author: HALBROOKS, Judge. G. BARRY ANDERSON, Judge

text:
    CITIZENS FOR A SAFE GRANT, et al., Respondents, v. LONE OAK SPORTSMEN’S CLUB, INC., Appellant, Merrill H. Oestreich, et al., Defendants.
    No. C9-00-1247.
    Court of Appeals of Minnesota.
    April 17, 2001.

      Marc J. Manderscheid, Lisa M. Agri-monti, St. Paul, MN, for respondents.
    Alan T. Tschida, Shoreview, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

On appeal, Lone Oak Sportsmen’s Club, Inc. alleges that (1) the trial court should not have enjoined certain uses of the club because respondents failed to show damages, nuisance or trespass, or a violation of the Minnesota Environmental Rights Act (MERA); (2) the claims for nuisance, trespass, and MERA violations are barred by the statute of limitations or on the grounds that appellant established a prescriptive easement; (3) the trial court abused its discretion by excluding expert testimony; and (4) the trial court’s findings regarding the danger posed by appellant is unsupported by the record. Because we conclude that the statute of limitations does not bar respondents’ claims, appellant cannot establish a prescriptive easement, and the record supports the trial court’s findings, we affirm.

FACTS

Appellant Lone Oak Sportsmen’s Club, Inc., is a private club and an affiliate of the National Rifle Association (NRA). In March 1951, appellant incorporated as a non-profit organization and later purchased an 11-acre tract to operate four shooting ranges (13 acres total). The property is currently zoned A-2 (agricultural and residential). It is surrounded on all sides by privately owned residential property. A protected wetland is located off the northwest corner of the club property. The club is open to members for shooting from 9:00 a.m. to sunset or 8:00 p.m. every day of the year. A range officer is on duty only during club-sponsored events. Appellant erected a gate to block roadway access. Members have keys to the gate and to an equipment facility, but the perimeter of the grounds is not fenced.

Respondent Citizens for a Safe Grant is a non-profit corporation consisting of several families who live adjacent to or in the vicinity of the shooting ranges. Throughout the 1960s, the Burlington Northern Railroad Co. operated trains over tracks that ran along appellant’s northern boundary. The tracks were removed and the right-of-way was sold to abutting property owners in March 1984. The old roadbed is now used as a path for hiking, jogging, and biking.

On April 2, 1985, the Grant Town Board (Grant) adopted Ordinance 57, an ordinance regulating the use of firearms and weapons in the Town of Grant. The ordinance provides in part as follows:

Section 2. Illegal Use of Firearms.
a. Except as hereinafter provided, no person shall discharge upon, over, or onto the land of another a firearm of any kind, * ⅜ * or other devices for the propulsion of shots or metal pellets by means of compressed air, gas, or mechanical spring action, within the limits of the Town of Grant, without the express written and dated permission of the owner or lessee of such property to discharge such firearms, weapon, or other device thereon.
b. Except at target ranges as defined in Section 3 hereunder, no person shall discharge at any time whatsoever, a rifle, pistol, or revolver of a caliber greater than a .22 long rifle.
Section 3. Public and Private Target Ranges.
a. A private target range shall be defined as an area for the discharge of weapons for sport which area and the use thereof is controlled by a club or association and, except for specific events, use is limited to members of the group or association.
b. The Board of Supervisors is hereby authorized to issue conditional use permits for the operation and maintenance of * * * private * ⅜ * target ranges in accordance with ordinances of the Town of Grant and other applicable law * * *. Provided, however, that no conditional use permit may be issued until after the Board of Supervisors has visited the site and determined that such use will not constitute a hazard to the health, safety, or general welfare of the public or be or create a public nuisance * ⅜ ⅜.
c. The Board of Supervisors may prescribe rules and regulations from time to time, for the construction and operation of said target ranges, including proof of public liability insurance and may cancel or refuse to renew said permit for violation of such rules and regulations.

Ordinance 57 specifically incorporated the NRA’s guidelines for shotgun ranges, outdoor pistol ranges, outdoor high-power rifle ranges, and outdoor small-bore rifle ranges. The ordinance changed the permit requirement for a gun club from a special-use permit to a conditional-use permit. Appellant has never applied for a conditional-use permit, but did pay an annual $50 fee for a special-use permit from 1993-98.

On May 24, 1988, respondent Patrick Barrett wrote a letter to Grant complaining about automatic firearms being discharged at the shooting range. Other residents orally complained. Barrett stated that he had experienced bullets whizzing over his head and shotgun pellets on his property. On June 22, 1988, Grant wrote to appellant and warned that its gun-range permit would be revoked if there were further complaints. Appellant subsequently amended its rules to prohibit the use of automatic weapons.

Respondents continued to complain to Grant about finding bullets on their property and excessive noise from the firing range at all hours. Respondents also noted that either appellant was not controlling its members or keeping its property secure because someone was firing weapons after appellant’s posted hours of operation. Respondents asserted that Grant officials failed to enforce local permitting ordinances and allowed appellant to operate without renewing its conditional-use permit.

On March 3, 1999, respondents filed a declaratory-judgment action against Grant and appellant, alleging that appellant had trespassed on their properties, created a nuisance, and violated the Minnesota Environmental Rights Act (MERA), Minn.Stat. ch. 116B (2000). The matter was tried to the court over a six-day period. The trial included a visit to the shooting range so that the court and attorneys could view the property firsthand.

The trial court’s findings of fact, conclusions of law, and order includes 121 findings of fact. On these factual findings, the court concluded that appellant had created a nuisance, trespassed on respondents’ properties, and violated the MERA. The court noted that, although appellant is an NRA affiliate, appellant has failed to follow many of the NRA’s safety recommendations and guidelines. Because appellant’s property is now surrounded by residential property and wetlands, the court noted that it would be impossible for appellant to make the club safe, consistent with NRA standards. The court additionally noted that appellant had failed to keep its members from violating club rules and had not provided any specific proposals on how to make the range safer. It, therefore, permanently enjoined appellant from continuing the shooting range but retained the right to lift the injunction if appellant submitted within one year a detailed proposal outlining how to make the shooting range safer. Appellant did not make a motion for new trial, but now challenges the trial court’s determinations of trespass, nuisance, and MERA violation and the grant of a permanent injunction.

ISSUES

I. Did the trial court err in determining respondents’ claims were not barred by the statute of limitations?

II. Is there sufficient evidence to uphold the finding that appellant committed a trespass and created a nuisance?

III. Is there sufficient evidence to uphold the finding that appellant violated MERA by endangering wildlife and destroying the natural quietude?

IV. Did the trial court abuse its discretion by permanently enjoining appellant?

V. Did the trial court abuse its discretion by refusing to qualify an expert and to admit scientific tests?

ANALYSIS

On appeal from a judgment where there has been no motion for new trial, the only questions we review are whether the evidence sustains the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn.App.1989). We review the trial court’s determination of questions of law de novo. Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 98-99 (Minn.App.1996), review denied (Minn. Aug. 20, 1996).

I.

We first consider whether the trial court erred when it held that the statute of limitations does not bar any of respondents’ claims. A statutory limitation period begins to run when “the cause of action accrues.” Minn.Stat. § 541.01 (2000). “A cause of action accrues when all of its elements exist to the extent that the claim could withstand a motion to dismiss.” Bonhiver v. Graff, 311 Minn. 111, 117, 248 N.W.2d 291, 296 (1976). “The general rule is that ignorance of a cause of action which does not involve * * * trespass * * * does not prevent the running of the statute of limitations.” Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985).

Appellant asserts that the applicable statute of limitations is two years, based on Minn.Stat. § 541.051, subd. 1 (2000), the improvement-to-real-property statute. But this case does not arise out of the “defective and unsafe condition of an improvement to real property ⅜ * Id. The trial court properly determined that the statute of limitations for respondents’ claims is six years. Minn.Stat. § 541.05, subds. 1(2) (statutorily-created claims such as nuisance or MERA), 1(3) (2000) (trespass).

Further, we conclude that the trial court correctly found that respondents’ claims are not barred by the statute of limitations. Although a cause of action generally accrues at the time a suit could theoretically be maintained, courts often delay the beginning of the statutory period “until an event occurs without which a suit would be impossible or improbable.” Fabio v. Bellomo, 504 N.W.2d 758, 764 (Minn.1993) (citation omitted). In such circumstances, “[e]ontinuing violations can prevent the expiration of the statute of limitations.” E.g., Kohn v. City of Minneapolis Fire Dep’t. 583 N.W.2d 7, 11 (Minn.App.1998) (recognizing that “discriminatory acts that persist over a period of time may constitute continuing violations”) (citation omitted), revieio denied (Minn. Oct. 20, 1998); see also State v. O’Hagan, 474 N.W.2d 613, 621 (Minn.App.1991) (concealing or possessing stolen property is a continuing offense for the purposes of the statute of limitations), review denied (Minn. Sept. 25,1991).

Appellant’s conduct in this case is not limited to a single transgression, but must be viewed as an ongoing series of injuries to respondents’ properties. Cf. O’Hagan, 474 N.W.2d at 622 (finding a property crime continues for as long as the actor possesses the property and intends to exercise control or is exercising control over the property). In the words of the trial court, regardless of

[wjhether a two-year or a six-year statute of limitations applies, [respondents’] cause of action ⅜ * * would not be barred. A new offense arises each time the [shooting range] is used without the provision of safety features or sound abatement.

II.

Appellant argues that there is insufficient evidence to support the trial court’s conclusions that appellant created a nuisance and committed a trespass. We give a trial court’s findings of fact great deference and will not set them aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Our role is not to reconcile conflicting evidence but to review the record to see if there is reasonable evidence to support the trial court’s findings of fact. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999).

Nuisance is defined as [a]nything which is * * * indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

Minn.Stat. § 561.01 (2000). For an interference with the enjoyment of life or property to constitute a nuisance, it must be material and substantial. Jedneak v. Minneapolis Gen. Elec. Co., 212 Minn. 226, 231, 4 N.W.2d 326, 329 (1942). A court measures the degree of discomfort by the standards of ordinary people in relation to the area where they reside. Id.

Appellant argues that there must be a finding of intent in order to ■create a nuisance. Appellant’s argument is -without merit as the statute does not contain an element of intent, and

[t]he general rule ⅞ * * is that it is immaterial how innocent the intent was for the element of motive or intent does not enter into the question of nuisance.

State v. Lloyd A. Fry Roofing Co., 310 Minn. 535, 538, 246 N.W.2d 692, 695 (1976) (quotation omitted). The wrongful conduct resulting in creation of a nuisance may be intentional conduct, but can also be “negligence, ultrahazardous activity, violation of a statute or some other tortious activity.” Highview North Apartments v. Ramsey, 323 N.W.2d 65, 71 (Minn.1982) (citations omitted).

The trial court made the following factual findings, among others, with respect to the impact of the club’s operation on respondents’ ability to enjoy their properties:

• The Strakas do not allow their grandchildren to play outside and do not leave the vicinity of their house.
• Bob Straka wears an orange vest when outside. He has been showered by shotgun pellets while in his yard and while walking on the old railroad bed.
• The Strakas believe that their appetites and sleep have been affected due to their emotional distress resulting from guns being fired within 430 feet of their house. They are also reluctant to invite guests over for dinner because of the increased shooting between 5:00-8:00 p.m.
• The Franks have experienced bullets or shotgun pellets passing over their heads when they have been walking on the railroad bed.
• The Franks operate a daycare center in their home and do not allow the children onto the second floor of the home due to the proximity of the 200-yard firing line. Use of the yard has been reduced. Mrs. Frank conducts drills so that the children know what to do when firing starts.
• When shooting starts on the rifle range, the Franks go indoors and shut the windows or go shopping in order to escape the noise.
• The Barretts do not use the eastern ⅝ of their 17-acre property due to fear of errant projectiles and stay close to their home when shooting occurs.
• The Barretts heard bullets hitting the pine trees around their home when high-powered, automatic weapons were allowed.
• The second-floor windows of the Tag-lia home rattle when shots are fired.
• The Taglias do not use their deck and generally stay indoors because of the noise from the shotgun range.
• The Taglias have seen signs of indiscriminate shooting on the club property so they avoid using trails that they cut in the northeast corner of their property.

The record abundantly supports the trial court’s conclusion that appellant has created a nuisance.

As a corolláry, appellant argues that it has gained the right to maintain a nuisance through prescriptive easement. In support of its position, appellant asserts that its use of its neighbors’ properties has been hostile, actual, open, continuous, and exclusive for at least 15 years. The trial court held that the right to maintain a nuisance can never be acquired by prescription. While that holding is erroneous, we reach the same result as the trial court on the ground that appellant has no support in the record to establish exclusive use of the respondents’ property. Further, this theory now advanced by appellant is directly contradictory to appellant’s theory of the case that no bullets ever left the range.

Second, appellant contends that the trial court erred in finding that appellant committed a trespass.

Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.

Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 792-93 (Minn.App.1998) (citations omitted), review denied (Minn. Dec. 15, 1998). Trespass is not limited to human entry and can include “throwing or placing an object upon the property of another.” Victor v. Sell, 301 Minn. 309, 313, 222 N.W.2d 337, 340 (1974) (citations omitted). Since 1988, respondents have repeatedly complained to Grant about finding bullets on their properties and hearing them fly overhead. The trial court found that shotgun pellets varying in size from # 4 to # 9 shot were collected from the Straka property on November 23, 1999. It is undisputed that respondents never gave appellant permission to permit gun shots onto and over their properties. We, therefore, agree with the trial court that

[t]he entry of bullets over and onto adjacent private property resulting from the operation of the rifle ranges at the Gun Club without the permission of the property owners constitutes a trespass.

III.

Appellant also argues that there is insufficient evidence to support the trial court’s conclusions that appellant violated MERA by endangering wildlife and creating noise pollution. Minnesota has empowered citizens “to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction” by creating a private cause of action against polluters. Minn. Stat. § 116B.01 (2000); see also State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 264 (Minn.1997). To establish a prima facie ease, a potential plaintiff must first identify “the existence of a pro-tectable natural resource.” White v. Minnesota Dep’t of Natural Resources, 567 N.W.2d 724, 737 (Minn.App.1997) (citation omitted). The plaintiff must then show that the defendant’s conduct violates an “environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit promulgated or issued by” a state regulatory agency. Minn.Stat. § 116B.04 (2000). But recognizing that there are instances when environmental regulations may not keep up with changing conditions, the statute also provides that a plaintiff may bring a claim if the defendant has caused or is “likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resources.” Id.; see also Minnesota Public Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762, 771 n. 6 (Minn.1977) (holding that the fact that Minnesota Pollution Control Agency (MPCA) had not issued standards on gunfire noise did not bar a MERA claim based on noise pollution).

Because almost every human activity may arguably adversely impact a natural resource, courts have adopted a five-factor test to determine whether the second prong of a prima facie MERA case has been established. White, 567 N.W.2d. at 738. The five factors are

(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected;
(2) Whether the natural resources affected are rare, unique, endangered, or have historical significance;
(3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable (for example, by replanting trees or restocking fish);
(4) Whether the proposed action will have significant consequential effects on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed);
(5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.

Id. (citation omitted). The defendant may rebut the prima facie case by submitting evidence to the contrary or by establishing an affirmative defense. Schaller, 563 N.W.2d at 264. To establish this defense, the defendant must prove there is “no feasible and prudent alternative and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare.” Minn.Stat. § 116B.04.

The evidence does not support the finding that respondents established a pri-ma facie MERA violation based on the potential harm that lead bullets pose to wildlife. See Minn.Stat. § 116B.02, subd. 4 (2000) (including animals within the definition of protectable natural resources). Respondents have offered anecdotal evidence from various MPCA reports that birds may ingest lead bullets, but there is nothing to link those reports to the wildlife here. Moreover, the trial court’s findings indicate that “[tjhere is no evidence to suggest that lead shot ⅜ * * has increased the lead concentrations in the protected wetland or the ground water” and “[n]o soil testing for lead has been conducted on either the Gun Club property or Plaintiffs’ property.”

But the evidence does establish a prima facie MERA violation based on the degradation of quietude caused by “impulsive sound.” See id. (including “quietude” within the definition of protect-able natural resources). In White Bear Rod & Gun Chib, the supreme court affirmed a district court’s finding that MERA barred operation of a skeet-shooting facility that negatively impacted the environment even though MPCA had not issued a standard regulating noise from such activities. 257 N.W.2d at 768-71, 783. Appellant correctly notes that since White Bear Rod & Gun Club was decided, the legislature has exempted “skeet, trap or shooting sports clubs” from the ambit of regulatory authority. Minn.Stat. § 116.07, subd. 2a (2000). Appellant thus argues that because MPCA cannot pass a noise standard for shooting clubs, respondents have no regulation to base their MERA claim on. But the legislature did not exempt shooting sports clubs from MERA claims, only from MPCA’s regulatory authority. As long as respondents demonstrate that appellant’s conduct “materially adversely affects” the environment, they can establish a prima facie case. Minn. Stat. § 116B.02, subd. 5 (2000) (defining what types of conduct may be considered pollution). As in White Bear Rod & Gun Club, the trial court found that the noise caused by appellant’s sporadic gunfire, which ranged from 70 to nearly 90 decibels at various locations, was twice the normal decibel range of the surrounding area and heard extensive testimony from neighboring residents concerning the effects of the loud, unpredictable noise on their lives. See White Bear Rod & Gun Club, 257 N.W.2d at 771 (finding that gunfire in the 65 to 70 decibel range were “far in excess of that considered permissible to avoid health threats and degradation of the environment”). The decibel readings were not disputed by appellant’s expert. The court found that high decibel sounds such as sporadic gunfire “can cause * * * unreasonable material acoustical degradation to the environment.” Compare with id. at 776-77. Therefore, we conclude that appellant did not rebut respondents’ prima facie showing of a MERA violation.

IV.

We next consider whether the trial court abused its discretion in granting a permanent injunction. We review a trial court’s decision to issue an injunction under an abuse-of-discretion standard. Theros v. Phillips, 256 N.W.2d 852, 859 (Minn.1977). To issue such an equitable remedy, the legal remedy must be inadequate, and the injunction must be necessary to prevent irreparable injury. Cherne Indus., Inc. v. Grounds & Assoc., 278 N.W.2d 81, 92 (Minn.1979). This court will not set aside a district court’s findings regarding entitlement to injunctive relief unless they are clearly erroneous. Upper Midwest Sales Co. v. Ecolab, Inc., 577 N.W.2d 236, 240 (Minn.App.1998).

A permanent injunction is the “proper remedy to restrain a continuous and repeatedly threatened trespass.” Theros, 256 N.W.2d at 859 (citation omitted). Given the nature of respondents’ injury, we believe that appellant’s trespass fits within this definition. Moreover, from the trial court’s findings, it appears that there may be no way for appellant to alter the shooting range to satisfy respondents’ safety concerns. The court noted that, although appellant claims that the shooting range can be made safer, appellant failed to offer any specific proposal on how it. would go about improving safety and addressing respondents’ concerns.

The trial court found numerous instances where appellant faded to take safety precautions, including:

• There is no fence or other barrier surrounding the entire range to prevent trespassers.
• Although appellant has “no trespassing” signs along a recreational pathway, there are no signs to warn pedes-, trians that they are passing by a shooting range.
• Appellant has failed to enforce its own rules. For example, appellant has not enforced its hours of operation, allowing either members or trespassers to fire weapons after posted hours. Appellant has also failed to ensure that members use special mounting devices to hold targets as there is evidence that members have used trees, benches, canisters, and buildings to mount targets.
• Appellant did not meet NRA safety guidelines for shooting ranges in inhabited areas because there is not enough setback between the firing line and respondents’ properties. Appellant passed up opportunities to purchase adjacent property to increase the setback and reorient the ranges.
• Appellant raises a flag when firing commences, but this flag is not visible from the perimeter of the property. There are no other warning signals when firing will commence.
• Appellant has not erected sound or safety baffles for sound abatement or to contain bullets from landing off-property.

Appellant argues that, despite the long list of safety infractions, it operates safely because there have been no reported accidents in its 50 years of operation. But the law does not require a death or an injury before unsafe conduct can be considered a nuisance. See Minn.Stat. § 561.01. Therefore, the trial court did not abuse its discretion by permanently enjoining appellant.

V.

Finally, appellant argues that the trial court erred in two of its evidentia-ry rulings. The trial court refused to allow appellant’s expert, Charles Niska, to testify as to safety and shooting-range design issues. A trial court’s evidentiary ruling on the admissibility of an expert opinion rests within its sound discretion, and we will not reverse such a decision unless it is based on an erroneous view of the law or an abuse of discretion. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn.1998); Reinhardt v. Colton, 337 N.W.2d 88, 92 n. 1 (Minn.1983) (noting that the trial court has “considerable discretion in determining the sufficiency of foundation laid for expert opinion”) (citations omitted). Even if evidence has probative value, the trial court still has discretion to exclude it. Benson v. Northern Gopher Enters., Inc., 455 N.W.2d 444, 446 (Minn.1990) (“Even if this' court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial [court] judge will not be reversed absent clear abuse of discretion.” (citation omitted)).

Niska has a bachelor’s degree and has done graduate course work in forestry. He began work as the “shooting range coordinator” for the Minnesota Department of Natural Resources in 1999 and, since then, has visited nearly 50 shooting ranges. But he conceded that his position involves coordinating grants, not enforcing safety regulations, because his agency has no enforcement authority over ranges. The only training Niska has received in shooting-range safety and design was one week-long course sponsored by the NRA, and that course did not focus solely on safety issues, but also included public relations, financial, and administrative training. We note that the trial court did allow Niska to testify on other matters, including noise and environmental issues, that were found to be within the scope of his knowledge. On this record, the court did not abuse its discretion in refusing to qualify Niska as an expert on the subjects of shooting-range safety and design issues.

Second, appellant argues that the trial court erred when it refused to admit reports on lead and noise testing. Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). Appellant bears the burden of demonstrating that an improper evidentia-ry ruling caused prejudicial error. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990). “An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial.” Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn.App.1998) (citations omitted). Appellant did not call the authors of the reports to testify and provide proper foundation. Instead, appellant attempted to admit the reports through other witnesses. The court held that the reports were inadmissible hearsay. We conclude that the trial court’s evidentiary rulings were well within its discretion.

DECISION

The trial court properly determined that appellant had created a nuisance, committed a trespass, and violated MERA by materially affecting the natural quietude. The trial court properly found the statute of limitations did not bar respondents’ claims because appellant had committed a continuing violation. The trial court was within its discretion when it did not qualify a witness to testify as an expert and when it ruled that scientific tests were inadmissible. The trial court did not abuse its discretion by granting a permanent injunction.

Affirmed.

G. BARRY ANDERSON, Judge

(concurring in part and dissenting in part).

I concur with the majority’s careful and complete analysis of the statute of limitations and trespass claims.

As respondent accurately put it, with respect to the trespass issue, there is nothing in the record to indicate that surrounding property owners consented to the deposit of ammunition on their property. To say that the stray ammunition creates safety concerns is an understatement.

I also concur in the analysis of the majority opinion rejecting the district court finding that respondents established a pri-ma facie MERA violation based on the potential harm that lead bullets pose to wildlife. There is not a shred of evidence in the record supporting any injury to wildlife and, as the majority opinion correctly notes, no soil testing for lead was done to determine lead concentrations.

I also concur that the findings of fact adopted by the district court establish that live ammunition continues to escape the gun club property, which forms the basis of the trespass claim, and which also supports a common-law nuisance claim.

But where I part company from the majority is the conclusion that respondents established a prima facie MERA violation based on the degradation of quietude caused by “impulsive sound” and that the noise levels are sufficient to establish a nuisance claim.

The district court’s conclusion that a MERA violation occurred as a result of noise levels was broad, sweeping, and could be applied to virtually every outdoor gun range. In fact, the analysis of the district court, affirmed in the majority opinion, leads to the conclusion that any nonconforming industrial use, noisy and unpleasant as such uses frequently are, would be a MERA violation. This is a troublesome expansion in the application of private causes of action under MERA.

Problems with the MERA analysis are twofold.

First, the supreme court has not announced a standard applicable to noise violations that makes any attempt to clearly delineate when an industrial use, or a gun club in this case, is exposed to a possible private cause of action by unhappy neighbors because their “quietude” was disturbed. Part of the problem here is that, despite the district court’s detailed findings, the reality is that there were no scientific measurements taken of sound levels and no expert witness testimony as to any objective noise limit standard. Without objective measurements, it is difficult to evaluate whether or not the conduct of the gun club materially adversely affected the environment. We do not know what the appropriate level of sound for the neighborhood should be, we do not know how much noise is presently created by the gun club, and we have no historical baseline against which to measure either of these variables. We do know, of course, and there is clear testimony in the record on this point, that firing ranges are noisy. That should not be the test for determining whether or not a MERA violation occurred, and it is my view that such was the test used here.

The second problem in the MERA analysis is that the principal case cited by all parties in this dispute, Minnesota Pub. Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762 (Minn.1977), is not at all useful in analyzing the present circumstances. Among other differences, White Bear Rod & Gun Club concerned an attempt by a firing range to relocate, rather than a nonconforming, existing use, and there was also expert testimony in White Bear Rod & Gun Club that the projected site for. a gun club in that case was near one of the finest undeveloped waterfowl lakes in the Twin Cities area and was quite remote from developed areas. Id. at 765-67. None of that can be said in the present controversy.

There is a second problem with reliance on the White Bear Rod & Gun Club decision. Minn.Stat. § 116.07 subd. 2(a) (2000), requires that

[n]o standards adopted by any state agency for limiting levels of noise in terms of sound pressure which may occur in the outdoor atmosphere shall apply to * * ⅜ (4) skeet, trap or shooting sports clubs ⅜ * *.

Id. While the majority correctly notes that the legislative language, adopted after White Bear Rod & Gun was decided, does not specifically exempt gun clubs from MERA standards, that legislative decision ought to serve as a clear warning signal that care should be taken in judicial regulation of noise from gun clubs or similar activities.

I do not believe respondents have been able to carry their burden of establishing a prima facie case of pollution, impairment, or destruction of the environment in violation of Minn.Stat. § 116B (2000).

I would remand the permanent injunction to the district court with instructions that it be narrowed to deal solely with safety, trespass, and nuisance issues stemming from or related to firearm projectiles or gun shot escaping the perimeter of the gun club property.

      . There was testimony from some witnesses about "decibel” levels. But those decibel measurements were taken by lay people with no apparent training, using inexpensively purchased meters, with a very significant error factor. Further, there was no evidence in the record that these meters were accurate or that they had ever been calibrated. In addition, respondents' witnesses measured the decibel levels according to a setting on the meter that does not really duplicate perceptions of the human ear, at least according to the only qualified expert to testify at trial, an engineer with work experience at the National Aeronautics and Space Administration, Lockheed Martin, and the Minnesota Pollution Control Agency. About all that can be said about these alleged "test” results is that they demonstrate that a firing range can be noisy, a fact disputed by no one.


source: Caselaw Access Project

author: PETERSON, Judge

license: Public Domain

text:
    Robert A. SCHROEDER, Dr. William A. Schmidt, Respondent, v. Dan WHITE, et al., Appellant.
    No. C8-00-1353.
    Court of Appeals of Minnesota.
    April 17, 2001.
    William A. Schmidt, Minneapolis, (respondent pro se).
    Daniel W. Stauner, Crystal, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge

After purchasing an aircraft from respondent Dr. William A. Schmidt, respondent Robert A. Schroeder brought an action seeking to rescind the purchase, alleging that Schmidt failed to advise him that the aircraft was defective and not airworthy. Schmidt then filed a complaint against three third-party defendants, including appellant Dan White, an aircraft mechanic who had certified to the Federal Aviation Administration (FAA) that the aircraft was in compliance with FAA regulations. The district court concluded that White was liable to Schmidt for misrepresenting the aircraft’s compliance with FAA regulations, and judgment was entered in favor of Schmidt for damages resulting from the misrepresentation. White appeals from the judgment. We reverse.

FACTS

This action arose out of Schroeder’s purchase of a 1946 Piper PA-12 Super Cruiser aircraft from Schmidt. In 1992, John Reed, who owned the aircraft at the time, hired White, an aircraft mechanic licensed by the FAA, to repair and partially restore the aircraft. Upon completing the repairs and restoration, White certified the aircraft as airworthy. On April 20, 1993, May 7, 1994, and April 6, 1995, White performed 100 hour maintenance checks on the aircraft, which are inspections required by the FAA after every 100-hours of flying time, and certified the aircraft as airworthy.

In May 1995, Schmidt purchased the aircraft from Reed. Before purchasing the aircraft, Schmidt inspected it and its logbook, reviewing the certifications entered in the logbook by White and two FAA inspectors. It is standard practice for an aircraft buyer to review the logbook to determine the aircraft’s condition.

Schmidt in turn sold the aircraft'to Gordon Hammons. Shortly after purchasing the aircraft, Hammons discovered that its tail was not in compliance with FAA regulations. In 1996, the FAA grounded the aircraft as not airworthy due to the improper tail and also due to a warped right wing flap. As a result of the FAA investigation of the aircraft’s airworthiness, White’s aircraft mechanic license was temporarily suspended as a disciplinary measure for his certification of the aircraft despite the fact that its tail had not been approved by the FAA.

Hammons sued Schmidt seeking to rescind his purchase of the aircraft. Schroeder purchased the aircraft pursuant to a settlement agreement between Hammons and Schmidt. Schroeder then commenced this action against Schmidt, seeking to rescind his purchase of the aircraft based on Schmidt’s alleged failure to advise him of the existence of defects in the aircraft and on the fact that the aircraft had been grounded by the FAA. Schmidt in turn filed a complaint against White and two FAA inspectors, alleging that they had misrepresented that the aircraft complied with FAA regulations. Schroeder and Schmidt entered into a settlement, and the two inspectors settled with Schmidt and were dismissed from this action.

The only claim remaining, Schmidt’s claim against White, was tried to the court. The district court concluded that White was liable to Schmidt for negligently misrepresenting the aircraft’s compliance with FAA regulations.

ISSUES •

Did the district court err in concluding that White was liable to Schmidt for negligently misrepresenting the aircraft’s airworthiness?

ANALYSIS

On appeal from a judgment, the only questions for review are whether the evidence sustains the findings of fact and whether those findings sustain the conclusions of law and judgment. Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn.App.1995).

The Minnesota supreme court has adopted the following definition of negligent misrepresentation:

(1) One who, in the course of his business, profession or employment, or in a transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in subsection (3), the liability stated in subsection (1) is limited to loss suffered
(a) By the person or one of the persons for whose benefit and guidance he intends to supply the information, or knows that the recipient intends to supply it; and
(b) Through reliance upon it in a transaction which he intends the information to influence, or knows that the recipient so intends, or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298-99 (1976) (quoting Restatement (Second) of Torts § 552); see also Smith v. Woodwind Homes, Inc., 605 N.W.2d 418, 424 (Minn.App.2000) (“An essential element of negligent misrepresentation is that the alleged misrepresenter owes a duty of care to the person to whom they are providing information.”).

In Rocky Mountain Helicopters, Inc. v. Bell Helicopter Textron, Inc., 24 F.3d 125 (10th Cir.1994), after purchasing a helicopter from the defendant, the plaintiff discovered a defect in the helicopter’s rotor blades and sued to recover pecuniary-loss damages. The plaintiff alleged that the defendant had negligently misrepresented the condition of the blades to the FAA in order to obtain a type certification. Id. at 130-31. The tenth circuit court of appeals held that a cause of action for negligent misrepresentation by an aircraft buyer seeking to recover pecuniary-loss damages could not be based on information provided under the FAA certification procedure. Id. at 133.

The court explained:

The commentary to the Restatement, in discussing justifiable reliance and the limited group which is entitled to rely on a representation, states, “one who relies upon information in connection with a commercial transaction may reasonably expect to hold the maker to a duty of care only in circumstances in which the maker was manifestly aware of the use to which the information ivas to be put and intended to supply it for that purpose.” It cannot be said that [defendant] supplied the information to the FAA intending that a remote buyer base its purchase of a used helicopter upon it. * ⅜ *
[Plaintiff] further asserts that it falls within subsection three of the Restatement because [defendant] had a public duty to make representations to the FAA. The commentary to subsection three states:
The scope of the defendant’s duty to others in these cases will depend upon the purpose for which the information is required to be furnished. The purpose may be found to protect only a particular and limited class of persons * * ⅜ In such a case the liability of the company when it negligently gives false information extends only to those [who are members of that limited class].

24 F.3d at 132-33 (quoting Restatement (Second) of Torts § 552, commentary) (emphasis in original). The Rocky Mountain court concluded that the purpose of the FAA certification procedure is to ensure air-travel safety and protect against personal injury, not to protect owners or future buyers from pecuniary loss. Id. at 133.

Rocky Mountain is consistent with Minnesota caselaw holding that a statutory-duty does not give rise to common law tort liability unless the injured party falls within the class of-persons the statute is designed to protect or an underlying common law cause of action pre-existed enactment of the statute. See, e.g., Lorshbough v. Township of Buzzle, 258 N.W.2d 96, 102 (Minn.1977) (common law exception); Baker v. Suman, 361 N.W.2d 108, 111 (Minn.App.1985) (because the primary and predominant objective of the FHA appraisal system is the protection of the government and its insurance funds, a home buyer cannot recover damages for negligent appraisal from the federal government or an appraiser employed by the government even though a potential home buyer is a foreseeable recipient of an FHA appraisal); see also Spring Water Dairy, Inc. v. Federal Intermediate Credit Bank of St. Paul, 625 F.Supp. 713, 717 (D.Minn.1986) (mere fact that one may benefit from a statute does not mean that one is a member of the special class for whose benefit the statute was enacted).

Schmidt makes no claim that a common law cause of action pre-existed the FAA certification procedure, and he cites no authority showing that the FAA inspections and certifications performed by White were intended to protect potential aircraft buyers from pecuniary loss. Instead, he argues that this court should follow Cosgrove v. McDonnell Douglas Helicopter Co., 847 F.Supp. 719 (D.Minn.1994). Cosgrove, however, was a products liability action to recover damages resulting from a helicopter crash, an occurrence that FAA regulations are intended to protect against. We, therefore, decline to follow Cosgrove. We hold that a negligent misrepresentation claim to recover pecuniary-loss damages cannot be based on an erroneous certification of airworthiness made to the FAA.

In his brief, Schmidt asserts that he requested that the aircraft be inspected by White before he bought it, suggesting that White could be liable to Schmidt under contract law. Schmidt’s assertion, however, is directly contrary to the evidence presented at trial. At trial, Schmidt testified that he never heard of White and never had any contact with him before purchasing the aircraft.

In light of our conclusion that the evidence was insufficient to establish liability, we do not reach the issue of whether the district court erred in determining damages.

DECISION

The district court erred in concluding that White was liable to Schmidt for negligent misrepresentation. There is no evidence of any contractual relationship between White and Schmidt. We, therefore, reverse the judgment in favor of Schmidt.

Reversed.


author: PORITSKY, Judge.

text:
    In re the Marriage of Jean Ann GESKE, f/k/a Jean Ann Marcolina, Petitioner, Respondent, v. Jeffrey Alan MARCOLINA, Appellant.
    No. C8-00-1336.
    Court of Appeals of Minnesota.
    April 24, 2001.

      M. Sue Wilson, M. Sue Wilson Law Offices, P.A., Minneapolis, MN, for respondent.
    Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., Roseville, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER and PORITSKY, Judges.
   OPINION

PORITSKY, Judge.

The parties’ marriage was dissolved in 1996. The dissolution decree awarded respondent-mother Jean Geske physical custody of the parties’ children and awarded visitation to appellant-father Jeffrey Mar-eolina. Father later moved to modify visitation, and mother opposed the motion and sought attorney fees. A referee heard the motions and, among other things, awarded mother attorney fees. Father’s motion for amended findings prompted amendment of some visitation-related findings but not the fee-related findings. Father appeals, alleging that the basis for the fee award is unclear and that the record does not support an award of attorney fees. The district court did not identify the authority under which it awarded -the attorney fees. Nor did it specifically find the financial facts or specifically identify the offending conduct supporting the award. Therefore, we remand for additional findings.

FACTS

The 1996 decree dissolving the parties’ marriage noted the “intense conflict” between the parties. The decree awarded mother sole legal and physical custody of the children, and awarded father visitation. Starting with an August 1998 pro se motion by father, the parties made a series of motions and counter-motions involving, among other things, father’s request to modify visitation and mother’s request for attorney fees. Proceedings were acrimonious. In April 1999, father retained counsel. At the beginning of the hearing on the parties’ motions, father’s attorney tried to withdraw because father was behind in paying his attorney and disputed certain fees. The referee did not allow the withdrawal and stated she would address any dispute father and his attorney could not resolve.

The referee’s February 2000 order modified the visitation schedule and awarded mother $10,000 in attorney fees but did not identify the statutory basis for the fee award. The district court counter-signed the referee’s order. With new counsel, father moved for amended findings or “a new trial.” In an April order, the referee modified certain visitation-related findings but did not modify the fee-related rulings. The district court signed that order the next day. Father then appealed the attorney fee portion of the ruling.

A September 2000 order in father’s fee dispute with his former attorney required father to pay his former attorney $4,104 immediately. That order is not before the court on this appeal.

In December, mother moved this court for attorney fees on appeal and father moved this court to deny mother’s motion and for attorney fees for having to respond to mother’s motion.

ISSUES

I. Did the district court adequately explain its attorney fee award?

II. Should either party receive attorney fees on appeal?

ANALYSIS

I.

Generally, attorney fees are not recoverable absent specific authority allowing a recovery. Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn.1983). In dissolution cases there are several bases for attorney fee awards, including Minn.Stat. §§ 518.14, 549.211, subd. 2 (2000), Minn. R. Civ. P. 11, and possible stipulated attorney fee provisions -in dissolution judgments. Here, the district court did not identify the authority under which it awarded attorney fees. Because there are different requirements for a fee award, depending on the authority upon which the award is based, a proper review requires that the district court identify the authority for its fee award.

Generally, attorney fees in dissolution cases are governed by Minn.Stat. § 518.14, subd. 1, which allows both need-based and conduct-based fee awards. The standards for making need-based and conduct-based fee awards are different. Id. Therefore, fee awards made under this provision must indicate to what extent the award was based on need or conduct or both; here, however, the district court did not do so. See Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn.App.2001) (remanding fee issue, stating lack of findings “preclude[d] effective review” of fee award where district court awarded need-based and conduct-based attorney fees under Minn.Stat. § 518.14, subd. 1, but did not indicate how much of the award was for either reason), review denied (Minn. Feb. 21, 2001).

A. Need-Based Fees

Under Minn.Stat. § 518.14, subd. 1, a court “shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding” if it finds (a) the fees are necessary for a good-faith assertion of rights; (b) the payor has the ability to pay the award; and (c) the recipient does not have the means to pay his or her own fees. Here, father alleges the findings and evidence show neither that mother «lacks the ability to pay her own fees nor that he has the ability to contribute $10,000 to mother’s fees. Regarding mother’s ability to pay her own fees, the district court found that mother has gross income of less than $32,000 and that her savings “are a result of her father’s generosity plus some assets received in the divorce settlement.” The district court also stated that it is “not appropriate” for mother to pay all of the fees she incurred in this visitation proceeding.

Conclusory findings on the statutory factors do not adequately support a fee award. See Richards v. Richards, 472 N.W.2d 162, 166 (Minn.App.1991) (remanding attorney fee issue because court made only “general findings”). However, a lack of specific findings on the statutory factors for a need-based fee award under Minn.Stat. § 518.14, subd. 1, is not fatal to an award where review of the order “reasonably implies” that the district court considered the relevant factors and where the district court “was familiar with the history of the case” and “had access to the parties’ financial records.” Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn.1999). Here, at the hearing, mother testified that (a) she worked about 21 hours per week; (b) she earned $30.39 per hour; (c) her monthly expenses were the same as they were when the district court issued a 1998 child-support order; and (d) she lacked the ability to contribute to family therapy. The 1998 child-support order states that mother then earned $28.94 per hour, worked 42 47 hours every two weeks, had a net monthly income of $2,207.92, and “listed monthly expenses of $2,644 for herself and the two children!)]” See In re Zemple, 489 N.W.2d 818, 820 (Minn.App.1992) (holding district court may take judicial notice of prior ruling but not prior testimonial assertions). Thus, mother currently works about the same number of hours per week as she did in 1998, has about the same monthly expenses she had in 1998, and since the 1998 order, has received a raise. Under these circumstances, mother has a significant monthly surplus, even without considering her raise (1998 net monthly income ($2,207.92) plus 1998 child support ($845) is $408 more than her $2,644 in claimed monthly expenses). The existence of a significant surplus for mother suggests that she lacks the need that is required for a need-based fee award. This suggestion, however, is inconsistent with (a) mother’s testimony that she did not have the funds to contribute to the cost of family therapy, and (b) her allegation on appeal that the financial information she presented to the district court in the current proceeding is incorrect because she “forgot” to include private-school tuition for the children in her monthly expenses. On this record, mother’s ability to pay her own attorney fees is unclear and we cannot invoke Gully to affirm the district court’s determination that mother lacked the ability to pay her own fees.

Regarding father, the district court found that he had the ability to contribute to mother’s attorney fees. The basis for that finding, however, is unclear. Specifically, the court found that father’s 1998 gross income was $57,376 and that he received a raise from $31.1386 per hour in 1998 to $32,285 per hour in 1999. However,' the court did not make findings concerning either the father’s net income or his reasonable monthly expenses. At the hearing, father testified that he had to borrow money to pay his portion of the therapy bills, but he did not otherwise testify concerning his current expenses. Thus, on this record, how the district court reached its determination that father could contribute to mother’s attorney fees is unclear.

B. Conduct-Based Fees

Under Minn.Stat. § 518.14, subd. 1, a court, “in its discretion,” may award “additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.” (Emphasis added). Here, because mother moved for attorney fees, she had the burden of showing that father’s conduct unreasonably contributed to the length or expense of the proceeding. Cf. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981) (moving party has burden in custody modification proceeding); Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975) (moving party has burden in child support modification proceeding); Joneja v. Joneja, 422 N.W.2d 306, 310 (Minn.App.1988) (moving party has burden in maintenance modification proceeding). An award of conduct-based fees under MinmStat. § 518.14, subd. 1, may be made regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award. See Gales v. Gales, 553 N.W.2d 416, 423 (Minn.1996) (citing Dabrowski v. Dabrowski 477 N.W.2d 761 (Minn.App.1991)).

We reject the part of father’s argument asserting that he should not have to pay conduct-based fees because he did not act in bad faith during the litigation. The statute allows conduct-based fees to be awarded against a party who “unreasonably contributes to the length or expense of the proceeding.” Minn.Stat. § 518.14, subd. 1. While bad faith could unnecessarily increase the length or expense of a proceeding, it is not required for an award of conduct-based attorney fees under Minn.Stat. § 518.14, subd. 1.

We accept, however, the portion of father’s argument suggesting that conduct-based attorney fees must be awarded for conduct occurring during litigation. Because Minn.Stat. § 518.14, subd. 1, allows conduct-based fees to be awarded “against a party who unreasonably contributes to the length or expense of the proceeding!,]” a proceeding must exist to have its length or expense unreasonably increased. (Emphasis added). See Minn.Stat. § 645.08(1) (2000) (requiring words in a statute to be read according the rules of grammar and their common meaning). This reading of the statute is consistent with case law. Cf. Gales, 553 N.W.2d at 423 (denying attorney fees on appeal because appellant’s arguments in the appeal were “neither frivolous nor asserted in bad faith”); Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn.App.1999) (awarding conduct-based attorney fees on appeal because positions taken by appellant were “duplicitous and disingenuous and have had the effect of further delaying distribution, lengthening this litigation and increasing the expense of these proceedings”).. Because conduct-based attorney fees under Minn.Stat. § 518.14, subd. 1, are to be based on behavior occurring during the litigation process, behavior occurring outside the litigation process is not a basis for a conduct-based fee award under that provision.

Here, the district court believed that the acrimony in these proceedings extended their length and expense and that father “bears a great deal [but apparently not all] of responsibility for the visitation issues before the Court.” The district court did not, however, identify what conduct by father justified the award of conduct-based attorney fees or whether that conduct occurred during the litigation process. Cf. Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn.App.1996) (affirming denial of conduct-based attorney fees where, among other things, both parties contributed to expense of case), review denied (Minn. Oct. 29, 1996).

We remand the question of attorney fees for identification of the authority for the award, and the necessary findings.

II.

By motion, mother seeks attorney fees on appeal. Father seeks attorney fees for responding to mother’s motion. Father cites no authority for his fee request. To support her fee request, mother cites Minn.R.Civ.App.P. 127 and 139.06. ' Neither rule is a substantive basis for attorney fees. See Minn.R.Civ.App.P. 127 (addressing procedure for making motions in appellate courts); Minn.R.Civ.App.P. 139.06 (addressing procedure for requesting attorney fees on appeal); Minn.R.Civ.App.P. 139.06 1998 advisory comm. cmt. (stating “[t]he rule has been amended to provide a procedure for seeking attorneys’ fees in the appellate courts”) (emphasis added). Because we remand for findings regarding the district court’s award of attorney fees, and because those findings would impact any award of appellate attorney fees, on remand the district court shall also address the parties’ requests for attorney fees made in connection with this appeal. See Richards, 472 N.W.2d at 166 (stating, where award of attorney fees made under what is now Minn.Stat. § 518.14, subd. 1, was remanded for lack of adequate findings, that “[a]n award of attorney fees on remand may include fees incurred on the original motion, and fees incurred on appeal”); see also Minn.R.Civ.App.P. 139.06 1998 advisory comm. cmt. (stating appellate court may remand question of attorney fees for appeal (citing Richards, among other cases)).

DECISION

The district court’s findings do not identify the legal authority for its award of attorney fees, nor are the findings sufficiently specific to facilitate review of the award. Therefore, on remand the district court shall re-address the question of attorney fees. In doing so, it shall (a) address whether to consider mother’s allegations regarding private-school tuition for the children; (b) indicate whether the award is based on father’s conduct, mother’s need, or both, and shall apportion any fee award among multiple bases for the award, if necessary; (c) make the specific findings 'required to support its decision regarding the attorney fees incurred in district court; and (d) similarly address the parties’ requests for attorney fees on appeal. Whether to reopen the record on remand shall be discretionary with the district court.

Remanded.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . Our quotation of the statutory language indicating that the district court "shall” award need-based attorney fees if the statutory conditions are met, is not an expression of opinion on the question of whether a district court must award need-based attorney fees if the statutory conditions are met. See Minn.Stat. § 645.44, subd. 16 (2000) (stating " '[s]hall’ is mandatory”); compare Holmberg v. Holmberg, 588 N.W.2d 720, 727 (Minn.1999) (stating, in a case where it was ultimately determined that Minn.Stat. § 518.14, subd. 1, did not apply, that "[the] statute requires the court to award attorney fees if the fees are necessary to allow a party to continue an action brought in good faith, the party from whom fees are requested has the means to pay the fees, and the party seeking fees cannot pay the fees”) (footnote omitted; emphasis added) and Mize v. Kendall, 621 N.W.2d 804, 807 (Minn.App.2001) (stating Minn.Stat. § 518.14, subd. 1, “mandates the court to award attorney fees if it [makes the statutory findings]”) (emphasis added), review denied (Minn. Mar. 27, 2001), with Gully v. Gully, 599 N.W.2d 814, 826 (Minn.1999) (holding, in a case not specifically addressing the statute’s mandatory language, a fee award was not an abuse of the district court’s discretion); Haefele, 621 N.W.2d at 767 (stating "[a] district court's attorney fee award will be reversed only for an abuse of discretion”). Whether the language of Minn.Stat. § 518.14, subd. 1, renders need-based fee awards mandatory was neither argued to, nor addressed by, the district court in this case and we do not address that question here.

      . Mother cites Zagar v. Zagar, 396 N.W.2d 98, 102 (Minn.App.1986) and General v. General, 409 N.W.2d 511, 514-15 (Minn.App.1987) to argue to the contrary. Those cases, however, were decided under the version of the attorney fee statute existing before the 1990 amendment implementing the three-part standard (good-faith-assertion-of-rights/need-for-fees/ability-to-pay-fees) currently in the statute. Therefore, those cases (and others similarly decided) have been, to the extent they are inconsistent with the amended statute, superseded by the amended statute. A similar analysis addresses mother's citation of Farrar v. Farrar, 383 N.W.2d 436, 441 (Minn. App.1986), review denied (Minn. May 22, 1986), and Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn.App.1984), for the proposition that a disparity in income is an adequate basis for a fee award. But cf. Beck v. Kaplan, 566 N.W.2d 723, 727 (Minn.1997) (affirming attorney fees award, where statute’s language was apparently not at issue, citing, among other things, "the parties' disparate financial circumstances”).

      . The statement that mother "listed” $2,644 in monthly expenses is not a finding of mother’s reasonable monthly expenses. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn.App.1989) (stating district court's recitation of parties' claims "is not making true findings” because findings "must be affirmatively stated as findings of the trial court”). Father, however, did not object to the figure.

      . Mother argues that information in the 1998 child-support order — specifically concerning father's expenses — can be used to support the 2000 fee award. One case mother cites to support her argument is unpublished. Unpublished opinions, while persuasive, are not precedential. Mother notes that, in Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir.2000) the Eighth Circuit Court of Appeals rejected the idea that unpublished opinions are not precedential. Anastasoff, however, was vacated shortly after mother filed her brief in this appeal. 235 F.3d 1054, 1056 (8th Cir.2000).

      . Our quotation of the statutory language indicating that a court has discretion to award additional attorney fees against a party whose conduct unreasonably increases the length or expense of the proceeding is not an expression of opinion on the question of whether an award of need-based attorney fees under Minn.Stat. § 518.14, subd. 1, is a prerequisite to an award of conduct-based attorney fees under that same provision. Cf. Mize, 621 N.W.2d at 807 (noting Minn.Stat. § 518.14, subd. 1, allows district court discretion to award “additional fees” based on party’s conduct) & n. 3 (stating, because record does not support conduct-based fee award, whether a need-based fee award is a prerequisite to a conduct-based award need not be addressed). In the present case, that question was not argued to, or addressed by, the district court and we do not address it here.

      . The cases father cites to support his argument either predate the 1990 amendment of the statute, or involve fees awarded under Minn.Stat. § 549.211 (2000) (or its predecessor, Minn.Stat. § 549.21 (repealed 1997)). The only exception is father’s citation to Da-browski, which he candidly admits stands for the proposition that unreasonably contributing to the length and expense of a proceeding justifies an award of attorney fees.

      . That conduct occurring outside the litigation process cannot be the basis for an award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1, does not mean such conduct cannot be the basis for a fee award. Numerous dissolution-related statutes provide for attorney fees if a person’s behavior produces a situation where that person’s obligations must be enforced in a legal proceeding. See, e.g., Minn.Stat. §§ 518.14, subd. 2 (2000) (child support), 518.175, subd. 6(c)(3) (2000), 518.1751, subd. 3(b) (2000) (visitation), 518.6111, subd. 5(c) (2000) (income withholding); see also Minn.Stat. § 518.64, subd. 2(g) (2000) (stating Minn.Stat. § 518.14 applies to motions brought under that provision).


author: KONENKAMP, Justice

text:
    2001 SD 44
    In the Matter of the ESTATE OF Ralph F. ROSENBAUM, Deceased.
    No. 21420.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided April 11, 2001.

      Robert A. Christenson, Sioux Falls, SD, Attorney for appellees Glenn and Delories Rosenbaum.
    Steven R. Jensen of Crary, Huff, Ink-ster, Sheehan, Ringgenberg, Hartnett, Storm & Jensen Sr., Sioux City, Iowa, Attorneys for appellants Elaine Trudeau, Bonnie Pojunos, Ron Rosenbaum, Rhonda Chartier, Estellene Dunn, and Estate of Ralph F. Rosenbaum.
   KONENKAMP, Justice

[¶ 1.] In this appeal, we consider the effect of an agreement to convey property and then reconvey it following a quiet title action on the ownership in.riverside land accreted to that property. We conclude that the accreted property was effectively severed following the quiet title action; consequently, when the reconveyance occurred the accreted land was not included. We reverse the circuit court’s opposite conclusion.

A.

[¶ 2.] Glen Rosenbaum and his wife, De-lories, owned an undivided one-half interest in Lots 2A and 3A. Glen’s father, Ralph Rosenbaum, owned the other one-half interest. Ralph alone owned several other contiguous lots. All abutted the Missouri River. Over several decades, land accreted to these lots as a result of stabilization work performed by the Corps of Engineers. Ralph, Glen, and Ronald, another son, were indebted to Valley Bank of Elk Point, South Dakota. The bank held three notes. Ralph was named as the principal debtor on one note and as a guarantor on two, one jointly with Glen and the other with Ronald. The bank was considering foreclosure, so Ralph, Glen, and Ronald negotiated an agreement with the bank to reduce the debt.

[¶ 3.] Their agreement included a plan to quiet title to accretion ground and to sell that property, applying the proceeds to the Valley Bank debt. To facilitate the quiet title action, Glen agreed to convey his half interest in Lots 2A and 3A to his father. Glen knew that in deeding this property he was also transferring any accretion rights associated with ownership. On September 20, 1991, Glen and Delories, by quitclaim deed, conveyed their interest to Ralph. The deed described the property to be conveyed as:

An undivided one-half interest in Lot 2A of Section 30, Township 90 North, Range 49, West of the 5th P.M. Union County, South Dakota, and
An undivided one-half interest in Lot 3A of Section 29, Township 90 North, Range 49, West of the 5th P.M. Union County, South Dakota.

At this meeting, Ralph signed an identical deed conveying the property back to Glen. This deed was placed in escrow with the understanding that delivery would occur upon completion of the quiet title action.

[¶ 4.] The same law firm that prepared the deeds also represented Ralph in a quiet title action in federal district court. In his complaint, Ralph asked the court to declare him the sole owner of the accretion land. The land was described in the complaint as

Lots One (1) and Two (2) of Rosenbaum Tract 2 as recorded in the Union County, South Dakota Register of Deeds Office in Book 12 of Plats on Page 1.

In December 1993, the court granted summary judgment and declared Ralph the sole owner of the accretion land, describing the parcel in the manner set forth above.

[¶ 5.] Ralph Rosenbaum died on February 13, 1994, two months after the final order quieting title. His will appointed his son, Glen, to serve as executor. At the time of Ralph’s death, the property now described as Rosenbaum Tract Two had not been sold as contemplated in the agreement with Valley Bank. In his will, Ralph left the balance of his estate, including Rosenbaum Tract Two, to his children in equal shares. With this disposition being contrary to Glen’s understanding that he and his wife held a partial interest in the accretion land by deed, they filed a claim against the estate, requesting that the court decide the extent of their interest. The remaining beneficiaries contested Glen’s claim. After a trial, the circuit court ruled that Glen and Delories were entitled to a one-half interest in the accretion property (Rosenbaum Tract Two), reasoning that a one-half interest in that property was implicitly included in the deed reconveying Lots 2A and 3A to Glen. This appeal followed.

B.

[¶ 6.] The beneficiaries contend the circuit court erred when it ruled that the deed reconveying Lots 2A and 3A to Glen included a one-half interest in the accreted property. Glen, on the other hand, believes the common law rules of accretion support his argument that the deed, executed by his father and left in escrow, included an interest in the accretion ground. We interpret a deed as we would a contract. SDCL 43-4-13. Contract interpretation is a question of law. See Harksen v. Peska, 1998 SD 70, ¶ 11, 581 N.W.2d 170, 173 (citing Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 (S.D.1993)) (further citations omitted). Whether a contract is ambiguous is also a question of law subject to de novo review. Id. (Citations omitted).

[¶ 7.] When examining an instrument of conveyance, we are guided by the principle that the intention of the parties, and the grantor’s intention in particular, must be ascertained by a fair consideration of the entire instrument and its language, without undue emphasis on any particular provision. Peterson v. Beck, 537 N.W.2d 375, 377 (S.D.1995)(citing Northwest Realty Co. v. Jacobs, 273 N.W.2d 141, 144 (S.D.1978)). Only when construction of an instrument, as a whole, leaves doubt about the intention of the parties will we consider the circumstances surrounding the execution of a deed. Peterson, 537 N.W.2d at 377 (citations omitted).

[¶ 8.] We presume that a grant of real property conveys a fee simple interest in the property described unless it appears from the grant that a lesser estate was intended. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 182 (S.D.1986)(citing SDCL 43-25-15)(further citations omitted). The deed executed by Ralph in favor of Glenn described the land to be conveyed as

An undivided one-half interest in Lot 2A of Section 30, Township 90 North, Range 49, West of the 5th P.M. Union County, South Dakota, and
An undivided one-half interest in Lot 3A of Section 29, Township 90 North, Range 49, West of the 5th P.M. Union County, South Dakota.

Nothing in the language suggests a conveyance of anything less than a fee simple interest. The question remains, however, whether accretion rights, inherent in the deed from Glen to his father, were included in the reconveyance.

[¶ 9.] When land forms on the edge of a river, either by accumulation of material or recession of water, the land so formed belongs to the owner of the banks. See SDCL 43-17-5. Since an accretion becomes part of the upland to which it attaches, the law presumes that the conveyance of uplands includes accretions. North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 302 (N.D.1995). See also Deering v. Gahm, 248 Iowa 1100, 84 N.W.2d 223, 225 (1957)(string citation omitted). This presumption comports with SDCL 43-25-15, which provides that a conveyance of land is a grant in fee simple with all accompanying rights. A presumption, of course, can be overcome. See North Shore Inc., 530 N.W.2d at 302 (discussing Jennings v. Shipp, 115 N.W.2d 12 (N.D.1962); Lynch v. Kupfer, 134 Cal.App. 652, 26 P.2d 33 (1933)); see also Deering, 84 N.W.2d at 225; Bryant v. Chicago Mill & Lumber Co., 216 F.2d 727, 731 (8th Cir.1954).

[¶ 10.] The presumption that accretions are included in a conveyance of uplands is subject to “an important qualification.” Bryant, 216 F.2d at 731. The presumption is rebutted when there is a severance of the accretion ground from the original land. Id. Once severance occurs, “transactions involving the original land do not affect the accretions.” Id. See also 9 Powell on Real Property, § 66.04[6] at 66-43. Severance is determined by the grant- or’s intent. Deering, 84 N.W.2d at 225. Severance occurs, for example, when a grantor conveys accretion ground separate from the upland parcel. See Bryant, 216 F.2d at 732. Cf. Haynes v. Carbonell, 532 So.2d 746, 748 (Fla.Dist.Ct.App.1988) (finding that severance of accretion ground cannot be inferred simply because the deed is silent on riparian rights). Where the record title to property shows a prior judgment separating the uplands from the accretions, the presumption is successfully rebutted. North Shore Inc., 530 N.W.2d at 302 (discussing Lynch v. Kupfer, 26 P.2d at 35). We conclude that Ralph’s action in seeking and obtaining separate title to the accretion property evinces a clear intent to sever it from Lots 2A and 3A and the other contiguous lots that Ralph held alone.

[¶ 11.] The federal district court order quieting title in favor of Ralph supports this interpretation. In its order, the district court recognized the discrete character of the accretion ground by using a separate legal description. The ground is not described as property abutting other parcels owned by Ralph. Instead it is described as:

Lots One(l) and Two(2) of Rosenbaum Tract Two (2), as recorded in the Union County, South Dakota Register of Deeds Office in book 12 of Plats on Page One(l).

It was only after this order that the deed reconveying Lots 2A and 3A took effect. A deed in escrow is not delivered until the performance of all conditions. See SDCL 43-4-11. It is undisputed that the escrow agent was not to deliver the deed to Glen until title was quieted in Ralph’s name. Once that condition had occurred, the accretion property had a wholly separate legal description and was effectively severed from Lots 2A and 3A and the other contiguous lots. Consequently, we conclude that the circuit court erred in ruling that the deed from Ralph to Glen contained a one-half interest in the accretion property.

C.

[¶ 12.] As an alternative argument, Glen claims that he and his father made a binding oral agreement that he would “get all his rights back.” In Glen’s opinion, this included accretion rights inherent in the deed he executed in favor of his father. The remaining beneficiaries argue that any evidence of an oral agreement is prohibited by SDCL 53-8-5: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all of the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Thus, the beneficiaries claim that any oral agreement merged in the deeds executed in September of 1991.

[¶ 13.] On the delivery and acceptance of an unambiguous deed, all prior negotiations and agreements are merged into the deed. Lunstra v. Century 21 GKR-Lammers Realtors, 442 N.W.2d 448, 450 (S.D.1989) (citations omitted); see also Auto-Owners Insurance Co. v. Hansen Housing, Inc., 2000 SD 13, ¶ 13, 604 N.W.2d 504 509. An instrument is ambiguous when there is a real uncertainty about which meaning is correct. Harksen, 1998 SD 70, ¶ 15, 581 N.W.2d at 173 (citations omitted). Absent fraud, mistake, or accident, we presume that an unambiguous instrument expresses the intention of the parties. Northwestern Public Service Co. v. Chicago & NoHh Western Railway Co., 87 S.D. 480, 210 N.W.2d 158, 160, (1973).

[¶ 14.] Ralph’s deed to Glen and his wife clearly and unambiguously describes Lots 2A and 3A as the property to be conveyed. The deed cannot be de-dared ambiguous simply because the remaining beneficiaries and Glen do not agree on its proper construction. See Harksen, 1998 SD 70, ¶ 15, 581 N.W.2d at 173. Glen does not assert any fraud, mistake, or accident in the execution of the deed. He simply argues that conveyance of Lots 2A and 3A also includes an interest in Rosenbaum Tract Two (formerly the accretion property). Evidence of prior or contemporaneous negotiations or oral agreements are inadmissible for this purpose. See Northwestern Public Service Co., 210 N.W.2d at 160 (explaining parol evidence is inadmissible when it would vary or add to a contract). Any previous oral agreement was merged into the unambiguous deed executed by Ralph.

[¶ 15.] Reversed.

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

      . For convenience, reference to Glen as owner also includes his wife. The legal description is
      Lot 2A of Section 30 and Lot 3A of Section 29 all in Township 90 North, Range 49, West of the 5th PM, Union County, South Dakota (Lots 2A and 3A).

      . The ownership interests are symbolized in the figure below. Of the several adjacent upland lots all abutting accreted land, Glen and his wife held two lots as tenants in common with Ralph: Lots 2A and 3A. Ralph alone owned all the remaining lots abutting the accretion land.

      . One child was excepted from this bequest.

      . Although it is not dispositive to our decision, we fail to see how the circuit court calculated that Glen and Delories were entitled to a one-half interest in Rosenbaum Tract Two. They only had a half-interest in two of several lots abutting the accretion land. Ralph owned the other lots outright.

      . Because we conclude that Ralph's deed to Glen did not carry with it the accretion land, we need not address other issues the parties raise.


author: SABERS, Justice. AMUNDSON, Justice

text:
    2001 SD 48
    BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff and Appellee, v. Shirley GREEN, Fall River County Treasurer, Defendant and Appellant, and Franklin Manke, Intervenor and Appellant.
    Nos. 21604-21606, 21609-21611, 21613-21615, 21631.
    Supreme Court of South Dakota.
    Argued Feb. 14, 2000.
    Decided April 18, 2001.

      Mark F. Marshall, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellee.
    Lance Russell, Fall River County States Attorney, Hot Springs, SD, Attorney for appellant Fall River County.
    Richard A. Pluimer, Belle Fourche, SD, Attorney for appellant Manke.
   SABERS, Justice.

[¶ 1.] Burlington Northern Railroad Company (Burlington) instituted a refund action in circuit court to recover improperly collected taxes in Fall River County for the tax year 1993 (# 21604) (# 21605), and 1994 (#21606). Franklin Manke, County Commissioner and a taxpayer in Fall River County, intervened and challenged the refund action. The circuit court granted summary judgment to Burlington. We affirm.

FACTS

[¶ 2.] The facts of this case will be only briefly discussed as they have been before this Court numerous times. Fall River County collected taxes in excess of that legally due and owing due to a method which this Court determined to be contrary to SDCL 10-28-16. Edgemont Sch. Dist. 23-1 v. Dept. of Rev., 1999 SD 48, ¶ 10, 593 N.W.2d 36, 39. The defendant paid these taxes to Fall River County under protest. After legal challenges to the valuation and assessment process were concluded, Burlington brought this refund action under SDCL chapter 10-27.

[¶ 3.] Manke is a County Commissioner and taxpayer in Fall River County. The trial court granted leave for Manke to intervene based on his status as a taxpayer in Fall River County. Manke claims that Burlington’s refund action is unconstitutional, barred by the doctrine of res judica-ta, collateral estoppel or law of the case, and jurisdiction in circuit court is not proper. Fall River County, through its Treasurer Shirley Green, joins in those claims. All of these appeals and their corresponding notices of review were eventually consolidated for appellate review.

[¶4.] The circuit court granted summary judgment to Burlington and awarded damages and prejudgment interest. Manke and Fall River County (Manke) appeal contending: 1.) the trial court lacked jurisdiction to order a refund; 2.) this action was barred as collaterally es-topped, res judicata or under the law of the case doctrine; 3.) SDCL 10-28-16 is unconstitutional; and 4.) the circuit court erred in granting summary judgment on damages without assessing Burlington’s full and true value of the property in Fall River County.

[¶ 5.] Burlington raises two issues by notice of review: 1.) whether the circuit court abused its discretion by granting Manke’s motion to intervene; and 2.) whether the circuit court erred in denying Burlington’s motion to serve and file a supplemental complaint.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for summary judgment is well established and briefly is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462. A motion to amend is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion which results in prejudice to the moving party. Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987). A decision to grant a motion to intervene as a matter of right is also governed by the abuse of discretion standard. Weimer v. Ypparila, 504 N.W.2d 333, 334 (S.D.1993). “Our review of a challenge to the constitutionality of a statute is de novo.” Green v. Siegel, Barnett & Schütz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).

[¶ 7 ] 1. WHETHER THE CIRCUIT COURT LACKS JURISDICTION TO ORDER A REFUND.

[¶ 8.] Manke claims that the circuit court lacks jurisdiction to entertain the refund action brought by Burlington based on our prior decisions. We disagree.

[¶ 9.] In Fall River County v. SD Dept. of Rev., 1996 SD 106, ¶ 44, 552 N.W.2d 620, 631, we determined that “the trial court lacked jurisdiction to entertain the distribution issue.” However, in so holding our analysis was limited to the circuit court’s jurisdiction as an appellate court. Id. The circuit court lacked jurisdiction in that case because the issue raised was not properly noticed for review from the departmental decision. Id. Therefore, that is distinguishable here.

[¶ 10.] A circuit court sitting in an appellate capacity is fundamentally different than the jurisdiction a circuit court employs when it sits as a court of original jurisdiction. Burlington instituted this refund action in accord with SDCL chapter 10-27. The provisions of this chapter entitle Burlington to “commence an action against such treasurer for recovery of the tax in any court of competent jurisdiction.” SDCL 10-27-2. The provisions of chapter 10-27 are designed to provide a plain, speedy, adequate remedy at law. See Holdcroft v. Murphy, 66 S.D. 388, 283 N.W. 860, 862 (1939). As such, the jurisdiction of the circuit court was proper.

[¶ 11.] The second part of Manke’s jurisdictional argument claims that this tax was improperly before the circuit court as Burlington failed to exhaust its administrative remedies. This Court has held that “before a property-taxpayer may apply for judicial relief from an alleged error in valuation, he must exhaust his remedies before the board of equalization empowered to correct the error.” Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Bd. of Com’rs, 248 N.W.2d 386, 389 (S.D.1976). “It is well settled law in South Dakota that a party who fails to complain to his county board of equalization as to excessive valuation may not question the validity of the valuation assessment to his property via SDCL 10-27-2.” Wharf Resources Inc. v. Farrier, 1996 SD 110, ¶ 12, 552 N.W.2d 610, 613. (emphasis in original). However, we have recognized that when a challenge is not merely to valuation but to whether the tax levied was in violation of South Dakota law, exhaustion is not required. Id. ¶ 13.

[¶ 12.] Burlington successfully challenged the legality of the assessment of its property in Fall River County. In Wharf Resources Inc., we held the exhaustion requirement need not be met when “Wharf challenged the legality of the tax levied, not the assessed value of its property.” Id. (emphasis in original). This rationale is equally applicable here. “[WJhere a party alleges the assessment was illegal and void, and not a mere error in valuation, he is not required to challenge that assessment with the county board of equalization, but may apply directly for judicial relief.” Id. ¶ 12.

[¶ 13.] 2. WHETHER THE DOCTRINE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR LAW OF THE CASE BAR THIS ACTION.

[¶ 14.] Manke asserts that the pri- or decisions of this Court bar this refund action by Burlington. In support of this position, Manke once again maintains that we have previously held that the circuit court has no jurisdiction to entertain this refund action. Additionally, it is Manke’s contention that all- issues relating to the tax refund have been previously adjudicated. This argument is without merit.

[¶ 15.] These doctrines only apply if there was a final judgment on the merits of the issues to be precluded. Poindexter v. Hand County Bd. of Equal., 1997 SD 71, ¶ 15, 565 N.W.2d 86, 90. A prior dismissal for lack of jurisdiction does not operate to invoke the doctrines of res judicata or collateral estoppel as an adjudication on the merits. Springer v. Black, 520 N.W.2d 77, 80 (S.D.1994).

[¶ 16.] Moreover, it is particularly important to this determination that the cause of action previously before this Court did not seek to redress this same wrong. Nelson v. Hawkeye Sec. Ins. Co., 369 N.W.2d 379, 381 (S.D.1985). Burlington’s prior litigation involved the determination of the appropriate valuation, assessment and distribution of the taxes due and owing. See Fall River County, 1996 SD 106, 552 N.W.2d 620; Edgemont Sch. Dist., 1999 SD 48, ¶4, 593 N.W.2d 36, 38. Therefore, an action to obtain a refund from taxes paid under protest after the legal challenges concluded is not barred by the doctrines of res judicata or collateral estoppel. The law of the case doctrine is inapplicable on these facts and the prior decisions relating to these taxes do not have a preclusive effect in this refund action.

[¶ 17.] 3. WHETHER SDCL 10-28-16 IS UNCONSTITUTIONAL.

[¶ 18.] Manke challenges the constitutionality of SDCL 10-28-16 asserting that it violates the provisions of the South Dakota Constitution requiring uniformity and equalization of taxes. S.D. Const. Art. XI, § 2, Art. VIII, § 15. Challenges to the constitutionality of a statute are not lightly met:

There is a strong presumption that the laws enacted by the [Legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.” Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.

Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989) (quoting Oien v. City of Sioux Falls, 393 N.W.2d 286, 289 (S.D.1986) (other citations omitted)).

[¶ 19.] During all relevant times to this litigation SDCL 10-28-16 required a tax distribution on a pro rata per mile basis within the county for railroad operating property. In Edgemont Sch. Dist., 1999 SD 48, ¶ 7, 593 N.W.2d 36, 38, we upheld this requirement. Our Constitution requires that “taxes shall be uniform on all property of the same class.” S.D. Const. Art. XI, § 2, Art. VIII, § 15. The constitutional demand for uniformity applies within a class, and not between classes of property. In re Refusal of State Bd. of Equal., 330 N.W.2d 754, 758 (S.D. 1983). SDCL chapter 10-28 evidences a legislative intent to classify railroad operating property as a separate class. Manke complains that “Burlington receives better tax treatment than any other taxpayer in the county.” The legislature has properly created a centrally assessed classification for railroad operating property for taxation purposes. There are numerous ways the legislature could have distributed Burlington’s value. Manke’s complaints are better directed to the legislature. Manke is not a centrally assessed taxpayer. As such, his claim that as a taxpayer in Fall River County he suffers from unequal treatment is without merit. As mentioned, the constitutional demand for uniformity applies within a class, not between divergent classes. In re Refusal of State Bd. of Equal., 330 N.W.2d at 758.

[¶120.] 4. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON DAMAGES WITHOUT ASSESSING THE FULL AND TRUE VALUE OF BURLINGTON’S PROPERTY IN FALL RIVER COUNTY.

[¶121.] Manke argues that the circuit court, before awarding damages, must assess “anew” the value of the taxpayers property. Manke asks the circuit court to determine the appropriate value and assessment of Burlington’s property in Fall River County. However, as indicated earlier this valuation and assessment process has been fully litigated. What is at issue here, as Manke recognizes, is a “purely mathematical equation” to determine the proper amount for refund of excess taxes paid by Burlington. Manke sought to re-litigate our earlier determinations that the railroad was properly assessed on a pro rata per- mile basis. The circuit court correctly abstained and we affirm.

[¶ 22.] By notice of review, Burlington raises two issues:

[¶ 23.] 5. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION BY GRANTING MANKE’S MOTION TO INTERVENE.

[¶ 24.] The circuit court granted Manke’s motion to intervene based on his status as a taxpayer in Fall River County. In Edgemont Sch. Dist., 1999 SD ¶¶ 13-15, 593 N.W.2d at 40, we held that Fall River County lacked the requisite standing to challenge the constitutionality of SDCL 10-28-16. In so holding, we stated in dicta that “the taxpayers within the district and county are the real parties in interest and can satisfy the traditional standing requirements.” Id. ¶ 16. Additionally, “[t]he real party in interest requirement for standing is satisfied if the litigant can show ‘that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant.’ ” Id.

[¶ 25.] Manke, as a Fall River County taxpayer, had a sufficient interest in this refund action. As such, it was not an abuse of discretion to allow Manke to intervene.

[¶ 26.] 6. WHETHER THE CIRCUIT COURT ERRED IN DENYING BURLINGTON’S MOTION TO SERVE AND FILE A SUPPLEMENTAL COMPLAINT.

[¶ 27.] Burlington sought leave to file a supplemental complaint to assert a refund claim for the first half of its 1994 taxes payable in 1995. The circuit court initially granted the motion and then later denied the motion in its decision granting summary judgment. While the circuit court should have clearly stated its reasons on the record for reversal of its own decision, it did not abuse its discretion in denying Burlington’s motion. See Wolff v. Secretary, SD Game, Fish & Parks Dep’t, 1996 SD 23, ¶ 50, 544 N.W.2d 531, 540 (where a judgment is correct, this court will not reverse although it was based on incorrect reasons or erroneous conclusions). The same is true for a correct result with unexplained reasons.

[¶ 28.] Burlington paid the first half of its 1994 taxes under protest. SDCL 10-27-2 requires Burlington to commence an action within thirty days after the payment of the tax under protest to seek recovery. Burlington failed to bring an action within the thirty-day period. Burlington attempted to bootstrap this prior claim nearly three years later into a refund action under SDCL chapter 10-27. For the inclusion of this additional claim the requirements of SDCL 10-27-2 must be met. Burlington’s position is that its prior claims of error appraised the county of their desire to seek a refund. This does not satisfy the requirement of SDCL 10-27-2 to commence an action within thirty days.

[¶ 29.] This Court noted in Pierre and Ft. Pierre Bridge & Railway Co. v. Stuart, 40 S.D. 473, 168 N.W. 33, 35 (1918), that actions for recovery of taxes paid under protest must be commenced within thirty days from the date of payment. The purpose of SDCL 10-27-2 is “to permit taxing districts which have made levies for their needs to receive the contemplated revenue whereby they will not be crippled in operation, and disputes with reference to the legality thereof are to be deferred for subsequent decision with the opportunity to make adequate provisions for referral if adjudged.” Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 248 N.W.2d at 389-90. As Burlington failed to fulfill the mandates of SDCL 10-27-2, leave to amend was immaterial or properly denied on the procedural merits and the circuit court did not abuse its discretion.

[¶ 30.] Therefore, we affirm the circuit court in all respects in all cases.

[¶ 31.] MILLER, Chief Justice, and-KONENKAMP and GILBERTSON, Justices, concur.

[¶ 32.] AMUNDSON, Justice, concurs in part and dissents in part.

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶ 33.] The circuit court originally granted BNRR’s motion to amend its complaint so it could potentially recover a refund for the first half of its 1994 taxes. The court then reversed field and denied BNRR’s motion to amend without explanation. The general rule is that a motion to amend is freely granted and a circuit court should do so unless it will somehow prejudice the adverse party. See SDCL 15 — 6— 15(a); Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 423 (S.D.1994).

[¶ 34.] Without evidence of the trial court’s rationale for denying BNRR’s motion, however, this Court cannot conduct a meaningful appellate review. See e.g., Watson-Wojewski v. Wojewski, 2000 SD 132, 617 N.W.2d 666; Michlitsch v. Meyer, 1999 SD 69, 594 N.W.2d 731; In re W.Y.B., 515 N.W.2d 453 (S.D.1994). On this record, we cannot review whether Fall River would have been prejudiced if BNRR was allowed to amend its pleadings. Nor can we review whether the amended portion sought by BNRR is time-barred. Without any articulation from the trial court as to why it decided to deny BNRR’s motion to amend, we simply cannot do our job. As stated by the Eighth Circuit Court of Appeals, “[w]e cannot meaningfully review the district court’s exercise of discretion, however, absent the benefit of a full statement of reasons explaining why the district court denied the motion.” Teamsters Nat. Freight Industry Neg. Comm. v. MME, Inc., 104 F.3d 364 (8thCir.l996) (unpublished opinion). Therefore, the matter should be remanded to allow BNRR to freely amend its complaint in accordance with the well-established precedent to allow same in this state.

      . See Fall River County v. SD Dept. of Rev., 1996 SD 106, 552 N.W.2d 620; Edgemont Sch. Dist. 23-1 v. Dept. of Rev., 1999 SD 48, ¶ 7, 593 N.W.2d 36, 38; Burlington Northern v. Green, 624 N.W.2d 358 (Table) (2001).

      . Appeal #21604 awarded Burlington $37,784.39 for overpaid taxes in 1993. Appeal #21605 awarded Burlington $388,566.21 for the second half of the 1993 tax. Appeal #21606 awarded Burlington $413,203.02 for the second half of the 1994 tax.

      . Our previous decision in Fall River County, 1996 SD 106, 552 N.W.2d 620, was not a prior adjudication on the merits and does not have a preclusive effect on the issue of a tax refund. The refund action was held in abeyance during the challenge to the proper method of taxation.

      . "[A] question decided on a former appeal became the law of the case, not to be questioned in a second or any subsequent appeal involving any branch of the case.” Western States Land v. Lexington Ins. Co., 459 N.W.2d 429, 435 (S.D.1990).

      . We refused to address the constitutionality of SDCL 10-28-16 as Fall River County lacked standing to challenge the constitutionality of its provisions. Edgemont Sch. Dist., 1999 SD 48, ¶ 12, 593 N.W.2d at 39. The issue of constitutionality is properly before this Court as Manke properly noticed the Attorney General of his challenge. See In re Estate of Holan, 2001 SD 6, 621 N.W.2d 588.

      . SDCL 10-28-16 has subsequently been changed to provide a track density calculation in assessing taxation.

      . Additionally, Manke asserts that the constitutional provision requiring equalization and uniformity of taxes is violated because as a result of the erroneous assessment in Fall River County “no mechanism exists to adjust the value in any other county, or see that Burlington ultimately pays the taxes due to the various counties.” However, this is not the result of the statute Manke asserts to be unconstitutional, but is the result of an errant assessment and distribution based on an interpretation of SDCL 10-28-16 we deemed erroneous. Any remedies these other counties may have is not properly before this Court.