainty”/anti-speculation framing, and the distinction between uncertainty in amount vs. uncertainty in the fact of damages.
  • State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406, and LDL Cattle Co., Inc. v. Guetter, 1996 S.D. 22, ¶ 32, 544 N.W.2d 523, 530: Provided the prejudice requirement for reversal based on instructional error.

5) Prejudgment interest: mandatory, but fact-dependent

  • JAS Enters., Inc. v. BBS Enters., Inc., 2013 S.D. 54, ¶ 45, 835 N.W.2d 117, 129, and Alvine v. Mercedes-Benz of N. Am., 2001 S.D. 3, ¶ 29, 620 N.W.2d 608, 614: Reinforced that prejudgment interest under SDCL 21-1-13.1 is mandatory when applicable.
  • Stern Oil Co., Inc. v. Brown, 2018 S.D. 15, ¶ 53, 908 N.W.2d 144, 160: Confirmed prejudgment interest accrues from the date of loss or damage.

B. Legal Reasoning

1) Statute of frauds: instruction not required where the decisive doctrine is judicial estoppel

Excel argued the jury should have been instructed on SDCL 53-8-2(4), including whether emails were sufficient “writings” and whether Missy was “authorized in writing” to bind Excel or Reed. The Court’s analysis proceeded in two steps:

  1. Writings and the court’s role: The Court emphasized that whether writings satisfy the statute of frauds is typically a question of law. Here, there was no dispute that Missy authored emails acknowledging a debt exceeding $1 million and linking repayment to collection of the Brant Lake judgment. Relying on Jacobson v. Gulbransen, the Court reiterated that a memorandum may suffice.
  2. Judicial estoppel as the dispositive barrier: The Court held that, under the “unique circumstances,” Excel and Reed were judicially precluded from raising the statute-of-frauds defense. The key inconsistency was stark: Reed previously testified in Excel Underground, Inc. v. Brant Lake Sanitary District, 2020 S.D. 19, 941 N.W.2d 791 (and at the underlying trial) that Excel borrowed about $1.16 million from family to keep the business afloat—testimony used to bolster Excel’s lost-profits theory—yet in this action Excel claimed the loans were “fictional” or unenforceable absent writings.

Applying the Wyman v. Bruckner factors, the Court found (i) clear inconsistency, (ii) judicial acceptance (the earlier jury’s damages award reflected acceptance of Excel’s borrowing narrative as part of its loss story), and (iii) unfair advantage/detriment (Excel gained leverage in the earlier case and attempted to use the statute of frauds as a later “evidentiary shield” to defeat repayment).

Justice Salter concurred in the judicial-estoppel holding but cautioned—citing Regalado v. Mathieson and related authorities—that the Court should have exercised judicial restraint and avoided a merits discussion of the statute-of-frauds compliance; in his view, that portion is best regarded as obiter dictum under Moeller v. Weber.

2) Damages: “clearly ascertainable” substantially covers “reasonable certainty,” and no prejudice shown

The trial court instructed the jury using language mirroring SDCL 21-2-1, including that damages “not clearly ascertainable in both their nature and origin are unrecoverable.” Excel wanted an additional paragraph requiring proof “with reasonable certainty” and a “rational basis” without speculation.

The Supreme Court treated the dispute as largely semantic in this case: both formulations serve the anti-speculation goal. Critically, once the jury found a loan agreement and a breach, the contested question was the amount owed, not whether damages existed at all. Under ISG, Corp. v. PLE, Inc., uncertainty in amount does not equate to speculative damages where the fact of damage is certain. The Court also held that, even assuming error, Excel failed to show prejudice because the $849,550 verdict fell within indebtedness Excel had acknowledged exceeded $1 million.

3) Prejudgment interest: mandatory in principle, but waived in practice without a jury date-of-loss finding

The Court agreed with Fischer Farms on an important legal premise: the absence of an agreed interest rate (or testimony suggesting “0%”) does not eliminate prejudgment interest. Under SDCL 21-1-13.1, if no contract rate applies, the statutory rate applies—here, the “Category B” rate in SDCL 54-3-16(2) (10% per year).

But the decisive point was procedural and factual: the date of loss/default was disputed because the evidence conflicted on when repayment became due. SDCL 21-1-13.1 requires prejudgment interest to commence on the date specified in the verdict where the timing is a factual question, and contemplates that “special interrogatories shall be submitted to the jury” if necessary. Fischer Farms requested prejudgment interest in the complaint but did not request an instruction, did not propose an interrogatory, and did not object to the verdict form’s omission. Under Grynberg v. Citation Oil & Gas Corp. and Mealy v. Prins, that failure constituted waiver.

C. Impact

  • Judicial estoppel as a potent response to opportunistic statute-of-frauds defenses: The opinion signals that litigants who affirmatively use sworn statements about financial obligations to secure advantage in one case risk losing the ability to later disavow those obligations through technical defenses such as the statute of frauds. This is especially salient in closely held business/family financing disputes where documentation may be informal.
  • Who decides statute-of-frauds sufficiency: The decision reinforces that, absent genuinely disputed predicate facts, the sufficiency of writings is generally a legal question. Parties should frame statute-of-frauds arguments accordingly—through motions and record development—rather than relying primarily on jury instructions.
  • Prejudgment-interest practice point: Even though prejudgment interest is “mandatory” under SDCL 21-1-13.1, it can be forfeited if counsel does not secure (or request) a jury finding on the date of loss when that date is disputed. This is likely to influence trial strategy, verdict-form drafting, and instruction conferences in contract cases.
  • Damages instructions: Trial courts may continue to rely on SDCL 21-2-1-based language, with appellate courts focusing on whether the jury was materially misled and whether any alleged omission caused prejudice.

4. Complex Concepts Simplified

Statute of Frauds (SDCL 53-8-2(4))
A rule requiring certain agreements—here, a loan agreement or extension of credit—to be evidenced by a signed writing (or signed memorandum), to reduce fraud and uncertainty. It is primarily an evidentiary safeguard.
“Subscribed ... by the party to be charged or his agent, as authorized in writing”
The writing generally must be signed by the person against whom enforcement is sought, or by an agent who has written authority to sign for that person/entity.
Judicial Estoppel
An equitable doctrine preventing a party from taking inconsistent positions in separate judicial proceedings when doing so would undermine the integrity of the courts. It protects the judicial process, not the opposing party’s reliance.
Prejudgment Interest (SDCL 21-1-13.1)
Interest added to damages from the date the loss occurred until the verdict date, intended to fully compensate the injured party for being deprived of money. If the date of loss is disputed, the jury must identify it (often via special interrogatory) or the claim may be waived.
“Clearly ascertainable” / “reasonable certainty”
Closely related limits on contract damages designed to avoid awards based on speculation. Damages may be recoverable even if the precise amount is debated, so long as the fact of damage is established and there is a rational basis for measurement.

5. Conclusion

Fischer v. Fischer-Olson underscores three practical rules for South Dakota contract litigation: (1) a party may be judicially estopped from invoking the statute of frauds when it previously swore to the opposite position to gain an advantage in prior litigation; (2) SDCL 21-2-1’s “clearly ascertainable” limitation can adequately express the anti-speculation principle without additional “reasonable certainty” phrasing, absent prejudice; and (3) prejudgment interest, though mandatory in concept under SDCL 21-1-13.1, can be lost by waiver if counsel fails to secure a jury finding on a disputed date of loss.