author: FORSBERG, Judge.

text:
    JENSEN-RE PARTNERSHIP, a Minnesota General Partnership, Appellant, v. SUPERIOR SHORES LAKEHOME ASSOCIATION, Respondent.
    No. A03-1681.
    Court of Appeals of Minnesota.
    June 15, 2004.
    Robert J. Huber, Mary E. Schwind, Leonard, Street and Deinard, Minneapolis, MN, ■ and Timothy A. Costley, Two Harbors, MN, for appellant.
    Kyle E. Hart, Richard G. Jensen, Fa-byanske, Westra & Hart,. P.A., Minneapolis, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge; RANDALL, Judge; and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

On appeal from summary judgment, appellant argues that the district court erred by granting respondent condominium-owners’ association’s motion for summary judgment on the ground that appellant’s claim was barred by the two-year statute of limitations provided in Minn.Stat. § 541.051, subd. 1(a) (2002). Because we conclude that respondent is not an “owner” of the common elements of the condominium complex and that, therefore, the statute of limitations does not apply to this case, we reverse.

FACTS

In June 1998, appellant Jensen-Re Partnership bought condominium unit 85 in building 5 of the Superior Shores Resort in Two Harbors. The condominium is in the resort’s “rental pool,” meaning that it is available for rental to the general public. Respondent Superior Shores Lakehome Association (“SSLA”) is the resort’s homeowners’ association and is a “unit owners association” within the meaning of Minnesota’s Uniform Condominium Act, Minn. ■Stat. §§ 515A.1-101-515A.4-118 (2002).

In early 1999, Jensen-Re discovered cracking in some of the tiles on the floor of unit 85 and notified SSLA, which in turn contacted Johnson Wilson Builders, which had constructed the building in the mid-1980s. Representatives of SSLA and Johnson Wilson inspected the property sometime in the spring of 1999. A representative of Johnson Wilson notified SSLA by letter dated May 21 that, in his opinion, although there was a crack in the foundation of building 5, the damage to the tiles in unit 85 was likely the result of water being splashed out of the hot tub. SSLA forwarded a copy of the letter to Jensen-Re.

In the spring of 2001, Jensen-Re began remodeling unit 85. The contractor performing the work discovered that the floor of the unit sloped almost five inches from north to south. Jensen-Re notified SSLA of the slope and at a condominium-owners’ association board meeting' on May ' 19, 2001, SSLA passed a motion allocating $2,500 to Jensen-Re to temporarily fix the floor of unit 85. The minutes from the meeting state that “[i]f the problems within the unit have been caused by the foundation heaving, then the responsibility for rectifying the problems fall[s] within the responsibility of [SSLA].” ,.

■In May 2002, SSLA learned that the sloping of the floor of unit 85, as well as other damage to that building, was the result of the fact that the southwest corner of building 5 had settled approximately five inches. SSLA solicited bids to correct the settling, but SSLA’s proposed repair did not -include repairing the sloped floor in unit 85. SSLA informed Jensen-Re that repairs to unit 85 were not included in the .proposed repair because the unit’s sloped flobr pre-dated Jensen-Re’s June 1998 purchase of the unit. ,

Repair work on building 5 began on July 15, 2002. On July 16, Jensen-Re filed suit against SSLA, claiming breach of contract and breach of duties established under the Minnesota Uniform- Condominium Act for SSLA’s refusal to undertake the repair of the sloped floor in unit 85. In July 2003, SSLA moved for summary judgment, • arguing that Jensen-Re’s suit was barred by the two-year statute of limitations for actions arising from defects in improvements to real property set forth in Minn.Stat. § 541.051, subd. 1(a) (2002). Jensen-Re opposed the motion, arguing that the statute of limitations does not apply to actions brought by individual condominium owners against a condominium-owners’ association, and that SSLA was estopped from seeking protection of the statute of limitations because of earlier representations by SSLA stating that SSLA would pay for any repairs resulting from defects to the foundation. Jensen-Re also filed a summary-judgment motion, asking the court to hold that SSLA has an obligation under both its own by-laws and the condominium act to repair the sloped floor of unit 85.

The district court granted SSLA’s summary-judgment motion, concluding that Jensen-Re’s suit was barred by the statute of limitations in Minn.Stat. § 541.051, subd. 1(a), because evidence showed that the settling that caused the slope occurred close to the time that construction of building 5 was completed in the mid-1980s and, therefore, had existed for longer than the limitation period. This appeal follows.

ISSUE

Does the two-year statute of limitations in Minn.Stat. § 541.051, subd. 1(a) (2002), bar a claim against a condominium-owners’ association for damages arising from construction defects?

ANALYSIS

Jensen-Re argues that the district court erred by granting SSLA’s summary-judgment motion. When reviewing an appeal from summary judgment, this court asks: “(1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On appeal, the evidence must be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo; 504 N.W.2d 758, 761 (Minn.1993). Construction of a statute of limitations is a question of law that this court reviews de novo. Sarafolean v. Kauffman, 547 N.W.2d 417, 419 (Minn.App.1996), review denied (Minn. July 10, 1996).

The statute at issue provides that

[e]xeept where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal ... arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury.

Minn.Stat. § 541.051, subd. 1(a) (2002). Jensen-Re argues that because SSLA was not involved in the design or construction of the condominium complex and is not the owner of the condominium complex or of the common elements of the complex, the statute does not apply to this suit. SSLA contends that it is an “owner” within the meaning of the statute, so the statute applies and Jensen-Re’s suit is barred.

Under the condominium act, “common element” is defined as “all portions of a condominium other than the units.” Minn.Stat. § 515A.1-103(4) (2002). This would include the foundation, and, in fact, the parties here do not dispute that the foundation is a common element. The condominium act also provides that a fraction of the undivided interest in the common elements is allocated to the owner of each unit. Minn.Stat. § 515A.2-108(a) (2002). As a result, “[e]ach condominium unit owner has an undivided fractional share in the common elements that he or she holds as a tenant in common.” Chapman Place Ass’n v. Prokasky, 507 N.W.2d 858, 862 (Minn.App.1993), review denied (Minn. Jan. 24, 1994).

The condominium declaration of the Superior Shores resort defines “common element” in the same way the condominium act does. Additionally, the declaration defines “unit” as “[a] portion of the Condominium ... together with its percentage of undivided interest in the Common Elements.” Therefore, the unit owner is also an owner of the common elements under the provisions of the declaration.

SSLA bases its claim that it is an “owner” of the common elements on the recent case of Olmanson v. Le Sueur County, 678 N.W.2d 506 (Minn.App.2004), review granted (Minn. Mar. 30, 2004). In Olman-son, a snowmobiler injured when he struck a culvert that passed under a county road sued the county and the country club that owned the land on either side of the road. Id. at 509-10. The county and the country club both claimed that the suit was barred by the ten-year statute of repose included in Minn.Stat. § 541.051, subd. 1(a). Id. at 510. This court, in a footnote, noted that even though the county did not own the land where the culvert was located, “by virtue of its prescriptive easement to use the land, the placement of the culvert entirely within that easement, and the county’s general duty to maintain roads in a safe condition, the county is a ‘landowner’ for purposes of the applicability of Minn. Stat. § 541.051.” Id. at 511 n. 1. SSLA equates its position to that of the county in Olmanson and claims that, because it has an easement to enter and a duty to maintain the common elements, it should be considered an “owner” of the common elements for purposes of the applicability of the statute of limitations.

But “strict construction is appropriate in interpreting [Minn.Stat. § 541.051.]” Ritter v. Abbey-Etna Mach. Co., 483 N.W.2d 91, 93 (Minn.App.1992) (citing Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977)), review denied (Minn. June 10, 1992). Therefore, we must give effect to the plain meaning of the statute’s language, “utilizing no ‘technical legal construction.’ ” Id. (quoting Pac. Indem. Co., 260 N.W.2d at 554). Strictly construing the plain language of the statute as it applies here, we conclude that an association created to manage and maintain the condominium complex is not an “owner” of the common elements of the complex within the meaning of the statute. This conclusion is supported by the fact that both Minn.Stat. § 515A.2-108 and the condominium declaration provide that the individual owners of the condominium units are the owners of the common elements of the complex.

Additionally, the supreme court, in analyzing the legislative intent behind Minn. Stat. § 541.051, found that the purpose of the statute is to eliminate stale suits against “architects, designers and contractors who have completed the work, turned the improvement to real property over to the owners, and no longer have any interest or control in it.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 454 (Minn.1988). SSLA is not in the group of entities that the statute is designed to protect. Accordingly, SSLA is not an owner of the common elements of the condominium complex and Minn.Stat. § 541.051, subd. 1(a), does not bar Jensen-Re’s suit.

DECISION

Because the statute of limitations in Minn.Stat. § 541.051, subd. 1(a) (2002), does not apply in this dispute, the district court’s summary judgment in favor of Superior Shores Lakehome Association is reversed.

Reversed.

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

      . It is unclear whether by the term "unit” SSLA was referring to unit 85 or to the entire building 5.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2004 ND 107
    MINTO GRAIN, LLC, a North Dakota Limited Liability Company, Plaintiff and Appellee v. Melvin TIBERT and Cathy Tibert, Defendants and Appellants.
    No. 20030297.
    Supreme Court of North Dakota.
    June 3, 2004.
    Zenas Baer, Zenas Baer & Associates, Hawley, MN, for plaintiff and appellee.
    David C. Thompson, David C. Thompson, P.C., Grand Forks, ND, for defendants and appellants.
   MARING, Justice.

[¶ 1] Melvin and Cathy Tibert appealed from an order granting Minto Grain’s request for summary eviction of the Tiberts from possession of real property located in Minto. We conclude the Tiberts did not demonstrate they were entitled to possession of the disputed property, and the district court did not err in ordering them permanently evicted. We affirm.

I

[¶ 2] Minto Grain operates an elevator on former right-of-way property once owned by Burlington Northern Santa Fe Railroad (“Burlington Northern”) in Min-to. The Tiberts and Minto Grain are abutting property owners. The Tiberts’ property lies immediately east of Minto Grain’s property, and since the Tiberts purchased their property in 1987, they have considered the east edge of a road known as Kilowatt Drive to be the boundary between the properties. However, Kilowatt Drive was actually located on Burlington Northern’s right of way. Minto Grain’s owner acquired the right of way from Burlington Northern through a quitclaim deed in January 2001.

[¶ 3] Disagreement over use of the disputed tract of land has spawned several lawsuits between Minto Grain, Burlington Northern, and the abutting homeowners. A group of landowners sued Burlington Northern to quiet title to the disputed property, claiming they acquired the property through adverse, possession or acquiescence. Minto Grain brought this eviction action against the Tiberts', claiming it' was entitled to immediate possession. The Tiberts, along with Mark and Suzi Tibert, brought an action for injunctive relief against the City of Minto and for a declaration that Kilowatt Drive was a Minto public city street under a theory of common-law implied dedication. Mark and, Suzi Tibert also brought a quiet title action against Minto Grain, claiming the quitr claim deed transaction was void because Burlington Northern failed to comply with N.D.C.C. § 49-09-04.2(1) by first offering the property for public purposes. When the district court’s decision in the landowners’ quiet title action against Burlington Northern was appealed to this Court, the district court granted a stay of the eviction proceedings pending resolution of that appeal.

[¶ 4] In Nowling v. BNSF Ry., 2002 ND 104, ¶ 1, 646 N.W.2d 719, this Court rejected the claims of the landowners and held “a railroad right of way for an operating railroad line is a public highway under N.D. Const, art. XII, § 13 and is not subject to adverse possession or acquiescence.” After Nowling was decided, the district court ruled against the Tiberts in their actions against the City of Minto and Minto Grain and granted Minto Grain’s request that Melvin and Cathy Tibert be evicted from the disputed tract of land. The court permanently evicted the Tiberts from the property but gave them the right of ingress and egress to their property, defined as including “not only the use of the roadway as authorized in the easement and commonly referred to as Kilowatt Drive, but also access to defendant’s property’ and other property adjacent and to the east of that of Minto Grain.”

[¶ 5] Since the district court’s eviction order was entered, we have affirmed the court’s ruling in the Tiberts’ action against the City of Minto. See Tibert v. City of Minto, 2004 ND 97, 679 N.W.2d 440. The Tiberts’ action against Minto Grain is presently pending before this Court. See Tibert v. Minto Grain, Sup. Ct. No. 20030208. This appeal by-the Tiberts involves only the district court’s order evicting them from the disputed property.

II

[¶ 6] The Tiberts argue the district court erred in evicting them from the property for several reasons. They contend the railroad right of way was a public highway which has never been properly discontinued under the public highway vacation provisions of N.D.C.C. ch. 24-07; Kilowatt Drive possesses the factual and legal status as a Minto city street under the doctrine of implied dedication; Burlington Northern did not comply with N.D.C.C. § 49-09-04.2(1) by offering the property for public purposes before deeding it, to Minto Grain; and the Tiberts should be permitted to establish title by adverse possession and acquiescence because the disputed property was never used for railroad purposes. In granting the request for eviction, the district court ruled “[a]ll of the legal theories advanced by the defendants in response to plaintiffs motion have been rejected in companion cases.... They continue to be rejected.”

[¶ 7] Eviction actions are governed by N.D.C.C. ch. 33-06. Section 33-06-04, N.D.C.C., provides in relevant part:

An action of eviction cannot be brought in a district court in connection with any other action, except for rents and profits accrued or for damages arising by reason of the defendant’s possession. No counterclaim can be interposed in such action, except as a setoff to a demand made for damages or for rents and profits.

[¶ 8] In Anderson v. Heinze, 2002 ND 60, ¶ 11, 643 N.W.2d 24, we explained the operation of the eviction statutes:

An eviction action under N.D.C.C. ch. 33-06, is a summary proceeding to recover possession of real estate. Stonewood Hotel Corp., Inc. v. Davis Dev., Inc., 447 N.W.2d 286, 289 (N.D.1989). “Section 33-06-02, N.D.C.C., provides an ‘expedited time period [of 3 to 15 days] ... within which a defendant must appear and defend in an eviction action.’ ” Id. (quoting Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 240 (N.D.1988)). In keeping with the summary nature of an eviction action, N.D.C.C. ■§ 33-06-04, provides, in part: “No counterclaim can be interposed in such action, except as a setoff to a demand made for damages or for rents and profits.” The purpose of the no-counterclaim provision in the eviction statutes “was to get a speedy determination of possession without bringing in any extraneous matters.” Nomland Motor Co. v. Alger, 77 N.D. 29, 31, 39 N.W.2d 899, 900 (1949). In an eviction action, the defendant may show the character of the possessory rights claimed by the parties. Murry v. Burris, 6 Dakota 170, 186, 42 N.W. 25, 31 (1889). However, “the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.” Vidger v. Nolin, 10 N.D. 353, 354, 87 N.W. 593, 593, Syllabus ¶ 3 (1901).

See also VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶¶ 11-12, 672 N.W.2d 445; Hansen v. Winkowitsch, 463 N.W.2d 645, 648 (N.D.1990). “ ‘If a defendant were allowed to assert affirmative defenses or cross-claims which were irrelevant to the right of immediate possession, the summary character of the proceedings would be lost.’ ” South Forks Shopping Ctr. v. Dastmalchi, 446 N.W.2d 440, 443 (N.D.1989) (quoting Nork v. Pacific Coast Med. Enter., 73 Cal.App.3d 410, 140 Cal.Rptr. 734, 735 (1977)).

[¶ 9] Consequently, in Leevers Foods, 2003 ND 198, ¶ 13, 672 N.W.2d 445, we held affirmative defenses and counterclaims regarding payment of rents were allowable in a summary eviction action because “[t]he right to possession in this case depends on whether or not Leevers failed to pay rent and whether or not there were any material breaches.” However, in Heinze, 2002 ND 60, ¶ 13, 643 N.W.2d 24, we held counterclaims for constructive conversion and specific performance were not allowable in an eviction action:

Heinze’s claim for constructive conversion and his contractual claims for denial of his right of first refusal and for specific performance are not counterclaims pled as setoffs to Anderson’s claim for statutory damages of $3,818.92 under N.D.C.C. § 32-03-28, and were, therefore, impermissible under N.D.C.C. § 33-06-04. In such circumstances, the only questions that could properly have been litigated were the right to possession of the land and Anderson’s claimed statutory damages for holding over, together with a possible offset, an issue which we have already determined was abandoned. We conclude the trial court correctly ruled those other matters were not legal defenses to Anderson’s eviction claim. While Heinze may pursue those other matters in another proceeding, they were not properly asserted in this eviction action.

[¶ 10] Most of the arguments raised by the Tiberts in this case do not implicate their right to possession of the disputed property, but constitute an attack on Minto Grain’s title to and attempted use of the property. They argue Kilowatt Drive is a Minto city street under the doctrine of implied dedication, the street may be properly abandoned only under the procedures set forth in N.D.C.C. ch. 40-39; therefore, Minto Grain cannot use the street in any way other than as. a city street. They argue Burlington Northern, before executing the quitclaim deed, did not comply with N.D.C.C. § 49-09-04.2(1) by offering the right of way for public purposes, thus resulting in a void conveyance of the property to Minto Grain. They argue the railroad right of way was a public highway, and because the public highway vacation procedures in N.D.C.C. ch. 24-07 have not been followed, the prop-' erty cannot be used for anything other than a public highway. If the Tiberts were to prevail on any of these arguments, the result may be that Burlington Northern continues to have title to the railroad right of way or that Minto Grain is limited in its use of the property, but it would .not place the Tiberts in immediate possession. Because these arguments do not affect whether the Tiberts are entitled to possession of the disputed property, we conclude they are not legal defenses to Minto Grain’s eviction action.

[¶ 11] The Tiberts argue they should be able to establish title by adverse possession and acquiescence because the disputed property was never used for railroad purposes. Because adverse possession and acquiescence implicate the right to possession of the property, they are allowed to be asserted as a defense or counterclaim in a summary eviction proceeding. See Top of the Town, LLC v. Somers Sportsmen’s Ass’n, Inc., 69 Conn. App. 839, 797 A.2d 18, 21 (2002); Luloff v. Blackburn, 274 Mont. 64, 906 P.2d 189, 192 (1995). The Tiberts request that we modify our holding in Nowling for situations in which it is undisputed that the railroad did not use a portion of the right of way for railroad purposes. We decline to do so. In Nowling, 2002 ND 104, ¶¶ 9, 12, 646 N.W.2d 719, we considered Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996), upon which the Tiberts rely, and refused “to parse part of an operating railroad’s right of way on an allegation that part of the land has been abandoned or not subject to railroad operations.” The Tiberts have offered no persuasive reasons to reconsider our holding.

[¶ 12] We conclude the district court did not err in permanently evicting the Tiberts from the disputed property.

III

[¶ 13] Minto Grain requests damages, costs, and attorney fees for this appeal under N.D.R.App.P. 38.

[¶ 14] Under N.D.RApp.P. 38, this Court may award “just damages and single or double costs, including reasonable attorney’s fees” if we determine “an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal.” A frivolous appeal is one in which there is such a complete absence of facts or law that a reasonable person could not have expected that a court would render judgment in his or her favor. See Torgerson v. Torgerson, 2003 ND 150, ¶ 23, 669 N.W.2d 98. Based on this record, an award of costs and attorney fees is not warranted.

IV

[¶ 15] The eviction order is affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2004 ND 113
    Virginia BICE, Helen A. and Hillis J. Bice, Helen A. Bice Life Estate, Naomi Brew, Patricia Burian Ingman, Myran S. and Mary C. Burian, Estate of Steve Burian, Arnold and Sharon Burian, Connie F. Burian Heck, Jane Elizabeth Kiker, Elmer L. Glovatsky, Timothy Glovatsky, Shirley and Lawrence W. Jablonsky, Leo and Selina Kaiser, Russell L. Kiker, Russell L. Kiker Trust, Sally A. Kiker Trust, Ardyce Burian Palaniuk, Irene E. Scott Mineral Trust, Jane Scott, William D. and Agnes M. Scott, Ervin and Mildred Waldie, Gregory Lynn Waldie, Mary M. Weber, Martin A. Weber, Jerry Zabalotny, William D. Walters, Jr., Imperial Oil Company c/o William D. Walters, Jr., Lillian Hardcastle a/k/a Lillian Kaiser, Robert T. Smith, Carrie W. Smith, Plaintiffs and Appellees v. PETRO-HUNT, L.L.C., J.W. Beavers, Jr., as Trustee of William Herbert Hunt Trust Estate, Defendants and Appellants.
    No. 20030306.
    Supreme Court of North Dakota.
    June 3, 2004.

      Jane L. Dynes- (argued) and Ronald H. McLean, Serkland Law Firm, and Marvin L. Kaiser (appeared), Kaiser Law Firm, Williston, N.D., for plaintiffs and appellees.

      John W. Morrison, Jr., Fleck, Mather & Strutz, Bismarck, N.D., for defendants and appellants.
   SANDSTROM, Justice.

[¶1] Petro-Hunt, L.L.C., and J.W. Beavers, Jr., as Trustee of William Herbert Hunt Trust Estate (collectively “Pe-tro-Hunt”), appealed an order granting a motion for class certification in an action brought by Virginia Bice, Helen A. and Hillis J. Bice, Helen A. Bice Life Estate, Naomi Brew, Patricia Burian Ingman, My-ran S. and Mary C. Burian, Estate of Steve Burian, Arnold and Sharon Burian, Connie F. Burian Heck, Jane Elizabeth Kiker, Elmer L. Glovatsky, Timothy Glo-vatsky, Shirley and Lawrence W. Jablon-sky, Leo and Selina Kaiser, Russell L. Kiker, Russell L. Kiker Trust, Sally A. Kiker Trust, Ardyce Burian Palaniuk, Irene E. Scott Mineral Trust, Jane Scott, William D. and Agnes M. Scott, Ervin and Mildred Waldie, Gregory Lynn Waldie, Mary M. Weber, Martin A. Weber, Jerry Zabalotny, William D. Walters, Jr., Imperial Oil Company c/o William D. Walters, Jr., Lillian Hardcastle a/k/a Lillian Kaiser, Robert T. Smith, and Carrie W. Smith (collectively “Owners”). We conclude the trial court did not abuse its discretion in granting class certification, and we affirm.

I

[¶ 2] The Owners own mineral or royalty interests under oil, gas, and mineral leases within the Little Knife Field in Dunn, Billings, and McKenzie Counties. Petro-Hunt owns the majority of the working interest in many oil and gas wells within the Little Knife Field and is the operator of the Little Knife Gas Plant. Petro-Hunt treats and processes casing-head gas from wells in which the Owners have interests at the gas plant and then sells the residue gas to third parties. The value of the gas is determined by adding all the sources of revenue from sale of the gas and gas products, and subtracting certain costs associated with treating and processing the gas.

[¶ 3] The Owners sued Petro-Hunt, alleging they have been underpaid royalties due them. The Owners alleged, among other things:

19. Petro-Hunt L.L.C. and its predecessors including the Hunt Trust Estate, have paid all of the royalty owners from the Little Knife Field on the same basis, regardless of whether or not they were parties, to any agreement, and without regard to individual lease forms or other contracts.
20. The Defendants have underpaid royalties due them by various methods including, but not limited to inappropriately charging costs and expenses associated with compressing and treating the produced gases, charging for excess depreciation and improper charges as to risk capital. In addition, the defendants failed to pay for processed gas returned and consumed at central tank batteries which properly is a cost of operation and should be borne by the operator.

The complaint asserted one count for failure to pay the proper royalty under lease provisions requiring Petro-Hunt to produce and deliver a marketable product, and six other counts for breach of an implied covenant to market hydrocarbons, conversion, unjust enrichment, an accounting, breach of an implied covenant of good faith and fair dealing, and declaratory relief.

[¶ 4] The Owners moved for an order certifying the matter as a class action under N.D.R.Civ.P. 23 and certifying a “plaintiff class consisting of all owners of mineral and/or royalty interests or overriding royalty interests under oil, gas and mineral leases located within the Little Knife Field of Dunn, Billings and McKenzie counties during the time of the operation of the field and gas plant by Petro-Hunt and its predecessor, the William Herbert Hunt Trust Estate.” The trial court certified the matter as a class action and Petro-Hunt appealed, contending the trial court abused its discretion in certifying the class.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, N.D.C.C. § 28-27-02, and N.D.R.Civ.P. 23(d)(3).

II

[¶ 6] A trial court may certify a class action under N.D.R.Civ.P. 23 if the following requirements are satisfied:

1. The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable;
2. There is a question of law or fact common to the class;
3. A class action should be permitted for the fair and efficient adjudication of the controversy; and
4. The representative parties fairly and adequately will protect the interests of the class.

Old Broadway Corp. v. Hjelle, 411 N.W.2d 81, 83 (N.D.1987). Petro-Hunt contends requirements 2, 3, and 4 have not been met.

[¶ 7] We have consistently construed N.D.R.Civ.P. 23 to provide an open and receptive attitude toward class actions. Howe v. Microsoft Corp., 2003 ND 12, ¶ 7, 656 N.W.2d 285. In Rogelstad v. Farmers Union Grain Terminal Ass’n, Inc., 226 N.W.2d 370, 376 (N.D.1975), we noted that class actions “have always been recognized and encouraged under our laws since prior to Statehood.” Rule 23, N.D.R.Civ.P., is a remedial rule for efficient resolution of the claims or liabilities of many individuals in a single action, eliminating repetitious litigation and possibly inconsistent adjudications involving common questions, related events, or requests for similar relief, and providing an effective procedure for those whose economic position is such that it is unrealistic to expect them to seek to vindicate their rights in separate lawsuits. Ro-gelstad. An order certifying a class action under N.D.R.Civ.P. 23 is appealable, but a trial court’s decision to certify a class action will not be overturned on appeal unless the court abused its discretion. Saba v. Counties of Barnes, 307 N.W.2d 590, 593 (N.D.1981).

Ill

[¶ 8] Petro-Hunt contends “[t]he trial court erred in finding that a ‘common question of law or fact’ exists,” arguing:

Without establishing the existence of a lease provision, contract term, or statutory provision common to the members of the class which entitles them to be paid gas royalties in a certain manner or on a certain value, or which entitles all of the members of the class to receive royalty on gas used in connection with production activities, there is no single question of any consequence which, when answered as to one class member, will be answered as to all class members.

[¶ 9] We have said that because only one question of law or fact is required to establish commonality, courts have classified it as easily satisfied under the rule. Klagues v. Maintenance Eng’g, 2002 ND 59, ¶ 23, 643 N.W.2d 45. “When a question of law refers to standardized conduct by the defendants toward members of a proposed class, a common nucleus of operative facts is typically presented, and the commonality requirement is met.” Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 16, 598 N.W.2d 820. “Individual differences in cases concerning treatment or damages do not defeat commonality.” Id.

[¶ 10] The Owners’ complaint asserts, “Petro-Hunt L.L.C. and its predecessors ... have paid all of the royalty owners from the Little Knife Field on the same basis, regardless of whether or not they were parties to any agreement, and without regard to individual lease forms or other contracts.” In its answer, Petro-Hunt asserts, in part:

Admit that the defendants have, since 1992, paid gas royalties on the basis of the terms of the oil and gas leases with the various owners, which generally provide for royalties to be paid upon the “market value of the gas at the well,” and that such market value can be and has been determined through the use of a work-back calculation, described in paragraph 17 of plaintiffs’ complaint as “adding all of the sources of revenue from the sale of gas and gas products and subtract therefrom certain costs associated with the processing of that gas.”

Petro-Hunt argues, “the record amply demonstrates that there are at least two different lease forms covering the interests owned by members of the class.” However, Petro-Hunt also asserts in its brief that it has been paying royalties in accordance with a 1983 royalty agreement with a group of royalty owners.

[¶ 11] As the trial court observed, “Defendants are alleged to have calculated royalties for each plaintiff in the same way regardless of lease language,” and “[t]he propriety or legality of the deductions taken from royalty payments made to all these plaintiffs is in question.” Petro-Hunt’s standardized payment to royalty owners suggests that while lease provisions may vary, the import of the provisions is the same. We conclude that Pe-tro-Hunt’s standardized conduct toward the royalty owners presents a common nucleus of operative facts meeting the commonality requirement of N.D.R.Civ.P. 23. Werlinger, 1999 ND 173, ¶¶ 14-17, 598 N.W.2d 820. We conclude the trial court did not abuse its discretion in finding commonality.

IV

[¶ 12] Petro-Hunt contends the trial court erred in finding a class action should be permitted for the fair and efficient adjudication of the controversy.

[¶ 13] Rule 23(c)(1), N.D.R.Civ.P., lists thirteen factors for consideration in determining whether a class action should be permitted for the fair and efficient adjudication of the controversy:

(A) whether a joint or common interest exists among members of the class;
(B) whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for a party opposing the class;
(C) whether adjudications with respect to individual members of the class as a practical matter would be disposi-tive of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;
(D) whether a party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole;
(E) whether common questions of law or fact predominate over any questions affecting only individual members;
(F) whether other means of adjudicating the claims and defenses are impracticable or inefficient;
(G) whether a class action offers the most appropriate means of adjudicating the claims and defenses;
(H) whether members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;
(I) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;
(J) whether it is desirable to bring the class action in another forum;
(K) whether management of the class action poses unusual difficulties;
(L) whether any conflict of laws issues involved pose unusual difficulties; and
(M) whether the claims of individual class members are insufficient in the amounts of interest involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the members of the class.

The trial court made findings on all of the factors, some favoring certification and others not favoring certification. Petro-Hunt has challenged only the trial court’s determinations on factors C, E, F, G, H, and K.

[¶ 14] In determining whether a class action will provide a fair and efficient adjudication of the controversy, the trial court is not required to specifically address each of the thirteen factors but must weigh the competing factors, none of which is predominant. Howe, 2003 ND 12, ¶ 9, 656 N.W.2d 285. In most cases, some of the thirteen factors will weigh against certification, and some will weigh in favor of certification. Id. The fact that some factors weigh against certification does not preclude the trial court “ ‘from certifying the class action if, in its opinion, those factors are outweighed by other factors supporting certification.’ ” Id. (quoting Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 15, 583 N.W.2d 626).

A

[¶ 15] In addressing factor C, the trial court said, among other things:

This court is convinced that the prece-dential effect of this litigation combined with the history of treating all the royalty owners the same would as a practical matter be dispositive of the interests of other members not parties to this action or substantially impair or impede their ability to protect their interests. The present action also seeks declaratory relief .and not just money damages. The request for declaratory relief also supports the plaintiffs’ argument that adjudication as a practical matter could be dispositive of the interests of non-parties.

[¶ 16] The precedential effect of a decision in individualized litigation “alone should not be the basis for class certification under” N.D.R.Civ.P. 23(c)(1)(C), “but precedent plus some other practical factor could be sufficient to qualify as a class under this factor.” Klagues, 2002 ND 59, ¶ 17, 643 N.W.2d 45. In light of the prece-dential effect of this litigation, the history of similar treatment of all royalty owners, and the request for declaratory relief in addition to damages, we are unable to conclude the trial court erred in concluding “the precedential effect of this litigation ... would as a practical matter be disposi-five of the interests of other members not parties to this action or substantially impair or impede their ability to protect their interests.”

B

[¶ 17] In addressing factor E, the trial court said, among other things:

Plaintiffs’ main theory of recovery is that defendants have a duty as operators under the oil and gas leases to produce the first marketable product.... This issue was not squarely addressed in Amerada Hess Corp. v. Conrad, 410 N.W.2d 124 (N.D.1987) and appears to be unsettled law in North Dakota. The fact that all royalty owners are paid and have been paid under one existing method of payment also supports the assertion that common issues predominate over individual issues.
As this litigation develops there may be the need to develop subclasses. Plaintiffs concede that this might be appropriate because of lease forms or class members’ involvement in prior litigation. The Court has the ability to decertify the class or to establish other classes or subclasses. Howe v. Microsoft Corp., supra, at ¶ 17. At this stage of proceedings common questions of law or fact predominate and this factor favors class certification.

[¶ 18] Petro-Hunt contends, “[c]om-mon questions of law or fact do not predominate in the absence of any showing of common lease terms among class members.” Petro-Hunt argues:

As noted above, the one controlling and overriding issue in determining whether expenses incurred in processing and treating gas can be deducted from sales receipts of finished products before computing royalty is the interpretation of the “terms and provisions of the given lease.” There is no showing in this case that the same or even similar royalty provisions are included in the leases to which the class members are parties. ... Neither the trial court nor the plaintiffs have identified any questions of law or fact to be resolved other than whether the deductions are authorized by the leases and whether the residue gas used in production operations is free of royalty. Neither of these questions can be resolved without resort to the leases of the owners. Without some showing that there are common or similar lease terms, common questions of law or fact cannot be said to predominate over the individual questions.

[¶ 19] The Owners have raised questions about the propriety of deductions for expenses incurred in processing and treating gas and about Petro-Hunt’s use of gas. The Owners have alleged that Petro-Hunt and its predecessors have treated all of the royalty owners the same, regardless of individual lease provisions. Petro-Hunt has said it has been paying royalties in accordance with leases generally providing for royalties based on the “market value of the gas at the well,” which is determined through a specified calculation, in accordance with a 1983 royalty agreement with a group of royalty owners, and that “all royalty owners in Little Knife are treated the same with regard to gas royalties.” The similarity in treatment of owners regardless of individual lease terms strongly suggests there are common lease terms or, if not, that differing lease terms are similar in import or treated as being common or similar in import. In light Of the parties’ assertions about similar treatment, we are unable to conclude the trial court was not justified in determining that common questions of law or fact predominate.

[¶20] If, as Petro-Hunt asserts, “the record amply demonstrates that there are at least two different lease forms covering the interests owned by members of the class,” and those differing lease forms require differing treatment, the trial court may find it appropriate to establish subclasses or to eliminate some class members from the class, as authorized by N.D.R.Civ.P. 23(e)(1). As we noted in Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2001 ND 56, ¶ 23, 623 N.W.2d 424, a trial court may create subclasses, exclude particular members, or, as facts develop, “may decertify, subclassify, or modify a previously certified class action.”

C

[¶ 21] Petro-Hunt challenges the trial court’s determinations on factors F, G, H, and K.

[¶ 22] In addressing factor F, the trial court said:

Defendants contend that the long and substantial history of prior litigation demonstrates that individual lawsuits can and do provide practical and efficient means of adjudication. Because of the number of royalty owners plaintiffs argue a class action is a more practical or efficient means of adjudicating claims. Plaintiffs point out that without a class action repeated suits by the wealthier faction of Little Knife interest owners will continue and those who are not as wealthy or own lesser interests will not be represented.
The Court finds that other means of adjudication are inefficient and impractical. The litany of litigation and number of individual suits supports plaintiffs’ argument that a class action will be more fair and efficient and hopefully finally resolve the issues. This factor favors certification.

Petro-Hunt asserts, “it is clear well over 100 separate royalty/mineral owners have, at one time or another, commenced a lawsuit against either the Trust, Petro-Hunt, or one of their predecessors, claiming that the deduction of some or all costs incurred in processing gas at the Little Knife gas plant before computing royalties was inappropriate.” Petro-Hunt argues, “[t]hese facts undeniably demonstrate that individual actions have been practicable and efficient — they have allowed individual mineral owners to assert the claims they chose to assert using the counsel they chose to use,” and contends, “the trial court abused its discretion in simply ignoring the clear and undeniable impact of the prior litigation history on this class action.” The trial court’s decision may provide a day in court for some whose claims would be uneconomical to litigate individually, see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), and promote judicial economy, see 1 Alba Conte and Herbert Newberg, Newberg on Class Actions § 1:1 (4th ed.2002). While Petro-Hunt and the trial court both posited plausible views of the effects of prior litigation on this litigation, we are unable to conclude that the trial court abused its discretion in adopting its view rather than Petro-Hunt’s on factor F.

[¶ 23] In addressing factor G, the trial court said:

Plaintiffs have shown that common issues of fact and law predominate. The Court has rejected defendants’ argument that the history of prior individual suits demonstrates that individual actions are more appropriate. This factor favors class certification.

In addressing factor H, the trial court said:

It appears that there is no other litigation pending in North Dakota regarding the issues raised in this lawsuit. The fact that there are no other lawsuits and no one else has sought to intervene is not determinative as to the feasibility of a class action lawsuit and does not weigh against class certification. Saba v. Counties of Barnes, 307 N.W.2d 590, 594 (N.D.1981) citing Rogelstad, 226 N.W.2d 370, 371 (N.D.1975). The Court has no information to suggest non-representative parties have an interest in controlling new or pending separate actions. This factor weighs in favor of certification.

In addressing factor K, the trial court said:

If management problems are only speculative and not evidenced in problems already experienced in the litigation, the class should be certified. 7A Wright & Miller § 1780. No management problems have yet been experienced, but defendants point put because of prior litigation and different individual lease types management problems may arise. Plaintiffs point out that if the predominance factor is satisfied this factor is also satisfied. Ritter I, supra at ¶ 28. The court determines that management of the class poses no unusual difficulties, at least at this point, and this factor does not weigh against certification.

Petro-Hunt has not presented persuasive reasoning showing the trial court abused its discretion in considering and weighing factors G, H, and K. “ ‘An abuse of discretion by the trial court is never assumed; the burden is on the party seeking relief to affirmatively establish it.’ ” Jundt v. Jurassic Res. Devel. North America, L.L.C., 2003 ND 9, ¶ 10, 656 N.W.2d 15 (quoting Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681).

V

[¶ 24] Petro-Hunt contends the class members will not be adequately represented by a proposed class counsel, whom Petro Hunt asserts has a conflict of interest because he is a class member, his parents are .proposed class representatives, and his ex-wife and members of her family are also proposed class representatives.

[¶ 25] The trial court certified the action as a class action, although it did find a potential conflict of interest:

The fact that Mr. Kaiser is a class member and a class attorney does create a potential conflict of interest but this Court is not convinced, at least at this point, that Mr. Kaiser’s disqualification is required. The plaintiffs persuasively point out that the North Dakota rule affords more protection than the federal rule. No compromise dismissal can be made by plaintiffs’ counsel without court approval. Rule 23(Z) N.D.R.Civ.P. Attorney’s fees are subject to the control of the court. Rule 23(p) N.D.R.Civ.P. Even if it should develop that Mr. Kaiser has a conflict sufficient to warrant his removal, Mr. McLean and his firm would be available and appear to be able to adequately represent the class.

Petro-Hunt asserts the trial court did not address three federal court decisions (Bachman v. Pertschuk, 437 F.Supp. 973 (D.D.C.1977), Fechter v. HMW Indus., 117 F.R.D. 362 (E.D.Pa.1987), and Lyon v. Arizona, 80 F.R.D. 665 (D.Ariz.1978)), “but relied solely on the differences between the Federal rule and North Dakota rule.... Such is a misapplication of the law and an abuse of discretion.”

[¶ 26] In Bachman, 437 F.Supp. at 978, the court held:

This Court holds that an attorney for a plaintiff class ... who is himself a member of the class, has a conflict of interest such that his continued representation of the class as its attorney will not adequately protect the interests of absent class members. Accordingly, the Court will modify the class certification to allow this litigation to proceed as a class action without the assistance of Mr. Ramadhan as attorney for the class.

The court in Fechter, 117 F.R.D. at 364-65, held that representation of a class by the law firm of an attorney who was a de facto class representative presented an appearance of impropriety, and denied class certification. In Lyon, 80 F.R.D. at 668-69, the court held that conflicts of interest arising from the fact that a class member was the wife of proposed class counsel required dismissal of the class allegations. On the other hand, the court in Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1023-24 (5th Cir.1981), said a local court rule providing that an attorney who is the partner or spouse of a named class representative is disqualified from acting as class counsel does not apply when attorney fees will come directly from defendants, and not from a fund created for class relief, and the court in Umbriac v. American Snacks, Inc., 388 F.Supp. 265, 275 (E.D.Pa.1975), said safeguards in Fed. R.Civ.P. 23 provide adequate protection of class interests. Thus, “[c]ourts have disagreed on the propriety of an attorney who is a plaintiff in a class action who also seeks to serve as attorney for the class.” 1 Alba Conte and Herbert Newberg, Newberg on Class Actions § 3:40, p. 522 (4th ed.2002).

[¶ 27] While the potential for a conflict of interest and a possible appearance of impropriety are troubling, we are not persuaded Petro-Hunt has met its burden of establishing the trial court' abused its discretion. The trial court’s determination is subject to reconsideration, and we are confident the trial court will monitor the situation and take any appropriate action that might become necessary to assure that the interests of the class or subclasses are adequately protected.

VI

[¶ 28] The trial court’s order certifying the case as a class action is affirmed.

[¶ 29] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: SABERS, Justice.

text:
    2004 SD 68
    STATE of South Dakota, Plaintiff and Appellee, v. Carlos MESA, Defendant and Appellant.
    No. 22798.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided May 19, 2004.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota Attorneys for plaintiff and appellee.
    Rick L. Ramstad of Wilka and Ramstad, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Carlos Mesa was convicted by a jury of second degree rape in violation of SDCL 22-22-1(3) and second degree burglary, in violation of SDCL 22-32-3. Mesa appeals, alleging 1) the trial court constructively amended the indictment; and 2) the evidence was insufficient to sustain a conviction for second degree rape. We affirm.

FACTS

[¶ 2.] On August 2, 2002, BB, the twenty-two year old victim, went out for the evening with friends. At approximately midnight, she and her friends went to a bar, where she consumed one beer. Next, the group went to another bar, where she had a glass and a half of beer. She left the second bar around two in the morning and drove to her boyfriend’s home. Her boyfriend had been drinking and smoking marijuana most of the evening. Around 3:30 a.m. the victim and her boyfriend went into his bedroom and “fooled around.” They did not engage in intercourse'because he was “incredibly drunk” and passed out while kissing her neck. BB testified that shortly after he passed out, she fell asleep.

[¶ 3.] The victim testified that she awoke at approximately 6:30 a.m. at the foot of the bed with Defendant raping her. She testified that she struggled with him and attempted to push him away by pushing against his chest with her left foot. After a struggle, Defendant left the bedroom. BB tried to awaken her boyfriend but he did not respond to her calling his name or pinching him. BB then followed Defendant into the living room and tried to get him out of the house. Defendant grabbed her wrist, tried to kiss her and pulled her onto the couch. BB freed herself from him and tried to talk to Defendant but found that he spoke only Spanish. BB ran to her boyfriend’s room and attempted unsuccessfully to wake him again. Fearing that the Defendant would get away and that she would “never be able to track him down,” she went back to the living room to discover he was gone. BB grabbed a phone and dialed 911. She opened the back door of the home and saw Defendant walking away with a green towel wrapped around his waist. She took the portable phone and followed Defendant as he walked down the street. Mesa walked to a nearby staircase and stood there. He remained there while BB yelled and made obscene gestures at him until police arrived.

[¶4.] One of the responding officers testified that when she arrived, she found BB yelling “he raped me” and pointing to Mesa. The officer noted that BB stated she had been drinking and that “she was intoxicated and that she wished she was sober right now.” The officer also testified that she had difficulty waldng up all three men in the house where the victim had been assaulted. Finally, she testified that BB’s boyfriend called a day later because he found a shirt and a pair of shorts with a set of Nissan car keys in the pocket on the floor of his bedroom. A second officer testified that Mesa owned a Nissan.

[¶ 5.] An officer on the scene testified that Mesa appeared to be intoxicated and he was locked out of his apartment. After the officers realized that Mesa did not speak English, a Spanish-speaking officer was called to the scene. When he arrived, he spoke with Mesa, who denied any contact with BB and denied being in the boyfriend’s home that evening. Later, in an interview with another officer, Mesa admitted he was inside the boyfriend’s home, and that he and BB had sex, but'he insisted that the sex was consensual.

[¶ 6.] A physical examination of the victim revealed a red bruise on her upper left arm, a large bruise on her left thigh and vaginal abrasions. The examining physician testified that the vaginal abrasions were consistent with forcible intercourse. The doctor noted that the victim did not appear to be intoxicated though she reported she had been drinking. At trial, the State’s1 forensic expert testified that she detected sperm cells on the victim’s vaginal and cervical swabs, but no seminal fluid. The expert was unable to identify from whom the sperm cells originated.

,[¶ 7.] On August 5, 2003, the State filed a Complaint charging Mesa with second degree rape in violation of SDCL 22-22-1(2). Thereafter, a grand jury returned an Indictment which charged Defendant with Second Degree Rape under SDCL 22-22-1(2) and in the alternative, Second Degree Rape under SDCL 22-22-1(3). He was also charged with Second Degree Burglary under SDCL 22-32-3. Mesa pleaded not guilty and proceeded to a jury trial. At the close of State’s case, Mesa moved for judgment of acquittal and the trial court denied the motion.

[¶ 8.] During deliberations, the jury sent the trial court a note which inquired, “[d]oes alcohol impairment constitute mental incapacity?” Without objection from the defense, the judge sent a note to the jury stating, “[i]n response to your question, such condition could be so caused, but that is a factual issue that you will have to determine in arriving at your verdict.” Defendant was convicted of Second Degree Burglary and Second Degree Rape under SDCL 22-22-1(3). He was acquitted of the forcible rape charge. Mesa appeals, raising two issues:

1. Whether the trial court’s response to the jury’s question constituted a constructive amendment of the indictment.
2. Whether there was sufficient evidence to support the conviction of Second Degree Rape.

We affirm.

STANDARD OF REVIEW

[¶ 9.] We review claims of constitutional violation under the de novo standard of review. State v. Ball, 2004 SD 9, ¶ 19, 675 N.W.2d 192, 198. In reviewing a claim of insufficiency of the evidence, the question is:

whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.

State v. Boston, 2003 SD 71, 6, 665 N.W.2d 100, 103 (quoting State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994)) (additional citations omitted). “We afford the strongest presumption in favor of the jurys determination of credibility.” Id.

[¶ 10.] 1. WHETHER THE TRIAL COURT’S RESPONSE TO THE JURY’S QUESTION CONSTITUTED A CONSTRUCTIVE AMENDMENT OF THE INDICTMENT.

[¶ 11.] South Dakota’s rape statute provides in part:

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances ...
(2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or
(3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or ...

SDCL 22-22-1. Defendant was charged under subsection (2), and in the alternative, subsection (3). The jury was instructed on subsection (2) and, in the alternative, subsection (3). There were no objections to these instructions.

[¶ 12.] As indicated in ¶ 8, the jury’s note inquired, “[d]oes alcohol impairment constitute mental incapacity?” Without objection from the defense, the judge sent a note to the jury stating, “[i]n response to your question, such condition could be so caused, but that is a factual issue that- you will have to determine in arriving at your verdict.”

[¶ 13.] Defendant was convicted of Second Degree Rape under SDCL 22-22-1(3). • He argues for the first time on appeal that the trial court’s answer to the jury’s question was a constructive amendment of the indictment so that he was actually convicted under subsection (4). A constructive amendment to an indictment occurs when:

the terms of the indictment are altered in effect by either the admission of evidence or. the use of jury instructions which modify the essential elements of the offense charged so that a substantial likelihood exists that the defendant was convicted of an offense other than that charged in the indictment.

United States v. Johnson, 934 F.2d 936 (8th Cir.1991) (citing Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960)).

[¶ 14.] . .Subsection (4) of the rape statute provides:

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances ...
(4) if the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis!.]

However, the trial court did not instruct the jury on the language of subsection (4).

[¶ 15.] Mesa did not object to the court’s answer at the time it was given. Failure to raise an issue before the trial court can constitute waiver of the issue. See e.g. Boston, 2003 SD 71 at ¶ 26, 665 N.W.2d at 108-109 (additional citation omitted). Moreover, “failure of a court to correctly or fully instruct the jury is [generally] not reviewable unless an objection was made or written instruction correctly stating the law was requested.” State v. Otto, 529 N.W.2d 193, 195 (S.D.1995) (additional citation omitted). Mesa has waived this issue on appeal.

[¶ 16.] Even if we reached the merits of this issue, it does not change the result because we are satisfied that the trial court’s-answer to the jury’s question did not constitute a constructive amendment of the indictment.

1) No instruction was ever given on subsection (4).
2) Subsection (3), which was instructed upon, is broad enough to include physical or mental incapacity to consent, without regard to cause.
3) The trial court simply stated that “such condition could be so caused, but that is a factual issue that you will have to determine in arriving at your verdict.”
4) This is proper guidance to the jury based on a correct statement of the law, and wé find no error.

As indicated, Defendant was convicted of rape under subsection (3) and we affirm subject to Issue 2.

[¶ 17.] 2. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF SECOND DEGREE RAPE.

[¶ 18.] Mesa asserts that the jury “clearly rejected [BB’s] claim that she had been sleeping when she first encountered Mesa.” He claims this assertion is supported by the note the jury sent to the court and that the instruction allowed the jury to convict him of having sex with a person who was incapable of consenting due to intoxication. The success of this argument depends on whether the Court accepts the argument that the jury convicted Mesa of rape on the basis that BB could not consent due to intoxication. Specifically, Mesa asserts under this issue that there is insufficient evidence on the record to support the finding that BB was too intoxicated to consent to sex. This argument is without merit. There is nothing ' to -indicate that the jury - convicted Mesa based on BB’s level of intoxication. In order for the Court to grant relief on the basis of this argument, the Court would have to presume to know that the jury convicted him based on her level of intoxication. We cannot engage in such supposition. Particularly given that there was sufficient evidence in the record to support the jury’s verdict.

[¶ 19.] Next Mesa asserts that the victim’s testimony was too incredible to believe. He contends that he did not act like a rapist, and she did not act like a victim. Based on its verdict, it is clear that the jury believed the victim’s testimony that she was raped. Mesa asks the Court to re-weigh the credibility of the witnesses and the weight of the evidence presented to the trier of fact. However, it is a function of the jury to resolve factual conflicts and weigh the credibility of witnesses. State v. Moran, 2003 SD 14, ¶ 36, 657 N.W.2d 319, 328 (additional citation omitted). As unusual as the victim’s testimony may seem, Mesa’s assertions were even more incredible. His testimony was that he left his apartment to take some garbage out. In his hand he carried an open beer. He asserts that BB came .out of- her boyfriend’s house, approached him, and requested a drink of the beer. He then testified that they shared the beer, and began kissing. He contended that BB led him inside and into her boyfriend’s bed and they engaged in consensual sex while her boyfriend slept inches away. Supposedly, this was all done without any real verbal communication because of the language barrier between BB and Mesa. Defendant’s veracity could easily be doubted by the jury given that despite his later tale of consensual sex, he initially denied any contact with BB.

[¶ 20.] As stated in ¶ 16, subsection (2), the jury instruction supporting subsection (3) was broad enough to include physical or mental incapacity to consent, without regard to cause. In other words, the jury could determine that the victim was sleeping at the time she was raped. There was sufficient evidence on the record, when coupled with inferences favorably drawn in support of the verdict, to support the conviction.

[¶ 21.] Affirmed.

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

       As the State points out, Defendant tends to undercut his argument under Issue 1 by as-setting that "the collective experience of mankind with alcohol and common sense” effectively rebuts any indication that BB was too intoxicated to consent to sex.-


author: PER CURIAM.

text:
    2004 SD 67
    STATE of South Dakota, Plaintiff and Appellee, v. Vernon W. BARRY, Defendant and Appellant.
    No. 22985.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2004.
    Decided May 19, 2004.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Thomas M. Diggins, Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for defendant and appellant.

      . Two ounces is approximately 56 grams.

   PER CURIAM.

[¶ 1.] Vernon Barry contends there was insufficient evidence to support his conviction for possession of more than two ounces but less than one-half pound of marijuana beyond a reasonable doubt. Because the record supports joint constructive possession of the marijuana beyond a reasonable doubt, we affirm.

FACTS

[¶ 2.] Rapid City law enforcement received information concerning drug sale and usage occurring at a trailer house where Barry and LouAnn Thudium resided. A search warrant was obtained and executed by law enforcement. The search of the residence uncovered a large quantity of drugs and drug related paraphernalia. Particularly, (1) pipes used for smoking methamphetamine and containing methamphetamine residue; (2) four scales; (3) six individually packaged baggies containing methamphetamine; (4) over two hundred baggies used for packaging drugs for distribution; (5) six-hundred fifty five dollars in cash in Barry’s billfold, even though he was unemployed; (6) photographs of individuals consuming drugs; (7) devices for ingesting marijuana; (8) surveillance equipment; (9) portable police scanners; (10) a recipe for manufacturing methamphetamine; and (11) more than two ounces of marijuana. These items were found disbursed throughout the residence occupied jointly by Barry and Thu-dium.

[¶ 3.] Marijuana was found in a container in Thudium’s purse which was located on the bed in the jointly occupied bedroom. In addition to the marijuana, the purse contained a digital scale, and twelve large and twenty six small baggies. A container of marijuana was also found in a dresser in the same bedroom. The bedroom contained both Barry’s and Thudi-um’s personal items. Also present in the bedroom were marijuana pipes with residue, devices for ingesting methamphetamine, zip lock baggies, another digital scale, a monitor for a surveillance system, methamphetamine under a pillow on the bed and a police scanner. This was the only room being used as a bedroom in this trailer home. The marijuana in the purse weighed 52.3 grams; the marijuana in the dresser weighed 13.3 grams. A urinalysis test conducted on Barry was positive for the presence of methamphetamine but negative for marijuana.

[¶ 4.] Barry was tried by the court and found guilty of possession of a controlled substance (methamphetamine) with intent to distribute, keeping a place for use or sale of a controlled substance, possession of more than two ounces of marijuana but less than one-half pound, and possession of drug paraphernalia. Barry appeals contending there was insufficient evidence to support his conviction for possession of more than two ounces of marijuana beyond a reasonable doubt.

ANALYSIS

ISSUE

[¶ 5.] Whether there was sufficient evidence to support Barry’s conviction for possession of more than two ounces but less than one-half pound of marijuana beyond a reasonable doubt.

[¶ 6.] In determining the sufficiency of evidence on appeal, the test is whether there is evidence in the record which, if believed by the [trier-of-fact], is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making this determination, this Court must accept the most favorable inferences that can be drawn therefrom in support of the verdict. State v. Schmiedt, 525 N.W.2d 253, 254-55 (S.D.1994). Furthermore, [i]n determining the sufficiency of the evidence, this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable infer-enees drawn therefrom, sustains a reasonable theory of guilt. State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421.

[¶ 7.] Barry contends there was insufficient evidence that he possessed the requisite amount of marijuana to support the conviction beyond a reasonable doubt. He argues that the marijuana in his live-in girlfriend’s purse could, not be attributed to him on this record and the trial court erred as a matter of law in determining otherwise. Unless the two quantities of marijuana are aggregated, the State has failed to prove. the requisite amount to support the conviction for possession of more than two ounces of marijuana.

[¶ 8.] In finding Barry guilty of possessing more than two ounces of marijuana the trial court stated:

Count III, the marijuana count, you don’t have to use the marijuana to knowingly possess it. It’s in your house, it’s in two different places in your house. There’s some [sic] in the drawer and there’s some in the girlfriend’s purse. Whether or not he uses it isn’t the criteria. Whether he has THC in his system isn’t the criteria. The criteria 'is whether he knew or should have known that it was there. And I can’t imagine how he couldn’t have known it was there. It’s his home. I believe the State brought up constructive possession. And it appears to me, at the very least he had constructive possession. You don’t want to call it actual possession. It wasn’t in his hand, but it was certainly in his home. And it wasn’t in his home by a transient, or somebody coming and going from the home. It’s been attributed by the defense that it was somebody living in the home. And, of course, .the Court makes that finding beyond a reasonable doubt.

(emphasis added). Thereafter, the trial court entered findings of fact and conclusions of law on this issue and determined that: ■

A person is in possession of a controlled substance, when it is subject to that person’s dominion or if the person had the right to exercise control over it. Possession need not be exclusive. The possession may be shared with others. A defendant must be shown to have knowingly been in possession of a controlled substance. The mere fact that a person is near a location or had access to a place where methamphetamine or marijuana is found is not, by itself, sufficient proof of possession. SD Pattern Jury Instruction 1-11-8.
The elements of Count 3, each of which the State must prove beyond a reasonable doubt, are at the time and place alleged the defendant possessed more than two ounces but less than one-half pound of marijuana. The court concludes that the defendant shared, knowing possession of the marijuana, and he is guilty beyond a reasonable doubt.

[¶ 9.] The term ‘possession’ is not statutorily defined in South Dakota. State v. Goodroad, 442 N.W.2d 246, 251 (S.D.1989). This Court has held that possession signifies dominion or right of control over a controlled substance or marijuana with knowledge of its presence and character. Id. Consequently, possession can either be actual or constructive and need not be .exclusive. Id. When a person has dominion or control over either the narcotics or the premises upon which narcotics were found, constructive possession is shown. Id. (emphasis added).

[¶ 10.] If the narcotics are found on the premises rather than on the defendant, the State must prove that the defendant had control of the premises in order to permit the inference that the defendant had knowledge and control over the narcotics. People v. McCoy, 295 Ill.App.3d 988, 230 Ill.Dec. 78, 692 N.E.2d 1244, 1249 (1998). However,

where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from ivhich a [trier-of-fact] might lawfully infer knowledge by the accused of the presence of the item on the premises.

State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973) (emphasis added). See also State v. Brown, 670 N.W.2d 432 (Iowa App.2003)(unpublished opinion)(sustaining conviction for possession when item found in a dresser of a bedroom containing defendant’s personal items).

[¶ 11.] Such possession may be proved by circumstantial evidence. McCoy, 230 Ill.Dec. 78, 692 N.E.2d at 1249. The existence of constructive possession turns on the peculiar facts of each case. State v. Webb, 648 N.W.2d 72, 80 (Iowa 2002).

A number of factors may support a finding that a defendant had knowledge of the presence of drugs and the right to exercise control over them as well as access and control of the place and premises where the drugs are found. Such factors include incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of drugs among or near the defendant’s personal belongings, the defendant’s fingerprints on the packages containing the drugs, and any other circumstances linking the defendant to the drugs.

Id. (emphasis added). Barry concedes that he exercised joint control over the premises here. Therefore, in determining the sufficiency of the evidence to support his conviction for possession of marijuana we must determine whether the evidence presented at trial, including circumstantial evidence and the reasonable inferences therefrom, sustained a lawful inference that Barry knew of the presence of the marijuana on the premises.

[¶ 12.] There is extensive evidence in the record to support the trial court’s determination that Barry knew of the presence of the marijuana on the premises beyond a reasonable doubt. Marijuana was found in two separate places within the jointly occupied bedroom, a container in Thudium’s purse and in a dresser. Found in that same bedroom were Barry’s and Thudium’s personal items, marijuana pipes with residue, devices for ingesting methamphetamine, zip lock baggies, a digital scale, a monitor for a surveillance system, methamphetamine and a police scanner. Moreover, openly present in the entire home were obvious indications of drug activity. There was no evidence that Thudium was in the business of distributing marijuana, separate and apart from Barry. All this is confirmed by Barry’s concession at trial that he kept a place for use or sale of controlled substances and possessed drug paraphernalia.

[¶ 13.] Viewed individually this evidence may not establish Barry’s possession of the marijuana beyond a reasonable doubt. However, when this same evidence is viewed collectively it supports the trial court’s determination that Barry constructively possessed the marijuana beyond a reasonable doubt. See State v. LaPlante, 2002 SD 95, ¶ 87, 650 N.W.2d 305, 314 (determining that obvious evidence of drug activity in the basement of mother and father’s home by their sons supported a finding that mother and father had knowledge of drug use, storage and sale occurring in the home). The trier-of-fact is “permitted to consider the circumstances surrounding the discovery of the drugs.” United States v. Flores, 362 F.3d 1030 (8th Cir.2004)(upholding drug convictions based on constructive possession of methamphetamine found in the spare tire of a vehicle in light of evidence of a close relationship and drug conspiracy between driver and passenger of the vehicle). See also United States v. Lee, 356 F.3d 831, 837 (8th Cir.2003) (holding evidence establishing the intent of the defendants to distribute drugs also permits the inference they intended to exercise dominion over them to demonstrate constructive possession). The evidence presented at trial, including circumstantial evidence, and the reasonable inferences therefrom, support the trial court’s determination that Barry was guilty of possession of more than two ounces but less than one-half pound of marijuana beyond a reasonable doubt.

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENERY, Justices, participating.

      . The trial court’s oral findings incorporated the incorrect legal standard; however, the trial court recited the correct standard in its findings of fact and conclusions of law.

      . State v. Reeves was cited by this Court as authority in Goodroad, 442 N.W.2d at 251.


author: MEIERHENRY, Justice.

text:
    2004 SD 69
    FIRST LADY, LLC., Plaintiff and Appellee, v. JMF PROPERTIES, LLC., Defendant and Appellant.
    No. 22921.
    Supreme Court of South Dakota.
    Considered on Briefs on March 22, 2004.
    Decided May 19, 2004.

      Gerald M. Baldwin, Custer, South Dakota, Attorney for plaintiff and appellee.
    Jon J. LaFleur of LaFleur, LaFleur & LaFleur, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This case involves adjacent properties and the drainage of both. First Lady Motel brought suit against JMF Properties, LLC (Tramway) claiming nuisance and requesting abatement. The trial court ruled against Tramway. We reverse and remand.

FACTS

[¶ 2.] The two businesses involved in this case are built on a 300 foot mountain in Keystone, South Dakota. The Motel sits at the base of the mountain. The Tramway occupies the land adjacent and above the Motel. The Tramway was originally built in 1965. It included a service road referred to as the Jeep Trail extending from the foot of the mountain to its summit. The Jeep Trail lies close to the boundary of the two properties. The Motel was built in 1991 with a pool and retaining wall added in 1997. The slope of the mountain had to be excavated in order to build the Motel leaving a steep embankment directly behind the Motel property. Dirt and debris from the excavation were piled on Tramway property close to the Jeep Trail and are referred to as the berm. The current owner of the Tramway Nick Fullerton d/b/a Tramway Properties, LLC bought the Tramway in 1999. Lester Schriner purchased the Motel in the spring of 2002.

[¶ 3.] In the spring of 2000, Tramway began making improvements to its property, including an Alpine Slide and a new road. The Jeep Trail was heavily used throughout the project and, as a result, lost vegetation and began to erode. To prevent further erosion, Tramway made cross-cuts and rolling dips or hump swales across the trail. Motel claims that the cross cuts and dips redirected the surface water onto its property. Motel also claims portions of the berm were removed allowing drainage onto its property. During 2001 and 2002, Tramway began reclamation of the hill because it lost vegetation during the improvement project. The area was hydro-seeded and hand-seeded, excelsior blankets were laid and silt fences installed. On or about July 22, 2002, heavy rains caused water and silt to run down the hill towards the Motel property and to come over the retaining wall and onto the Motel parking lot.

[¶ 4.] Subsequently, Motel filed a lawsuit against Tramway claiming nuisance under SDCL 21-10-1 and requesting that Tramway be ordered to abate the nuisance. After a trial to the court, the court ruled that Tramway’s “actions in diverting water and drainage from [its] property unto and upon Plaintiffs property constitutes a nuisance as defined by SDCL 21-10-1.” Further, the court ordered Tramway “to abate said nuisance and to reconstruct the ‘berm.’ ” Tramway appeals. We reverse and remand.

STANDARD OF REVIEW

[¶ 5.] Trial courts’ conclusions of law are reviewed de novo. Burkhart v. Lillehaug, 2003 SD 62, ¶ 9, 664 N.W.2d 41, 42. Trial courts’ statutory interpretations are likewise a question of law reviewed de novo. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 675. This Court reviews a trial court’s ruling on attorney fees under an abuse of discretion standard. Gronau v. Wuebker, 2003 SD 116, ¶ 5, 670 N.W.2d 380, 382.

ISSUES

I. Whether the Trial Court Erred in its Conclusion that Tramway’s Husbandry of its Land Created a Nuisance.

II. Whether the Trial Court Erred in Denying Tramway’s Request for Attorney Fees and Costs Pursuant to SDCL 15-17-51.

BACKGROUND

[¶ 6.] South Dakota adopted and codified the civil law rule of surface water drainage. In Thompson v. Andrews, this Court stated, “[t]he law of this state and the territory from which this state was created has been at all times based on the rule of the civil law ... that rule recognizes that the lower property is burdened with an easement under which the owner of the upper property may discharge surface waters over such lower property through such channels as nature has provided.” 39 S.D. 477, 165 N.W. 9, 12 (1917). Codification of the civil law in SDCL 46A-10A-70 provides:

Subject to any official controls pursuant to this chapter and chapter 46A-11, owners of land may drain the land in the general course of natural drainage by constructing open or covered drains and discharging the. water into any natural watercourse, into any established watercourse or into any natural depression whereby the water will be carried into a natural watercourse, into an established watercourse or into a drain on a public highway, conditioned on consent of the board having supervision of the highway. If such drainage is wholly upon an owner’s land, he is not liable in damages to any person. Nothing in this section affects the rights or liabilities of landowners in respect to running waters or streams.

Id. The statute defines an established water course as:

a fixed and determinate route, either natural or man-made, by which water has flowed from one parcel of real property to another and by which water has been discharged upon a servient estate for a period of time, on such a regular basis and in such quantities as to make it a predictably continuous activity.

SDCL 46A-10A-1(9).' ’ A natural water course is

a fixed and determinate route by which water naturally flows from one parcel of real property to another due to the conformation of the land and by which water is discharged upon the land receiving the water. It is not necessary that the force of the flow of water be sufficient to form a channel having a ■ well-defined bed -or banks.

Id. (15). “Natural depression” is not statutorily defined. However, its common usage refers to a place of lower topography.

[¶ 7.] Although many of this state’s drainage cases have been decided under the civil law rule; most of those cases involved agricultural property. The application of the civil law rule to urban drainage issues proved too rigid. Mulder v. Tague, 85 S.D. 544, 552, 186 N.W.2d 884, 888 (1971) (stating “[a]s any change in grade, level, or topography might affect natural drainage, the civil law rule cannot reasonably be strictly applied in urban areas”). See also Young v. Huffman, 77 S.D. 254, 256, 90 N.W.2d 401, 402 (1958) (discussing the use of a more flexible rule for drainage in urban settings). Strictly-applying the civil law rule “would prevent the proper use, development, improvement, and enjoyment of considerable urban property.” Mulder at 551, 186 N.W.2d at 888.

[¶ 8.] For urban drainage of surface water, this Court has adopted the “reasonable use” rule. Id. at 552, 186 N.W.2d at 889. Under the reasonable use rule a landowner “is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others.” Id. The landowner, however, becomes liable “ ‘when his harmful interference with the flow of surface waters is unreasonable.’ ” Id. Surface waters have been defined by this Court as “waters from rains, springs, or melting snows which lie or flow on the surface of the earth but which do not form part of a watercourse or lake.” Knodel v. Kassel Twnshp., 1998 SD 73, 581 N.W.2d 504, n. 2, 581 N.W.2d 504, 507, n2 (citations omitted). “Whether waters are of a nature to be treated as ‘surface waters’ for the purposes of drainage must, in each case, be a question of fact to be determined from the evidence.” Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9, 13 (1917).

DECISION

I. Whether the Trial Court Erred in its Conclusion that Tramway’s Husbandry of its Land Created a Nuisance.

[¶ 9.] The trial court concluded that Tramway’s “actions in diverting water and drainage from [its] property unto and upon [First Lady’s] property constitutes a nuisance as defined by SDCL 21-10-1.” This statute provides:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property-

SDCL 21 — 10—l. Motel has the burden to prove that Tramway’s acts constituted a nuisance. Frank Stinson Chevrolet, Inc., v. Connelly, 356 N.W.2d 480, 482 (S.D.1984) (the party who asserts the affirmative of an issue has the burden of proof). Specifically Motel has to prove that the acts were unlawful or that Tramway had a duty which it omitted to perform. There is no allegation that Tramway’s actions were unlawful, thus leaving the allegation of nuisance based upon Tramway’s failure to perform a duty. As discussed supra, South Dakota has well-established drainage law. The dominant landowner’s duty would arise under either the civil law rule (SDCL 46A-10A-70) or under the reasonable use rule. The principal distinction centers on whether the surface water flows by “the general course of natural drainage” (SDCL 46A-10A-70) or whether the surface water flows as a result of an altered drainage course.

[¶ 10.] This Court previously stated that drainage allowed under the civil rule is “conditioned only that such natural drainage be accomplished. without unreasonable injury to one’s neighbor’s land.” Gross v. Connecticut Mutual Life Ins. Co., et al, 361 N.W.2d 259, 267 (S.D.1985). Therefore, if acting under the civil rule* Tramway had a duty not to cause unreasonable injury to Motel property. In this case the trial court concluded “[t]hat Defendant’s conduct was not authorized by SDCL 46A-10A-70.” It is not clear on what basis the trial court made this determination or what it meant. If the civil rule applies, it would initially require determining whether the drainage was onto a natural or established watercourse. The plaintiff would also be required to show unreasonable harm to its property.

[¶ 11.] If the reasonable use rule applies, Tramway is legally privileged to make reasonable use of its land, even though the flow of surface waters is altered and causes some harm to Motel. Notwithstanding, Tramway has a duty to act reasonably in its harmful interference with the flow of surface waters. Hence, under either the civil rule or under the reasonable use rule, Tramway is legally privileged to drain its property subject to a test of reasonableness. Reasonableness is a question of fact. Feistner v. Swenson, 368 N.W.2d 621, 624 (SD 1985).

[¶ 12.] There is no set formula for determining reasonableness. Reasonableness should be determined in light of all the circumstances. Klutey v. Commonwealth, Dep’t of Hwys., 428 S.W.2d 766, 770 (Ky.1967). Factors that other courts have considered in determining reasonableness include:

(1) the respective uses of land and drainage water by each party;
(2) topography;
(3) volume and direction of drainage;
(4) consequences of drainage;
(5) effects of artificial changes in drainage, such as grading, hard surfaces, and artificial drains;
(6) alternatives; and
(7) avoidance of unnecessary injury.

Peter N. Davis, Drainage, in 5 Waters and WateR Rights § .59.02(b)(4) (1991 ed) (see Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462, 464 (1894) (discussing importance of topography in drainage issues); Keys v. Romley, 64 Cal.2d 396, 50 Cal.Rptr. 273, 412 P.2d 529, 537 (1966) (discussing traditional reasonableness inquiry as applied to drainage); Evers v. Willaby, 444 N.W.2d 856, 859 (Minn.App.1989) (stating factors to consider in determining reasonable use)). Davis’ treatise also states that the reasonable use “rule compares the benefits and hardships caused by a change in the natural drainage pattern.” Davis, supra, § 59.02(b)(4). Other factors may be relevant depending on the circumstances of the case.

[¶ 13.] In this case, the trial court did not .address or make .any findings related to natural drainage or the reasonableness of Tramway’s actions. Rather, the court appears to hold Tramway responsible without finding the actions or harm to be unreasonable. The court found that Tramway:

1. attempted to limit the sediment from encroaching upon [Motel] property by the construction of a silt fence and extensive, re-seeding and . reclamation efforts upon [its] property, but that said efforts were unsuccessful.
2. that [Tramway] is responsible for ■the water and drainage from [its] . property, and there are viable alternatives of which [it] may avail [itself] to drain the water from .its property.

It is also not clear if the trial court applied either the civil law rule or reasonable use rule in finding Tramway liable for nuisance. As previously indicated, South Dakota’s surface water drainage under civil law allows property owners to drain into natural or established watercourses and natural depressions. Under the reasonable use rule, property owners are allowed to alter surface water flow with the proviso that it is done reasonably.

[¶ 14.] We, therefore, reverse and remand for the trial court to reconsider the evidence and applicable law. Tramway also assigns error to certain Findings of Fact made by the trial court which we will not address in light of this ruling.

II. Whether the Trial Court Erred in Denying Tramway’s Request for Attorney Fees and Costs Pursuant to SDCL 15-17-51.

[¶ 15.] Tramway claims that pursuant to SDCL 15-17-51, it should be awarded attorney’s fees and costs because there was no theory presented under which Motel could recover, as its legal position was wholly without merit. The trial court denied Tramway’s request to award fees and costs.

[¶ 16.] Recently we reviewed SDCL 15-17-51 and cases applying it. We wrote that a frivolous action is “one which the proponent can present no rational argument based on the evidence or law in support of the claim. In order to fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling.” Gronau ¶ 6. Motel claimed that Tramway’s actions on Tramway property diverted drainage to Motel property causing harm or potential harm to the retaining wall. While South Dakota law follows the civil law rule of natural flow and applies a flexible reasonable use rule when urban property is involved, the dominant property owner may still be held liable if diversion is found and if it is unreasonable. Diversion and reasonableness are to be determined by the finder of fact. As such, Motel’s claims are not wholly without merit. The trial court did not abuse its discretion in denying fees and costs.

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

      . Motel originally alleged three causes of action: (1) negligence (2) nuisance under SDCL 21-10-1, and (3) careless and reckless conduct. Tramway filed a counterclaim alleging damages as a result of Motel's retaining wall failing. Motel dropped all but the nuisance claim; Tramway did not pursue its counterclaim.

      . A " ‘[s]ervient estate,' [is] any parcel of real property, usually at a lower elevation, which is subject to a legal right allowing a dominant estate to drain water onto it.” SDCL 46A-10A-1(20). A " '[d]ominant estate,' [is] any parcel of real property, usually at a higher elevation, which holds a common law or statutory legal right to drain water onto other real property.” Id. (5).

      . Hannaher v. St. Paul, M & M.R. Co., 37 N.W. 717 (Dak.Terr.1888); Anderson v. Drake, 24 S.D. 216, 123 N.W. 673 (1909); Boll v. Ostroot, 25 S.D. 513, 127 N.W. 577 (1910); Thompson v. Andrews, 39 S.D. 477 165 N.W. 9 (1917); Mishler v. Peterson, 40 S.D. 183, 166 N.W. 640 (1918); Venner v. Olson, 40 S.D. 585, 168 N.W. 740 (1918); Lee v. Gulbraa, 43 S.D. 493, 180 N.W. 946 (1921); Rae v. Kuhns, 44 S.D. 494, 184 N.W. 280 (1921); La Fleur v. Kolda, 71 S.D. 162, 22 N.W.2d 741 (1946); Faris v. Moore, 71 S.D. 482, 26 N.W.2d 130 (1947); Johnson v. Metropolitan Life Ins. Co., 71 S.D. 155, 22 N.W.2d 737 (1946); Kougl v. Curry, 73 S.D. 427, 44 N.W.2d 114 (1950); Bruha v. Bochek, 76 S.D. 131, 74 N.W.2d 313 (1955); Gross v. Connecticut Mutual Life Ins. Co., 361 N.W.2d 259 (S.D.1985); Feistner v. Swenson, 368 N.W.2d 621 (1985); Lee v. Schultz, 374 N.W.2d 87 (1985); Winterton v. Elverson, 389 N.W.2d 633 (S.D.1986); Knodel v. Kassel Twnshp., 1998 SD 73, 581 N.W.2d 504;

      . It is not clear under what subsection of the statute the court determined Tramway’s actions constituted a nuisance.