author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2002 ND 187
    Marjorie Florence WALKER, Plaintiff and Appellant, v. James Dwayne WALKER, Defendant and Appellee.
    No. 20020062.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Paul M. Probst, Probst Law Firm, Minot, ND, for plaintiff and appellant.
    Faron E. Terry, Minot, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Marjorie F. Walker appealed from a judgment granting her a divorce from James Dwayne Walker, distributing their marital property, and awarding her temporary spousal support. We conclude the trial court’s property distribution is not clearly erroneous, but conclude the court erred in fashioning the temporary spousal support award. We modify the judgment and affirm the judgment as modified.

I

[¶ 2] Marjorie and James, both age 63 at the time of trial, were married July 19, 1969, in Minot. It was Marjorie’s second marriage. Her first husband died in August 1968, and her youngest son from the first marriage, a volunteer firefighter, died from toxic smoke inhalation in the mid 1990s. Marjorie and James had a son, who was an adult at the time of trial.

[¶ 3] Before and during this marriage, Marjorie did not work outside of the'home. Shortly before the marriage, she made a down payment on the parties’ jointly-owned home from a $3,000 life insurance payment she received after her first husband died. Marjorie also received a $119,894 death benefit from the United States Department of Justice in 1997 after her son died. James has been employed with the Minot Sanitation Department throughout the marriage and, at the time of trial, was earning a gross monthly income of $2,570 and had a vested retirement pension valued at $37,558.92. James was eligible to retire with a monthly pension benefit of $1,572.62, but he was still working at the time of trial.

[¶ 4] The parties separated in 1995, and in a separate proceeding, James was ordered to pay Marjorie $600, and later $700, per month in spousal support, to pay the real estate taxes on the marital home, and to pay $4,500 in expenses for the funeral of Marjorie’s son. James paid the spousal support, but did not pay the taxes on the home or the funeral expenses.

[¶ 5] In October 2000, Marjorie brought this divorce action against James. Property distribution and spousal support were contested. The major disputed marital assets consisted of: (1) their home, valued at $65,000 with real estate taxes owing of $7,117.43; (2) Marjorie’s bank account, containing $36,000 remaining from her son’s death benefit; and (3) James’s retirement fund, valued at $37,558.92. The trial court awarded the marital -home to Marjorie, subject to a lifetime encumbrance in favor of James. Under this award, if Marjorie sells the home during James’s lifetime, Marjorie would receive the first $15,000 of the net proceeds, and James would receive one-third of the remainder. -Of the $36,000 in Marjorie’s bank account, James was awarded $6,000. Marjorie was awarded thé remainder, but was ordered to pay the $7,117.43 real estate taxes owing on the home. The parties were ordered to pay their own attorney fees. The trial court also ruled Marjorie was entitled to one-third of James’s retirement account, “calculated on the balance of this account as of June 6, 2001.” The court further ordered James to continue “to pay Marjorie spousal support in the amount of $700 per month until the effective date of James’ retirement, or until the month of James’ sixty-fifth (65) birthday, which ever occurs first.” Marjorie appealed.

II

[¶ 6] Marjorie argues the trial court’s property division and debt allocation is inequitable in this case.

[¶ 7] Section 14-05-24(1), N.D.C.C., requires the court to “make an equitable distribution of the property and debts of the parties.” Although there is no set formula for dividing a marital estate, the trial court must equitably divide the property based on the circumstances of the particular case judged in light of the Ruff Fischer guidelines, which include:

the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Dufner v. Dufner, 2002 ND 47, ¶ 9, 640 N.W.2d 694 (citation omitted). See also Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). The trial court must consider all property accumulated by the parties, whether jointly or individually owned, and property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution. Dufner, at ¶ 9. A trial court’s determinations regarding division of property are treated as findings of fact and will not be reversed on appeal unless they are clearly erroneous. Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 20, 642 N.W.2d 892.

[¶ 8] Marjorie argues it was inequitable to award James any interest in the parties’ home because he did not provide the down payment, never made a mortgage payment, and did not pay for any of the $15,000 in improvements Marjorie made to the home with her son’s death benefit. When property is acquired by one spouse before the marriage, this factor is not controlling but is one of many factors to be considered in determining a property distribution. See, e.g., Weigel v. Weigel, 2000 ND 16, ¶ 8, 604 N.W.2d 462. Moreover, there is evidence from which the trial court could find that James contributed to the purchase of the home. James testified he gave his paychecks to Marjorie and they would together drive to their creditors to pay the bills. James testified he provided the money for the mortgage payments until the mortgage was satisfied from flood insurance proceeds in 1982. James also testified he took a second mortgage on the home, which has since been satisfied, to construct a family room, wash room, bathroom, and two bedrooms above the garage. He further testified he provided some of the labor to make those improvements. We conclude it was not inequitable for the trial court to give James an encumbrance on the home while Marjorie lives there and an interest in the proceeds of its sale if it should be sold diming his lifetime.

[¶ 9] Marjorie also argues the trial court erred in awarding her only one-third of James’s retirement pay. Because the parties were married throughout the time James was contributing to his pension account, Marjorie argues she is entitled to one-half of James’s retirement pay under the formula adopted in Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984). However, we have often said use of the Bullock formula to distribute retirement pay is not mandatory because the formula is not the only method of achieving an equitable division of marital property. See, e.g., Johnson v. Johnson, 2002 ND 151, ¶ 18, 652 N.W.2d 315. If, as we discuss in this section, the overall distribution of the marital estate is equitable, the award of one-third of James’s retirement pay to Marjorie is not error. See Braun v. Braun, 532 N.W.2d 367, 370 (N.D.1995).

[¶ 10] Marjorie claims the trial court erred in awarding James a share of Marjorie’s bank account because this account contains the remaining death benefit proceeds for her son which she received after the parties had separated. Marjorie argues she has been using the money to sustain herself and it is inequitable for James to be awarded any of it. She also argues she should not have been allocated the real estate tax debt because James had been ordered to pay that debt in the separation action.

[¶ 11] The trial court in this case was faced with difficult circumstances. Two of the parties’ three major assets, the home and James’s retirement account, are not easily liquidated assets. Marjorie’s bank account, the majority of which the court said “should remain with Marjorie,” was the only truly liquid asset between the parties. James requested the home be sold and the proceeds split between the parties, but the trial court instead granted Marjorie’s request that she be awarded the home. Only if she decides to sell the home does she have to share any of the sale proceeds with James. James was ordered to pay the real estate taxes on the home before Marjorie received her son’s death benefit, and he testified it was difficult making all of the periodic payments on the taxes because he was “short of funds.” Marjorie was awarded one-third of James’s not-yet accessible retirement funds, leaving the trial court only Marjorie’s bank account to adjust the equitability of the distribution. The trial court awarded James $6,000 from the bank account and allocated the $7,117.43 real estate tax debt to Marjorie in an attempt to make the overall property distribution equitable. We have approved offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets. See Linrud v. Linrud, 1998 ND 55, ¶ 13, 574 N.W.2d 875; Gibbon v. Gibbon, 1997 ND 210, ¶ 8, 569 N.W.2d 707; Heley v. Heley, 506 N.W.2d 715, 718 (N.D.1993). It might have been easier for the trial court to order the home sold and the proceeds divided in a manner that avoided the necessity of awarding James funds from Marjorie’s bank account to achieve what the trial court found an equitable distribution, but Marjorie did not want the home sold.

[¶ 12] According to James’s undisputed calculations, the value of Marjorie’s share of the property distribution after subtracting the debts allocated to her is roughly $52,662. This figure does not include the $23,139.30 awarded to Marjorie from her bank account which, although included in the parties’ marital property and debt listing, was excluded by the trial court from the marital property for distribution purposes because, “for equitable considerations, the majority of these remaining funds should remain with Marjorie.” The value of James’s share of the property distribution after subtracting the debts allocated to him is about $42,734. If Marjorie chooses to not sell the home, her distribution value increases to about $67,662, and James’s distribution value decreases to approximately $26,093. There are other methods the trial court could have used to divide the marital property, but the method used to distribute the property here is not clearly erroneous and the result is not inequitable.

Ill

[¶ 13] Marjorie argues the trial court erred in failing to make her spousal support award permanent.

[¶ 14] Under N.D.C.C. § 14-05-24.1, a court “may require one party to pay spousal support to the other party for any period of time.” Property division and spousal support are interrelated, and the Ruff Fischer guidelines also apply when determining whether spousal support should be awarded. McDowell v. McDowell, 2001 ND 176, ¶ 12, 635 N.W.2d 139. Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. Riehl v. Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10. Rehabilitative spousal support is ordered to give a disadvantaged spouse an opportunity to become adequately self-supporting through additional training, education or experience. Peters-Riemers v. Riemers, 2002 ND 72, ¶ 26, 644 N.W.2d 197. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. Sommer v. Sommer, 2001 ND 191, ¶ 14, 636 N.W.2d 423. Permanent spousal support may also be awarded when the marriage is of long duration and the dependent spouse has health problems or is of such an age that adequate rehabilitation is unlikely. Id.

[¶ 15] A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Corbett v. Corbett, 2001 ND 113, ¶ 19, 628 N.W.2d 312. We have said “[a]ny spouse who remains at home, out of the workforce, in order to maintain a marital residence and act as a homemaker, any parent who remains out of the workforce if only to some degree in order to provide child care, has foregone opportunities and has lost advantages that accrue from work experience and employment history.” Weigel, 2000 ND 16, ¶ 13, 604 N.W.2d 462. “Furthermore, a valid consideration in determining whether a spouse is disadvantaged as a result of the divorce is whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together.” Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423.

[¶ 16] Thus, spousal support determinations must be made in light of the income and needs of the disadvantaged spouse and of the supporting spouse’s needs and ability to pay. McDowell, 2001 ND 176, ¶ 13, 635 N.W.2d 139. Spousal support decisions are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423.

[¶ 17] The trial court found Marjorie “has serious health problems, and as the result of injuries she sustained in an automobile accident, is not likely to ever become employed.” The trial court found James was “in generally good health except for some emphysema problems, and is in need of false teeth.” By recognizing Marjorie’s age, her “serious health problems,” her status as a “stay at home mom and wife” throughout the lengthy marriage, and the unlikelihood she will “ever become employed,” the trial court implicitly found that Marjorie is a disadvantaged spouse. The difficulty facing the trial court in this case was balancing Marjorie’s income and needs against James’s needs and ability to pay support to Marjorie.

[¶ 18] Both parties were age 63 at the time of trial and had limited resources, income and assets available for their approaching retirements. Marjorie was awarded the bulk of the marital estate. James expected to retire in the near future and his retirement pension from the City of Minot would likely constitute his sole source of income. The trial court found James’s current net income after deductions for taxes, insurance, and the $700 per month spousal support obligation was approximately $1,100 per month. The trial court found Marjorie’s only income at the time of trial was the $700 per month she received in spousal support. James listed his current monthly expenses as $1,322 per month. Marjorie listed her current monthly expenses as $1,175.54 per month. Under the terms of the judgment, when James retires, he will receive about $1,000 per month in retirement income and Marjorie will receive about $500 per month. Marjorie claims the trial court should have made the $700 per month spousal support award permanent, should have ordered James to obtain health insurance for her through COBRA at a cost of $216 per month, and should have ordered James to change the beneficiary on his life insurance policy from their granddaughter to herself.

[¶ 19] In view of James’s limited income and assets, Marjorie’s requests are untenable. Marjorie has not arithmetically demonstrated to us, nor can we discern on our own, that it is possible for James to continue to pay $700 per month spousal support and to obtain health insurance for her after his retirement and to pay his own living expenses. See Weir v. Weir, 374 N.W.2d 858, 866 (N.D.1985). Indeed, neither party has enough income to meet monthly expenses while James is still working. If Marjorie’s requests were granted, James would be left with no income to support himself. James simply does not have the financial resources necessary to adequately support them both in separate households during their retirement years. Considering that Marjorie received the bulk of the marital estate, we cannot say the trial court erred in refusing to make the $700 per month spousal support award permanent, in refusing to order James to continue health insurance for Marjorie after the divorce, and in refusing to order James to make Marjorie the beneficiary of his life insurance policy.

[¶ 20] One aspect of the spousal support award, however, is troublesome. The court ordered James to continue “to pay Marjorie spousal support in the amount of $700 per month until the effective date of James’ retirement, or until the month of James’ sixty-fifth (65) birthday, which ever [sic] occurs first.” We generally prefer that a trial court spell out preordained contingency limits on spousal support in a divorce decree rather than invite further litigation by unconditionally decreeing support for life. See, e.g., Baker v. Baker, 1997 ND 135, ¶ 11 n. 1, 566 N.W.2d 806. We have also approved termination of temporary spousal support payments upon the supporting spouse’s retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse’s monthly retirement benefits. See Schoenwald v. Schoenwald, 1999 ND 93, ¶¶ 11-12, 593 N.W.2d 350. The contingency in this support decree, however, is puzzling. It is logical to award Marjorie $700 per month in spousal support while James is employed and earning more than he would when he retires, and terminating the spousal support when James’s income decreases upon retirement and awarding Marjorie a portion of the retirement benefits. The contingency in this case allows James to discontinue the spousal support payments when he reaches age 65 and to continue working instead of retiring, leaving Marjorie with no monthly income whatsoever. There is no rational connection between conditioning termination of spousal support payments upon James’s 65th birthday and Marjorie’s need for support as a disadvantaged spouse or James’s needs and ability to pay. The only logical way to read this provision is to subject the termination of spousal support to whichever event occurs last, rather than first, to harmonize the provision with James’s ability to pay more support while he is employed. If this is not a clerical error by the trial court, we conclude the provision is clearly erroneous and we modify it to require James to pay Marjorie $700 per month spousal support until he retires, or reaches age 65, whichever event occurs last.

TV

[¶ 21] We conclude the trial court’s property distribution and its failure to order James to pay permanent spousal support, maintain health insurance for Marjorie, and make her the beneficiary of his life insurance policy are not clearly erroneous. We modify the spousal support award to make its termination contingent on when James retires or turns age 65, whichever occurs last. As modified, the judgment is affirmed.

[¶ 22] CAROL RONNING KAPSNER, MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring in the result.

[¶ 23] For the reasons set forth in my concurring opinion in Sommer v. Sommer, 2001 ND 191, 636 N.W.2d 423, I concur in the result here.

[¶ 24] DALE V. SANDSTROM

      . The evidence presented about the parties’ possible entitlements to Social Security retirement benefits is ambiguous and incomplete. James testified that, because of his City pension, 'T possibly could draw some Social Security, but it isn’t going to be very much.” At one point, Marjorie testified that, upon the granting of this divorce, she would be entitled to "seven hundred and something I guess” from her first husband's Social Security benefits. On redirect examination by her attorney, Marjorie agreed she did not know what, if any, Social Security benefits she might receive. The trial court found:
      It would appear from the evidence that James will not be eligible for social security benefits upon retirement. Marjorie, although not employed during the marriage, may yet be eligible for some minimal social security, but testified she has not checked with social security to see what, if any, benefits she may be entitled to.
      It would have been helpful if the parties had presented competent evidence about their possible entitlements to Social Security benefits to better inform the court of their total financial circumstances, especially in view of their limited resources. A court’s valuation of marital property and consideration of other financial circumstances of the parties is dependent upon the evidence presented by the parties. See Marschner v. Marschner, 2002 ND 67, ¶ 10, 642 N.W.2d 857; Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660; Anderson v. Anderson, 504 N.W.2d 569, 571 (N.D.1993). Because the parties provided no competent evidence of Social Security benefit entitlement, the trial court did not err in refusing to consider those possible benefits in the overall equation.

      . There was no evidence presented about the life insurance policy’s death benefit or current cash value, if any.


source: Caselaw Access Project

author: TRANDAHL, Circuit Judge.

license: Public Domain

text:
    2002 SD 135
    George BUNKERS and Gwen Bunkers d/b/a George Bunkers Construction, Plaintiffs and Appellants, v. Gary JACOBSON and Diane Jacobson, Defendants and Appellees. and George Bunkers and Gwen Bunkers d/b/a George Bunkers Construction, Third Party Plaintiffs and Appellants, v. Naatjes Concrete, Inc. and D.L. Johnson and Gordon Johnson d/b/a Johnson Drywall, Third Party Defendants.
    Nos. 21965, 22021.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2002.
    Decided Nov. 6, 2002.

      Timothy A. Clausen of Klass, Stoick, Mugan, Villone, Phillips, Orzechowski, Clausen & Lapeirre, Sioux City, IA, Kristi Holm of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, for plaintiffs and appellants and third-party plaintiffs and appellants.
    Jeffrey J. Koerselman and Gary P. Thimsen of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for defendants and appel-lees.
   TRANDAHL, Circuit Judge.

[¶ 1.] George and Gwen Bunkers, doing business as George Bunkers Construction (Bunkers Construction), appeal the trial court’s decision awarding damages in favor of Gary and Diane Jacobson (Jacobson) in a cost-plus contract dispute. By notice of review, Jacobson asserts that the trial court erred in failing to award prejudgment interest on a counterclaim. We affirm in part, reverse in part and remand.

PROCEDURAL HISTORY

[¶ 2.] Bunkers Construction initiated suit against Jacobson for profit and overhead due and owing under a residential construction contract. Jacobson counterclaimed for breach of contract and negligent construction. Bunkers Construction subsequently filed a third party complaint for indemnification and contribution from several subcontractors including Naatjes Concrete, Inc. The Bunkers Construction claim and the" Jacobson counterclaim were bifurcated.

[¶ 3.] By agreement of all parties, the Bunkers Construction claim was submitted on stipulated facts. The counterclaim, however, was tried before the court. In its judgment, the trial court dismissed the Bunkers Construction claim in its entirety and awarded $64,834.93 in damages to Jacobson on the counterclaim. Further, the court found that Bunkers Construction could recover $8,026.68 on its third-party claim against Naatjes Concrete, Inc The trial court also denied Jacobson’s request for prejudgment interest. Bunkers Construction appealed and Jacobson filed a notice of review.

FACTS

[¶ 4.] This dispute revolves around a contract for the construction of a home in the Prairie Tree Addition of Sioux Falls, South Dakota. In 1991, Jacobson decided to build a new home in Sioux Falls. Bids were solicited with the assistance of Gary Stanley, an architect hired by Jacobson. Eventually, Bunkers Construction was hired to construct the home and the parties entered into a cost-plus contract. George Bunkers is a long-time residential contractor in the Sioux Falls area. The Bunkers lived immediately next door to Jacobson’s lot. George Bunkers had his office there and his sole construction trailer was on the Jacobson property.

[¶ 5.] Pertinent parts of the contract are important in this dispute. The contract provided for compensation to Bunkers Construction as follows:

17. CONTRACT SUM. The Contract Sum shall be the actual cost of all labor, materials, permits and equipment on site and employed in the construction as of the date of payment, plus 3% overhead, 6% profit on the first $300,000.00; 5% profit on any amounts over $300,000.00.

Further, under costs to be reimbursed, the contract defined the “cost of work” as “costs necessarily incurred by the Contractor in the proper performance of the Work.”

[¶ 6.] The contract also allowed the owner, Jacobson, to purchase material as follows:

18. PURCHASE OF MATERIALS— DISCOUNTS, REBATES AND REFUNDS. Owner may at his option purchase directly any of the materials or supplies necessary in the construction of the residence. No percentage mark-up on appliances, electric switch gear, light fixtures, window treatments and carpeting.

[¶ 7.] Moreover, the contract required Bunkers Construction to build the house according to architectural plans. Specifically, the contract stated:

2. WORK. The Work will be completed in accordance with the Construction Drawings and Plans made by Randall Stanley Architects.... The Plans are incorporated in this contract. The Owner will provide Contractor with all architects’ drawings and explanations as required to indicate the work to be done. The -Contractor will follow these drawings as interpreted by the Architect.
⅜ * *
21. CONTRACT DOCUMENTS. Ah plans, drawings, specifications, change orders and other documents prepared by Architect shall become a part of this Contract.
* * *
23. PLANS AND SPECIFICATIONS. Contractor agrees to follow the specifications, plans and drawings and that the work will be successfully executed in accordance with them, without any additional or extra work other than such as is necessarily implied, or to be inferred from the specifications, plans and drawings, upon a fair and liberal construction.

Jacobson never provided any official specifications or drawings. The only drawing available to Bunkers Construction was one marked “Not For Construction.”

[¶ 8.] Bunkers Construction began building the house in July 1991 and problems began to surface. During the course of construction, Jacobson purchased certain items for the house. It was the purchase of these items that initiated this dispute. Bunkers Construction claims that, because of the express terms of the contract, it is owed profit and overhead along with reimbursement for the cost of the excise tax on the “owner-purchased” items. Jacobson disputes this.

[¶ 9.] The construction of the home was essentially completed in July 1992. Jacobson claims that Bunkers Construction breached the contract because of defective work performed. The defects can be classified into three main areas: roofing, water problems and drywall. Despite complaints to Bunkers Construction and some attempts by Bunkers to repair these problems, they persisted. Jacobson then hired other contractors to attempt to correct the problems. Jacobson is also asking for prejudgment interest.

ISSUES

[¶ 10.] Whether Bunkers Construction is entitled to profit and overhead on owner-purchased items under the contract.

Whether Bunkers Construction is entitled to recover excise tax already paid on owner-purchased items.
Whether Bunkers Construction is responsible for damages resulting from certain defects on the house.
Whether Jacobson is entitled to prejudgment interest.

STANDARD OF REVIEW

[¶ 11.] Interpretation and construction of a contract is reviewed de novo. Mahan v. Avera St Luke’s, 2001 SD 9, ¶ 15, 621 N.W.2d 150, 154. The claim of Bunkers Construction was submitted to the trial court by stipulated facts. When evidence is offered by way of stipulated facts, “we are free to determine the facts as if presented here for the first time unaided by any deference to the trial court.” Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995) (citations omitted).

[¶ 12.] Jacobson’s counterclaim was tried before the court. A trial court’s findings of fact are reviewed under the clearly erroneous standard. Arnold Murray Constr., L.L.C. v. Hicks, 2001 SD 7, ¶ 6, 621 N.W.2d 171, 174. In applying the clearly erroneous standard, this Court’s function is not to decide factual issues de novo. The question is not whether this Court would have made the same findings that the trial court did, but whether on the entire evidence this Court is left with a definite and firm conviction that a mistake has been made. People in Interest of H.M., 474 N.W.2d 267, 269 (S.D.1991); Maryhouse, Inc. v. Hamilton, 473 N.W.2d 472, 474 (S.D.1991). Due regard shall be given to the opportunity the trial court had to judge the credibility of witnesses. State By and Through DOT v. Garvin, 456 N.W.2d 779,781 (S.D.1990); Masek v. Masek, 89 S.D. 62, 66, 228 N.W.2d 334, 336 (1975); Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 864 (S.D.1993). This Court overturns a trial court’s conclusions of law only when the trial court erred as a matter of law. Dougherty v. Dougherty, 482 N.W.2d 320, 322 (S.D.1992); Jankord v. Jankord, 368 N.W.2d 571, 572 (S.D.1985).

DECISION

ISSUE ONE

[¶ 13.] Bunkers Construction is entitled to profit and overhead on owner-purchased items under the contract.

[¶ 14.] The parties dispute whether Bunkers ■ Construction is entitled to profit and overhead on items specifically purchased by Jacobson. Bunkers Construction asserts that the contract explicitly allows for profit and overhead to be charged on owner-purchased items. Specifically, it claims that when construing Paragraphs 17 and 18 of the contract together, it is entitled to overhead and profit on all items except those specifically enumerated in Paragraph 18. The owner-purchased items Bunkers Construction is seeking compensation for are not listed as an exclusion in Paragraph 18.

[¶ 15.] It is well settled that “ ⅛ determining the proper interpretation of a contract the court must seek to ascertain and give effect to the intention of the parties.’ ” Read v. McKennan Hosp., 2000 SD 66, ¶ 23, 610 N.W.2d 782, 786 (quoting Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985)). Accord Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 14, 604 N.W.2d 289, 293. The Court ascribes to contract terms “ ‘their plain and ordinary meaning.’” Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 12, 602 N.W.2d 58, 61 (quoting Economic Aero Club, Inc. v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995)). “ ‘The court is to enforce and give effect to the unambiguous language and terms of the contraet[.]’ ” Kimball Investment Land, Ltd., 2000 SD 6 at ¶ 10, 604 N.W.2d at 292 (quoting Campion v. Parkview Apartments, 1999 SD 10, ¶ 25, 588 N.W.2d 897, 902). Accord Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588. Whether the language of a contract is ambiguous is a question of law. Pesicka v. Pesicka, 2000 SD 137, ¶ 6, 618 N.W.2d 725, 726. Ambiguity exists “ ‘when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.’” Divich v. Divich, 2002 SD 24, ¶ 10, 640 N.W.2d 758, 761 (quoting Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719).

Conventional principles of contract interpretation require agreements to be construed in their entirety giving contextual meaning to each term. When provisions conflict, however, and full weight cannot be given to each, “the more specific clauses are deemed to reflect the parties’ intentions — a specific provision controls a general one.”

AFSCME v. Sioux Falls School Dist., 2000 SD 20, ¶ 8, 605 N.W.2d 811, 813-814 (quoting State v. Greger, 1997 SD 14, ¶ 21, 559 N.W.2d 854, 864 (citing Bock v. Perkins, 139 U.S. 628, 634, 11 S.Ct. 677, 679, 35 L.Ed. 314, 316 (1891))).

[¶ 16.] The two provisions of the contract that are relevant to this issue, Paragraphs 17 and 18, are not ambiguous. They clearly provide that Bunkers Construction is entitled to a “percentage mark-up” for profit and overhead on all items, including those purchased by Jacobson, except those items specifically excluded in Paragraph 18. The “percentage mark-up” is at the rate of three percent overhead and six percent profit on the first $300,000, then five percent profit on any amount above $300,000.

[¶ 17.] This Court holds that Bunkers Construction is entitled to the percentage mark-up for profits and overhead on all items purchased by Jacobson except the appliances, electric switch gear, light fixtures, window treatments, and carpeting. Jacobson asserts that some of the items and services Bunkers Construction has itemized were purchased after the completion of their home or were items not contemplated in the contract. There is no provision in the contract that allows Bunkers Construction to receive compensation for items and services purchased after the completion of the home or not contemplated by the contract. Since the trial court did not make specific findings as to each of the sixteen items for which Bunkers Construction claims compensation, this Court cannot make a determination as to the amount owed by Jacobson under the contract.

[¶ 18.] The judgment is reversed as to this issue and this matter is remanded for a determination of the profit and overhead owed to Bunkers Construction pursuant to the contract.

ISSUE TWO

[¶ 19.] Bunkers Construction is not entitled to recover excise tax already paid on owner-purchased items.

[¶ 20.] SDCL 10-46A is the law governing excise tax. Bunkers Construction claims it incurred an out-of-pocket expense of $5,341.28 for excise tax paid on owner-purchased items. Bunkers Construction claims that the excise tax is an “actual cost” incurred in the construction of the home and, therefore, it is entitled to reimbursement from Jacobson.

[¶ 21.] SDCL 10-46A-1 states, “There is imposed an excise tax upon the gross receipts of all prime contractors engaged in realty improvement contracts, at the rate of two percent.” “Gross receipts” is defined as:

the amount received directly or indirectly in money, credits, property or other money’s worth in consideration of the performance of realty improvement contracts within this state, without any deduction on account of the cost of the property sold, the cost of materials used, the cost of services or labor purchased, amounts paid for interest or discounts or any other expenses whatsoever, nor may any deduction be allowed for losses. Gross receipts include those materials furnished to the prime contractor or subcontractor by the owner or the lessee of the realty improvement. For the purposes of measuring the tax imposed by this chapter, gross receipts include the greater of the cost or fair market value of materials used by a contractor or subcontractor in the performance of a contract regardless of whether the contractor or subcontractor owns or furnishes the materials, (emphasis added).

SDCL l(M:6A-4.

[¶ 22.] The trial court denied Bunkers Construction’s claim for reimbursement of the excise tax. Rather, it held that it should not determine the issue and that it was a decision for the Department of Revenue. We do not agree that this is a decision for the Department of Revenue.

[¶ 23.] Bunkers Construction alleges the contract provides that Jacobson is to pay “the actual cost of all labor, materials, permits and equipment on site and employed in the construction.” However, the contract does not require Jacobson to pay the excise tax. Accordingly, we affirm the trial court on this issue, but for different reasons. “ ‘Where a judgment is correct, this court will not reverse although it was based on incorrect reasons or erroneous conclusions.’ ” Poindexter v. Hand County, 1997 SD 71, ¶ 16, 565 N.W.2d 86, 91 (quoting Wolff v. Secretary, SD Game, Fish & Parks Dep’t, 1996 SD 23, ¶ 50, 544 N.W.2d 531, 540) (Sabers, J., dissenting). See also Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D.1994) (“[A] trial court may still be upheld if it reached the right result for the wrong reason.”).

ISSUE THREE

[¶ 24.] Bunkers Construction is responsible for damages resulting from certain defects on the house, but not others.

[¶25.] Jacobson discovered several defects in the construction of the house. The defects included roof problems, water problems and drywall problems. Jacobson argues that these problems give rise to a breach of contract because the work performed was defective. Bunkers Construction claims that it was not defective work that gave rise to the problems, but defective design. Bunkers Construction claims that Jacobson breached the contract by failing to provide any plans or specifications drafted by Jacobson’s architect. It is undisputed that the only plans Jacobson provided to Bunkers Construction were a set of drawings prepared by the architect marked “Not for Construction.”

[¶ 26.] The trial court found that the defects in the construction of the house and the necessary costs of repairing or correcting the defects were the direct and proximate result of Bunkers’ faulty work or failure to properly select and supervise competent subcontractors to perform work on the residence. This finding will not be overturned unless clearly erroneous. Dougherty, supra; Jankord, supra. The trial court concluded that the residence was constructed with numerous defects, all of which were due either to Bunkers’ own negligence or substandard work or negligent failure to prudently select and supervise competent subcontractors. The trial court also concluded that, as a direct and proximate result of Bunkers Construction’s negligence and poor workmanship, Jacobson was provided with a faulty residence that required extensive repairs and that entitled Jacobson to compensation from Bunkers. These conclusions of law will not be overturned unless the trial court erred as a matter of law. Dougherty, supra; Jankord, supra.

[¶ 27.] A contractor owes a duty to a new homeowner.

As a general rule, it may be said that where a person holds himself out as especially qualified to perform work of a particular character there is an implied warranty that the work shall be done in a reasonably good and workmanlike manner and that the completed product or structure shall be reasonably fit for its intended purpose. 17A C.J.S. Contracts § 329.

Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 64, 154 N.W.2d 803, 807 (1967). The principle behind this is to discourage sloppy building by contractors. Id. (quoting Williston on Contracts, 3d ed., § 926A). South Dakota case law purports:

that where in the sale of a new house the vendor is also a builder of houses for sale there is an implied warranty of reasonable workmanship and habitability surviving the delivery of deed. The builder is not required to construct a perfect house and in determining whether a house is defective the test is reasonableness and not perfection. Schipper v. Levitt & Sons, Inc., [44 N.J. 70, 207 A.2d 314 (1965)]. The duration of liability is likewise determined by the standard of reasonableness.

Waggoner, 83 S.D. at 68, 154 N.W.2d at 809.

Roof Problems

[¶ 28.] After the presentation of evidence, the trial court found that the defect in the use of a ridge vent was the direct and proximate result of Bunkers Construction’s faulty work or failure to properly select and supervise competent subcontractors performing work on the residence. The trial court found the reasonable value to repair the damage to the roof was $12,870.

[¶ 29.] The trial court found that defects in the roof resulted in snow accumulation in the attic of the garage and living quarters due to the leaky roof and the inappropriate use and installation of a ridge vent. There were some additional minor problems with the shake shingle installation. Those problems were cosmetic in nature and there was no leaking that Jacobson’s expert attributed to improperly installed shingles. During construction of the home, a ridge vent was placed on a shake roof. It is undisputed that this type of vent allowed moisture to enter into the residence resulting in damage. It is undisputed that ridge venting is not designed to be used with shake shingles. It is also undisputed that Gary Stanley, the architect, approved the use of galvanized aluminum ridge venting and galvanized steel valleys.

[A] construction contractor who has followed plans or specifications furnished by the contractee, his architect, or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results ... solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.

Reif v. Smith, 319 N.W.2d 815, 818 (S.D.1982) (quoting Annot., 6 ALR3d 1394, 1397).

[¶ 30.] Jacobson’s own experts testified that ridge venting is not designed to be used with shake shingles. Since the improper use of ridge venting was the cause of the roof problems and it was approved by the architect, this Court holds that the trial court’s conclusion that the defects in the roof were the direct and proximate result of Bunkers Construction’s faulty work is clearly erroneous. Dougherty, supra; Jankord, supra. Under the terms of the contract, Bunkers Construction was contractually bound to and did follow the architect’s approval of the improper ridge venting. Therefore, the trial court erred as a matter of law and the damage award to Jacobson for the repairs to the roof is reversed.

Foundation Water Problems

[¶ 31.] Based upon the evidence presented at trial, the trial court held that the water infiltration problems having to do with the basement walls were attributable to Bunkers Construction. The trial court specifically found the problems were caused by improper compaction of the backfill around the outside of the basement foundation and incomplete or improper installation of drain tile. The trial court awarded $35,911.58 as a reasonable value to repair the water problems. It is well settled in this state that a trial court’s findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity the trial court had to judge the credibility of the witnesses. SDCL 15-65-2(a); Masek, 89 S.D. at 66, 228 N.W.2d at 836; Brown County v. Meidinger, 271 N.W.2d 15, 18 (S.D.1978).

[¶ 32.] After moving into the house, Jacobson experienced water problems in the basement. Specifically, water accumulated near the vault area and around pipes that were installed in the walls. Jacobson alleges the water problems were caused by improperly installed drain tile, improperly sealed foundation walls, moisture penetration and drainage problems due to improper compaction of the foundation walls and the garage floor and honeycombing in the concrete. Jacobson’s expert testified that the water damage was caused by improper drainage, honeycombing in the concrete, plugged and non-existent drain tile.

[¶ 33.] Using the same analysis as this Court did with the drywall problems, it is undisputed that the lack of drain tile is the result of insufficient plans being provided by Jacobson or his architect. Jacobson concedes that he did not provide any plans or specifications showing that drain tile should be installed. Further, the evidence indicates that in addition to the lack of drain tile, the other proximate cause of the leakage in the foundation is the landscape work. Jacobson had the soil tested by Twin City Testing prior to construction. The soil test recommendations were that the final grade slope away from the building at one-inch drop for every foot, that no automatic sprinkler system be used within five feet of the structure, and that the area adjacent to the foundation be kept free of trees and shrubs. Jacobson had $45,000 worth of landscaping done to his property on June 23 and 24, 1992. It is undisputed that the first time Jacobson had water in his basement was on June 29, 1992. While Bunkers Construction did the basic dirt work, when they finished the slope was away from the foundation and according to Twin City Testing’s grade recommendation. When the grading around the perimeter of the home was inspected in 1996, it was sloping towards the house. Jacobson also admitted that they hired, controlled and directed the post construction landscaper. The certified engineer testified that the landscaper altered the terrain in such a manner as to cause the problems with the leaks. The landscaping included berms, trees, shrubs and plants all planted adjacent to the foundation and the sprinkler system was installed with heads against the foundation. It is clear from the evidence that the landscaping work approved by Jacobson did not comply with the recommendations of Twin City Testing.

[¶ 34.] This Court holds that the trial court’s conclusion that the defects in the foundation caused by the lack or insufficient use of drain tile were the direct and proximate result of Bunkers Construction’s faulty work is clearly erroneous. Dougherty, swpra; Jankord, supra. Under the terms of the contract, Bunkers Construction was contractually bound to follow construction drawings and plans made by Jacobson’s architect. There were no architect plans provided by Jacobson, and the plans marked “Not for Construction” did not include drain tile. These plans did not include drain tile. It is apparent from the evidence that the water problems were caused by the lack of drain tile and the landscaping work done by the landscaper as approved by Jacobson. We reverse the trial court’s award of damages to Jacobson in the amount of $35,911.58 for the repair of the water damage.

Drywall Problems

[¶ 35.] After presentation of the evidence, the trial court found that the defects in the drywall and the necessary repair costs were the direct and proximate result of Bunkers Construction’s faulty work or failure to property select and supervise competent subcontractors performing work on the residence. Specifically, the trial court found that there was defective sheet rocking which allowed excessive splitting and cracking requiring repair and repainting. The trial court awarded the sum of $6,732.00 for drywall repairs and $9,321.35 for painting for a total of $16,053.35.

[¶ 36.] Bunkers Construction hired the subcontractor who installed the sheetrock walls throughout the Jacobson home. Jacobson had problems with the drywall splitting and cracking. The trial court heard evidence that Jacobson was forced to hire another contractor to replace sheet-rock in almost every room in the house. The contractor testified that the number of cracks in the sheetrock was “excessive.”

[¶ 37.] Jacobson’s expert testified that twenty-five percent of the water damage came from the improper installation of the ridge vent on the roof. Given this Court’s decision regarding the roof, the trial court’s award of damages for the drywall and painting shall be reduced by twenty-five percent. Jacobson’s expert also testified that an additional twenty-five percent of the drywall problems could not be ascertained or allocated to any cause as they were “iffy and unknown.” Given the expert testimony on this issue, we are left with a definite and firm conviction that a mistake has been made. Arnold Murray Const., LLC v. Hicks, supra. The damage award of $16,053.35 for the drywall problem must be deducted by a total of fifty percent, twenty-five percent caused by the roof and an additional twenty-five percent because the cause was “iffy and unknown.”

[¶ 38.] Bunkers Construction argues that the trial court should have allowed for depreciation and reduced the award of damages on the paint repair based on the life expectancy of the paint. Jacobson repainted the entire interior of the residence after the sheetrock was repaired. The paint in the Jacobson house, at that time, was six years old.

[¶ 39.] SDCL 21-2-1 sets the measure of damages for a breach of contract as follows:

For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and their origin, (emphasis added).

In order to award contract damages there must be evidence that the 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 (in action for breach of contract, plaintiff is entitled to recover all detriment proximately caused by breach).

[¶ 40.] “Proof of damages requires a reasonable relationship between the method used to calculate damages and the amount claimed.” McKie v. Huntley, 2000 SD 160, ¶ 18, 620 N.W.2d 599, 603 (citing Swenson v. Chevron Chemical Co., 89 S.D. 497, 234 N.W.2d 38, 43 (1975)). In applying this rule, a reasonable certainty test is employed. “Reasonable certainty requires proof of a rational basis for measuring loss,” without allowing any room for speculation. McKie, 2000 SD 160 at ¶ 18, 620 N.W.2d at 603 (citing Drier v. Perfection, Inc., 259 N.W.2d 496, 506 (S.D.1977)) (quoting Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232, 233 (1961) (citations omitted)).

[¶ 41.] Bunkers Construction is not entitled to a reduction of the damage award on the paint for depreciation. Jacobson is not required to absorb the cost of repainting the house since the defects in the sheetrocking were the direct and proximate result of Bunkers Construction’s faulty work or failure to properly select and supervise competent subcontractors performing the work. The only reason Jacobson repainted the interior of the house was the repair of the drywall.

ISSUE FOUR

[¶ 42.] Jacobson is entitled to prejudgment interest.

[¶ 43.] Jacobson claims the trial court erred in not awarding prejudgment interest. Jacobson asks this Court to award prejudgment interest under SDCL 54-3-5 or, alternatively, under SDCL 21-1-13.1. Prejudgment interest for damages arising from a contract is allowed by SDCL 21-1-13.1. See U.S. Lumber, Inc. v. Fisher, 523 N.W.2d 87, 90-91 (S.D.1994).

[¶ 44.] Under SDCL 21-1-13.1: Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered. If necessary, special interrogatories shall be submitted to the jury. Prejudgment interest on damages arising from a contract shall be at the contract rate, if so provided in the con-' tract; otherwise, if prejudgment interest is awarded, it shall be at the Category B rate specified in § 54-3-16. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.

“Prejudgment interest is now mandatory, not discretionary.” Alvine v. Mercedes-Benz of North America, 2001 SD 3, ¶ 29, 620 N.W.2d 608, 614. Prejudgment interest is allowed from “ ‘the day that the loss or damage occurred.’” Fritzel v. Roy Johnson Const., 1999 SD 59, 594 N.W.2d 336, 339(quoting SDCL 21-1-13.1).

[¶ 45.] Following a hearing, the trial court denied prejudgment interest. It is apparent that the damages for breach of contract are allowed from the day that the loss or damage occurred until the date the final judgment was entered. The trial court, however, made no findings of fact or conclusions of law consistent with its order denying prejudgment interest. Under the facts and circumstances of this case, the law is clear that Jacobson is entitled to prejudgment interest under SDCL 21-1-13.1. It is our decision to reverse and remand the issue of prejudgment interest back to the trial court for determination of the amount of prejudgment interest owed to Jacobson.

CONCLUSION

[¶46.] We affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

[IT 47.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 48.] TRANDAHL, Circuit Judge, for SABERS, Justice, disqualified.

      . Naatjes Concrete, Inc. did not appeal this judgment.

      . In the building industry, a "cost-plus contract” provides no financial incentive for the contractor to cut corners on the building project or to use anything less than the best and, presumably, the most costly materials.

      . This drawing was not made a part of the record.

      .Owner-purchased items Bunkers Construction is seeking profit and overhead on are:
      1. Dakota Floors (wood floors) $18,000.00
      2. Egger Steel Company 688.04
      3. Krier & Blain, Inc. 176.18
      4. Landscape Garden Centers 5,369.48
      5. Malloy Electric (electric wiring) 34,295.65
      6. Moses Painting 25,000.00
      7. Schoenhard’s Custom Cabinets & Woodworking 31,693.48
      8. SieMatic Kitchen Interior Design (kitchen cabinets) 42,930.00

        9. Viking Glass 5,193.65
      10. Watertown Memorials (granite countertops) 10,653.00
      11. Vault Door (no invoice) 500.00
      12. Midwest Alarm (security system) 4,904.10
      13. Adams/Vital Acoustics (sound system) 17,008.50
      14. Bill's Sprinklers 7,000.00
      15. Dave Putzke Well Drilling and Repair, Inc. 14,850.86
      16. Splash City 6,148.00

      . Jacobson also alleges that Bunkers Construction breached the contract by failing to be at the job site for 75 percent of the total project time. Jacobson claims that Bunkers personally agreed to oversee the construction of the house and to be at the job site more than 75 percent of the total construction time. However, the trial court properly found that, since the written contract did not require Bunkers to spend any specific time at the construction site, there was no breach of contract.

      . There was a separate claim for shingling problems for which Bunkers Construction admitted liability. The $500 admitted liability claim for shingling is not part of the $12,870 awarded for the problems caused by the ridge vent.

      . The trial court also allowed Bunkers to collect $8,026.68 of the $16,035.53 on a cross-claim against Naatjes Concrete, Inc., the subcontractor who did the actual drywalling.


author: ZINTER, Justice.

text:
    2002 SD 133
    PRAIRIE HILLS WATER AND DEVELOPMENT COMPANY, a South Dakota corporation, Plaintiff and Appellee, v. Jim GROSS, Scott Gross, Steve Gross, d/b/a JS & S Wood and Iron, and Linda Paulson, Defendants and Appellants.
    No. 22135.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Nov. 6, 2002.

      Randall L. Macy of Buckmaster and Macy Belle Fourche, SD, Attorneys for plaintiff and appellee.
    Rod Woodruff, Belle Fourche, SD, Attorney for defendants and appellants.
   ZINTER, Justice.

[¶ 1.] Prairie Hills Water and Development Company (Prairie Hills) sued Linda Paulson, Jim Gross, Scott Gross, and Steve Gross (collectively referred to as the Grosses). Prairie Hills alleged that Grosses’ commercial sandblasting, painting and other business activities were a public nuisance and were in violation of certain real estate covenants and restrictions in a real estate subdivision. The trial court agreed with Prairie Hills and enjoined Grosses’ business operations. The trial court also awarded Prairie Hills attorney fees incurred in enforcing the covenants. Grosses appeal both decisions. We affirm the issuance of the injunction. We also affirm that portion of the judgment that awarded attorney fees against the property owners. We reverse that portion of the judgment that awarded attorney fees against non-property owners. .

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Prairie Hills Ranchettes is a real estate subdivision located approximately one mile south of the city of Belle Fourche. Prairie Hills is a non-profit corporation formed to regulate development and other matters within the subdivision. The board of directors of Prairie Hills are property owners in the subdivision.

[¶ 3.] All property in the subdivision was sold subject to covenants and restrictions running with the land. The preamble to the covenants provided that the land in the subdivision was developed “for the purpose of building and developing for residential use ....” (emphasis added). Covenant # 7 also prohibited “noxious or offensive activities] ... upon any portions of the ... property ...,” as well as “anything ... that will or may become annoying or a nuisance to the surrounding property owners within the subdivision.”

[¶ 4.] In 1988, Jim and Linda purchased subdivision Lots 28, 29 and 30. At the time they purchased the lots, Jim was aware that the land was subject to covenants and restrictions running with the property.

[¶ 5.] In 1989, Jim built a building on Lot 29. The building included a living area, a storage area, and work area. In 1991, Jim moved a modular home on Lot 29. In 1997, Jim’s sons (Scott and Steve) moved to the property: Scott moved into the living quarters in the building, and Steve moved into the modular home.

[¶ 6.] In 1998, Jim, Scott, and Steve formed a partnership known as JS & S Wood and Iron. This partnership was formed to engage in sandblasting, painting, welding, woodworking, and engine repair. Later that year, Grosses built a sandblasting building on Lot 29, and they obtained a sales tax license for this business.

[¶ 7.] Grosses also began to promote and advertise the business. Their website displayed pictures of belly-dump trucks, buses, a “caterpillar”, semi-trucks, and other equipment that had been sandblasted and painted on the property. The website also directed potential customers to drive one and one-half miles through the subdivision to reach Grosses’ business.

[¶ 8.] In the spring of 1999, Jim and Susie Casper, neighbors who lived across the street from Grosses, began to complain of noise, dust, and large-vehicle traffic associated with Grosses’ business. On May 26, 1999, the Board sent Grosses a letter stating that their business “activity on [the] property may not be consistent with the covenants and restrictions that run with your land.” The letter requested an opportunity to address the complaints.

[¶ 9.] On November 4, 1999, the Board followed up by conducting a fact-finding tour at Grosses’ business. During the tour, Grosses operated their equipment while the Board made observations at two neighboring residences: the Casper residence and the Lori Wilder residence. The trial court found that it was “very loud” and “very noisy” at both residences.

[¶ 10.] After the fact-finding tour, the Board unsuccessfully attempted to find a way in which the Grosses could continue their business without annoying their neighbors. The Board ultimately concluded that Grosses’ “heavy industrial” business was not compatible with the subdivision. Because no compromise was reached, Prairie Hills instructed Grosses to stop their business activities, move their business, or be sued. Grosses refused and this suit was commenced. The suit alleged that Grosses’ business (1) was an annoyance and nuisance in violation of the covenants and restrictions running with the land, and (2) that the business constituted a public nuisance in violation of SDCL 21-10-1.

[¶ 11.] At trial, Caspers testified that they could hear noise from the businesses’ back-up alarms, welding machines, grinders, and equipment. Jim Casper testified that the noise was so loud it caused vibrations in his house. He indicated that the noise could be heard in any portion of his house with the windows and doors closed. Lori Wilder also testified that she could hear the noise from Grosses’ business inside her house. She additionally expressed concerns about dust and traffic from the large belly-dump trucks. Board member Richard Langer corroborated that the noise heard at Casper’s property was “loud and annoying,” and that the noise at Wilder’s residence was loud even when the windows and doors were closed.

[¶ 12.] Four other property owners also testified. Jeffrey Rutz testified that when he drove past Grosses’ business, he could hear compressors running. He described them as “excessively noisy.” Rutz also testified that the noise at Casper’s house was loud and sounded like “a radio out of tune.” Rutz finally indicated that Grosses’ business caused concerns about traffic and a possible decrease in the value of his home and the quality of life.

[¶ 13.] Carl Ogaard testified that Grosses’ business created too much traffic and junk, created a disturbance, and was not appropriate to be located in Prairie Hills Ranchettes. Brad Schreiber testified that Grosses’ business was “not consistent with the residential character” of the subdivision. Both Ogaard and Schreiber indicated that they purchased their property in Prairie Hills Ranchettes because it was a residential subdivision protected by covenants. Only Linda Shuft, the subsequent purchaser of the Wilder home, testified that she did not find the noise from Grosses’ business annoying. She was also not concerned about the dust or traffic.

[¶ 14.] Grosses called an expert witness, Dr. Carter Kerk. Dr. Kerk visited the business on two occasions. Although his testimony was generally favorable to Grosses, he did testify that he was able to hear the noise of the air compressor and sandblasting on the property of all neighbors surrounding Grosses’ business. Dr. Kerk also failed to perform tests on all noises emanating from Grosses’ business, such as the noise created by grinding metal and trucks coming in and out of Grosses’ property.

[¶ 15.] A summary of Grosses’ commercial business activities in 1999 reflected that Grosses sandblasted and painted six 45-foot belly-dump trailers, eight 30-foot belly-dump trailers, four 16-foot horse trailers, five pickups, and three buses. Sandblasting a 45-foot belly-dump trailer took up to fourteen hours to complete. They sometimes sandblasted the entire day. In these activities, Grosses used over 300 gallons of paint and paint thinner. Grosses also admitted that their goal was to expand the business. Up to the time of trial, Grosses continued to promote their business through newspaper advertising.

[¶ 16.] After hearing this evidence, the trial court found that Grosses were operating a full-time commercial business. The trial court found that the business activities included sandblasting, painting, grinding, welding and other related activities necessary to carry on large scale commercial sandblasting and painting business. The court also found that Grosses had used the property for the purpose of holding a commercial auction.

[¶ 17.] The trial court ultimately concluded that Grosses’ business was inconsistent with residential use and was an annoyance and nuisance to other residential property owners in violation of the covenants and restrictions running with the property. The court also found that the sight, noise, dust, and safety problems created a public nuisance. Grosses were enjoined from operating the business within six months. Based on attorney fee language in Covenant # 11, the trial court also awarded Prairie Hills attorney fees for enforcement of the restrictive covenants.

[¶ 18.] Grosses appeal raising the following issues:

1. Whether Grosses’ commercial business violated any residential covenants and restrictions.
2. Whether Grosses’ commercial business created a public nuisance.
3. Whether the trial court abused its discretion in granting a permanent injunction.
4. Whether defendant property and non-property owners were liable for the attorney fees incurred in enforcing the covenants and restrictions.

STANDARD OF REVIEW

[¶ 19.] In reviewing a trial court’s decision to grant an injunction we consider “(1) [w]ere any of the facts found by the trial court clearly erroneous? and (2)[i]f not, taking the facts as true, did the court abuse its discretion in granting the injunction?” Maryhouse, Inc. v. Hamilton, 473 N.W.2d 472, 474 (S.D.1991). In deciding whether the trial court’s factual findings are clearly erroneous, “[t]he question is not whether this court would have made the same findings that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.” Id. (citing Cunningham v. Yankton Clinic PA, 262 N.W.2d 508, 512 (S.D.1978)). We will not disturb the lower court’s findings unless we are satisfied that they are contrary to a clear preponderance of the evidence. Id. “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)(quoting Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984)). When this Court reviews a matter “involving judicial discretion [the test] is ‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ ” Id. (quoting Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966))(emphasis and bracketed portion in original).

DECISION

[¶ 20.] 1. Grosses’ commercial business violated the residential covenants and restrictions.

[¶ 21.] In Conclusion of Law # 5, the trial court concluded that Grosses violated the covenants and restrictions by operating their commercial business within the subdivision. That conclusion was supported by Findings of Fact # 20 and # 26. In Finding of Fact #20, the trial court found that the Grosses’ commercial business conflicted with the residential character of the subdivision. In Finding of Fact # 26, the trial court determined that the business was “an annoyance and nuisance to other property owners in that their peace and tranquility as property owners within Prairie Hills Ranchettes Subdivision has been unreasonably disturbed.”

[¶ 22.] Grosses argue that both findings are clearly erroneous. They attack Finding # 20 because they dispute that the subdivision is “residential,” and they contend that their business poses no conflict with the actual character of the subdivision. They argue that the subdivision’s real character is “mixed commercial /residential.” Grosses attack Finding # 26 because they contend that there was insufficient evidence to show that dust, noise, and traffic unreasonably interfered with the other owners use and enjoyment of their property.

The Commercial Business Conflicted With The Residential Character of the Development

[¶ 23.] Grosses contend that Finding of Fact # 20 is clearly erroneous because they contend that their commercial business is compatible with the subdivision’s real character, which they contend is “mixed commercial/residential.” In support of this proposition, they first point out that, except for businesses that sell alcoholic beverages, there is no restrictive covenant that explicitly prohibits “businesses.”

[¶ 24.] Grosses are correct that the only covenant that expressly refers to “businesses” is limited to those businesses that sell alcohol. Grosses, however, overlook the preamble to all of the covenants and restrictions. That section expressly provides that the property was developed for the purpose of residential use: “[the] real estate is divided into lots for the purpose of building and developing for residential use ....” (emphasis added). Ogaard and Schreiber confirmed this “residential nature” of the subdivision. They ndicated that the residential character was part of the reason why they moved to Prairie Hills. They also relied upon the language that provided that the purpose of the subdivision was for residential use.

[¶ 25.] Grosses, however, point out that other commercial businesses (a hair salon, an in-home real estate office, a bee factory, and a retirement home) operate or have previously operated in the subdivision. Although those businesses did operate in the subdivision at some times, the Board had not received a complaint about any other business. More importantly, there was no evidence that any other business generated the level of noise, dust, large vehicle traffic, and annoyance that was generated by Grosses’ sandblasting, welding, and painting.

[¶ 26.] In considering Grosses’ claims that their business is compatible with this residential subdivision, it must be finally remembered that “we regard the real purpose of restrictive covenants contained in a residential subdivision ... as to increase the desirability of [the] lots as residences through the existence of such restrictions.” Piechowski v. Case, 255 N.W.2d 72, 75 (S.D.1977) (citing Thodos v. Shirk, 248 Iowa 172, 79 N.W.2d 733, 738 (1956)). We have also stated “that the real intention of the parties, particularly that of the grantor, should be sought and carried out whenever possible.” Northwestern Pub. Serv. Co. v. Chicago & N.W. Ry. Co., 87 S.D. 480, 484, 210 N.W.2d 158, 160 (1973)(eiting Black Hills Power and Light Co. v. Schuft, 86 S.D. 194, 193 N.W.2d 429 (1972)). Here, the intention of the grant- or, as clearly stated in the covenants, was that Prairie Hills Ranchettes be developed for “residential use.” The trial court found that although the subdivision had allowed some business activity, the subdivision had, with the exception of Grosses’ commercial business, maintained its residential character. The trial court’s finding regarding the subdivision’s residential character was not clearly erroneous.

The Commercial Business Was An Unreasonable Interference

[¶ 27.] Covenant # 7 provided that “no noxious or offensive activity shall be carried out upon any portions of the ... property!,] nor shall anything be done thereon or therein that will be or may become annoying or a nuisance to the surrounding property owners within the subdivision.” (emphasis added). Grosses argue that there was insufficient evidence to support Finding of Fact #26 which found that the noise, dust, and traffic produced by the business “unreasonably” interfered with the neighbors’ use and enjoyment of their property. See Aberdeen v. Wellman, 352 N.W.2d 204, 205 (S.D.1984); Greer v. City of Lennox, 79 S.D. 28, 32, 107 N.W.2d 337, 339 (1961).

[¶ 28.] There was, however, testimony from a number of property owners that Grosses’ business was offensive, annoying, and a nuisance. Jim Casper objected to the noise, dust, and large vehicle traffic. He testified that the noise caused vibrations in his home and could be heard even when his windows and doors were closed. Wilder also had concerns about the noise, dust and traffic from large belly-dump trucks. Langer confirmed that the noise at Casper’s home was “loud and annoying.” Langer also testified that the noise in Wilder’s residence was loud even when Wilder’s windows and doors were closed. Rutz described the business as “excessively noisy.” He also had concerns about the decrease in quality of life and increase in traffic from the business. Others were annoyed by the traffic and did not believe that the business was consistent with the residential character of the subdivision. Considering the totality of the evidence, the trial court was not clearly erroneous in finding that the business was an annoyance and nuisance that “unreasonably” disturbed other property owners in the subdivision.

[¶ 29.] 2. Grosses’ business created a public nuisance.

[¶ 30.] SDCL 21-10-1 provides that “[a] nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission ... [a]nnoys, injures, or endangers the comfort, repose, health, or safety of others.... ” SDCL 21-10-3 provides that a public nuisance “affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

[¶ 31.] In Wellman we stated, “[t]he existence of a nuisance is subject to a rule of reason. It involves the maintenance of a balance between the right to use property and the right to enjoy property unaffected by others’ uses.” 352 N.W.2d at 205.

The ultimate question in each cause is whether the challenged use is reasonable in view of all of the surrounding circumstances. Having regard for the needs and methods of defendant, the degree of discomfort and injury occasioned plaintiff in person or in the enjoyment of his property, and the present use and trends of use of surrounding property, if the use made by defendant is not such as an ordinary man would make, and the resulting discomforts and injuries are not such as people of common sensibilities and tastes should be required to endure, the questioned use is unreasonable.

Id. (citing Johnson v. Drysdale, 66 S.D. 436, 440, 285 N.W. 301, 304 (1939)). This rule of reason requires that a nuisance must be a condition that “substantially invades and unreasonably interferes with another’s use, possession, or enjoyment of his land.” Id. (citing Greer, 79 S.D. at 32, 107 N.W.2d at 339) (emphasis added).

[¶ 32.] In Conclusion of Law # 6 the trial court held that Grosses created a public nuisance “with sight, noise, dust, and safety concerns produced by their business activities.” The court found that these problems unreasonably affected the entire subdivision, even though the extent of that annoyance inflicted upon the individual residents was unequal. Grosses argue that there was insufficient evidence to support a finding of substantial and unreasonable interference sufficient to constitute nuisance.

[¶ 33.] However, as we previously noted in Issue 1, Grosses’ business was an annoyance and nuisance to other property owners in that their peace and tranquility as property owners was unreasonably disturbed. Grosses’ commercial operation involved sandblasting, painting, welding, and related activities in a residential subdivision. Although there was conflicting evidence concerning the extent of the noise, dust, and traffic from large trucks, there was evidence that it was excessive. The finder of fact resolved those differences adversely to Grosses. The trial court’s findings regarding a nuisance were not clearly erroneous.

[¶ 34.] 3. The trial court did not abuse its discretion in granting a permanent injunction.

[¶ 35.] Prairie Hills requested that Grosses be permanently enjoined from conducting their commercial business activities. Grosses counterclaimed for a “compensated injunction” that was limited to abating specific activities found to constitute a nuisance, or alternatively, Grosses sought compensation for the cost of having to move their business. The trial court denied Grosses’ counterclaim and granted Prairie Hills’ injunction. The trial court’s findings and conclusions indicate that its decision was based on findings that irreparable harm would result without the injunction, and that pecuniary compensation would not afford adequate relief. Grosses argue that the trial court abused its discretion in permanently enjoining its business. We disagree.

[¶ 36.] SDCL 21-8-14 provides that “a permanent injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: (l)[w]here pecuniary compensation would not afford adequate relief, [or] (2)[w]here it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief....” The ultimate decision “rests in the discretion of the trial court.” Maryhouse, 473 N.W.2d at 475 (citing Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 264 (S.D.1985))(emphasis added).

[¶ 37.] We have adopted four factors to generally consider in exercising that discretion to grant injunctive relief:

1) Did the party to be enjoined cause the damage?
2) Would irreparable harm result without the injunction because of [a] lack of an adequate and complete remedy at law?
3) Is the party to be enjoined acting in bad faith or is its injury-causing behavior an “innocent mistake”?
4) In balancing the equities, is the “hardship to be suffered by the [enjoined party] ... disproportionate to the ... benefit to be gained by the injured party”?

Sherbum v. Patterson Farms, Inc., 1999 SD 47, ¶ 20, 593 N.W.2d 414, 418 (internal citations omitted); Harksen v. Peska, 1998 SD 70, ¶ 24, 581 N.W.2d 170, 174-75; Maryhouse, 473 N.W.2d at 475.

[¶ 38.] The trial court expressly found that the first two Sherbum factors favored Prairie Hills. Grosses contend that the trial court abused its discretion because it did not make explicit findings balancing the equities under factor four. Jim argues that he could not afford to move the business and that it could cost as much as $230,000 to purchase a new building. Jim argues that the trial court should have entered findings reflecting that it balanced Grosses’ hardship against the benefit to be gained by an injunction.

[¶ 39.] Although we generally prefer findings which reflect a balancing of the equities, we have noted that “[e]ven though [an] injunction against full business activity will likely cause economic damage, that factor is not controlling. Whether a use of property creating an alleged nui-sanee is reasonable cannot be gauged solely by the necessities of the users.” Wellman, 352 N.W.2d at 206 (citing Johnson v. Drysdale, 66 S.D. 436, 443, 285 N.W. 301, 305 (1939)). Additionally, in Union County v. Hoffman, 512 N.W.2d 168, 171 (S.D. 1994), we acknowledged that “it is within the province of the trial court to enjoin all business activities which cause a nuisance, even where the result may be termination of the present use of the property.” Id. (citing Wellman, 352 N.W.2d at 206)(em-phasis added). Finally, we note that even though a balancing of interests is generally required, “in some situations the facts and relevant law may indicate that an injunction clearly should be granted or denied” 11A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure, § 2942 at 38-39 (2d ed.1995). For example, in U.S. v. City and County of San Francisco, 310 U.S. 16, 30, 60 S.Ct. 749, 757, 84 L.Ed. 1050, 1060 (1940) the United States Supreme Court affirmed an injunction to enforce a land covenant even though there was no balancing of equities. The Supreme Court indicated that it was “satisfied that [the] case [did] not call for a balancing of equities or for the invocation of the generalities of judicial maxims in order to determine whether an injunction should have issued.” Id.

[¶ 40.] This is a similar case where the trial court’s findings justify the issuance of , an injunction without further explanation on the balancing of equities. This conclusion is justified by a number of factors. First, the trial court did expressly find Grosses’ business activities created a public nuisance that “affeet[ed] the entire subdivision,” and the injury caused by Grosses’ business was “irreparable and [could] not be readily, adequately, and completely compensated with money”. Second, the facts clearly justified the issuance of an injunction. Jim acknowledged that he purchased the property knowing of covenants and restrictions. Nevertheless, Grosses commenced a commercial sandblasting, painting, grinding, and welding business in the residential development. That business generated large vehicle traffic, dust and noise. Considering the nature of the Grosses’ business activity, the residential character of the development, the unsuccessful attempts to reach a compromise, the existence of covenants, and the irreparable injury that could not be adequately compensated by money, the trial court acted within its discretion in granting the injunction.

[¶ 41.] 4. Property owners were liable for attorney fees incurred in enforcement of the covenants and restrictions.

[¶ 42.] Generally, attorney fees are only allowed in this jurisdiction when authorized by statute or contract. O’Connor v. King, 479 N.W.2d 162, 166 (S.D. 1991). Covenant # 11, provided that “[a]ny property owner violating any of the covenants ... shall be liable and responsible for attorneys fees and costs that may result from the specific enforcement of the ... covenants.” The trial court concluded that this covenant constituted an agreement or contract to pay attorney fees. Therefore, the court awarded Prairie Hills the attorney fees it incurred in enforcement of the covenants. There is substantial legal support for the trial court’s decision. See McLain v. Anderson, 933 P.2d 468, 472-473 (Wyo.1997); Valenti v. Hopkins, 324 Or. 324, 926 P.2d 813, 816 (1996); Donaca v. Ivall, 44 Or.App. 121, 605 P.2d 709, 714 (1980); Sheridan v. Martinsen, 164 Mont. 383, 523 P.2d 1392, 1395 (1974); Riley v. Boyle, 6 Ariz.App. 523, 434 P.2d 525, 528 (1967); Barrows v. Jackson, 112 Cal.App.2d 534, 247 P.2d 99, 102 (1952); Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 1045 (1927).

[¶ 43.] Grosses, however, first argue that there was no consideration for Covenant # 11 because the public nuisance statute, SDCL 21-10-1, independently prohibited activities that cause a nuisance. Grosses rely on the pre-existing duty rule. Under that rule, the performance of a preexisting duty cannot form the basis for valid consideration for a contract. See Garrett v. BankWest, 459 N.W.2d 833, 841 (S.D.1990)(eiting Dawson v. Corbett, 71 S.D. 106, 21 N.W.2d 758 (S.D.1946)) and SDCL 53-6-1.

[¶ 44.] However, the covenants and restrictions prohibited more activities than the statutory public nuisances prohibited by SDCL 21-10-1. In addition to the statutory prohibitions, Covenant # 7 also prohibited “noxious or offensive activity,” and anything that merely “may become annoying” to the other property owners. The covenants also restricted development for residential use. Therefore, even if there was an independent duty to refrain from conduct constituting a statutory public nuisance, the covenants provided restrictions in addition to those prohibited by the public nuisance statute.

[¶ 45.] Grosses next argue that the attorney fee provision of Covenant # 11 is not enforceable against them because they are not in privity with the original grantor/developer, and they contend that Covenant # 11 does not run with the land. Grosses’ point out that under SDCL 43-12-2(1), only covenants made for the “direct benefit of the property” run with the land. Grosses contend that under the common law, the obligation to pay money for attorney fees is not for the “direct benefit of the property”. Rather, it is a “personal obligation” that does not “touch and concern the land.” Grosses point to a number of authorities holding that such covenants to pay money do not “touch and concern” the land, and therefore, they do not run with the land.

[¶ 46.] Grosses’ reliance on these cases from other jurisdictions is misplaced because they fail to consider SDCL 43-12-2. That statute contains four categories of covenants that run with the land, two of which are relevant here. The first provision, SDCL 43-12-2(1), involves the traditional common law covenants that are “made for the direct benefit of the property,” and therefore are the type that “touch and concern the land.” SDCL 43-12-2(4), however, also includes covenants that are merely “incidental” to the other covenants that are made for the direct benefit of the property. Under SDCL 43-12-2, the two relevant covenants that run with the land are:

(1) Those made for the direct benefit of the property or some part of it, then in existence;
(2) ...
(3) ...; and
(4) All covenants incidental to any of the foregoing covenants.

SDCL 43-12-2 (emphasis added).

[¶ 47.] In this case, there is no dispute that the residential use and annoyance covenants are the type that directly benefit the land, and therefore, run with the land under subdivision (1). Unlike Grosses authorities, however, subdivision (4) provides that “incidental” covenants also run with the land. Because Covenant # 11 provides for the enforcement of the covenants that are made for the direct benefit of the land, Covenant # 11 is incidental to other covenants. Because Covenant # 11 is incidental to a covenant that runs with the land, Covenant #11 also runs with the land. SDCL 43-12-2(4). Because Covenant #11 runs with the land, its attorney fee provision is enforceable against subsequent grantees like Jim Gross and Linda Paulson, even though they are not in privity with the original grantor.

[¶ 48.] We do, however, agree with Grosses’ final contention that even if Covenant # 11 permits recovery of attorney fees, its express terms only subject the “owner” of the property to payment of attorney fees. Because the attorney fee award entered by the trial court applied to all defendants, including some who were not property owners, that portion of the judgment is reversed and remanded so that the attorney fee obligation will only be imposed against the property owners — Jim Gross and Linda Paulson.

[1149.] Prairie Hills and Grosses have both submitted motions for appellate attorney fees in this Court. Under SDCL 15-26A-87.3, appellate attorney fees may be granted in actions where such fees are allowable. In re Guardianship of T.L.R., 2002 SD 54, ¶ 19, 645 N.W.2d 246, 251. We have considered both applications. Considering the covenants, Grosses’ motion is denied, and Prairie Hills’s motion is granted against Jim Gross and Linda Paulson in the amount of $3,000.

[¶ 50.] The judgment issuing the injunction is affirmed. That portion of the judgment awarding attorney fees against property owners Jim Gross and Linda Paulson is affirmed. That portion of the judgment awarding attorney fees against non-property owners is reversed.

[¶ 51.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

      . SDCL 21-10-1 provides that "[a] nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission . . . [a]nnoys, injures, or endangers the comfort, repose, health, or safety of others....”

        . Grosses also devote much of their briefs to their contention that there is insufficient evidence to find that property values have declined in the development as a result of their business. We do not address this argument because a "reduction in property values” was not a factor utilized by the trial court in its findings of fact and conclusions of law.

      . The trial court found that the study performed by Dr. Kerk had some defects and was just one factor in determining whether Grosses’ business violated the covenants and restrictions and created a public nuisance.

      . Grosses also argue that the trial court erred in not entering a finding on factor 3. Grosses' argument regarding factor three is without merit. This record clearly shows that Grosses were acting with knowledge of the restrictive covenants. There is no evidence of an innocent mistake.

      . We have also not required an explicit consideration of all factors in other contexts. See, State v. Mark Weaver, 2002 SD 76, ¶ 25, 648 N.W.2d 355, 365 (stating that although the trial court did not make an explicit consideration of all Daubert factors, an express rendering of the trial court’s decision-making process is not required where the court's specific findings are supported by the record and further explanation is not required to uphold the order).

      . The record reflects that original developer and grantor was Darrell J. Nickelson.

      . See Paloma Investment Limited Partnership v. Jenkins, 194 Ariz. 133, 978 P.2d 110 (App.1998)(covenant's attorney fee provision did not "touch and concern” the land, and therefore, based on common law principles, did not run with the land); White v. Wilhelm, 34 Wash.App. 763, 665 P.2d 407 (1983) (plaintiff limited only to attorney fees incurred in pretrial efforts to dissolve injunction, court did not address issue of whether right to attorney fees were included in covenant running with the land); Eagle Enterprises, Inc. v. Gross, 39 N.Y.2d 505, 384 N.Y.S.2d 717, 349 N.E.2d 816 (1976)(landowner’s obligation to purchase seasonal supply of water from grantor was a personal, contractual promise rather than an interest running with the land); Raintree Corporation v. Rowe, 38 N.C.App. 664, 248 S.E.2d 904 (N.C.App.1978)(covenant to be member of country club and pay country club dues was in no way connected to the land, and was therefore, based on common law, a personal covenant rather than covenant running with the land); Choisser v. Eyman, 22 Ariz.App. 587, 529 P.2d 741 (1974)(refund rights under water extension agreement was personal right, and under common law could not, by definition, be a covenant running with the land); Latses et al v. Nick Floor, Inc., 99 Utah 214, 104 P.2d 619 (1940)(in unlawful detainer action, agreement to pay attorney fees was a personal covenant between parties of contract and therefore did not run with the land under common law principles).