author: ZINTER, Justice.

text:
    2005 SD 73
    STATE of South Dakota, Plaintiff and Appellee, v. Patrick Ryan McKINNEY, Defendant and Appellant.
    No. 23374.
    Supreme Court of South Dakota.
    Considered on Briefs on April 25, 2005.
    Decided June 15, 2005.
    See also _ N.W.2d _.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Julie Hofer, Hofer Law Office, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] A jury convicted Patrick Ryan McKinney of first-degree rape, sexual contact with a child under sixteen years of age, and sexual exploitation of a minor. McKinney appeals raising issues concerning his sentence, his right of confrontation, the sufficiency of the evidence, and a child abuse expert’s opinion evidence. We affirm.

Facts and Procedural History

[¶ 2.] McKinney and Colleen O’Bleness met in early 2001. After O’Bleness’ husband died in May 2001, she began dating McKinney. In August 2001, McKinney moved into O’Bleness’ home, where she lived with her two daughters; K.H., who was fourteen years old at the time of trial and J.H., who was nine years old at trial. McKinney and O’Bleness were married on February 16, 2002.

[¶ 3.] In January 2003, O’Bleness and McKinney began having marital problems because McKinney was not contributing financially to the household. After confiding in her pastor about her marital troubles, after seeing adult pornography on the computer in their bedroom, and after noticing that McKinney had changed his password without telling her, O’Bleness decided to find out if he was spending money on pornography. O’Bleness had a program installed on the computer that identified a variety of photographs and files that could be pornographic, including twenty to thirty pornographic pictures of young children. After finding the pictures, O’Bleness turned the computer over to the police and had McKinney removed from the home.

[¶4.] O’Bleness subsequently told her daughters that she was going to talk to the police about some inappropriate and illegal things that she had found on the computer. J.H. responded that she could prove McKinney had pictures on the computer because she had seen a picture of a “naked girl.” J.H. also testified that, one time when she was playing on the computer, McKinney told her that he wanted to show her something. J.H. indicated that McKinney then showed her “a little movie type thing” in which a man was licking a little girl “on her private[s].” On another occasion, when O’Bleness and her other daughter were not at home, J.H. was shown a movie on a DVD. J.H. testified that this movie involved adults who were not wearing any clothes. Although she tried to leave while the movie was playing, McKinney prevented her from leaving the room.

[¶ 5.] At some point during this same period, J.H. developed an infection that required application of a vaginal medication. O’Bleness usually applied the medication after J.H. took her evening bath. One night, J.H. was home alone with McKinney. After taking her evening bath and getting ready for bed, McKinney reminded her that she had not yet applied her medication. McKinney offered to apply the medication even though J.H. told him that she did not want him to because her mother was not there. J.H. later agreed to let McKinney insert the medication but, when he attempted to do so, she told him to stop because she was uncomfortable. McKinney then told J.H. that he could apply the medicine with his finger and she told him to stop after he had used his finger. McKinney then licked her in her vaginal area and told her that his licking her would help her infection. Although J.H. told him to stop, he kept licking until he heard a car door slam. McKinney told J.H. not to tell anyone about the incident.

[¶ 6.] J.H. testified that on another occasion McKinney had shown her a vibrator when her mother and sister were not at home. J.H. stated that McKinney had also turned; the vibrator on and put it directly on her “private parts.”

[¶ 7.] After this abuse came to light, J.H. met with Colleen Brazil, a forensic interviewer from Child’s Voice, a medical evaluation center where children are evaluated for possible physical and sexual abuse. During this interview, J.H. made several statements to Brazil about McKinney’s sexual abuse. The interview was videotaped and played for the jury.

[¶ 8.] The jury convicted McKinney of all three charges. McKinney was sentenced to fifty .years for rape, fifteen years for sexual contact with a child less than sixteen years of age, and two years for sexual exploitation of a minor, all to be served consecutively. .McKinney’s motion for a new trial was denied. McKinney now appeals raising the following issues:

(1) Whether the trial court’s consecutive sentence of 67 years for three offenses was cruel and unusual punishment under the Eighth Amendment;
(2) Whether the use of J.H.’s hearsay statements to the forensic interviewer denied McKinney the right to confront and cross-examine the witnesses against him;'
(3) Whether the evidence was sufficient to find McKinney guilty beyond a reasonable doubt;
(4) Whether the trial court abused its discretion by allowing a child abuse expert to testify.

(1) Constitutionality of Sentence

[¶ 9.] McKinney was sentenced to a total of sixty-seven years for the three convictions; first-degree rape, sexual contact with a child under age sixteen, and sexual exploitation of a minor. The three convictions arose from three separate incidents. Additionally, in a related criminal action, he was sentenced to one hundred years for twenty felony convictions for possessing child pornography. However, McKinney contends that the sixty-seven year sentence was “extremely severe and is, in reality, a life sentence.” Prior to all of these incidents, he had no criminal record. Therefore, McKinney argues that the sentence is “grossly disproportionate to the offensefe] committed” in violation of the Eighth Amendment.

[¶ 10.] Our standard of review on this issue is well settled.

“[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider “the gravity of the offense and the harshness of the penalty;” and other relevant factors, such as the effect this type of offense has on society.

Guthmiller, 2003 SD 83, ¶ 43, 667 N.W.2d at 309 (internal citations omitted). However, “limited principles [are used] in our constitutional review of sentences.” State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (citing State v. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d 14, 18). These limiting principles require ‘“substantial deference to the legislature’s broad authority to determine the types and limits of punishment’ and [adherence to] the notion that ‘the Eighth Amendment does not mandate adoption of any one penological theory.’” State v. Pasek, 2004 SD 132, ¶ 33, 691 N.W.2d 301, 311 (citations omitted). We ultimately review a sentence within statutory limits under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, ¶ 40, 563 N.W.2d 126, 135 (citing State v. Anderson, 1996 SD 46, ¶ 30, 546 N.W.2d 395, 402).

[¶ 11.] McKinney argues his sentence was grossly disproportionate because it was the legislature’s “intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” State v. Bonner, 1998 SD 30, ¶25, 577 N.W.2d 575, 582 (citation omitted). However, the range of sanctions authorized for first-degree rape is a mandatory minimum ten-year sentence to a maximum sentence of life imprisonment without parole. SDCL 22-22-1.2(1), SDCL 22-6-1, and SDCL 24-15A-32. Therefore, because McKinney was not sentenced to life, his reliance upon the “most serious sanction” language of Bonner has little application here.

[¶ 12.] Moreover, McKinney’s pre-sentence investigation justified his sentence. That investigation revealed that McKinney had an admitted interest in sadism and in having sex with strangers. He was a member of several online pornographic websites and had recently been convicted of twenty felonies involving child pornography. In a sexual-psychological assessment, McKinney scored in the “low to moderate” range to re-offend, but he continued to deny any of the sexual misconduct. Thus, his realistic chances of successful treatment and rehabilitation were questionable at best. As we stated in State v. Clegg, 2001 SD 128, ¶ 6, 635 N.W.2d 578, 580:

[A]fter exercising the right to trial, a defendant’s continued refusal to take accountability may be considered as a sign of lack of remorse. State of Wisconsin v. Fuerst, 181 Wis.2d 903, 915, 512 N.W.2d 243, 247 (1994). “Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial.” Scott v. United States, 419 F.2d 264, 270 (D.C.Cir.1969). A sentencing court may consider a defendant’s denial as part- of its decision whether the defendant can be successfully rehabilitated. Rehabilitation must begin with an offender’s acknowledgment of personal fault.

[¶ 13.] Furthermore, although not initially used in determining gross dispro-portionality, we may consider “the consequences of [the defendant’s] acts upon the victims and society” in ultimately, determining the constitutionality of the sentence. Bonner, 1998 SD 30, ¶ 22, 577 N.W.2d at 581 (citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)). In this case, J.H. wrote a letter to the trial court in which she described the consequences of McKinney’s misconduct. J.H. wrote: “I’m glad I stopped [McKinney] before he did anything bad to someone else. I think about it every single day and wish that I could be someone else and have someone else have it happen to them ... I’ll remember it for my whole life ... [H]e’s tricky and bad.” (Emphasis added.) Thus, while McKinney could have received a life sentence, but did not, J.H. may possibly suffer lifetime consequences of the abuse. These consequences further justify McKinney’s sentence.

[¶ 14.] McKinney finally asserts that because the trial court made no findings regarding his potential for rehabilitation, his case should be remanded to the trial court for such a determination. . We encourage, and have often required, the consideration of the potential for rehabilitation. See State v. Hinger, 1999 SD 91, ¶ ¶ 24-25, 600 N.W.2d 542, 549-50; Bult v. Leapley, 507 N.W.2d 325 (S.D.1993). In this case, we note that the trial court did not make specific findings on McKinney’s potential for rehabilitation, but' it did consider McKinney’s rehabilitative prospects by its review of the pre-sentence investigation and the sexual rehabilitative assessment.

[¶ 15.] When the offense of rape or sexual contact with a child'under sixteen is committed, an assessment that includes rehabilitative prospects is required by statute. • SDCL 22-22-1.3 requires that: •

Any person convicted of a violation listed in § 22-22-1.2 shall have included in his presentence investigation report an assessment which shall include the following information: the offender’s sexual history; intellectual, adaptive and academic functioning; social and emotional functioning; previous legal history; previous treatment history; victim selection; risk to the community; and treatment options recommended.

McKinneys assessment indicated that he was first exposed to pornography when he was nine; he had had nine previous sexual partners, not including this victim; and two of his sexual experiences'were with prostitutes. Although he denied making sexual movies or photographs, he admitted viewing pornography on the Internet as a member of several sites. He also acknowledged sadomasochistic behaviors and having ' sex with strangers. Psychological testing revealed that McKinney had attempted to place himself in an “overly positive” light by minimizing his faults and denying problems. The testing also revealed that McKinney may have a possible adjustment disorder with “mixed disturbance of emotions” and some passive/aggressive and anti-social traits. McKinney scored in the low to moderate range to re-offend, and it was recommended that if. he were ever granted probation or parole, that he participate in a sex-offender treatment group. However, he continues to deny his misconduct, and therefore, as previously mentioned, his prospects for rehabilitation and treatment are poor. Because the record reflects that the trial court considered these facts, we conclude that a remand for specific findings on rehabilitative prospects is not required in this case.

[¶ 16.] In the final analysis, we note that McKinney was convicted of first-degree rape for penetrating J.H. with his tongue and finger; sexual contact for his use of a vibrator on J.H. when he was approximately twenty-three or twenty-four years old and she was seven or eight; and sexual exploitation for forcing J.H. to watch child and adult pornography. Bach of these convictions involved separate incidents. Moreover, McKinney was convicted of twenty counts of child pornography during this same period of time. Given the totality of McKinney’s conduct, the possible lifelong effect his actions may have upon J.H., and his questionable prospects for rehabilitation, we conclude that his sentence was not grossly disproportionate.

(2) Hearsay Testimony of J.H.— Right to Confrontation

[¶ 17.] Pursuant to SDCL 19-16-38, J.H.s hearsay statements to Colleen Brazil were admitted at trial. McKinney contends that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applies to his case. McKinney contends that under Crawford, his motion for a new trial should have been granted because he did not have an adequate opportunity to cross-examine J.H. McKinney argues that he was denied this opportunity because J.H. could not or did not answer certain questions during cross-examination and was, therefore, “unavailable.”

[¶ 18.] Both the United States Constitution and the South Dakota Constitution provide the right to confront and cross-examine the witnesses against a criminal defendant. U.S. Const. amend. VI; S.D. Const, art. VI, 7. “[A]n alleged violation of [this] constitutionally protected right is a question of law” reviewed de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546 (citations omitted).

[¶ 19.] Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had previously allowed the admission of hearsay statements if they fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness. Although Crawford changed these rules and generally prohibited the use of such statements, Crawford did permit the admission of hearsay if the witness was “available” for cross-examination at trial. Id. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at-, n. 9; Carothers, 2005 SD 16, 692 N.W.2d 544.

[¶ 20.] The trial court concluded that, because “J.[]H. was available for cross-examination at the trial regarding both her trial testimony and the statements made to Brazil (the forensic interviewer) at Child’s Voice, McKinney’s right to confront his accusers was not denied at the trial.” In reviewing this ruling, we assume. without deciding that the statements to Brazil were testimonial. We, therefore, must determine whether j.H. was “available” for cross-examination at trial.

[¶21.] In California v. Green, 399 U.S. 149, 159, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970), the Supreme Court indicated that for this type of hearsay to be admitted, there must be a “full and effective cross-examination” at trial. In addressing the meaning of a full and effective cross-examination, the Supreme Court stated the question is “whether subsequent cross-examination at the defendant’s trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Id. at 160-61, 399 U.S. 149, 90 S.Ct. 1930, 1936, 26 L.Ed.2d at 498. However, this does not mean that the, cross-examination must be exactly as a defendant wants it. “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631, 643 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985)) (emphasis in original).

[¶ 22.] McKinney argues that his cross-examination was not “full and effective” because on= approximately twenty occasions J.H. answered his questions indicating that she “did not know” or “could not remember” certain facts. A detailed review of J.H.’s testimony reflects that these answers were in response to five types of questions. One type involved questions that were withdrawn. Another dealt with questions that were irrelevant to the crimes at issue. The third involved questions that J.H. later answered. The fourth involved less relevant inquiries concerning her memory of things that she may have previously said to Brazil or the prosecuting attorney (during the grand jury proceeding). The last type involved questions about the sexual abuse that J.H. did not remember or could not answer.

[¶ 23.] Of the twenty non-responsive answers, we observe that one question was withdrawn. Another was irrelevant to McKinney’s conduct. Eight questions were rephrased and answered later. And, six involved questions concerning her recollection of what she may have previously said to other people. Thus, on only four occasions during cross-examination did J.H. actually fail to respond to a relevant question about the abuse. Moreover, to the extent that she did not respond to questions asking about her prior statements to Brazil, that information was depicted on the videotape that was played to the jury.

[¶ 24.] We also observe that J.H.’s entire testimony spans almost 60 pages and she affirmatively answered 403 questions (including 122 questions on cross and recross-examination). In contrast, J.H. only failed to provide answers to relevant questions on a handful of occasions. Because this record of responses is really no different than most witnesses’ courtroom performance, we conclude that the jury was afforded a satisfactory basis for evaluating the truth of the prior statements. Consequently, McKinney was not deprived of the opportunity to cross-examine J.H., and McKinney’s motion for a new trial was properly denied.

(S) Sufficiency of the Evidence

[¶ 25.] At the close of the State’s case and at the end of the trial, McKinney moved for a judgment of acquittal. Both motions were denied. McKinney contends that there was insufficient evidence to support the convictions because J.H.’s testimony was inconsistent. McKinney argues that the inconsistencies leave doubt that the State established its case beyond a reasonable doubt.

[¶ 26.] In reviewing a denial of a motion for judgment of acquittal, we determine “whether the ‘evidence was sufficient to sustain the convictions.’ ” State v. Janklow, 2005 SD 25, ¶ 16, 693 N.W.2d 685, 693 (citations omitted).

“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305 (citation omitted).

[¶27.] McKinney’s claim of insufficiency of evidence is predicated solely on alleged inconsistent testimony given by J.H. However, our standard of review does not permit us to “resolve ... conflicts in testimony, pass ... on the credibility of witnesses, or weigh ... evidence.” State v. Hage, 532 N.W.2d 406, 410-11 (S.D. 1995). These matters are left for the jury to determine. Id. (citations omitted).

[¶ 28.] Furthermore, J.H.’s testimony was partly corroborated. She testified that McKinney had shown her a movie on the computer in which a man was licking a little girl on her privates while the girl was only wearing a shirt. J.H. also testified that McKinney showed her a movie on DVD involving adults who were not wearing any clothes. J.H.’s testimony concerning the movie on the computer was corroborated by the testimony of Kevin Atkins, a criminalist/forensic computer analyst. Atkins testified fhat he found movies of child pornography on the hard drive of the computer and that they were associated with the security ID for McKinney. One of those movies involved a male with his tongue in a young girl’s vaginal, area, and throughout the movie, the girl was only wearing a shirt. Additionally, J.H.’s mother testified that she knew McKinney had two adult pornographic movies.

[¶ 29.] Considering the partial corroboration and our standard of review, we conclude that there was sufficient evidence for the jury to convict McKinney.

(⅛) Expert Testimony

[¶ 30.] Colleen Brazil, the forensic interviewer, testified for the State. McKinney contends that Brazil’s testimony was improperly used to bolster J.H.’s credibility. McKinney asserts that Brazil’s testimony “eliminated” the inconsistencies in J.H’s testimony. McKinney contends that “Brazil’s testimony basically told the jury that if J.H. made inconsistent statements or had lied on a previous occasion, it was because she was only eight years old.”

[¶ 31.] “[T]he trial court has broad discretion in regard to the admission of expert testimony.” State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421 (citations omitted). A trial court’s decision to admit such testimony will not be reversed absent a clear showing of an abuse of discretion. State v. Logue, 372 N.W.2d 151, 156 (S.D.1985) (citations omitted).

[¶ 32.] Generally, “one witness may not testify as to another witness’ credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.” State v. Raymond, 540 N.W.2d 407, 409-10 (S.D.1995) (citations omitted). As allegations of error, McKinney indicates Brazil testified why an eight-year-old ■ child would not be able to accurately state.how many times something happened to her and a child may answer a question differently because they may .not understand what question they are answering. McKinney also points to a comment that Brazil made explaining that J.H.’s answers may have been inconsistent because she may ..not have been able to distinguish time .periods and she may not have known the meaning of certain words.

[¶ 33.] However, Brazil’s testimony was, for the most part; a generalized explanation of a child’s capacity to testify based upon’ their developmental traits. This included such things as' how children tell stories; the lack of cognitive ability 'of children; the fact that children are not developmentally ready to give accurate estimates of dates, times, etc.; and that sexual abuse may adversely affect a child’s memory. Brazil also indicated that some children do not have an understanding of how to order or number things when they are telling a story and that questions need to be asked in a very specific way so that the child understands exactly what is being asked.

[¶ 34.] Brazil further explained other problems with child testimony. She indicated that adults often assume children understand questions, possibly resulting in a child giving what appear.to be inconsistent statements. However, she indicated that the inconsistency can result from how the adult phrased the question. Brazil also described child sexual abuse, accommodation syndrome, which produces a group of characteristics often found in children who are abused. Brazil indicated that disclosure of abuse is a process and that a child oftentimes cannot, in one sitting, talk about everything that happened from start to finish with all the details. Brazil finally indicated that eight-and-a-half-year-olds do not have the cognitive ability to disclose an entire account of a rape or sexual contact.

[¶ 35.] We have allowed this type of testimony when an expert ties general characteristics of sexually abused children to a particular victim. State v. Floody, 481 N.W.2d 242, 249 (S.D.1992). In Floody, a social worker testified regarding several statements that were made by a child sexual abuse victim. Id. We observed that the expert did not directly testify as to the truthfulness of the child’s statements, even though the expert’s testimony implied that the statements were truthful. Id. We concluded that the social worker’s testimony had not invaded the province of the jury because her testimony was helpful to the jury in determining whether the interviewing techniques used were suggestive or leading. Id. So also, in State v. Cates, 2001 SD 99, ¶ 5, 632 N.W.2d 28, 32, a licensed psychologist offered expert testimony explaining “the general characteristics of sexual abuse, the concept of ‘delayed reporting,’ and the relevance of inconsistencies when a child reports sexual abuse.” We again allowed such testimony, concluding that it was “clearly within the bounds” of prior case law. Id. ¶ 19.

[¶ 36.] Similarly, Brazil’s testimony merely explained that trauma, as well as age, can affect a child’s ability to remember and testify. This explanation of the characteristics of a child’s testimony was not improper bolstering of the child witness’s credibility.

[¶ 37.] Affirmed.

[¶ 38.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . J.H. testified that she did not want to watch the movie with McKinney, but when she tried to leave, he grabbed her and said "don't leave. I want you to watch this.” McKinney then prevented J.H. from leaving by laying behind her and putting his arm around her.

      . State v. McKinney, 2005 SD 74, 699 N.W.2d 460.

      . The sixty-seven year sentence in this case was to be served concurrently with the one hundred year sentence in the pornography case.

      . McKinney asks us to compare and contrast his sentence to the sentences given for rape and criminal pedophilia in State v. Hinger, 1999 SD 91, 600 N.W.2d 542; State v. Guth-miller, 2003 SD 83, 667 N.W.2d 295; and, State v. Herrmann, 2004 SD 53, 679 N.W.2d 503. We decline to do so for two reasons. First, under our standard of review, we do not engage in intra-jurisdictional analysis unless we first find gross disproportionality. We also decline because McKinney was sentenced to a term of years rather than the life sentences given in each of these other cases.

      . SDCL 19-16-38 provides:
      A statement made by a child under the age of ten, or by a child ten years of age or older who is developmentally disabled as defined in § 27B-1-3, describing any act of sexual contact or rape performed with or on the child by another, or describing any act of physical abuse or neglect of the child by another, or any act of physical abuse or neglect of another child observed by the child making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of this state if:
      (1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
      (2) The child either:
      (a) Testifies at the proceedings; or
      (b) Is unavailable as a witness.
      However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
      No statement may be admitted under this section unless the proponent of the statement makes known his intention to offer the statement and the particulars of it, including the name and address of the declar-ant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

      . The trial in McKinney’s case concluded in February 2004, before Crawford was decided. We apply Crawford to cases in which the trial was completed and was on appeal before Crawford was decided. Herrmann, 2004 SD 53, ¶ 21-23, 679 N.W.2d at 510. Other jurisdictions also apply Crawford to trials that were completed before the decision was announced. See Cooper v. McGrath, 314 F.Supp.2d 967 (N.D.Cal.2004); Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004); State v. Cox, 876 So.2d 932 (La.Ct.App.2004).

      . McKinney contends that because he was not present when J.H. made the statements to Brazil, he did not have an opportunity to cross-examine J.H. when the statements were made, and therefore, the requirements of the Confrontation Clause were violated. We disagree. In Carothers, 2005 SD 16, ¶ 10, 692 N.W.2d at 547, we stated that "Crawford did not suggest that a prior opportunity for cross-examination was ... required if the witness was available for cross-examination at trial.'' (Emphasis added.) We concluded that "if the declarant is available for cross-examination at the trial, ‘the Confrontation Clause places no constraints at all on the use of [the declar-ant’s] prior testimonial statements.’ ” Id. ÍT11.

      . The State has not argued that J.H.’s statements to Brazil were non-testimonial in nature. Rather, the State’s argument focuses solely on J.H.’s availability and ability to be cross-examined. Therefore, we do not address the "testimonial” issue.


source: Caselaw Access Project

author: KONENKAMP, Justice. ZINTER, Justice

license: Public Domain

text:
    2005 SD 80
    Greg VOLD d/b/a States Border Turf, Plaintiff and Appellant, v. BROIN & ASSOCIATES, INC., a South Dakota Corporation, Defendant and Appellee.
    No. 23464.
    Supreme Court of South Dakota.
    Considered on Briefs April 25, 2005.
    Decided June 22, 2005.
    Rehearing Denied July 21, 2005.

      Ronald G. Schmidt of Schmidt, Schroyer, Moreno & Lee, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Tim R. Shattuck, Daniel J. Harmelink of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we review a circuit court’s decision to vacate an arbitration award. Because the arbitrator failed to follow his own order to issue a “reasoned award,” we affirm.

Background

[¶ 2.] Broin & Associates is a South Dakota corporation engaged in the business of designing and constructing ethanol production facilities. On November 2, 2000, Broin contracted to design and build a production plant known as Northern Lights Ethanol, L.L.C. Broin served as the general contractor for the project.

[IT 3.1 In April 2001, Broin signed a contract with Gregory Void, a Minnesota resident, who would perform the site and grading work. From the beginning, there were difficulties. By December 2002, Void had not completed much of the required work. ' As a result, on December 19, 2002, Broin' terminated Void’s contract for cause.

[¶4.] In November 2003, Void filed a demand for arbitration, seeking payment for unapproved change orders, alleged work stoppages, and other claims. Under their contract, “[a]ll claims, disputes, and other matters in question between Design/Builder and Contractor arising out of or relating to the Construction Agreement Documents or the breach thereof ... will be decided by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association [AAA].” Broin filed an answering statement with the AAA, denying liability on Void’s claims and seeking reimbursement for the costs and expenses sustained in connection with the remaining grading work on the construction project. Void had thirteen claims, totaling more than $800,000. Broin had eleven claims, totaling approximately $500,000.

[¶ 5.] Norman Fast was selected to be the arbitrator. He conducted a telephonic preliminary hearing with the parties and their attorneys on February 2, 2004. The purpose of the hearing was to provide the arbitrator with guidance on the parameters of the arbitration proceeding. During the hearing, it was agreed that each side would submit a specification of claims to the AAA outlining their respective demands. It was also agreed that the arbitration would be held in Watertown, South Dakota, starting on June 21, 2004. As the hearing progressed, Tim R. Shattuck, one of the attorneys for Broin, requested that the arbitrator issue a “reasoned award.” According to another of Broin’s attorneys, Daniel R. Harmelink, the attorney for Void, Ron Schmidt, consented to the award being in the form of a “reasoned award.” Attorney Ron Schmidt, however, denies that he agreed to a reasoned award. There was no verbatim record kept of the hearing.

[¶ 6.] After the preliminary hearing, the arbitrator prepared and signed a report and scheduling order indicating that the form of the award was to be a “reasoned award.” This order was then submitted to the AAA by the arbitrator. On February 10, 2004, the case manager from the AAA sent a letter to all parties setting out the terms of the arbitrator’s preliminary hearing report and scheduling order. The letter stated that “[t]he form of Award to be issued in the above matter will be a reasoned award” and that “[t]his order shall continue in effect unless and until amended by subsequent order by the arbitrator.”

[¶ 7.] The arbitration hearing began on June 21 and ended on June 24, 2004. Twelve witnesses testified. On July 13, 2004, the arbitrator issued his decision awarding $267,298 in damages to Void and denying Broin’s counterclaims. The arbitrator’s award consisted of two pages. It itemized the various dollar amounts allowed for each of Void’s claims, but gave no reason for each award and no reason for rejecting Broin’s claims. The award did not mention any of the relevant contract provisions at issue, cite any law, or discuss any of the evidence admitted during the four day hearing.

[¶ 8.] Following the arbitrator’s decision, Broin sought to vacate the award in circuit court. The court heard the matter on September 8, 2004, and thereafter issued its Findings of Fact and Conclusions of Law and Order Granting Motion to Vacate Arbitration Award and Denying Motion to Confirm Award. Several times in its “findings” the court noted, contrary to attorney Ron Schmidt’s assertion in his affidavit, that both Broin and Void had agreed to a reasoned award during the telephonic preliminary hearing with the arbitrator on February 2, 2004. It is unclear how the court reached this factual, and perhaps, credibility, determination, since it appears that it heard no testimony during the hearing. Nonetheless, the court went on to conclude that “the parties had agreed to the issuance of a reasoned award” and “the arbitrator had exceeded the authority granted him by Broin and Void by failing to issue a reasoned award.” Accordingly, the court ruled that federal law required the award to be vacated.

[¶ 9.] Void raises the following appeal issues: First: “Whether the trial court erred by substituting its judgment for that of the arbitrator on a strictly procedural issue, especially in light of the parties’ contractual Rule 54 granting the arbitrator sole authority to interpret and apply the arbitration rules insofar as they govern his powers and duties?” Second: “Whether Broin’s failure to pursue [his] remedy under contractual Rule 47(1) authorizing an aggrieved party, within 20 days of the award, (while the information is still fresh in the arbitrator’s mind) to request the arbitrator to modify any alleged procedural, technical error (such as lack of reasoning) in the award: (1) was a condition precedent, and barred Broin’s seeking judicial relief to cure such alleged defect, or, alternatively, (2) a waiver of a known right and/or an equitable estoppel barring him from seeking judicial relief?”

Analysis and Decision

[¶ 10.] In examining a circuit court’s order vacating an arbitration award, we review the court’s findings of fact under the clearly erroneous standard, but decide questions of law de novo. Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075, 1080 (8th Cir.2002) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 1926, 131 L.Ed.2d 985 (1995)). “However, we must accord ‘an extraordinary level of deference’ to the underlying award itself.” Id. (quoting Keebler Co. v. Milk Drivers & Dairy Employees Union, Local No. 471, 80 F.3d 284, 287 (8th Cir. 1996)). “Indeed, we must confirm the award even if we are convinced that the arbitrator committed serious error, so ‘long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.’ ” Id. (extracting from Bureau of Engraving, Inc. v. Graphic Communication Int’l Union, Local 1B, 284 F.3d 821, 824 (8th Cir. 2002)). See also Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 748-49 (8thCir.1986).

[¶ 11.] Arbitrators possess broad, but not unlimited, authority. Missouri River Servs., Inc. v. Omaha Tribe of Nebraska, 267 F.3d 848, 855 (8th Cir.2001) (following Trailmobile Trailer, LLC v. Int’l Union of Electronic, Electrical, Salaried, Mach. & Furniture Workers, AFL-CIO, 223 F.3d 744, 747 (8th Cir.2000)). Grounds for vacating an arbitration award are provided in the Federal Arbitration Act (FAA). 9 U.S.C. § 10 (2002). Section 10 of the FAA lists several bases for vacating an arbitration award. In addition, circuit courts may also vacate arbitration awards that are “completely irrational” or that “evidence a manifest disregard for the law.” Hoffman v. Cargill Inc., 236 F.3d 458, 461 (8th Cir.2001) (alteration and citation omitted).

[¶ 12.] The arbitrator, Void contends, was vested with discretion in how he handed down the final decision and award: the “arbitrator determined that he had no duty under the AAA Construction Industry Arbitration Rules to render a ‘reasoned’ award.” Because the “parties did not request any reasoned award, in writing, prior to the appointment of the arbitrator,” Void argues that the arbitrator’s decision to declare an award without a reasoned explanation was within his right. And, even if the agreement was changed to require a “reasoned award,” Void contends that the matter was one of procedure, rather than substance, precluding the circuit court from substituting its judgment for that of the arbitrator. As such, Void argues that the circuit court’s sole basis for vacating the arbitration award was procedural in nature, therefore constituting reversible error. .

[¶ 13.] In addressing Void’s arguments, we first turn to the Construction Industry Arbitration Rules provided by the AAA. Rule R-l(a) states:

The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the [AAA] under its Construction Industry Arbitration Rules. These rules and any amendment of them shall apply in the form in effect at the time the administrative requirements are met for a demand for arbitration or submission agreement received by the AAA. The parties, by written agreement, may vary the procedures set forth in these rules. After appointment of the arbitrator, such modifications may be made only with the consent of the arbitrator.

(Emphasis added.) In accord with R-21(b), “the parties and the arbitrator,” during the preliminary hearing, “should discuss the future conduct of the case, including clarification of the issues and claims, a schedule for the hearings and any other preliminary matters.”

[¶ 14.] It is undisputed that no request for a reasoned award was made in writing prior to the arbitrator’s appointment. At the preliminary hearing held on February 2, 2004, a request was made for a reasoned award by Broin’s counsel. Void’s attorney denies that he consented to a reasoned award. After the preliminary hearing, nonetheless, the arbitrator prepared and signed a report and scheduling order, indicating that the form of the award was to be a “reasoned award.” Void contends that the parties did not agree to amend the form of the award. He also argues that the arbitrator’s notation on the preliminary hearing report and scheduling order was merely suggestive, and thus the arbitrator was under no duty to issue a “reasoned award.”

[¶ 15.] The preliminary hearing order, however, was then submitted to the AAA by the arbitrator. On February 10, 2004, the AAA case manager sent a letter to all parties, which reflected the terms of the arbitrator’s preliminary hearing report and scheduling order. The letter indicated that “[t]he form of Award to be issued in the above matter will be a reasoned award,” and that “[t]his order shall continue in effect unless and until amended by subsequent order by the arbitrator.” No amendment was ever made or requested. Accordingly, the requirement of a reasoned award was apparently consented to by the arbitrator and confirmed and memorialized -in writing under the terms of the preliminary hearing report and scheduling order and the letter issued by the AAA.

[¶ 16.] We now turn our analysis to the Federal Arbitration Act. “The Federal Arbitration Act (FAA) preempts state law and governs all written arbitration agreements in contracts involving interstate commerce.” Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 10, 593 N.W.2d 41, 43; Dakota Wesleyan Univ. v. HPG Int’l, Inc., 1997 SD 30, ¶ 6, 560 N.W.2d 921, 922 (citing Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 271-72, 115 S.Ct. 834, 838, 130 L.Ed.2d 753 (1995)); see 9 U.S.C. § 2 (1947). The FAA’s expansive reach coincides with that of the Commerce Clause. Allied-Bruce Terminix, 513 U.S. at 274, 115 S.Ct. at 840. See, e.g., Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 2526, 96 L.Ed.2d 426 (1987). Therefore, when a dispute falls within the scope of the FAA, a contract that includes an arbitration clause is governed by federal law. Allied-Bruce Terminix, 513 U.S. at 281, 115 S.Ct. at 843; see 9 U.S.C. § 3 (1947). Here, because the contract and construction dispute involves residents from South Dakota and Minnesota, thereby implicating interstate commerce, we review the matter under controlling federal law.

[¶ 17.] Section 10 of the FAA sets forth the following four grounds for vacating an arbitration award. First, “the award was procured by corruption, fraud, or undue means.... ” 9 U.S.C. § 10(a)(1). Second, “there was evident partiality or corruption in the arbitrators, or either of them.... ” Id. at (a)(2). Third, “the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. ...” Id. at (a)(3). Fourth, “the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” Id. at (a)(4).

[¶ 18.] The circuit court ruled that the “FAA requires a court to vacate an arbitration award in which ‘the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.’ ” See 9 U.S.C. § 10(a)(4). The court concluded that “[w]here parties to an arbitration have agreed and directed the arbitrator to issue a reasoned award, the arbitrator is obligated to conform to the parties’ directive and issue a reasoned award.” Thus, the “arbitrator’s failure to issue a reasoned award when directed by the parties to do so [was] an act in excess of the arbitrator’s power.... ” The circuit court must have deduced that the parties agreed to a reasoned award because the arbitrator provided for one in his order. But attorney Ron Schmidt denied that he agreed to such an award on behalf of his client.

[¶ 19.] In the absence of any credibility determination, we must label as spurious the circuit court’s finding that the parties “agreed” to a reasoned award. Nonetheless, we conclude that the arbitrator violated the rule he consented to follow. Under the American Arbitration Association’s Construction Industry Arbitration Rules, arbitrators are under no obligation to set out the reasons for their awards. The general rule is inapplicable, however, when a reasoned award is agreed to between the parties before selection of an arbitrator, or, after selection, when the arbitrator consents to give a reasoned award. AAA Rule R-43. We can deduce the following from the record: (1) before an arbitrator was selected, no binding agreement was made concerning the form of the award; (2) after the arbitrator was selected, at least one of the parties requested that the award be a “reasoned award” at the preliminary hearing; (3) after the preliminary hearing, the arbitrator indicated by order that the award would be reasoned; (4) the AAA issued a letter confirming that the award would be reasoned; (5) the requirement of issuing a reasoned award was therefore consented to by the arbitrator; and (6) the arbitrator failed to issue a reasoned award.

[¶ 20.] AAA Construction Industry Arbitration Rules provide:

R-43. Form of Award
(b) The arbitrator shall provide a concise, written breakdown of the award. If requested in writing by all parties prior to the appointment of the arbitrator, or if the arbitrator believes it is appropriate to do so, the arbitrator shall provide a written explanation of the award.

To emphasize the pertinent language, “[i]f requested in writing by all the parties prior to the appointment of the arbitrator, or if the arbitrator believes it is appropriate to do so, the arbitrator shall provide a written explanation of the award.” R-43(b) (emphasis added.) The arbitrator must have determined that it was appropriate to give a reasoned award. This conclusion is unavoidable because his order states that the award will be “reasoned.” And all we have to rely on is the arbitrator’s order, there being no verbatim record of what actually was agreed upon at the preliminary hearing. Therefore, the question becomes whether the arbitrator exceeded his power by issuing an award inconsistent with his own order that he would render a reasoned award.

[¶ 21.] An arbitration award can be set aside when the arbitrator “exceeded [his] powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). This award exceeded the arbitrator’s powers because the arbitrator violated the rules he agreed to follow. See generally Gas Aggregation Serv., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060, 1068-69 (8th Cir.2003) (stating that an arbitration decision evinces a manifest disregard for the law when it identifies a substantive rule and then proceeds to ignore it). Our query does not end here, however. We must next determine whether his error was substantive or procedural. As stated above, the standard of review grants broad discretion to arbitrators. “This rule of deference is founded on the recognition that (1) procedural questions are often intertwined with the merits of the dispute and (2) the reservation of procedural issues for the courts provides an opportunity for serious delay and duplication of effort.” Stroh Container Co., 783 F.2d at 748-49 (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964)). We must give greater deference to the arbitrator’s decisions on procedural matters than those dealing with substantive questions. Id. at 749 (following United Steelworkers of Am., AFL-CIO-CLC v. Ideal Cement Co., Div. of Ideal Basic Indus., Inc., 762 F.2d 837, 841 (10th Cir.1985)). Accordingly, because the overarching policy in arbitration is to attain a quick resolution to a dispute, it is crucial to determine whether the arbitrator’s error was procedural or substantive.

[¶ 22.] Procedural questions involve matters that are “tangential to the main body of the arbitrable dispute.... A mere procedural irregularity provides no basis upon which to conclude that the [arbitrator] acted beyond its authority.” Sheet Metal Workers Intl. Assn. Local Union No. 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 745 (9th Cir.1985) (citations omitted). “Procedural law” is defined as: “[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Black’s Law Dictionaey 1221 (7th ed 1999).

[¶ 23.] “Substantive law” “creates, defines, and regulates the rights, duties, and powers of the parties.” Id. at 1443. Void contends that the “arbitrator determined that he had no duty under the AAA Construction Industry Arbitration Rules to render a ‘reasoned’ award.” Are we to conclude, then, that the arbitrator, after issuing his written order, simply had the power to change his mind without notice or explanation? Once the arbitrator ordered that the award he would issue would be reasoned, his powers were defined. The arbitrator’s decision to issue a reasoned award bestowed a substantive right on Broin and, at the same time, imposed a substantive duty upon the arbitrator. True, the arbitrator could have amended his written order with a subsequent order at any time. But he never did. The day he handed down his unreasoned award, his order requiring a reasoned award still stood. The arbitrator’s disregard of his own order constituted a substantive error under the FAA and the AAA rules he operated under. Thus the unreasoned decision constituted a lack of a mutual, final, and definite award. For the foregoing reasons, we affirm the circuit court’s decision vacating the arbitration award.

[¶ 24.] Affirmed.

[V 25.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, and MILLER, Retired Justice, concur.

[¶ 26.] ZINTER, Justice, dissents.

[¶ 27.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

ZINTER, Justice

(dissenting).

[¶ 28.] I agree that the parties did not verbally “agree” to a “reasoned award.” Supra ¶ 19. There is also no dispute that there was no written agreement for a reasoned award. Therefore, the right to require a reasoned award was lost by Broin under the American Arbitration Association’s (AAA’s) Construction Industry Arbitration Rules, which were incorporated into the parties’ arbitration agreement. Under those rules, the arbitrator had express authority, in fact, unfettered discretion, to ultimately determine whether it was “appropriate” to render his decision in the form of a reasoned award. Because the arbitrator had express and absolute authority to determine whether a reasoned award was appropriate, this Court mistakenly concludes that “[t]his award exceeded the arbitrator’s powers” and was not a “final.and definite” award. Supra ¶¶21-23 (emphasis added).

[¶ 29.] Our standard of review of an arbitrator’s decision concerning the form of the award is, like most arbitration matters, limited. Even if this Court is convinced that the arbitrator committed serious error, as “long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,” arbitration awards must be confirmed. Schoch v. InfoUSA, Inc., 341 F.3d 785, 788 (8th Cir.2003) (citation omitted). See also United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286, 299 (1987); Gas Aggregation Services, Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060, 1064 (8th Cir.2003); Bureau of Engraving, Inc. v. Graphic Communication Int’l Union, Local 1B, 284 F.3d 821, 824 (8th Cir.2002).

[¶ 30.] With respect to the form of the award, “[i]t is usually held that the law requires only that an arbitrator announce his award, not that he state detailed reasons therefor.” Meharry v. Midwestern Gas Transmission Co., 103 Ill.App.3d 144, 58 Ill.Dec. 887, 430 N.E.2d 1138, 1140 (1981) (citation omitted). As the Iowa Supreme Court explained:

Arbitrators need not disclose the facts or reasons behind their award unless the arbitration agreement or submission, or an applicable statute, requires them to do so. Otherwise, they are no more bound to go into particulars, or to give reasons for their award, than a jury is for its verdict. When acting within the scope of their authority, being the chosen judges of the parties and the law unto themselves, they may award according to their notions of justice and without assigning any reason.

Reicks v. Farmers Commodities Corp., 474 N.W.2d 809, 811 (Iowa 1991) (citation omitted).

[¶ 31.] In this case, the scope of the arbitrator’s authority to determine the form of the award was governed by the AAA Rules because the parties’ agreement incorporated those rules. Rule R-43(b) expressly defined the scope of the arbitrator’s authority over the form of the award. It provided:

Form of Award
(b) The arbitrator shall provide a concise, written breakdown of the award. If requested in writing by all parties prior to the appointment of the arbitrator, or if the arbitrator believes it is appropriate to do so, the arbitrator shall provide a written explanation of the award.

(Emphasis added). Thus, under this unambiguous rule, the parties either had to have agreed in writing to a reasoned award or the decision was left to the sole discretion of the arbitrator.

[¶ 32.] In this case, there was no written agreement, and therefore, the arbitrator was within the clear scope of his authority to issue a non-reasoned award. Simply stated, absent a written agreement, Rule R-43(b) gave the arbitrator absolute discretion to determine the form of the award he deemed “appropriate.” Because the arbitrator possessed that authority, the arbitrator did not exceed his powers or so imperfectly execute them that a mutual, final, and definite award was not made under the vacation provisions of 9 U.S.C. § 10(a)(4).

[¶ 33.] The Court concludes otherwise, reasoning that the arbitrator exceeded his powers because he “violated the rules he agreed to follow” and did not enter a final and definite award. Supra ¶¶ 21-23 (emphasis added). The Court points out that the arbitrator entered a preliminary hearing scheduling order that indicated a reasoned award would be entered. The Court then concludes that the arbitrator had no authority, after issuing a preliminary hearing scheduling order, to change his decision and issue a non-reasoned award. The Court reasons that “[o]nce the arbitrator ordered that the award he would issue would be reasoned, his powers were defined. The arbitrator’s decision to issue a reasoned award bestowed a substantive right on Broin and, at the same time, imposed a substantive duty upon the arbitrator.” Supra ¶ 23. From this premise, the Court ultimately concludes that the arbitrator’s change of decision and failure to amend the preliminary order “constituted a substantive error under the [Federal Arbitration Act] and the AAA rules he operated under.” Id. However, the Court misinterprets Rule R-43(b) and the express language of the preliminary order. The Court fails to consider that an arbitrator, like any other comparable judicial officer, is authorized to change preliminary decisions that have not become final.

[¶ 34.] The weakness of the Court’s conclusions is first demonstrated by its own description of the uncertain nature of the arbitrator’s preliminary decision regarding a reasoned award. The Court can only state that “a reasoned award was apparently consented to by the arbitrator,” supra ¶ 15 (emphasis added), or that “the arbitrator must have determined that it was appropriate to give a reasoned award.” See supra ¶ 20 (emphasis added). These slender findings hardly demonstrate a binding preliminary determination, let alone a binding final decision, as to the form of the award.

[¶ 35.] But, more fundamentally, the Court’s reasoning (that an arbitrator may not change his decision before a final award is entered because a preliminary order bestows unalterable substantive rights and duties) is legally unsupportable. It is unsupportable because first, as both parties acknowledge, the preliminary order was expressly modifiable by the arbitrator at any time. Indeed, Paragraph 12 of the preliminary order provided it was interlocutory and subject to change at any time: “This order shall continue in effect unless and until amended by subsequent order of the Arbitrator (s).” (Emphasis added.) Similarly, the case manager’s report, which confirmed the terms of the preliminary hearing and this arbitration, indicated that the preliminary order would “continue in effect unless and until amended by subsequent order of the arbitrator.” (Emphasis added.) Thus, by the terms of the preliminary order itself, the arbitrator retained express authority to change the form of the award.

[¶ 36.] Second, it must be remembered that the authority to change a preliminary or interlocutory order is well recognized in the federal and state law governing dispute resolutions. It is specifically recognized that preliminary and interlocutory orders do not bestow unalterable rights and duties. That is because the federal courts have recognized there is “inherent power to reconsider and modify an interlocutory order any time prior to entry of judgment.” Viehweg v. Mello, 5 FSupp2d 752, 757 (E.D.Mo.1998). A departure from an earlier holding is allowed when the Court is “convinced that the holding is incorrect.” Id. See also Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992) (stating that until the district court entered judgment on all claims, it could consider earlier rulings on an issue). Similarly, we have consistently held that “[a] trial court has the inherent power to reconsider and modify an order any time prior to entry of judgment.” Moore v. Michelin Tire Co., Inc., 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (citations omitted). Therefore, it is no surprise that arbitrators also have this authority to reconsider their earlier rulings until the time they become final. Foreman v. Cargill, 1986 WL 9910 (Del.Super.Ct.).

[¶ 37.] Third, contrary to the majority opinion, there is no requirement under Rule R-43(b) or the FAA that an arbitrator must issue a formal “amended order” to retain authority to re-determine the form of the award that the arbitrator will ultimately utilize. On the contrary, there is only one way an arbitrator can lose his authority and become bound to a particular form of award under the rules of this arbitration; i.e. if a reasoned award is “requested in writing by all parties prior to the appointment of the arbitrator.” Id. That did not occur.

[¶ 38.] Finally, even if the technicality of a formal amendment were preferable under Rule R-43(b), the arbitrator possessed other authority to issue a non-reasoned final award without amending the preliminary order. This authority was granted in Rule R-54, which gave the arbitrator authority to “interpret and apply” Rule R-43(b) insofar as it relates to the arbitrator’s powers and duties. Thus, having authority to interpret and apply Rule R-43(b), it is immaterial under arbitration standards of review whether the arbitrator correctly or incorrectly exercised that authority and changed the form of the final award without amending the preliminary order. Even if the arbitrator had incorrectly interpreted Rule R-43(b) to not require a formal amendment before issuing a non-reasoned award, it was within the scope of the arbitrator’s authority to interpret and apply that rule in a manner that the final award superseded any preliminary orders. See generally Koch Oil, S.A. v. Transocean Gulf Oil Co., 751 F.2d 551, 554 (2d Cir.1985) (construing the same AAA “power to interpret and apply the AAA rules,” to “obligate ... the parties to abide by the AAA’s determination, at least within reasonable limits, of what constitutes such compliance” with other AAA rules); Merrill Lynch, Pierce, Fenner & Smith Inc. v. Burke, 741 F.Supp. 191, 194 (N.D.Cal.1990) (stating that “interpretations of the law by the arbitrators in contrast to manifest disregard are not subject ... to judicial review for error in interpretation.” (quoting Wilko v. Swan, 346 U.S. 427, 436, 74 S.Ct. 182, 187, 98 L.Ed. 168, 176 (1953)).

[¶ 39.] In the final analysis, the outcome of this case is controlled by the fact that there was no written agreement for a reasoned award. Therefore, this arbitrator had the sole authority to determine the form of the award. Moreover, his preliminary order was subject to change in the final award. Thus, after hearing the facts and law at the hearing, the arbitrator had authority to determine that the case only merited a non-reasoned award. I therefore dissent.

      . We do not address this second issue because Void did not cite any authority to support his argument that the failure to request such a modification under Rule 47(1) deprives a party of the right to seek vacation of an award given in excess of the arbitrator's power. Both sides had the right and opportunity to request that the arbitrator correct technical errors in the award, though neither side did. SDCL 15-26A-60(6) and a long line of precedent requires that a party cite authority for positions argued on appeal. See Priebe v. Priebe, 1996 SD 136, 11 14, 556 N.W.2d 78, 81; Petersen v. Sioux Valley Hosp. Ass’n, 486 N.W.2d 516, 520 n. 2 (S.D. 1992); Fox v. Fox, 467 N.W.2d 762, 768 (S.D.1991); Nielsen v. McCabe, 442 N.W.2d 477, 480 (S.D.1989); Kanaly v. State ex rel. Janklow, 403 N.W.2d 33, 34 (S.D.1987); Kostel Funeral Home, Inc. v. Duke Tufty Co., 393 N.W.2d 449, 452 (S.D. 1986).

      . As the Court notes, absent a credibility determination by the trial court, it is impossible to determine whether the parties verbally agreed to a reasoned award at the preliminary hearing.

      .Broin also argues that Rule R-l allowed the parties to modify these rules. However, Rule R-l also required a "written agreement,” which was undisputedly absent here. Therefore, there is no need to address Broin's argument under Rule R-l (providing in relevant part that "[t]he parties shall be deemed to have made these rules a part of their arbitration agreement.... The parties, by written agreement, may vary the procedures set forth in these rules. After appointment of the arbitrator, such modifications may be made only with the consent of the arbitrator.”). (Emphasis added.)

      . Even if the parties had verbally agreed to a ’ reasoned award at the preliminary hearing, there is no dispute that these parties never agreed in writing. Therefore, Broin may not rely on Rule R-43(b) or R-l to require a reasoned award.

      . The Court’s equivocal description of the preliminary order is due to the nature of the record in arbitrations. The record reflects that this issue was discussed at the preliminary hearing. Thereafter, a confirming preliminary scheduling order indicated a reasoned award would be utilized. However, for reasons not disclosed in the record, the arbitrator subsequently changed his decision and decided not to issue a reasoned award. Because of the nature of the record in arbitra-tions, we simply do not know why the arbitrator changed his decision as to the form of the award. All we do know is that Rule R-43(b) expressly authorized the arbitrator to determine the form of the award he deemed “appropriate/' and there is no provision of the Federal Arbitration Act that invalidates this authority.

      . The preliminary hearing order regarding the form of the award under Rule R-43(b) was clearly interlocutory in nature. See Mobil Oil Indonesia Inc. v. Asamera Oil (Indonesia) Ltd., 43 N.Y.2d 276, 401 N.Y.S.2d 186, 372 N.E.2d 21, 23 (1977) (stating that when arbitrators make what in judicial proceedings might be described as an interlocutory order, they decide which of two alternative sets of arbitration rules the particular arbitration proceeding should thereafter be conducted under — this is an intermediate procedural determination.).


author: STEELE, Circuit Judge.

text:
    2005 SD 77
    Allen L. GUTHMILLER, Plaintiff and Appellant, v. DELOITTE & TOUCHE, LLP, PricewaterhouseCoopers, LLP, Defendants and Appellees, and Hopkins Appraisal Service, Defendant.
    Nos. 23395, 23405, 23408.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2005.
    Decided June 22, 2005.

      Thomas J. Nicholson and Melissa J. Nicholson of Nicholson & Peterson, Sioux Falls, South Dakota, George Johnson of Johnson Eklund Law Office, Gregory, South Dakota, Attorneys for plaintiff and appellant.
    Reed Rasmussen of Siegel, Barnett & Schütz, Sioux Falls, South Dakota, Lawrence M. Shapiro and Nancy E. Brasel of Greene Espel, Minneapolis, Minnesota, Attorneys for defendant and appellee De-loitte & Touche.
    William P. Fuller of Woods, Fuller, Schultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee PricewaterhouseCoopers.
   STEELE, Circuit Judge.

[¶ 1.] Allen L. Guthmiller (Guthmiller) appeals the judgment of the circuit court dismissing this matter based on the three year statute of limitations contained in SDCL 15-2-14.4. By notice of review, the defendants appeal the trial court’s decision denying their motions to dismiss claims of deceit and breach of contract. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURE

[¶ 2.] Guthmiller sought financing through Franchise Mortgage Acceptance Company (FMAC) for the acquisition, remodeling and initial cash flow requirements relating to the operation of three convenience stores in the Aberdeen area. As a prerequisite, FMAC required an independent appraisal by a nationally recognized appraisal service to determine both the business enterprise value and the real estate interest value of the three convenience stores. On March 24, 1998, Deloitte & Touche, L.L.P. (Deloitte & Touche) submitted its appraisal to Guthmiller valuing one of the convenience stores at $2,130,000. On November 5, 1999, Price-waterhouseCoopers, L.L.P. (Pricewater-houseCoopers) submitted its appraisal valuing another of the convenience stores at $2,544,000. On December 31, 1998, Hopkins Appraisal Service (Hopkins) submitted its appraisal valuing the Redfield convenience store at $2,062,000. Hopkins has never entered an appearance in this case.

[¶ 3.] Guthmiller obtained financing through FMAC. However, he suffered operating losses in excess of $1 million and ultimately sold the convenience stores for substantially less than their appraised value. Guthmiller alleged that the real estate values as presented in the above appraisals were overstated by $305,000, $1,245,000 and $607,329, respectively. On February 6, 2004, Guthmiller sued Deloitte & Touche, PricewaterhouseCoopers and Hopkins (collectively defendants) alleging deceit and breach of contract.

[¶ 4.] Deloitte <& Touche and Pricewat-erhouseCoopers filed motions to dismiss on three grounds: 1) statute of limitations; 2) failure to state a claim upon which relief may be granted as to deceit and breach of contract claims; and 3) failure to plead fraud with particularity. The circuit court granted a motion to dismiss solely on the statute of limitations question and denied the other motions. Guthmiller appeals arguing that the six year statute of limitations period for tort and contract actions should apply, not the three year limitations period found in SDCL 15-2-14.4 and applied by the circuit court, because the defendants were not acting as accountants when they prepared the appraisals. The motions hearing consisted solely of argument by counsel. No evidence was presented on the issue of whether defendants were licensed accountants or whether they or their agents were acting within their capacity as licensed accountants when preparing the appraisals. Deloitte & Touche and PricewaterhouseCoopers cross-appeal on the denial of their alternative motions to dismiss.

STANDARD OF REVIEW

A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. ‘Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?’ Thus, all reasonable inferences of fact must be drawn in favor of the non-moving party and we give no deference to the trial court’s conclusions of law.

Vitek v. Bon Homme County Bd. of Com’rs, 2002 SD 100, ¶ 7, 650 N.W.2d 513, 516 (internal citations omitted). “The motion is viewed with disfavor and is rarely granted.” Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390. “Pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action.” Id. ¶ 7. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations. Id. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom. Id. ¶ 5. “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id.

ISSUES

Whether the circuit court erred in ruling Guthmiller’s claims time barred by the statute of limitations contained in SDCL 15-2-14.4, which requires any action against a licensed public accountant, for malpractice, error, mistake, or omission, whether based on contract or tort, to be commenced within three years.

Whether the circuit court erred in denying defendants’ motion to dismiss the deceit and breach of contract claims for failure to state a claim upon which relief may be granted and failure to plead fraud with particularity.

ANALYSIS AND DECISION ISSUE ONE

[¶ 5.] Whether the circuit court erred in ruling Guthmiller’s claims time barred by the statute of limitations contained in SDCL 15-2-14.4, which requires any action against a licensed public accountant, for malpractice, error, mistake, or omission, whether based on contract or tort, to be commenced within three years.

[¶ 6.] Guthmiller argues that the circuit court erred in dismissing his claims at this stage of the proceeding because: 1) the record does not contain any evidence that the defendants are accountants; and, 2) the defendants were not acting in a professional capacity as accountants when they prepared the appraisals. In response, the defendants ask this Court to take judicial notice of the fact that they are licensed accountants, thereby affording them protection under the three year statute of limitations set forth in SDCL 15-2-14.4.

[¶ 7.] SDCL 19-10-1 allows the court to take judicial notice of an adjudicative fact, to wit, a fact which is “not subject to reasonable dispute in that it is either: (l)[g]enerally known within the territorial jurisdiction of the trial court; or (2)[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” SDCL 19-10-2. Taking judicial notice that the defendants are accountants in this case is inapposite because our review is limited to the pleadings in order to test their legal sufficiency. We are not at liberty to supplement the record or consider matters outside the pleadings in order to do so. Richards v. Lenz, 539 N.W.2d 80, 83 (S.D.1995). The pleadings contain no allegation that the defendants are accountants or were acting in the capacity of accountants in conducting the appraisals. Therefore, because we must confine our review to the record before us, it is inappropriate to grant defendants’ request for the purpose of reviewing this Rule 12(b)(5) determination.

[¶ 8.] Moreover, a statute of limitations defense is an affirmative one and the defendants bear the burden of proof. Wolff v. Secretary of Game, Fish and Parks Dept., 1996 SD 23, ¶ 14, 544 N.W.2d 531, 533. SDCL 15-2-1 requires that such a defense may only be raised by “answer or other responsive pleading.” SDCL 15-2-1. This Court has previously highlighted the statutory requirement of raising a statute of limitations defense by responsive pleading. See Brandner v. City of Aberdeen, 78 S.D. 574, 579, 105 N.W.2d 665, 667 (overruled on other grounds). Furthermore, a party is required to include a statute of limitations defense in its responsive pleadings. SDCL 15-6-8(c). Responsive pleadings are generally those listed in SDCL 15—6— 7(a), the statutory counterpart to Fed. R.Civ.P. 7(a). First Federal Sav. and Loan Ass’n of Fayetteville v. Federal Home Loan Bank Bd., 426 F.Supp. 454, 461 (W.D.Ark.1977). These pleadings are an answer to a complaint, cross claim, third-party complaint, or reply to a counterclaim. SDCL 15-6-7(a). A pre-answer motion under Rule 12(b), such as a motion to dismiss for failure to state a claim, is not a responsive pleading. Sohns v. Dahl, 392 F.Supp. 1208, 1219 (W.D.Va.1975) (citing 6 Fed.R.Civ.P. 7(a); Wright and Miller Federal Practice and Procedure: Civil § 1483). Since no responsive pleadings were filed, the circuit court erred in granting the motion to dismiss on the statute of limitations defense.

ISSUE TWO

[¶ 9.] Whether the circuit court erred in denying the defendants’ motion to dismiss the deceit and breach of contract claims for failure to state a claim upon which relief may be granted and failure to plead the claim of fraud with particularity.

[¶ 10.] In the complaint Count 1 alleged the tort claim of deceit and Count 2 claimed breach of contract. The defendants argue that the circuit court erred in denying their motions to dismiss these claims because: 1) they are really accountant malpractice claims; 2) the deceit claim did not allege fraud with sufficient particularity; and, 3) the breach of contract claim failed to state the crucial allegation that the plaintiff had a contract with the defendants.

[¶ 11.] Concerning the defendants’ first contention, we note that the claims will become moot if on remand the circuit court determines that the three year statute of limitations applies. However, should the court determine that the three year statute of limitations does not apply this would necessarily involve a determination that the defendants were not acting as accountants in performing the appraisals. If so, then Counts 1 and 2 would survive, if properly pled.

[¶ 12.] As to the second contention, we first examine the elements of the tort claim of deceit, which are:

A representation made as a statement of fact, which is untrue and intentionally or recklessly made
1. With intent to deceive for the purpose of inducing the other party to act upon it;
2. Reliance upon the untrue statement of fact;
3. Resulting in injury or damage.

Grynberg v. Citation Oil and Gas Corp., 1997 SD 121, ¶ 24, 573 N.W.2d 493, 502; Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D.1981); SDCL 20-10-1.

[¶ 13.] The deceit count of the complaint alleged:

1.That the appraisals submitted by the defendants were overvalued;
2. That the appraisals were given to the plaintiffs with knowledge that the plaintiff would rely on them; and,
3. That the plaintiffs reliance would be to his financial detriment;
4. That the appraisals were given with a reckless disregard for whether the appraisals were fair or not;
5. That the plaintiff believes that the representation that the appraisals were independent were false.

Applying the standard by which we review the sufficiency of the pleadings (as set forth in the Standard of Review section of this opinion), we hold that the allegations in Count 1, considering the pleader’s description of what happened along with any conclusions reasonably drawn therefrom, were adequate to survive a motion to dismiss.

[¶ 14.] As to the third contention, the elements of breach of contract are:

1. An enforceable promise;
2. A breach of the promise;
3. Resulting damages.

McKie v. Huntley, 2000 SD 160, ¶ 17, 620 N.W.2d 599, 603; Krzycki v. Genoa Nat’l Bank, 242 Neb. 819, 496 N.W.2d 916, 923 (1993).

[¶ 15.] The contract count of the complaint alleged:

1. That the defendants expressly and impliedly contracted and warranted that the appraisals prepared by the defendants would be fair and independent;
2. That the defendants breached the warranties and agreements;
3. That as a proximate result of the breach of warranties, obligations, and contracts, the plaintiff suffered damages.

As with the deceit count, these allegations adequately stated the elements of the claim and were likewise sufficient to survive a motion to dismiss.

[¶ 16.] The decision of the circuit court granting the defendants’ motion to dismiss based upon the statute of limitations is reversed. The decision denying the defendants’ motions to dismiss the deceit and breach of contract claims is affirmed. This case is remanded for further proceedings consistent with this opinion.

[¶ 17.] GILBERTSON, Chief'Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 18.] STEELE, Circuit Judge, for SABERS, Justice, disqualified.

      . FMAC is not a named defendant because it is insolvent.

      . This includes a business value of $1,350,000 and a realty interest value of $780,000.

      . This includes a business enterprise value of $564,000 and a realty interest value of $1,980,000.

      .This includes a realty interest value of $548,104, a leasehold and equipment value of $179,225, a personal property value of $230,000, and an enterprise/intangible value of $1,104,671.


author: MYREN, Circuit Judge.

text:
    2005 SD 78
    Diane M. VIRCHOW, Plaintiff and Appellant, v. UNIVERSITY HOMES, INC. d/b/a Happy Homes, Defendant, and Highland Manufacturing, Inc., Defendant and Appellee.
    No. 23251.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided June 22, 2005.

      Kent R. Cutler and David L. Edwards of Cutler & Donahoe, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Clint L. Sargent of Danforth, Meierhen-ry & Meierhenry, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   MYREN, Circuit Judge.

[¶ 1.] Diane Virchow (Virchow) appeals from a final judgment entered following a jury trial. She contends that the trial court abused its discretion in granting directed verdicts on two of her claims against Highland Manufacturing, Inc. (Highland) and refusing to award attorney’s fees under the Magnuson-Moss Warranty Act. We affirm.

FACTS

[¶ 2.] Highland constructed a manufactured home that was sold to Virchow by University Homes, Inc., d/b/a Happy Homes (Happy Homes). The home was manufactured in 1995. It served as a model home for Happy Homes for approximately one year before it was sold to Virchow in 1996. Highland supplied a Manufacturer’s Limited Warranty lasting one year. In that express warranty, Highland promised to “repair or correct without charge at the owners [sic] location any defects in material or workmanship.... ” The warranty required the consumer to present all claims, in writing, to the dealer who sold the home or to the service department of Highland within one year and ten days of the purchase. The windows in the home were manufactured by Carefree Windows. They were covered by Carefree Window’s limited warranty lasting one year from installation for the frames and hardware and five years from the date of consumer purchase for the sealed insulating glass.

[¶ 3.] Virchow provided both Happy Homes and Highland with many letters regarding numerous complaints she had with the home. Highland sent contractors to the home to address those complaints. The warranty period expired on October 31, 1997. Highland continued to provide warranty services through February of 1998. Highland received no other requests for warranty service from Virchow after February 1998.

[¶ 4.] In October 1999 Virchow filed suit against Happy Homes and Highland. Virchow accepted $15,000 to settle her claims against Happy Homes. This concluded Happy Homes’ involvement in the case.

[¶ 5.] Virchow’s claims against Highland were presented to a jury on February 11 and 12, 2004. At the conclusion of the presentation of evidence, the trial court granted Highland’s request for directed verdicts relating to Virchow’s express and implied warranty claims regarding the windows of the home. The court ruled that Virchow had not provided written notice of any problem with the windows leaking. The court also ruled that Virchow had not presented any substantial evidence that Highland was responsible for any problems with the functioning of the windows. The jury returned a verdict in favor of Virchow in the total amount of $2,500 on all other claims.

[¶ 6.] Prior to trial the trial court ruled that, under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310, a plaintiff that prevails on a warranty claim involving the sale of a manufactured home could recover reasonable attorney’s fees and costs. Following trial, Virchow filed a request for attorney’s fees and costs in the amount of $35,794.41. The court considered a number of factors and concluded that Virchow was not entitled to recover any attorney’s fees.

STANDARD OF REVIEW

[¶ 7.] We review a trial court’s ruling on a motion for directed verdict under the abuse of discretion standard:

A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek' reasons to reverse.

In re Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590-91- (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460) (citation omitted).

ANALYSIS

[¶ 8.] Virchow asserted that the windows of the home were faulty in two respects. She claimed they did not function properly because they were difficult to open and close. She also claimed that they leaked. She claimed damages under Highland’s manufacturer’s warranty and under an implied warranty of fitness for a particular purpose.

I. Manufacturer’s warranty (express warranty)

[¶ 9.] “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” SDCL 57A-2-313.

In order to recover money damages for a breach of express warranty one must prove:
(1) an affirmation of fact or promise made by the seller to the buyer relating to the goods;
(2) such affirmation of fact or promise became a part of the basis of the bargain;
(3) that the injured party, in making the purchase, relied on the representations, affirmations of fact or promises;
(4) that the goods sold by the seller failed to comply with the promises or affirmations of fact made by the seller;
(5) that the buyer, because of such failure, was financially injured; and
(6) that such failure to comply was a proximate cause of the financial injury suffered by the buyer.

Schmaltz v. Nissen, 431 N.W.2d 657, 660-61 (S.D.1988) (quoting Swenson v. Chevron Chemical Co., 89 S.D. 497, 234 N.W.2d 38 (1975)).

a. Leaky windows—express warranty

[¶ 10.] Under the express warranty, Highland promised to repair or correct “any defects in material or workmanship.” The warranty required Virchow to provide written notice of any warranty claim within one year and ten days of the purchase.

[¶ 11.] At trial Virchow contended that the windows leaked. She wrote several multi-page lists to Highland detailing numerous problems regarding her home. In her detailed lists she included such items as a cracked tile in the kitchen and a gouge in the trim around the front door. None of those lists contained any mention that the windows were leaking. Virchow’s counsel admitted that she had not provided written notice that the windows were leaking. Virchow presented no evidence of any written notice to Highland that the windows were leaking. Virchow did note that the windows did not open and close smoothly. There is no dispute that Highland had written notice that there were problems with how the windows opened and closed. Informing the home manufacturer that the windows do not open and close smoothly does not provide notice that the windows are leaking. A warrantor cannot be expected to fix problems of which it has no notice.

[¶ 12.] Virchow argues that this Court has previously held that verbal notice is sufficient under the Uniform Commercial Code and cites Carlson v. Rysavy, 262 N.W.2d 27 (S.D.1978). Virchow ignores one vital fact that was not present in Carlson. Highland’s express warranty specifically required written notice. Because Virchow failed to present any evidence that she had provided Highland with written notice that the windows leaked, the trial court directed verdict against her on that claim. This decision is consistent with the evidence in the record and was not an abuse of discretion.

b. Window junction—express warranty

[¶ 13.] As noted earlier, Virchow provided written notice to Highland that some of her windows did not operate smoothly. Highland did not promise to fix every problem that ever arose with this manufactured home. It promised to fix or repair any defects in material or workmanship. In order to recover under that express warranty, Virchow had to establish that the problem with the operation of her windows was a defect in material or workmanship.

[¶ 14.] The mere fact that the windows did not open and close smoothly does not, by itself, establish that there was a defect in material or workmanship. Virchow did not present any evidence that tended to show why the windows did not operate correctly. Virchow did not present any evidence that tended to show that the windows did not open and close smoothly because they were not manufactured or installed correctly.

[¶ 15.] There was testimony presented at the trial that manufactured homes do not use the same quality of windows used in traditional stick-built homes. There was testimony that there are industry standards relating to the quality of products used in manufactured homes. There was no evidence that the windows in Vir-chow’s house were of such poor quality that they failed to meet industry standards. Nor was there any testimony that the problems with operation of Virchow’s windows were the result of inherently poor quality.

[¶ 16.] There was testimony that there are industry standards concerning how windows are installed in manufactured homes. There was no evidence that the windows in Virchow’s home were not installed in accordance to industry standards.

[¶ 17.] The only evidence that might explain the problems with the functioning of the windows was testimony that during delivery and setup by Happy Homes, the home suffered some type of accident that caused an 'iron support beam to be bent. As the trial court noted, based on the evidence presented, the only way a jury could conclude that the problems with window function were a defect in material or workmanship was to speculate as to the reason the windows did not work.

[¶ 18.] The trial court granted the request for directed verdict after concluding that there was no substantial evidence to establish that the problem with the functioning of the windows was a defect in materials or workmanship for which Highland was responsible under the terms of its express warranty. This decision is consistent with the evidence in the record and was not an abuse of discretion.

• II. Implied Warranty of Fitness for Purpose

Warranties are either express or implied. An implied warranty arises under certain, circumstances by operation of law and are [sic] intended to hold vendors to a course of fair dealing. “Implied warranties do not rest upon any supposed agreement in fact. They are obligations which the law raises upon principles foreign to the actual contract; principles which are strictly analogous to those upon which vendors are held liable for fraud. It is for the sake of convenience, merely, that this obligation is permitted to be enforced under the form of a contract.”

Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 64, 154 N.W.2d 803, 807 (1967).

[¶ 19.] Virchow also claimed damages under an implied warranty of fitness for a particular purpose. Again, she contended that the windows leaked and did not function properly.

[¶ 20.] SDCL 57A-2-315 provides:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under § 57A-2-316 an implied warranty that the goods shall be fit for such purpose.

[¶ 21.] When an implied warranty of fitness for purpose is created, the seller must deliver a product that is fit for the purpose for which it is intended. A perfect product is not required. Waggoner, 83 S.D. at 68, 154 N.W.2d at 809. Products vary in the quality of their materials and the quality of their construction. The person asserting a violation of the warranty of fitness for a particular purpose must present sufficient evidence, direct or circumstantial, to permit the inference that the product was defective when it left the manufacturer’s possession or control. Schmaltz v. Nissen, 431 N.W.2d 657, 663 (S.D.1988); Pearson v. Franklin Labs., Inc., 254 N.W.2d 133 (S.D.1977).

a. Leaky windows — implied warranty

[¶ 22.] Virchow did not present significant evidence that tended to show that the windows in her home were not fit for their intended purpose. There are many reasons a window could begin to leak. The mere fact that windows in a home begin to leak does not, by itself, establish that the home or the windows were not fit for the purpose for which they were intended at the time they were sold. It is conceivable that an intervening factor was the cause of the leaky windows. There was no substantial evidence that the windows were of such poor quality or construction that they did not fit the purpose of serving as windows. There was evidence that the windows met industry standards in quality and installation. There was no substantial evidence that Highland failed to properly install the windows. Evidence was presented that the leaking may have been caused by Happy Homes’ failure to complete post-delivery caulking as required in the delivery and setup instructions.

[¶ 23.] After considering all of the evidence presented at trial, the trial court concluded that Virchow had failed to present any substantial evidence that would tend to establish that the windows leaked because of some defect present at the time the home left Highland’s possession or control. This decision is consistent with the evidence in the record and was not an abuse of discretion.

b. Window function — implied warranty

[¶ 24.] At best the evidence presented at trial established that the windows were difficult to open and close. The mere fact that a window is difficult to open and close does not, by itself, render it unfit for its intended purpose. There was no evidence that the windows were of such poor quality that they were not fit for their intended purpose. There was no evidence that Highland installed the windows in such a way as to render them unfit for their intended purpose. Highland presented evidence that the home had been dropped or slid during delivery by Happy Homes. There was testimony that this could have caused a misalignment resulting in the poor operation of the windows.

[¶ 25.] The trial court’s decision to direct verdict was consistent with the evidence in the record and not an abuse of discretion.

ATTORNEY’S FEES — MAGNUSON-MOSS WARRANTY ACT

[¶ 26.] The Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.) (Act) gives a trial court discretion to award attorney’s fees and costs that have been reasonably incurred by a consumer who prevails in a warranty enforcement action. 15 U.S.C. at § 2310(d)(2). The Act specifically gives the trial court discretion not to award attorney’s fees if the trial judge determines that such award would be inappropriate. Id.

[¶ 27.] The trial court determined that it would not be appropriate to award attorney’s fees for several reasons. First, it concluded that Virchow had not truly prevailed as envisioned by the Act. Virchow pursued several causes of action and succeeded on only one. In opening arguments her counsel informed the jury that she was seeking $35,000 to $50,000 in damages. She received a verdict for $2,500. Second, Highland contacted Vir-chow’s attorney before trial to offer settlement over $15,000, but was informed that no offers under $30,000 would be considered. Virchow declined all offers from Highland and proceeded to trial. The jury awarded her $2,500. Third, the trial court determined that her request for over $35,000 in attorney’s fees and costs was not reasonable in relation to the amount actually recovered. Fourth, the trial court noted that some of the attorney’s fees expense had been incurred in preparing the claim against Happy Homes and con-eluded that there was no reasonable allocation of the fees between those two eases.

[¶ 28.] A party may be awarded attorney’s fees without prevailing on all causes of action. Alvine v. Mercedes-Benz of North America, 2001 SD 3, ¶ 25, 620 N.W.2d 608, 613. The Magnu-son-Moss Act gives the trial judge discretion to award attorney’s fees in a manner consistent with the purpose and goals of the Act. The trial court exercised that discretion. The decision is based on reason and logic and does not constitute an abuse of his discretion.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 31.] MYREN, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . Virchow's exact complaint regarding the windows read: "The larger windows through out [sic] my home do not open/close or stay open properly. At our inconvenience we have discovered this when we wanted clean fresh air on a hot summer's night.”

      . Homebuilder Mike Robbins testified about the value of house wrap and taping of windows. However, he was unable to testify that the windows were not installed properly. As he explained, "There’s no way of knowing personally myself without actually taking a window out and seeing how the window was sealed to the exterior sheeting of the house.” He testified that he did not do so.

      . 15 U.S.C. § 2310 provides, in pertinent part:

        id) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims
      (1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—
      (A) in any court of competent jurisdiction in any State or the District of Columbia; or
      (B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.
      (2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.