author: SANDSTROM, Justice.

text:
    2000 ND 223
    STATE of North Dakota, Plaintiff and Appellee, v. Shawn Glenn HELMENSTEIN, Defendant and Appellant.
    No. 20000062.
    Supreme Court of North Dakota.
    Dec. 27, 2000.

      Richard J. Riha, State’s Attorney, and Rick L. Volk, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Robert W. Martin, Bismarck, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] A jury convicted Shawn Glenn Hel-menstein of the class AA murder of Robbie Rahrich, and the robbery of the House of Bottles. He appeals. We affirm, concluding the confessions were admissible and the district court did not err in denying a change of venue.

I

[¶ 2] Early on the morning of February 21, 1999, someone entered the House of Bottles liquor store in Bismarck, North Dakota, killed the store clerk, Robbie Rah-rich, and stole money from the store. Bismarck police officers' went to Montana to question Helmenstein, a former employee of the liquor store, who was reportedly in Bismarck at the time of the crime. Hel-menstein confessed to the crimes, and waived extradition to North Dakota. When he was returned to North Dakota, Helmenstein accompanied law enforcement officers, at their request, and walked through the murder scene. He subsequently was taken before a North Dakota magistrate.

[¶3] Helmenstein’s motion to suppress his confessions was denied. His motion for change of venue was also denied. The jury found Helmenstein guilty of both charges. Helmenstein appeals, arguing his confessions should have been excluded and venue should have been changed.

[¶ 4] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 5] Helmenstein argues his will was overborne and his waiver of Miranda rights was not knowing, voluntary, or intelligent. He argues the confessions elicited, both at the time of his arrest in Montana and upon his return to North Dakota, were improperly obtained. Although the confessions in this case are interrelated, for clarification we adopt the parties’ convention of identifying four separate interviews: (1) an approximately 45-minute interview in the Clinton, Montana, home where Helmenstein was staying (he denied involvement in the murder and robbery); (2) an approximately 40-minute interview in the Montana home, after officers found the murder weapon and money from the robbery (Helmenstein first confessed); (3) an approximately 17-minute, tape-recorded confession; and (4) a videotaped walk-through of the murder scene. The first three took place between 9:15 a.m. and 11:15 a.m. on March 1, 1999, in Clinton, Montana. The fourth took place on March 2,1999, in Bismarck.

[¶ 6] “[Findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994) (citations omitted).

A

[¶ 7] The district court found, when the officers first arrived at the Montana home, they entered the home with the owner’s permission. The officers “identified themselves and their purpose for wanting an interview with the defendant.” Helmen-stein invited officers to an office at the far end of the home. The office was furnished with a desk and a single chair. Helmen-stein “occupied the chair while Officers Wooten and Haas conducted an interview of the defendant for approximately 45 minutes.” The district court found the office door was open, no firearms were displayed, and neither officer blocked Hel-menstein’s “access route if he elected to leave.”

[¶ 8] The officers then requested Hel-menstein write a statement. During that time, with the owner’s permission, the officers searched the home. While the officers were searching, Helmenstein “freely moved about the kitchen and living room areas of the mobile home.” The officers discovered a firearm and money believed to be linked to the murder and robbery. After Helmenstein finished his statement, the “officers then requested an opportunity to further interview the defendant.” The interview was conducted in the same office, with Helmenstein again occupying the lone chair.

[¶ 9] The officers advised Helmenstein of discrepancies in his statement and advised him of his Miranda rights. He “acknowledged he understood” those rights. Hel-menstein “voluntarily agreed to continue” the interview and confessed to firing the handgun that caused the victim’s death. The district court found this second interview lasted approximately forty minutes.

[¶ 10] Finally, the officers conducted an approximately 17-minute, tape-recorded interview of Helmenstein. The district court found approximately two hours had elapsed from the time the officers first arrived until they had completed the interviews and the search of the Montana home.

[¶ 11] The next day, Helmenstein was flown from Montana to Bismarck. When he arrived, shortly after 5:00 p.m., Hel-menstein was again advised of his Miranda rights and was asked to walk through the murder scene. The district court found Helmenstein “agreed to voluntarily participate in” the murder scene review.

[¶ 12] Helmenstein argues he was awakened by four or five armed officers, was denied food and drink, and was subjected to lengthy interrogation when the officers first interviewed him. Helmenstein argues the four interrogations “crossed the line from zealous investigation to actual police misconduct” and the district court therefore erred in not suppressing his statements. The State argues Helmen-stein was not in custody at the time of his first confession, notwithstanding the arresting officer’s subjective belief that Hel-menstein was not free to leave. The State further argues the confessions were not coerced but were made freely and voluntarily and the district court did not err in admitting the statements at trial.

B

[¶ 13] We first consider whether Helmenstein’s confessions were obtained in violation of the United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The constitutional triggers requiring police to provide Miranda warnings are custody and interrogation. Id. at 444, 86 S.Ct. 1602. Whether a person was in custody is a mixed question of law and fact and is fully reviewable on appeal. State v. Sabinash, 1998 ND 32, ¶ 14, 574 N.W.2d 827 (citations omitted). The test of custody is “formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” Id. at ¶ 14 (citing State v. Eldred, 1997 ND 112, ¶ 10, 564 N.W.2d 283). The custody test is objective and does not depend on the arresting officer’s subjective motive or thoughts. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v. Murray, 510 N.W.2d 107, 110 (N.D.1994).

[¶ 14] Whether a person was in custody at the time of a confession is a mixed question of law and fact and is fully reviewable on appeal. Sabinash, 1998 ND 32, ¶ 14, 574 N.W.2d 827 (citation omitted). When evaluating whether a person was in custody, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Murray, 510 N.W.2d at 110 (citing Berkemer, 468 U.S. at 442, 104 S.Ct. 3138). The district court found “the defendant was not placed in custody until the second interview which occurred at the” Montana home, and “prior to placing the defendant in custody, law enforcement officers had in fact advised the defendant of his Miranda rights with the defendant acknowledging his understanding of the same and his willingness to continue the interview with law enforcement officers.” That Helmen-stein was provided Miranda warnings subsequent to the first interrogation is undisputed. Therefore, only the first interview of Helmenstein need be considered for custodial-interrogation analysis.

[¶ 15] The district court’s findings amply set forth that Helmenstein was not in custody at the time of the first interview. Although one of the North Dakota officers present testified he did not believe Helmenstein was free to leave after the murder weapon had been discovered, our only inquiry is how a reasonable person “would have understood his situation.” State v. Murray, 510 N.W.2d 107, 110 (N.D.1994) (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

[¶ 16] Helmenstein voluntarily participated in the interview, he invited officers to question him in an office at the far end of the home, the officers displayed no weapons, Helmenstein occupied the room’s only chair, and the officers made no attempt to block his egress. These facts support the district court’s conclusion that Helmenstein was not in custody. Further, the officers allowed Helmenstein to move freely about the kitchen and living room while they were searching the home.

[¶ 17] We conclude the district court’s finding Helmenstein was not in custody is supported by “sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). Therefore, any statements Helmenstein made prior to receiving Miranda warnings were properly not excluded for lack of warnings.

C

[¶ 18] We next consider whether Helmenstein’s confessions were voluntary. “[V]oluntariness of a confession depends upon questions of fact to be resolved by the trial court, and because the trial court is in a superior position to judge credibility and weight, we show great deference to the trial court’s determination of voluntariness.” State v. Taillon, 470 N.W.2d 226, 228 (N.D.1991) (citing State v. Pickar, 453 N.W.2d 783, 785 (N.D.1990); State v. Dis- coe, 334 N.W.2d 466, 468 (N.D.1983)). This Court does not conduct a de novo review. Discoe, 334 N.W.2d at 470. We review the voluntariness of a confession based on the totality of the circumstances. State v. Sabinash, 1998 ND 32, ¶ 12, 574 N.W.2d 827. This “inquiry focuses on two elements: (1) the characteristics and condition of the accused at the time of the confession and (2) the details of the setting in which the confession was obtained. No one factor is determinative.” Id. (citation omitted).

1

[¶ 19] The district court thoroughly reviewed the Sabinash factors in its order denying Helmenstein’s pretrial motion to suppress his confessions. 1998 ND 32, ¶ 12, 574 N.W.2d 827. The district court found the defendant was of “at least average intelligence” and had obtained sufficient education to “engage in reasonable and meaningful conversation with law enforcement officers.” The district court found the defendant was not disadvantaged or prejudiced by the method of questioning, and the court found no evidence that the conduct of the police compromised the voluntariness of the confessions.

[¶ 20] The district court found Helmen-stein did nothing to “indicate any lack of voluntariness in his participation in” any interview, written statement, or walk-through of the crime scene. The court found Helmenstein had no “identifiable physical or mental handicaps.” Further, the district court found the interview environment, the conduct of the officers, and Helmenstein’s voluntary participation evidenced the free and voluntary nature of Helmenstein’s confessions.

[¶ 21] The district court stated, “While it is apparent that the defendant had no prior criminal record, there is no evidence to support the suggestion by the defendant that he was disadvantaged or prejudiced in some manner by the methodology of police questioning.” Further, the initial questioning took place in the presence of the homeowner and his family. The district court found the questioning “occurred in an environment and under circumstances which provided the defendant ample opportunity to exercise his constitutional right to refuse to answer questions of police, and to seek the advice of legal counsel if he so desired.”

2

[¶ 22] As to his videotaped “walk-through” confession at the murder scene after he was returned to Bismarck, Hel-menstein argues presumed lack of volun-tariness because he was not brought before a magistrate without unnecessary delay as required by Rule 5(a) of the North Dakota Rules of Criminal Procedure. Helmenstein cites State v. Barlow, 193 N.W.2d 455 (N.D.1971), for the proposition that a three-day delay in bringing an accused before a magistrate is a questionable practice, and in some cases may be unreasonable. In Barlow, this Court stated unreasonable delay is “delay which furnishes an opportunity for interrogation and eliciting of damaging statements.” 193 N.W.2d at 461.

[¶ 23] In this case, officers first contacted Helmenstein in Clinton, Montana, on March 1, 1999, at about 9:15 a.m. Approximately two hours later, Helmenstein was arrested by a Montana officer and taken to the Missoula County jail in Missoula, Montana. Helmenstein voluntarily waived his right to an extradition hearing later that day. Still on March 1,1999, North Dakota officers transported Helmenstein from the Missoula County jail to a county jail in Billings, Montana. Later that day, the officers returned to Bismarck with personal property seized during the course of the investigation.

[¶ 24] The next day, March 2, 1999, officers returned to Billings, secured Helmen-stein, and flew him to Bismarck. They arrived in Bismarck at approximately 5:00 p.m., and Helmenstein agreed to participate in a videotaped walk-through of the murder scene. The next morning, March 3, 1999, at 9:00 a.m., Helmenstein appeared before the district court in Bur-leigh County. Thus, from the time of his arrest at approximately 11:15 a.m. (mountain time) on March 1, 1999, less than 45 hours had elapsed before Helmenstein appeared before the district court.

[¶ 25] This Court has held that delay itself is not determinative, but is one factor to consider in the totality of the circumstances when considering whether a confession is involuntary and, therefore, inadmissible. State v. Newnam, 409 N.W.2d 79, 85 (N.D.1987). Here, it is undisputed, the only evidence obtained as the result of any alleged delay were the videotaped crime scene walk-though and the statements made by Helmenstein upon his return to Bismarck. Deciding whether unnecessary delay has occurred depends upon the circumstances of each case. State v. Frye, 245 N.W.2d 878, 882 (N.D.1976). “The term has been defined, not with reference to time as such, but with regard to whether the delay was utilized to interrogate or obtain damaging statements from the accused.” Id. (citing State v. Barlow, 198 N.W.2d 455, 461 (N.D.1971); State v. Arikney, 195 N.W.2d 547, 552 (N.D.1972)).

[¶ 26] The district court held that the time between Helmenstein’s arrest and his first appearance in court complied with Rule 5(a) of the North Dakota Rules of Criminal Procedure. The court specifically found “no basis to suggest that the defendant was unnecessarily detained” and there was no evidence to suggest the detention “was a contributing factor to the defendant’s statements.”

[¶ 27] Helmenstein was arrested by a Montana law enforcement officer who was assisting the North Dakota officers. Once in custody, Helmenstein was questioned by Montana authorities about an unrelated murder. The record does not establish the precise time when Montana authorities allowed North Dakota officers to remove Helmenstein from Montana. There was no evidence the officers delayed Helmen-stein’s return for the purpose of eliciting confessions or damaging statements from him. See Frye, 245 N.W.2d at 882 (unnecessary delay is more likely if delay is used to interrogate or obtain damaging statements). Considering the Montana arrest and Montana interests in questioning Hel-menstein, the extradition waiver, the distance between Bismarck and Billings, the transportation from one Montana jail to another, and the officers’ prompt return to deliver the defendant the day following his arrest, any alleged delay was, as the district court concluded, not in violation of Rule 5(a) of the North Dakota Rules of Criminal Procedure.

3

[¶ 28] This Court is deferential to a district court’s decision regarding the voluntariness of a confession. See State v. Taillon, 470 N.W.2d 226 (N.D.1991) (vol-untariness of a confession depends upon questions of fact to be resolved by the trial court, and great deference is afforded due to the trial court’s superior position to judge credibility and weight). Reviewing the record, we conclude the district court’s decision regarding the voluntariness of Helmenstein’s confessions is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). Therefore, the district court did not err in determining Helmenstein’s confessions were freely and voluntarily given.

D

[¶ 29] The district court did not err in admitting Helmenstein’s confessions into evidence at his trial.

Ill

[¶30] Helmenstein argues the district court wrongly failed to change the venue of his trial. Prior to trial, defense counsel moved for a change of venue. The motion was renewed following selection of a jury. The voir dire was transcribed. Helmen-stein cites fourteen newspaper articles, extensive television coverage, and statements of the prospective jurors in support of his argument that a change of venue was necessary. Specifically, Helmenstein argues a lawyer in the jury pool had been swayed by the media coverage, so it was likely non-law-trained members of the jury pool had also been swayed. The lawyer in the pool was excused for cause at Helmen-stein’s request. Helmenstein argues the prosecutors and the district judge setting bond were quoted in the news media numerous times stating that the State’s case was strong.

[¶ 31] The State argues the denial of Helmenstein’s motion for change of venue was proper because he failed to meet his burden of establishing prejudice. The State argues it was not responsible for the news coverage and cites the time between the media coverage and trial, the absence of prejudice, the inconvenience to the State, and other factors to support affirming the district court’s denial of a change of venue.

[¶ 32] A motion for change of venue is within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. State v. Norman, 507 N.W.2d 522, 526 (N.D.1993) (citing State v. Purdy, 491 N.W.2d 402 (N.D.1992)). The defendant has the burden of establishing that a fair and impartial jury could not be empaneled and that he suffered prejudice as a result of the denial of his motion to change venue. State v. Ellis, 2000 ND 177, ¶ 11, 617 N.W.2d 472 (citations omitted). “While there are some cases in which prejudice to the defendant is so clear that a change of venue should be ordered promptly, generally voir dire examination is an appropriate occasion to determine whether it is possible to select a fair and impartial jury.” Norman, 507 N.W.2d at 526 (citing State v. Leidholm, 334 N.W.2d 811 (N.D.1983)).

[¶ 33] In deciding whether to change venue, trial courts are guided by eight factors, identified in State v. Austin:

(1) whether the publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for dissemination of the objectionable material; (3) the extent of inconvenience to the prosecution; (4) whether a substantially better panel could be sworn elsewhere; (5) the nature and gravity of the offense; (6) the size of the community; (7) the defendant’s status in the community; and (8) the popularity and prominence of the victim.

520 N.W.2d 564, 566 (N.D.1994) (citations omitted). The district court, relying on this Court’s precedent, denied the pretrial motion for change of venue. When the motion was renewed after jury selection, the district court stated:

I am satisfied that the jury seated in this matter is a jury of qualified jurors who have the capacity and who have not been tainted by pretrial publicity in such a manner so as to deny the defendant a fair and impartial trial. I do not believe that the media coverage in this matter is sufficient so as to cause the jury panel pool to be beyond the capacity to meet standards set by the court and set by law with respect to impartiality and fairness to both the State of North Dakota and Shawn Helmenstein. Accordingly, I deny the motion for change of venue.

[¶ 34] The voir dire record is expansive. One hundred prospective jurors were called and eighty were questioned before a jury was empaneled. The district court permitted the parties to question prospective jurors individually, while other prospective jurors waited outside the courtroom. The district court, on its own motion, dismissed numerous prospective jurors because of their personal conflicts, their preconceived notions of guilt or innocence, and beliefs of theirs that may have been based on pretrial publicity. Both parties exercised peremptory challenges. Helmenstein challenged prospective jurors for cause based on pretrial publicity. The district court granted Helmenstein’s challenge for cause for prospective jurors who had been substantially exposed to pretrial publicity and had formed an opinion on the case. The district court also granted Hel-menstein’s challenge for cause for a prospective juror who was acquainted with a police officer scheduled to testify at trial. Helmenstein did not use all of his peremptory challenges.

[¶ 35] Although the district court did not make specific findings under Austin when Helmenstein renewed his motion for change of venue, the district court concluded Helmenstein had not met his burden of establishing prejudice or establishing that a fair and impartial jury was not empaneled. The extensive voir dire, the challenges for cause, and the district court’s dismissal of jurors establish that a fair and impartial jury was empaneled, notwithstanding the absence of specific findings. We conclude the district court did not abuse its discretion in denying Helmen-stein’s motion for a change of venue.

IV

[¶ 36] The criminal judgment and commitment of the district court is affirmed.

[¶ 37] VANDE WALLE, C.J., NEUMANN, MARING, JJ, LAWRENCE A. LECLERC, D.J., concur.

[¶ 38] LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2000 ND 226
    In the Matter of the ESTATE OF Emanuel LUTZ, Deceased. Lavilla Oswald Lutz, Petitioner, Appellant and Cross-Appellee, v. Ingrid L. Schneider and Edward J. Lutz, Co-Personal Representatives of the Estate of Emanuel Lutz, Respondents, Appellees and Cross-Appellants.
    No. 20000098.
    Supreme Court of North Dakota.
    Dec. 29, 2000.

      Gregory C. Larson, Wheeler Wolf, Bismarck, ND, for petitioner, appellant and cross-appellee.
    Rebecca S. Thiem (argued) and James S. Hill, Zuger Kirmis & Smith, Bismarck, ND, for respondents, appellees and cross-appellants.

      . This statute has since been amended and renumbered as N.D.C.C. § 30.1-05-07. See Lutz I, 563 N.W.2d 90, 1997 ND 82, ¶ 23 n. 1.

   NEUMANN, Justice.

[¶ 1] Lavilla Lutz appealed from orders dismissing her creditor’s claim against the estate of Emanuel Lutz, dismissing her petition for an elective share, homestead allowance, exempt property entitlement and family allowance, and approving the distribution of the éstate. Ingrid Schneider and Edward Lutz, who are Emanuel’s children and the co-personal representatives of the estate, cross-appealed from that part of an order alternatively determining the amount of supplemental income from the estate necessary to preclude La-villa’s eligibility for public assistance. We conclude the trial court did not err in dismissing Lavilla’s claims and approving the distribution of the estate, rendering it unnecessary for us to address the issue raised in the cross-appeal. We affirm.

I

[¶ 2] Emanuel was born in 1924. He was married in 1947 and helped raise two children. Lavilla was born in 1931. She was married in 1949 and helped raise three children. In 1983 Emanuel’s wife died and Lavilla divorced. Emanuel and Lavilla began dating in 1984. In 1986 Lavilla moved into the downstairs apartment of Emanuel’s duplex in Bismarck. They began living together a short time afterward, and Emanuel paid their living expenses.

[¶ 3] The couple discussed marriage in 1987, and decided to have a premarital agreement prepared because it would be a second marriage for each of them. Emanuel wanted to make sure that, upon his death, his two Bismarck duplexes and farmland would pass to his children and grandchildren. According to Lavilla, although she knew this was a condition of their marriage, Emanuel assured her that he would provide for Lavilla outside of the premarital agreement and his will.

[¶ 4] Emanuel met with attorney Morris Tschider on May 7, 1987, and told him he wanted, upon his death, to give Lavilla the right to live in his duplex and the use of all the household goods and furnishings until she remarried or died, but to also give his children the option to buy her out of this arrangement for $15,000. Tschider gave Emanuel will questionnaire forms to complete. Emanuel took them home and worked on them with Lavilla and his daughter, Ingrid Schneider. According to Schneider, Emanuel then discussed the buy-out arrangement with them, but Lavil-la denied ever discussing the arrangement with Emanuel. Emanuel and Lavilla delivered the completed forms to Tschider the following day. According to Tschider, the buy-out arrangement was discussed at the meeting and both Emanuel and Lavilla agreed to it, but Tschider advised against the arrangement, believing it would not be “workable.” Lavilla testified Emanuel told her at the meeting he wanted to leave her money outside of the premarital agreement, “under the table to save it from taxes.”

[¶ 5] In late May 1987, Tschider sent drafts of the premarital agreement, the consents to will, and the wills to Emanuel and Lavilla. Tschider testified he deleted the $15,000 buy-out arrangement because he believed Lavilla’s “attorney would review it” and the provision would “be hard to sell.” Emanuel and Lavilla made no changes to the documents and signed them during a meeting in Tschider’s office more than eight months later, on February 1, 1988. The premarital agreement provided that each waived any share of the other’s estate “except as provided in their respective Wills.” It also provided that each of the parties consented to the will of the other as it then existed or as it may be amended or changed in the future. Emanuel’s will bequeathed to Lavilla their resident property for her lifetime, or until she remarried.

[¶ 6] Emanuel and Lavilla were married on February 14, 1988. In August 1991, Emanuel began having health problems, and was eventually diagnosed with a heart condition. He was hospitalized for a period of time in February 1992, but made a full recovery. In January 1994, Emanuel began experiencing stomach pains, and was eventually diagnosed with colon cancer. He had surgery and was hospitalized for 10 days in April 1994. He was also hospitalized for four days in July 1994. In August 1994, Lavilla drove Emanuel to the Mayo Clinic in Rochester, Minnesota, where he was informed his cancer was terminal. Upon returning to Bismarck, the family requested and received a hospice referral. Lavilla, other family members, and hospice volunteers helped care for Emanuel until he died in his home on November 9,1994.

[¶ 7] On January 5,1995, Lavilla filed a creditor’s claim against Emanuel’s estate for the reasonable cost of services she had provided to Emanuel before his death. On January 23, 1995, Lavilla filed a petition for elective share, homestead allowance, exempt property entitlement and family allowance, which sought to invalidate the premarital agreement. The trial court granted summary judgment dismissal of both claims and approved the co-personal representatives’ proposed distribution of the estate. Lavilla appealed, and we reversed. In Matter of Estate of Lutz, 1997 ND 82, ¶¶ 54-55, 563 N.W.2d 90 (“Lutz I ”), we held summary judgment was inappropriate on Lavilla’s claims because there were genuine issues of material fact to be resolved, and we remanded for trial.

[¶ 8] Following a trial, the court ruled Lavilla failed to prove her claim for services by a preponderance of the evidence. The court found there was no express or implied agreement for payment, the care provided was not extraordinary, and Lavil-la derived significant benefits from the marriage. The trial court found Lavilla had voluntarily entered into the premarital agreement and it was valid and enforceable. The court ruled the agreement was not substantively unconscionable as executed, but concluded it was necessary to modify the effect of the premarital agreement to avoid Lavilla’s eligibility for public assistance. Because there was insufficient evidence of the amount of support necessary to avoid eligibility, the court said it would hold an evidentiary hearing at a later date to determine the amount if the parties could not reach an agreement. The trial court further ruled Emanuel’s will was ambiguous and the premarital agreement could be used to clarify Emanuel’s intentions. The court determined La-villa was not to receive the residuary of the estate under the will. After obtaining a N.D.R.Civ.P. 54(b) certification from the trial court, Lavilla appealed.

[¶ 9] In Matter of Estate of Lutz, 1999 ND 121, ¶ 1, 595 N.W.2d 590 (“Lutz II ”), a majority of this Court held the Rule 54(b) certification was improvidently granted, and we dismissed the appeal. Following an evidentiary hearing, the trial court denied Lavilla’s motion for ongoing support from the estate to avoid eligibility for public assistance. Relying on the dissent in Lutz II, at ¶¶ 7-13 (Glaser, S.J., dissenting), the court ruled N.D.C.C. § .14-03.1-06(2) did not apply under the circumstances, and enforcement of the premarital agreement was not clearly unconscionable under N.D.C.C. § 14-03.1-07. Alternatively, the court found $250 per month in support payments from the estate would render Lavilla ineligible for most public assistance programs. Lavilla appealed, and the co-personal representatives cross-appealed, challenging the trial court’s alternative ruling $250 per month from the estate would render Lavilla ineligible for public assistance benefits.

II

[¶ 10] Lavilla contends the trial court erred in ruling she was not entitled to $38,832 in compensation from the estate for services she rendered to Emanuel during his illnesses.

[¶ 11] Although a person who performs substantial services for another without an express agreement for compensation ordinarily is entitled to the reasonable value of the services, a presumption arises that services were gratuitous and that compensation was not intended when those services are performed by a family member in the same household. Matter of Estate of Raketti 340 N.W.2d 894, 901 (N.D.1983). The presumption may be overcome with evidence that the services rendered are exceptional and of an extraordinary nature. Id.; Matter of Estate of Thompson, 191 N.W.2d 578 syl. 1 (N.D.1971). Mutuality of benefits is also a factor to consider. Lutz I, at ¶ 21. A family claimant has the burden of overcoming the presumption against compensation by proof that the services were extraordinary and not gratuitous. Id. at ¶ 17.

[¶ 12] The issue of whether the services are so exceptional and extraordinary as to imply a contract to pay for those services is a question of fact for the trier of fact to decide. Lutz I, at ¶ 19; Raketti 340 N.W.2d at 902-03. A trial court’s findings of fact will not be set aside unless they are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Matter of Estate of Sagmiller, 2000 ND 151, ¶ 6, 615 N.W.2d 567.

[¶ 13] The trial court ruled there was no express or implied agreement for compensation, finding “the extent of care provided by [Lavilla] has been overstated by her and the degree of assistance from others in the family has been minimized. Additionally, much of the care referred to would not fall into the extraordinary category and would have been the typical household responsibilities, including meal preparation and cleaning.” The court further ruled there was mutuality of benefits, finding Lavilla “derived significant benefits from the marriage, including [Emanuel’s] ongoing companionship, opportunities for travel and engagement in activities, including card playing and dancing, which the couple enjoyed.” Although Lavilla claimed she injured her back helping Emanuel and can no longer fully support herself financially, the trial court found the “record of back problems which she had prior to the time she assisted [Emanuel] physically in the latter stages of his life certainly detract from her claim that she sustained injuries as a result of her care of Emanuel. The extensive medical records ... indicate not only chronic back problems, but a tendency on her part to overstate or misrepresent regarding the back problems.” The court noted exceptional and extraordinary care was required only “the last few weeks of [Emanuel’s] life, and then much of the physical care was being provided by the Hospice workers, as well as Edward Lutz and Ingrid and Andy Schneider.”

[¶ 14] The trial court was presented with conflicting evidence on the extent and nature of the care provided by Lavilla to Emanuel before he died. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279. The trial court’s findings in this regard were not induced by an erroneous view of the law, and we are not left with a definite and firm conviction a mistake has been made. We conclude the trial court’s findings that Lavilla’s services were not exceptional or extraordinary, and there was no express or implied contract for compensation are not clearly erroneous.

Ill

[¶ 15] Lavilla argues the trial court erred in determining that she voluntarily entered into the premarital agreement and consent to will with Emanuel because she lacked independent legal representation and because Emanuel’s unfulfilled oral promise fraudulently induced her to sign the documents.

[¶ 16] At the time the premarital agreement was executed and when Emanuel died, N.D.C.C. § 30.1-05-04 allowed a spouse to waive his or her rights of homestead, inheritance, succession, surviving spouse or family allowance, and exempt property. A valid premarital agreement under the Uniform Premarital Agreement Act, N.D.C.C. ch. 14-03.1, may constitute such a waiver. See Lutz I, at ¶¶ 23-27. Enforceability of a premarital agreement is governed by N.D.C.C. § 14-03.1-06(l)(a), which provides “[a] premarital agreement is not enforceable if the party against whom enforcement is sought proves ... [t]hat party did not execute the agreement voluntarily.”

[¶ 17] Lavilla contends she entered into the premarital agreement involuntarily because Emanuel orally promised to provide for her outside of the documents she signed. She also argues the documents were involuntarily entered into because she believed Tschider was representing her and he did not advise her to obtain independent counsel. Lack of legal advice to a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital arrangement, but the presence of independent counsel is not a prerequisite to enforceability. Lutz I, at ¶¶ 31, 34.

[¶ 18] Tsehider and Schneider testified that Emanuel and Lavilla had discussed the $15,000 buy-out arrangement, and La-villa expressed no objection when the subject was discussed in their presence. Tsehider denied Emanuel made additional oral promises to Lavilla during their meetings, and testified there were no tax considerations involved. Schneider testified neither Emanuel nor Lavilla informed her about any promise to provide Lavilla with additional income. Tsehider testified he made it clear to Lavilla that he was drafting the documents for Emanuel and told her that after he mailed the documents to Lavilla, she should take them to be reviewed by her attorney. Tsehider testified Lavilla “[v]oiced no concern, voiced no objection. I understood that she was understanding it and that’s what she was going to do.” Tsehider testified one of the reasons he removed the $15,000 buy-out provision was because “her attorney would review it.” Schneider testified Lavilla told her “she was very happy with everything” and did not need to discuss the documents with her daughters. Lavilla acknowledged she had full opportunity to have the documents reviewed during the eight months before they were signed, but did not do so.

[¶ 19] The trial court rejected Lavilla’s claim that she signed the premarital agreement involuntarily:

[Lavilla] asserts that she was not properly advised that the lawyer drafting the documents was not representing her. Also, she contends that her trust in Emanuel and reliance on assurances of other provisions for her future security amounted to constructive fraud, which induced her to execute the documents. In finding that the documents executed in anticipation of marriage are valid and enforceable, the Court concludes that [Lavilla’s] evidence falls short in this area, as well. The testimony does not establish that Lavilla was induced to enter the agreements based on oral promises to provide otherwise than as set forth in Emanuel’s will. While he may have implied his desire to leave her additional things, the record fails to support the present contention that she would not have entered the marriage or would have held out for additional property. In fact, the testimony adopted by the Court is that the $15,000 buy-out provision, which could have resulted in her receiving significantly less value, would have, if it had not been changed by the attorney, been acceptable to her, as well.
There was an extensive period of time between the drafting of the prenuptial agreements and wills and their actual execution just prior to the marriage. The amount of time that was available for reconsideration or for obtaining legal counsel on her own mitigates against Lavilla’s argument at this time that she did not enter the agreements voluntarily. Although counsel for Lavilla has portrayed that she was naive, and controlled by Emanuel in the process of entering these agreements, that is not borne out by the Court’s impression of [Lavilla], She was a very articulate, although sometimes evasive witness. She was a licensed real estate agent at the time of these agreements and was not oblivious to the meaning of contracts, consideration in contracts and at least basic knowledge of the concepts of representation present in agency and attorney/client relations. Her testimony suggesting otherwise is not deemed completely credible by this Court.

[¶ 20] The trial court impliedly found Tsehider told Lavilla he was not representing her and she should seek independent counsel to review the agreement. The trial court also impliedly found Emanuel did not fraudulently induce her to enter into the agreement. These findings, and the court’s other predicate findings of fact, are not clearly erroneous and support the trial court’s conclusion Lavilla entered into the premarital agreement voluntarily.

IV

[¶ 21] Lavilla contends the trial court erred in ruling the premarital agreement was not unconscionable when executed or in its result.

[¶ 22] Substantive enforceability of premarital agreements is governed by N.D.C.C. § 14 — 03.1—06(l)(b), (2) and (3), which provides:

1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
b. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(2) Did not voluntarily sign a document expressly waiving any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(3) Did not have notice of the property or financial obligations of the other party.
2. If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
3. An issue of unconscionability of a premarital agreement is for decision by the court as a matter of law.

[¶ 23] In addition, N.D.C.C. § 14-03.1-07 supplements the unconscionability standards of N.D.C.C. § 14-03.1-06:

Notwithstanding the other provisions of this chapter, if a court finds that the enforcement of a premarital agreement would be clearly unconscionable, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provisions, or limit the application of an unconscionable provision to avoid an unconscionable result.

[¶ 24] The trial court ruled the premarital agreement was not unconscionable when executed, finding there had been full disclosure of Emanuel’s assets to Lavilla. The trial court also found Emanuel’s estate had a value of approximately $400,000 and Lavilla’s right to occupancy of the duplex had a current value to her of $90,-000. On remand after Lutz II, the trial court reversed its earlier ruling that the premarital agreement was unconscionable in result, and that Lavilla was entitled to support necessary to avoid eligibility for government assistance because she did not receive disposable liquid assets. Instead, the court ruled the unconscionability provisions of N.D.C.C. § 14-03.1-06(2) did not apply, enforcement of the agreement was not clearly unconscionable under N.D.C.C. § 14-03.1-07, and Lavilla was not entitled to support from the estate.

[¶ 25] In Lutz I, at ¶¶ 44-45, this Court relied on the Prefatory Note to the Uniform Premarital Agreement Act in construing N.D.C.C. §§ 14-03.1-06(2) and 14-03.1-07 to support the proposition that the unconscionability provisions applied at the time of death, as well as at the time of separation or marital dissolution. See also N.D.C.C. § 14-03.1-03(l)(e) (“Parties to a premarital agreement may contract with respect to ... [t]he disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.”). Unconscionability can be measured at various times under the Act. However, all of the unconscionability provisions do not apply at the time of death. Section 14-03.1-06(2), N.D.C.C., by its very terms applies only “at the time of separation or marital dissolution.” Therefore, although unconscionability considerations do apply at the time of death, unconscionability at the time of death is not governed by N.D.C.C. § 14-03.1-06(2), but by the unconscionability provisions of N.D.C.C. § 14-03.1-07, which speaks to the unconscionability of the enforcement of the agreement. Unconscionability at the time the agreement was executed is governed by N.D.C.C. § 14-03.1-06(l)(b), un-conscionability at the time of separation or marital dissolution is governed by N.D.C.C. § 14-03.1-06(2), and uneonscio-nability that may result from enforcement at any time, including the time of death, is governed by N.D.C.C. § 14-03.1-07. Consequently, the trial court correctly concluded N.D.C.C. § 14-03.1-06(2) was inapplicable under these circumstances, and the proper statute for analyzing unconsciona-bility at the time of Emanuel’s death was N.D.C.C. § 14-03.1-07.

[¶ 26] The trial court ruled the “enforcement of the marriage agreement is not clearly unconscionable under N.D.C.C. § 14-03.1-07 and this Court deems it appropriate to enforce the marriage agreement in its entirety.” We are not convinced the trial court’s findings are clearly erroneous that Lavilla received full information and fair disclosure of Emanuel’s assets, that the estate valuation is $400,-000, and that the valuation of Lavilla’s right of occupancy of the duplex is $90,000. Lavilla and Emanuel were married about six and one-half years. After Emanuel’s death, Lavilla received their joint bank account with a $2,000 balance, the family automobile, household goods and the right to live in the duplex for the rest of her life or until she remarried, and was liable to pay only the utilities. She receives social security and Emanuel’s military pension. The only remaining assets of Emanuel’s estate were the two Bismarck duplexes and the farmland, which Lavilla clearly understood were supposed to be reserved for Emanuel’s children and grandchildren as a condition of the marriage. Lavilla voluntarily entered into the agreement, and has received exactly what she agreed to receive.

[¶ 27] We conclude the trial court did not err in ruling the premarital agreement was not unconscionable when executed, or in its result at the time of Emanuel’s death.

V

[¶ 28] Lavilla argues the trial court erred in ruling she had no intestate rights.

[¶ 29] Article II of Emanuel’s will contains his specific bequests to Lavilla. Article III of the will addresses the residuary estate, and provides “[i]n the event Lavilla Oswald does not survive me,” all of the remainder of Emanuel’s estate would pass to his children. Lavilla argued that because she survived Emanuel, the residuary clause fails and the residuary passes under intestate succession, entitling her to one-half of the residuary under N.D.C.C. §§ 30.1-04-01 and 30.1-04-02(4).

[¶ 30] However, Lavilla specifically waived any right of inheritance and succession in the valid and enforceable premarital agreement and consent to will. See Lutz I, at ¶ 51. Moreover, we agree with the trial court’s conclusion that the opening line of the residuary clause was a “drafting error.”

An ambiguity exists in the will created by the opening line of the residuary clause (Article III) which is' irreconcilable with Article II of the will. To resolve this ambiguity and determine the testator’s intent, the Court is permitted to look at extrinsic evidence. The significant record in this case clearly establishes the testator’s intent to limit the devise to Lavilla to specific property and to provide for his children and grandchildren by devising everything not specified for Lavilla to them.

See Lutz I, at ¶¶ 47-51.

[¶ 31] We conclude the trial court did not err in ruling Lavilla has no intestate rights in Emanuel’s estate.

VI

[¶ 32] Lavilla argues the trial court erred in determining that she was not entitled to an award of her litigation expenses and attorney fees from the estate.

[¶ 33] Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement. See, e.g., Erway v. Deck, 1999 ND 7, ¶ 14, 588 N.W.2d 862. Not only is Lavil-la an unsuccessful litigant in this case, but she has cited no statutory authority or agreement supporting her request for litigation expenses and attorney fees. Consequently, the trial court did not err in denying her request.

VII

[¶ 34] In view of our disposition of La-villa’s appeal, it is unnecessary for us to address the issue raised in the cross-appeal. The orders appealed from are affirmed.

[¶ 35] SANDSTROM, J., JAMES H. O’KEEFE, S.J., GERALD G. GLASER,. S.J., KAPSNER, J., concur.

[¶ 36] The Honorable GERALD G. GLASER, S.J., and the Honorable JAMES H. O’KEEFE, S.J., sitting in place of MARING, J., and VANDE WALLE, C.J., disqualified.

      . After the documents in this case were signed and Emanuel died, the Legislature enacted N.D.C.C. § 30.1-05-07(2)(a), which currently provides:
      A surviving spouse’s waiver is not enforceable if the surviving spouse proves that: a. The waiver, if given effect, would reduce the assets or income available to the surviving spouse to an amount less than those allowed for persons eligible for medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need;
      The statute does not apply in this case. See Lutz I, at ¶ 42 n. 5; Lutz II, at ¶ 12 (Glaser, S.J., dissenting).


author: KONENKAMP, J.

text:
    2000 SD 160
    Rodney W. McKIE, Plaintiff and Appellee, v. Ron HUNTLEY, d/b/a Huntley Construction “Concrete”, Defendant and Appellant.
    No. 21218.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Dec. 27, 2000.

      Penny Tibke Platnick, of Morrill, Thomas, Nooney & Braun, Rapid City, South Dakota, for plaintiff and appellee.
    Brad A. Schreiber, of Quinn, Day & Barker, Belle Fourche, South Dakota, for defendant and appellant.
   KONENKAMP, J.

[¶ l.j'In this contract dispute, we review both the circuit court’s order disallowing punitive damages and its summary judgment against the concrete subcontractor on the ground that his damage calculation was too speculative. We affirm in part, reverse in part, and remand.

A.

[¶ 2.] This is a suit for breach of a construction contract between Rodney W. McKie and Ron Huntley, d/b/a Huntley Construction “Concrete.” Huntley was awarded the contract on his bid for the concrete work on McKie’s home at Johnson Siding, South Dakota. He was to complete the job “as per specifications” for $93,100.50. The contract price was later amended to $93,600.50. He started work in mid-September 1996.

[¶ 3.] Huntley claims to have encountered many difficulties as he worked on the McKie project. The problems included inadequate access to the site, improper excavation, difficulty in obtaining necessary elevations and dimensions, and numerous changes to the blueprints. These problems resulted in delays and extra costs for which he was not compensated. Huntley received various progress payments totaling $78,300. In August 1997, the general contractor ordered Huntley to cease work and remove his equipment from the job site.

[¶ 4.] Huntley filed a lien against McKie’s property for $34,834.73. In response, McKie brought this lawsuit, alleging: (1) Huntley was paid for more work than he completed; (2) McKie had to hire someone else at a higher price to complete the work Huntley performed incorrectly or left undone; and (3) McKie paid $8,054 to one of Huntley’s suppliers to obtain release of a lien placed on McKie’s property by that supplier. Huntley counterclaimed, asserting breach of contract and breach of the implied covenant of good faith and fair dealing, seeking both compensatory and punitive damages.

[¶ 5.] McKie moved to dismiss Huntley’s punitive damage claim, arguing that such damages are not available in a contract action. See SDCL 21-3-2. Huntley responded that breach of the covenant of good faith and fair dealing was an independent tort, allowing recovery of punitive damages. In dismissing the punitive damage claim, the circuit court ruled that under current law the claim for breach of the covenant of good faith and fair dealing is not an independent tort.

[¶ 6.] The method Huntley used to calculate his loss was also the subject of pretrial motions. He first proposed to calculate his damages using a cost accounting method, resulting in a claimed loss of $106,000. McKie, by motion in limine, challenged this method, arguing that it was impermissibly speculative. In response, Huntley decided to abandon the cost accounting approach, and the trial court instructed him to break down his claimed damages and tie them to specific instances of breach.

[¶ 7.] In his revised method for calculating damages, Huntley explained that in his bid he initially figured that he would pour 210 cubic yards of concrete at $500 per cubic yard for 183 yards, and $300 per cubic yard for 27 yards. These figures included labor and materials. He then averaged these numbers, arriving at $443 per cubic yard of concrete. Huntley deduced that he was not paid for 122 yards. Thus, by his calculation he was entitled to $54,046 (122 x $443). He also claimed 5% of the total contract price for cold weather costs. Lastly, he subtracted a draw for $6,500 and the $8,054 McKie paid to one of Huntley’s suppliers. In sum, Huntley claimed damages of $44,147.

[¶ 8.] McKie again challenged the calculation as speculative and unconnected “to any alleged actual damages suffered ... by virtue of the claims that ... he has put forth.” Huntley stood firm, proclaiming that he would offer no other damage methodology. The circuit court ruled Huntley’s method inadmissible as it invited “only speculation and conjecture.” Without damages, an essential element for recovery, Huntley could not make a case for breach of contract. Accordingly, the court granted summary judgment for McKie on Huntley’s counterclaim. Huntley appeals.

B.

[¶ 9.] Huntley contends that the circuit court erred in dismissing his claim for punitive damages. We review this decision as a pure legal question. See Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 22, 573 N.W.2d 493, 501 (citations omitted). In South Dakota punitive damages are not recoverable unless expressly allowed by statute. Our law provides:

In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed ... the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.

SDCL 21-3-2. Thus, to obtain punitive damages Huntley must have a case “not arising from contract.”

[¶ 10.] Huntley believes that in Grynberg we recognized breach of the covenant of good faith and fair dealing, implied in contract, as an independent tort distinct from any underlying contract claim. On the contrary, we have consistently refused to recognize this action as an independent tort. Garrett v. BankWest, Inc., 459 N.W.2d 833, 842 (S.D.1990); see also Nelson v. WEB Water Development Ass’n, Inc., 507 N.W.2d 691, 697 (S.D.1993) (citations omitted). In High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, we again ruled that settled law precludes an independent tort action for breach of good faith and fair dealing arising from a contract. 535 N.W.2d 839, 843 (S.D.1995).

[¶ 11.] In Grynberg the plaintiff brought claims of fraud and breach of contract, seeking compensatory and punitive damages. Grynberg, 1997 SD 121, ¶ 13, 573 N.W.2d at 499. We concluded that punitive damages would be appropriate on a finding that the defendant had engaged in deceit. Grynberg, 1997 SD 121, ¶26, 573 N.W.2d at 502. Indeed, we recognized that where a duty exists independent from contract, such as the legal obligation to refrain from defrauding others of their property, an independent tort cause of action allowing punitive damages may exist. Grynberg, 1997 SD 121, ¶ 22, 573 N.W.2d at 501 (citations omitted). Grynberg addressed deceit as an independent tort. It did not recognize the breach of the implied covenant of good faith and fair dealing as an independent tort.

[¶ 12.] This conclusion is clear in light of our later decision in Diamond Surface, Inc., v. State Cement Plant Comm’n, 1998 SD 97 ¶ 37, 583 N.W.2d 155, 164. Referring to Garrett, we explained that a claim for breach of the covenant of good faith and fair dealing “cannot survive in the absence of contract.” Diamond Surface, Inc., 1998 SD 97, ¶ 37, 583 N.W.2d at 164. As such, the good faith doctrine simply allows one party to sue for breach when “the other contracting party, by its lack of good faith, limited or completely prevented the aggrieved party from receiving the ... benefits of the bargain.” Id. (citations omitted). The circuit court correctly ruled that Huntley asserted no claim to support an award of punitive damages.

C.

[¶ 13.] Huntley next argues that we should overturn settled law, as compelling reasons exist to recognize the breach of the covenant of good faith and fair dealing as an independent tort. He contends that recognition of this tort would allow greater remedies because contract damages may not make the aggrieved party whole. As a corollary, Huntley believes that a contracting party “should not be allowed to balance the economies of an intentional breach to the financial injury of the other party!.]”

[¶ 14.] This reasoning was rejected m Garrett. “The contractual and tort remedies which now exist in South Dakota, whether by statute or case law, are adequate to protect a person’s right for proven damages.” Garrett, 459 N.W.2d at 843. There, we emphasized that the measure of damages as set out in SDCL 21-2-1 allows compensation to “the party aggrieved for all the detriment proximately caused ... or which, in the ordinary course of things, would be likely to result therefrom.” SDCL 21-2-1. Huntley’s concern that a “non-breaching party is without a remedy to recover all damages proximately caused by the breaching party’s conduct” is unwarranted. See Garrett, 459 N.W.2d at 843 (listing existing tort remedies such as fraud, misrepresentation, negligence, breach of duty, intentional infliction of emotional distress, and intentional torts) (internal citations omitted).

[¶ 15.] A central feature in contract law, efficient breach, presupposes that a breaching party will engage in the type of balancing Huntley describes. “[0]ur free market system allows economically efficient breaches ... when it costs less for one party to breach an unwise contract and to pay the other party compensatory damages than it would cost to completely perform the contract.” Grynberg, 1997 SD 121, ¶ 17, 573 N.W.2d at 500. Contrary to Huntley’s belief, the efficient breach principle does more than favor financially advantaged individuals; it protects persons from being legally compelled to perform an uneconomical contract. 1 L. Schleuter & K. Redden, Punitive Damages § 7.2 at 389-90 (3d ed. 1995). Huntley presents no compelling reason to overturn our precedent.

D.

[¶ 16.] The circuit court granted McKie’s motion for summary judgment, concluding that Huntley’s damage calculations were speculative. In reviewing this decision, we explore whether there was any genuine issue of material fact and if judgment was renderable as a matter of law. Nelson, 507 N.W.2d at 693 (citations omitted). “The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party.” Campion v. Parkview Apartments, 1999 SD 10, ¶ 22, 588 N.W.2d 897, 902 (citations omitted).

[¶ 17.] If undisputed facts fail to establish each required element in a cause of action, summary judgment is proper. Groseth Int’l, Inc. v. Tenneco Inc., 410 N.W.2d 159, 169 (S.D.1987). An action for breach of contract requires proof of an enforceable promise, its breach, and damages. Krzycki v. Genoa Nat’l Bank, 242 Neb. 819, 496 N.W.2d 916, 923 (1993) (citations omitted). The circuit court ruled that Huntley’s loss calculations were so speculative that damages could not be proved with reasonable certainty. And without damages he had no case for breach of contract. In essence, the court ruled that Huntley’s theory of recovery was legally defective.

[¶ 18.] To recover damages for breach of contract, the loss must be clearly ascertainable in both its nature and origin. SDCL 21-2-1. Essential to proving contract damages is evidence that damages were in fact caused by the breach. See Bad Wound v. Lakota Community Homes, Inc., 1999 SD 165, ¶ 9, 603 N.W.2d 723, 725 (citations omitted). Proof of damages requires a reasonable relationship between the method used to calculate damages and the amount claimed. See Swenson v. Chevron Chemical Co., 89 S.D. 497, 234 N.W.2d 38, 43 (1975). In applying this rule, we refrain from dictating any specific formula for calculating damages. Instead, we apply a “reasonable certainty test concerning the proof needed to establish a right to recover damages.” Drier v. Perfection, Inc., 259 N.W.2d 496, 506 (S.D.1977) (citations and internal quotations omitted). Reasonable certainty requires proof of a rational basis for measuring loss, without allowing a jury to speculate. Id. at 506 (quoting Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232, 233 (1961) (further citations omitted)).

[¶ 19.] Here, for summary judgment purposes the existence of damages is not the question. Both sides claim the other breached the contract and as a result problems and delays occurred with attendant cost overruns. Huntley seeks damages from McKie, and McKie from Huntley. Whether they can satisfy a fact finder that one caused the other’s losses remains to be shown. The only issue here is whether Huntley’s method of reckoning damages is acceptable.

[¶ 20.] Difficulty in computing damages ought not to be confused with the requirement of proving damages as an essential element for recovery. Seattle Western Indus., Inc. v. Mowat, 110 Wash.2d 1, 750 P.2d 245, 249 (1988). Once the existence of damage has been shown by a preponderance of the evidence, a claimant must produce only the best evidence available to allow a jury a reasonable basis for calculating the loss. Id. While jurors cannot speculate, they have some leeway in figuring damages. Id. (citations omitted). “Any doubt persisting on the certainty of damages should be resolved against the contract breaker.” AFSCME v. Sioux Falls School District, 2000 SD 20, ¶ 14, 605 N.W.2d 811, 815 (citations omitted). “[Bjreaching parties may not complain when the task is made difficult by their own acts.” Id. (citations omitted). All we require, therefore, is a reasonable basis for measuring the loss.

[¶ 21.] Huntley claimed three types of damages: money due under the original fixed price contract, compensation for additional work beyond the contract, and expenses incurred from the general contractor’s interference. In his method of computation, Huntley reckoned his loss using an average cost per yard of concrete figure. He then subtracted his cost as bid under the specifications from his cost using the actual number of yards of concrete expended. He also deducted previous payments. This is similar to what some courts have described as the “total cost method” of measuring damages. U.S. Industries, Inc. v. Blake Constr. Co., Inc., 671 F.2d 539, 547 (D.C.Cir.1982). Properly considered, this approach is not a substitute for proof of causation; it is simply a method for calculating damages. As in every breach of contract case, causation must be established before damages can be recovered. Under the total cost formulation, damages are computed based on the difference between the actual cost incurred in performing the contract and the amount the owner already paid under the contract. Bagwell Coatings, Inc. v. Middle South Energy, Inc., 797 F.2d 1298, 1307 (5th Cir.1986). Some courts and commentators criticize this method because it assumes that the breaching party bears responsibility for any extra costs. Boyajian v. United States, 191 Ct.Cl. 233, 423 F.2d 1231, 1240-41 (1970); see also William Schwartzkopf et al., Calculating Construction Damages § 1.6 (1997 Supp) (method impermissibly assumes that the contractor “flawlessly performed its work, and that the contractor accurately and precisely estimated the cost of the work to be performed”).

[¶ 22.] Once liability is established by a preponderance of the evidence, the total cost method of calculating damages may be appropriate for those disputes where it is difficult or impractical to quantify losses from changed conditions. Sometimes it is impossible to assign a precise monetary loss to each discrete event in a project where continuing problems compound a contractor’s performance difficulties. “Although the ‘total cost’ method must be used with caution, the method should be applied where the nature of the particular loss has made it impossible or highly impracticable to determine damages with a reasonable degree of accuracy and where the loss is substantiated by reliable evidence.” Larry Armbruster & Sons Inc. v. State Pub. School Building Auth., 95 Pa.Cmwlth. 310, 505 A.2d 395, 397 (1986) (citations omitted). There are cases where “the total cost method is the best and only means of quantifying the impact of changes on a contractor.” Delco Electronics Corp. v. United States, 17 Cl.Ct. 302, 327 (1989).

[¶ 23.] Whether the total cost method of computing damages can be used depends on proof of the following elements: (1) the nature of the losses makes it impossible or exceedingly impractical to calculate them with reasonable accuracy; (2) the bid or estimate was realistic; (3) the actual costs were reasonable; and (4) the contractor was not responsible for the added expenses. Moorhead Constr. Co. Inc., v. City of Grand Forks, 508 F.2d 1008, 1016 (8th Cir.1975). Many courts have approved a modified total cost approach that allows for the deduction from the total cost problems ascribed to the contractor. Mowat, 750 P.2d at 249; Glasgow, Inc. v. Dept. of Transp., 108 Pa.Cmwlth. 48, 529 A.2d 576, 579 (1987); Bagwell Coatings, Inc., 797 F.2d at 1307.

[¶ 24.] Based on the nature of this construction contract dispute, with its many reciprocal allegations of delay and nonperformance, we conclude that the circuit court erred in declaring Huntley’s damage calculations unacceptable as a matter of law. The fact finder should decide the damage issue. If the matter is to be heard by a jury, the court can fashion instructions to explain how to evaluate this claim similar to those approved in Nebraska Public Power District v. Austin Power, Inc., 773 F.2d 960, 968 (8th Cir.1985). There, the Eighth Circuit affirmed the submission of damages to the jury on the total cost method, where the trial judge gave jurors a choice between three alternative theories. In that case, the district court instructed the jury that it could use the total cost method if

a. The nature of the particular losses claimed by Austin Power makes it impossible or highly impracticable to determine them with a reasonable degree of accuracy;
b. The bid or estimate of Austin Power was realistic;
e. The actual cost incurred by Austin Power was reasonable;
d. Austin Power was not responsible for the amount sought to be recovered above the amount previously paid under the contract; and
e. The costs which make up the amount sought to be recovered were proximately caused by [Nebraska Power’s] breaches of contract.

Id. at 965-66 (alterations in original). Lastly, under the modified total cost approach, the jury was instructed that if Austin proved all the elements except part d, the jury could award damages under the total cost theory, less the amount of loss for which Austin was responsible. Id.

[¶ 25.] In summary, we hold that the circuit court correctly dismissed Huntley’s tort action for breach of the covenant of good faith and fair dealing. However, the court erred in disallowing Huntley’s damage claim as matter of law.

[¶ 26.] Affirmed in part, reversed in part, and remanded.

[¶ 27.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur..

      . Huntley later released his lien.

      . Cost accounting is a form of analysis that "includes the method of classifying, summarizing, recording, reporting, and allocating the actual costs incurred and comparing them to standard costs established.” Black's Law Dictionary 345 (6th ed 1990).

      .In Huntley’s brief this calculation is characterized as "based on the number of yards of concrete that were poured.” This method was not noted on the face of the bid. Only the flat price of $93,100 was indicated.

      . McKie’s claim against Huntley had not been disposed of at the time the parties submitted their appellate briefs.

      . See Bernhard A. Aaen, THE TOTAL COST METHOD OF CALCULATING DAMAGES IN CONSTRUCTION CASES, 22 PACLJ 1185 (1991): Of course, "[t]he total cost method cannot be used to supplant the contract or convert the contract from a fixed price to a cost plus contract.”


author: SABERS, Justice

text:
    2001 SD 4
    Dale KOHL, Plaintiff and Appellee, v. Barbara AMUNDSON, Defendant and Appellant.
    No. 21496.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided Jan. 3, 2001.
    Cynthia J. Ahrendt, Sioux Falls, SD, Attorneys for plaintiff and appellee.
    Monica L. Lawrence, East River Legal Services, Sioux Falls, SD, Attorneys for defendant and appellant.
   SABERS, Justice

[¶ 1.] Child support payments of $4,362.60 were deducted from Dale Kohl’s wages. DNA and blood tests confirmed that Kohl was not the father of Barbara Amundson’s child. The trial court awarded Kohl $4,432.60 from Amundson for recovery of the support payments. Amund-son appeals. We affirm.

FACTS

[¶ 2.] The facts are uncontested. Amundson visited the Office of Child Support Enforcement (OCSE) to obtain child support for J.A., her minor child. She submitted the names of two men to the OCSE as possible fathers of J.A. The OCSE commenced a support action against Kohl.

[¶ 3.] For reasons unclear in the record, Kohl failed to respond to the Summons and Complaint for paternity. A default judgment was entered against him on November 5, 1997. As a result of the default judgment, Kohl was ordered to pay $368.00 per month for support of the minor child. A total of $4,362.60 in support payments was eventually taken from Kohl’s wages.

[¶ 4.] On July 14, 1998, Kohl made a motion for determination of paternity. As a result, DNA blood tests were taken which established that he was not the father of J.A. The judgment of paternity was vacated November 12,1998.

[¶ 5.] Kohl initiated this action to recover the monies that were withheld from his wages for the support of the child. As indicated, the money judgment against Amundson was for the amount of money paid by Kohl under the child support judgment. Amundson appeals.

STANDARD OF REVIEW

[¶ 6.] The question is whether the circuit court applied the correct law to these facts. Questions of law are reviewed de novo. Phipps Bros. Inc. v. Nelson’s Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D. 1993). We give no deference to the circuit court under this standard of review. In re Sales & Use Tax Refund, Request of Media One, Inc., 1997 SD 17, ¶ 11, 559 N.W.2d 875, 878 (citation omitted).

[¶ 7.] WHETHER THE DECISION COUNTERS SDCL 25-7-6.1 AND 25-7-10 BECAUSE KOHL FAILED TO PROVE THAT AMUNDSON DID NOT PROVIDE THE NECESSITIES OF LIFE FOR HER CHILD.

[¶ 8.] Amundson asserts that SDCL 25-7-6.1, which provides that both parents are jointly responsible for the support of a child, compels a contrary result. She also argues that this action is inappropriate because there is a presumption she

spent the child support for the benefit of her child. See SDCL 25-7-6.2. Instead, she claims that Kohl’s cause of action should be solely against the biological father. Her assertion is based on SDCL 25-7-10, which provides a cause of action against a parent to a third party for necessities. These arguments are without merit.

[¶ 9.] Amundson fails to appreciate the consequences of her own position. She is the mother of the minor child. As such, SDCL 25-7-6.1 and SDCL 25-7-10 entitle Kohl to recover these support payments from her, the parent of the child. Kohl is entitled to recover the support he provided from both her and the biological father. See SDCL 25-7-6.1 and SDCL 25-7-10.

[¶ 10.] In addition to these statutory provisions, Kohl is entitled to recover under the principles of equity. “It is a general principle of equity that one party shall not be enriched at the expense of another party.” A.G. Edwards and Sons v. Northwest Realty Co., 340 N.W.2d 187, 189 (S.D.1983). While Amundson may have a remedy against the father of the child, she submits no authority that requires Kohl to support her child. Contrary to Amundson’s position, the fact that a default judgment was entered, but subsequently vacated, does not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages.

[¶ 11.] We affirm.

[¶ 12.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Amundson stresses that there are no findings that the support payments were used for anything other than the support of the minor child.

      . The record indicates that the biological father has not been determined.