author: ZINTER, Justice.

text:
    2007 SD 34
    Sherry B. NYGAARD, On Behalf of Herself and All Others Similarly Situated, Plaintiff and Appellant, v. SIOUX VALLEY HOSPITALS & HEALTH SYSTEM, Defendant and Appellee. Robert Dosch, On Behalf of Himself and All Others Similarly Situated, Plaintiff and Appellant, v. Avera Health, Defendant and Appellee. Brett and Debra Burgher, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs and Appellants, v. Rapid City Regional Hospital, INC., Defendant and Appellee.
    Nos. 23905, 23906, 24058.
    Supreme Court of South Dakota.
    Argued on May 23, 2006.
    Considered on Briefs On Nov. 27, 2006.
    Decided April 4, 2007.

      Eric J. Magnuson, Stanley E. Siegel of Rider, Bennett, LLP, Minneapolis, Minnesota, Steven S. Siegel of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, South Dakota, Jay C. Shultz of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiffs and appellants Ny-gaard, Dosch and Burgher.
    Roberto A. Lange of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee Sioux Valley.
    Thomas J. Welk, Christopher W. Mad-sen of Boyce, Greenfield, Pashby & Welk, Sioux Falls, South Dakota, Attorneys for defendant and appellee Avera Health.
    Jeffrey G. Hurd, Sara L. Larson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Stuart M. Altman of Hogan & Hartsen, LLP, Denver, Colorado, Attorneys for defendant and appellee Rapid City Regional Hospital.
   ZINTER, Justice.

[¶ 1.] Sherry Nygaard, Robert Dosch, and Brett and Debra Burgher (Patients) commenced these class actions against Sioux Valley Hospitals and Health System, Avera Health, and Rapid City Regional Hospital, Inc. (Hospitals). The Patients were uninsured and not covered by Medicare/Medicaid. They sought damages for being charged the full, undiscounted price of the Hospitals’ services, which was more than the price paid by patients who were insured or covered by Medicare/Medicaid. Patients also sought damages for alleged misrepresentations concerning the Hospitals’ willingness to provide medical care regardless of ability to pay. They brought their claims on four theories. Three were premised on contract. The fourth alleged a violation of SDCL 37-24-6, part of South Dakota’s Deceptive Trade Practices and Consumer Protection Act (Trade Practices Act or the Act). The circuit courts granted the Hospitals’ motions to dismiss for failure to state a claim under SDCL 15-6-12(b)(5). Although each case has procedural issues not present in the others, the four substantive theories are the same. Because Patients’ complaints fail to state a claim under the substantive theories, we have consolidated the cases and affirm.

The Parties and Issues

Nygaard v. Sioux Valley

[¶ 2.] Because the cases were dismissed for failure to state a claim, we restate the facts pleaded in the complaints. Sioux Valley is a non-profit corporation with its principle place of business in Sioux Falls, South Dakota. Sioux Valley described itself “as an integrated network of nearly 300 physicians and more than 150 healthcare facilities.” Nygaard alleged that Sioux Valley held itself out: as striving “to provide the highest value of health care services through a combination of high quality and cost effective care”; as being “dedicated to providing quality care for patients of all ages, regardless of race, creed, their circumstances, or their ability to pay for such services”; as providing “care for the elderly and poor through the Medicare and Medicaid programs at agreed upon rates, which are substantially lower than the normally charged rates”; and as providing “charity care to patients who have demonstrated an inability to pay for medical services.” Nygaard also alleged that Sioux Valley received state and federal tax exemptions, and as a nonprofit charitable organization, was required to provide services regardless of ability to pay.

[¶ 3.] In May 2003, Nygaard underwent surgery at Sioux Valley’s Vermillion Campus Hospital. She also received other related treatment at Sioux Valley’s facilities. Upon admission, Nygaard alleged that she was required to sign a standardized contract agreeing to pay, in full, unspecified and undiscounted charges for medical care. She also alleged that the charges were pre-set by Sioux Valley in its sole discretion. Nygaard was subsequently charged what she describes as the full, undiscounted price of the services provided. Although Nygaard made payments to Sioux Valley, a substantial balance remained, and Sioux Valley charged interest and fees relating to that balance. The complaint does not reflect the amount Ny-gaard was charged, the amount she paid, or the amount that remains owing.

Dosch v. Avera

[¶ 4.] Avera is also a non-profit corporation with its principal place of business in Sioux Falls. Avera held itself out as a health ministry of the Benedictine and Presentation Sisters “serving the people of eastern South Dakota and surrounding states with hospitals, nursing homes, clinics and other health services at more than 100 locations.” Avera’s “Health Mission” stated that it “provide[s] a quality, cost effective health ministry, which reflects Gospel values.” Dosch alleged that Avera publicly stated that it was “guided by gospel values of ... hospitality and stewardship” and “compassion ... especially for the poor.... ” Dosch also alleged that Av-era received state and federal tax exemptions, and as a nonprofit charitable organization, was required to provide services regardless of ability to pay.

[¶ 5.] In May 1993, Dosch was treated for a broken hip at Avera St. Luke’s in Aberdeen, South Dakota. Upon admission, Dosch alleges that he was required to sign an agreement to pay the unspecified, undiscounted, pre-set charges described by Nygaard. Dosch was billed in excess of $30,000. He set up a payment plan, paying $200 per month, but the payments were offset by interest and fees.

Burghers v. Rapid, City Regional Hospital

[¶ 6.] Rapid City Regional Hospital (RCRH) is a non-profit charitable organization with its principle place of business in Rapid City, South Dakota. Burghers alleged that RCRH publicly represented itself: as “striving to continually exceed the expectations of every patient and customer in regard to service, effort and professional standards, demonstrating honest, positive and ethical behavior and communication in dealing with our patients, customers and employees”; as “providing quality services at the lowest possible cost”; and as “providfing] quality medical health care regardless of race, creed, sex, national origin, handicap, age, or ability to pay[.]” Burghers also alleged that RCRH received state and federal tax exemptions, and as a nonprofit charitable organization, was required to provide services regardless of ability to pay.

[¶ 7.] Brett and Debra Burgher, and their son, Nathan, all received medical care at RCRH. Before receiving treatment, they were also required to sign an agreement to pay the unspecified, undis-counted, pre-set charges described by Ny-gaard.

[¶ 8.] The following issues have been preserved for review:

1) Whether the circuit court erred in dismissing Patients’ contract theories involving: an implied, commercially reasonable price term; breach of the covenant of good faith and fair dealing; and enforcement of an adhesion contract.
2) Whether the circuit court erred in dismissing Patients’ claims under the Trade Practices Act.

Standard of Review

[¶ 9.] “A motion to dismiss under SDCL 15 — 6—12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader.” Guthmiller v. Deloitte & Touche, LLP, 2005 SD 77, ¶ 4, 699 N.W.2d 493, 496. “[T]hese ‘motions are viewed with disfavor and seldom prevail.’ ” Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 238 (quoting Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶7, 676 N.W.2d 390, 392-393 (citations omitted)). However, “facts ‘well pled’ and not mere conclusions may be accepted as true.” Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985). A 12(b)(5) motion “does not admit conclusions of the pleader either of fact or law.” Akron Savings Bank v. Charlson, 83 S.D. 251, 253, 158 N.W.2d 523, 524 (1968). Therefore, “[w]hile the court must accept allegations of fact as true when considering a motion to dismiss, the court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 870 (8th Cir.2002). We review the circuit court’s ruling de novo, with no deference to its determination. Elkjer, 2005 SD 45 at ¶ 6, 695 N.W.2d at 238.

Decision

1) Contract Theories

[¶ 10.] The circuit court that dismissed Nygaard’s and Dosch’s breach of contract theories viewed the essence of their claims as contentions that the Hospitals breached the contracts by not charging Patients the reduced rate that insured and Medicare/Medicaid patients received. The circuit court’s view was based on the complaints’ numerous references to being charged the “full, undiscounted cost” rather than the discounted rates Hospitals charged insured and Medicare/Medicaid patients. Therefore, when dismissing, the circuit court explained that recognizing such a claim would put the court in the role of a policy maker and “usurp the traditional role of the Legislature” in regulating hospitals. The circuit court in Burghers’ case reached essentially the same conclusion.

[¶ 11.] Patients, however, emphatically contend that none of their theories seek entitlement to the discounted rates charged to insured and Medicare/Medicaid patients. They contend that their references to discounted rates were merely pleaded as an illustration that the Hospitals’ charges were unreasonable. Thus, on appeal, Patients “clarify” that they are not claiming entitlement to the discounted prices charged to others. Instead, they first contend that the Hospitals breached the contracts by charging more than an implied, commercially reasonable rate.

(a) Implied Pnce Term

[¶ 12.] Because there were no price terms itemized in the agreements, Patients pleaded that “[ijmputed in these contracts is the express and/or implied contractual obligation by [Hospitals] that [they] would charge Plaintiff[s] and the Class no more than the fair and reasonable charge for such medical care.” However, we conclude that this theory fails to state a claim because the price terms were controlled by language in the contracts. The complaints all allege that the Hospitals required the Patients to sign contracts agreeing “to pay, in full, unspecified and undiscounted charges for medical care, which charges [were] pre-set by [the Hospitals]_” (Emphasis added.) Because, as we explain below, pre-set price charges were pleaded, the price terms were fixed and determinable, and because the contracts spoke to the issue of price, the law does not permit imputation of different, implied price terms for what patients later claimed were the reasonable values of the services provided.

[¶ 13.] “[I]n order to ascertain the terms and conditions of a contract, we examine the contract as a whole and give words their ‘plain and ordinary meaning.’ ” Canyon Lake Park, L.L.C., v. Loftus Dental, P.C., 2005 SD 82, ¶17, 700 N.W.2d 729, 734 (quoting Gloe v. Union Ins. Co., 2005 SD 30, ¶ 29, 694 N.W.2d 252, 260). Although the price of each hospital service was not listed in the contract itself, “[w]ords [that] fix an ascertainable fact or event, by which the term of a contract [ ] can be determined, make the contract definite and certain in that particular.” Kuhfeld v. Kuhfeld, 292 N.W.2d 312, 315 (S.D.1980). See also Restatement (Second) of Contracts § 38(2) (1981) (stating: “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”).

[¶ 14.] Here, the word “pre-set” is the operative language of the contracts regarding price. The prefix “pre-” is defined as “[e]arlier; before; prior to.” The American Heritage College Dictionary, 1075 (3d 1997). “Set” is defined as “[t]o fix at a given amount.” Id. at 1247. Therefore, under the ordinary meaning of the language “pre-set charges,” the contract prices were fixed at a given amount prior to the execution of the contracts. And obviously, prices that are previously fixed at a given amount are determinable.

[¶ 15.] Therefore, according to the pleadings, the price terms were fixed and determinable from the language of the contracts. For that reason, the contracts were not silent or open concerning price and we cannot impute commercially reasonable or fair and reasonable price terms into the agreements. As most courts have noted in similar hospital pricing litigation, if the charges are ascertainable through reference to outside sources, there is no need to judicially impute a fair and reasonable price term. See Morrell v. Wellstar Health System, Inc., 280 Ga.App. 1, 5, 633 S.E.2d 68, 72 (2006) (noting: “The rules of contract construction enabled [the conclusion] that [the term] ‘all charges’ unambiguously referred to the written summary of specific charges required by [a statute.]”); Cox v. Athens Regional Medical Center, Inc., 279 Ga.App. 586, 587-592, 631 S.E.2d 792, 795-797 (2006) (concluding that agreeing to pay “in accordance with the rates and terms of the hospital” is not an open price term subject to an implication of reasonableness considering statutory requirement that hospitals provide written price summaries upon request); Shelton v. Duke Univ. Health System, Inc., 633 S.E.2d 113, 116-117 (N.C.App.2006) (concluding that “regular rates and terms of the Hospital” is not an open price term when the prices are set forth in a charge-master list).

[¶ 16.] We acknowledge that the pleadings do not reference the disclosure statutes or “chargemaster” lists that were referenced in these decisions. However, the point of these cases is that if the contract price is fixed and determinable from sources outside the written agreement, the price term is not open in the sense that it allows a claim for some imputed, commercially reasonable price term. See Restatement (Second) of Contracts § 204 cmt c (stating “where a term can be supplied by logical deduction from agreed terms and the circumstances, interpretation may be enough”).

[¶ 17.] That is precisely what occurred in this case. Patients pleaded that the price terms were pre-set. Therefore, the prices were fixed and determinable, and the pre-set price terms precluded imputation of different, implied terms. The application of this rule is especially compelling in these cases: “in a hospital setting, it is not possible to know at the outset what the cost of the treatment will be, because it is not known what treatment will be medically necessary.” Cox, 279 Ga.App. at 590-591, 631 S.E.2d at 797. The application of the rule is also compelling because Patients did not plead that they were charged something other than the pre-set charges, or that they requested but were denied access to the pre-set charges. Other courts have concluded that similar omissions support a dismissal for failure to state a claim. See Shelton, 633 S.E.2d 113 (affirming dismissal of breach of contract claim when contract’s price term was “regular rates” of the hospital, reasoning that patient had not requested information on the regular rates and did not claim that the rates charged were not “regular”); Elliot Hospital v. Boerner, 04-C-739 (HillsboroughSuperCtNDNH July 15, 2005) (dismissing breach of contract claim, reasoning that although the hospital contract required payment of the “usual and customary charges,” “there [was] no indication that [the patient] requested an estimate or questioned what the [hospital’s] usual and customary charges were prior to signing the agreement”). See also Satterfield v. Southern Regional Health System, Inc., 280 Ga.App. 584, 585-586, 634 S.E.2d 530, 531 (2006) (dismissing breach of contract claim in a state where a statute required availability of prices and patients had failed to “allege that the pricing information was unavailable”).

(b) Covenant of Good Faith and Fair Dealing

[¶ 18.] Patients argue that the Hospitals breached the covenant of good faith and fair dealing by charging prices that did not relate to the cost of the services and were unreasonable and unexpected based on the Hospitals’ representations. The circuit courts dismissed this theory reasoning that the breach of the duty of good faith and fair dealing did not give rise to a separate cause of action.

[¶ 19.] In Farm Credit Servs. of Am. v. Dougan, 2005 SD 94, 704 N.W.2d 24, we considered when a cause of action arises for breach of the implied covenant of good faith and fair dealing. We held that “South Dakota does not recognize an independent [tort] for breach of the implied covenant of good faith and fair dealing.” Id. at ¶ 6, 704 N.W.2d at 27 (citing Garrett v. BankWest, Inc., 459 N.W.2d 833, 842 (S.D.1990); McKie v. Huntley, 2000 SD 160, ¶ 10, 620 N.W.2d 599, 602). Consequently, to the extent Patients’ complaints sought recovery for the independent tort of breach of the covenant of good faith and fair dealing, we affirm the circuit courts’ dismissals.

[¶ 20.] However, we must also consider the claim of breach of the implied covenant of good faith and fair dealing to the extent that it was a part of the parties’ agreements. This Court has previously recognized that “ ‘[e]very contract contains an implied covenant of good faith and fair dealing [that] prohibits either contracting party from preventing or injuring the other party’s right to receive the agreed benefits of the contract.’ ” Id. at ¶ 8, 704 N.W.2d at 28 (quoting Garrett, 459 N.W.2d at 841). The concept of good faith and fair dealing is also recognized in the analogous provision of SDCL 57A-1-203 (UCC § 1-203): “Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.”

[¶ 21.] This duty of good faith permits an aggrieved party to bring a breach of contract action when the other party:

[B]y [its] lack of good faith, limited or completely prevented the aggrieved party from receiving the expected benefits of the bargain. A breach of contract claim is allowed even though the conduct failed to violate any of the express terms of the contract agreed to by the parties.

Garrett, 459 N.W.2d at 841 (citations omitted). The meaning of the covenant varies with the context of the contract. Ultimately, the duty “emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Id. (citing Restatement (Second) of Contracts § 205, cmt a (1981)).

[¶ 22.] However, the duty of good faith and fair dealing “is not a limitless duty or obligation.” Id. “The implied obligation ‘must arise from the language used or it must be indispensable to effectuate the intention of the parties.’ ” Id. (quoting Sessions, Inc. v. Morton, 491 F.2d 854, 857 (9th Cir.1974)). We also recognized a limitation when the language of a contract addresses the issue.

The covenant of good faith does not create an amorphous companion contract with latent provisions to stand at odds with or in modification of the express language of the parties’ agreement. It is not a repository of limitless duties and obligations.

Farm Credit Services, 2005 SD 94 at ¶ 9, 704 N.W.2d at 28 (citations omitted). Therefore, we explained that “[i]f the express language of a contract addresses an issue, then there is no need to construe intent or supply implied terms” under the implied covenant. Id. at ¶ 10 (citations omitted).

[¶ 23.] In the instant cases the express language of the contracts addressed the price issue. As previously explained, although the price of every hospital service was not itemized in the contracts, the pleadings allege that the charges were pre-set. And because these pre-set charges were fixed and determinable, these contracts addressed the issue of price and there is no basis to supply different price terms. A different implied price term would impermissibly stand at odds with and modify the pre-set price term. Id. at ¶ 9. Because we further observe that there is no allegation that Hospitals limited Patients’ access to, or charged something other than, the pre-set charges referred to in the pleadings, Patients’ breach of the contractual covenant of good faith and fair dealing theory failed to state a claim.

(c) Enforcement of an Adhesion Contract

[¶ 24.] Patients pleaded that the Hospitals did not provide an opportunity for negotiating the agreements and that there was greatly disparate and wholly unequal bargaining power. They further pleaded that such standardized contracts are contracts of adhesion that are unconscionable and contrary to public policy. See generally. Mobile Electronic Service, Inc., v. FirsTel, Inc., 2002 SD 87, ¶¶ 7-9, 649 N.W.2d 603, 605-606 (finding a contract unconscionable and unenforceable); Citibank (S.D.), N.A. v. Hauff, 2003 SD 99, ¶20, 668 N.W.2d 528, 534-535 (describing construction of a contract of adhesion).

[¶ 25.] In determining whether a contract is an unenforceable contract of adhesion, this Court looks not only at the bargaining power between the parties but also at the specific terms of the agreement. Scotland Vet Supply v. ABA Recovery Service, Inc., 1998 SD 103, ¶ 13, 583 N.W.2d 834, 837. Thus, we focus on both “overly harsh or one-sided terms,” i.e., substantive unconscionability; and how the contract was made (which includes whether there was a meaningful choice), i.e., procedural unconscionability. Johnson v. John Deere Company, 306 N.W.2d 231, 237 (S.D.1981) (citation omitted).

[¶ 26.] Patients’ complaints pleaded both procedural and substantive uncon-scionability. They allege that they were forced to sign the standardized agreements before they could receive medical care and that there was unequal bargaining power. Their complaints also allege that the contracts required them to pay pre-set charges that were determined at the sole discretion of the Hospitals.

[¶ 27.] Patients sought two types of relief. They alleged that the Hospitals’ use of an adhesion contract caused them economic injury and damages. They also alleged that the contracts were unenforceable.

[¶ 28.] To the extent that Patients claimed entitlement to economic damages simply because they entered into a contract of adhesion, the complaints failed to state a claim upon which relief can be granted. Counsel acknowledged at oral argument that the nature of an adhesion claim does not give rise to an independent cause of action for damages.

[¶ 29.] But even aside from this acknowledgement, and assuming that the contract was an unconscionable contract of adhesion, Patients have no right to recover damages simply because they entered into an unconscionable contract. As the Eleventh Circuit Court of Appeals noted:

[T]he equitable theory of unconscionability has never been utilized to allow for the affirmative recovery of money damages. The Court finds that neither the common law of Florida, nor that of any other state, empowers a court addressing allegations of unconscionability to do more than refuse enforcement of the unconscionable section or sections of the contract so as to avoid an unconscionable result.

Cowin Equip. Co., Inc., v. General Motors Corp., 734 F.2d 1581, 1582 (11th Cir.1984) (emphasis in original) (quoting Bennett v. Behring Corp., 466 F.Supp. 689, 700 (S.D.Fla.1979)). Other “cases [that] have addressed the issue have consistently rejected the theory that damages may be collected for an unconscionable contract provision, citing the language of [UCC] § 2-302 and its common law precursor. ...” Id. “The doctrine of unconsciona-bility is to be used as a shield, not a sword, and may not be used as a basis for affirmative recovery.” Super Glue Corp., v. Avis Rent A Car Sys., Inc., 132 A.D.2d 604, 606, 517 N.Y.S.2d 764 (N.Y.App.Div.1987). “Under both the UCC and common law, a court is empowered to do no more than refuse enforcement of the unconscionable contract or clause.” Id. (citations omitted). This Court has also noted that the doctrine is a defensive mechanism that enables parties to escape their obligations under contracts contravening public policy. Bartron v. Codington County, 68 S.D. 309, 323, 2 N.W.2d 337, 344 (1942) (quoting Baltimore and Ohio Southwestern Rail way Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 387, 44 L.Ed. 560 (1900)). “ ‘Adhesive clauses, exacted by the overreaching of a contracting party who is in an unfairly superior bargaining position, are always subject to the defense of uncon-scionableness. Public policy invalidates such clauses.’ ” 8 Samuel Williston and Richard A. Lord, A Treatise on the Law of Contracts, § 18:5 at 28 (4th ed 1998) (emphasis added) (quoting Fluor Western, Inc. v. G & H Offshore Towing Co., 447 F.2d 35 (5th Cir.1971)).

[¶ 30.] Patients have not, however, directed us to any case permitting an affirmative claim for damages simply because someone may have entered into a one-sided agreement. Therefore, we affirm the circuit courts’ dismissal of Patients’ affirmative adhesion contract claims that are being used as a sword to recover damages only because Patients entered into the contracts. We also affirm the dismissal of any defensive claims because in these cases there are no pleadings indicating that Hospitals are suing for enforcement of the contracts.

2) Trade Practices Act

[¶ 31.] The circuit courts dismissed this theory, noting that the complaints did not identify the specific section of the Act that was violated and the complaints did not sufficiently plead fraud. Both courts also concluded that the claims under the Act were simply premised on differential pricing.

[¶ 32.] Patients’ complaints pleaded three types of alleged violations of the Trade Practices Act: (1) that the Hospitals falsely held themselves out to the public as providing cost-effective health care regardless of ability to pay; (2) that Hospitals’ discriminatory pricing policies violated the Act; and (3) that Patients believed that Hospitals would make good faith efforts to determine their ability to pay following treatment and Hospitals would not charge those who were unable to pay. We analyze these claims under SDCL 37-24-6, which provides in part:

It is a deceptive act or practice for any person to:
(1) Knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been mislead, deceived, or damaged thereby....

[¶ 33.] Patients correctly point out that SDCL 37-24-6(1) makes these violations actionable “regardless of whether any person has in fact been mislead, deceived, or damaged thereby....” However, that statute is the criminal proscription. Patients’ civil actions are governed by SDCL 37-24-31, which specifically requires a causal connection between the alleged violation and the damages suffered:

Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by § 37-24-6 shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.

(Emphasis added.) Therefore, to state a claim under SDCL 37-24-31, Patients must have pleaded that their economic damages were proximately caused by one or more of the three alleged violations of the Act.

Provision of Care Regardless of Ability to Pay

[¶ 34.] Patients first alleged that Hospitals misrepresented their willingness to provide care regardless of ability to pay. Therefore, under the causation element of their civil remedy, Patients’ complaint must have left sufficient room to prove the fact that they were denied health care because of their inability to pay. However, this causal proof is not possible under the pleadings. The complaints affirmatively allege that Patients actually received medical care despite their inability to pay. Therefore, according to the pleadings, the Hospitals’ representations regarding the provision of care were not misrepresentations, and this type of allegation fails to state a claim under the Act.

Discriminatory Pricing

[¶ 35.] Patients’ second claim alleges a failure to charge discounted pricing similar to that provided for insured and Medicare/Medicaid patients. Patients pleaded:

As alleged above, Defendant’s conduct in charging Plaintiff[s] and the Class the highest and full, undiscounted and uncompensated cost for medical care and its charging the Plaintiff[s] and the Class a higher amount than its insured patients for the same medical services, despite its charitable, non-profit, tax-exempt status, is in violation of the South Dakota Deceptive Trade Practices and Consumer Protection Act because it is unfair, discriminatory, unconscionable, unethical, immoral, and oppressive. Such conduct is against public policy and has caused substantial economic injury to Plaintiff[s] and the Class.

[¶ 36.] This claim fails to state a claim for two reasons. First, this pleading does not allege prohibited conduct under Act; i.e., deceptive practices, fraud, false pretenses, false promises or misrepresentations to conceal, suppress, or omit material facts. Instead, this pleading simply alleges unfairness, claiming that differential pricing by charitable institutions is “unfair, discriminatory, unconscionable, unethical, immoral, and oppressive.” This type of allegation does not fall within the deceptive practices prohibited by the Act.

[¶37.] Second, even if we were to assume that this pleading could state a deceptive pricing claim under the Act, it is an attempt to claim that the Hospitals’ charitable tax exempt status, under 26 USC § 501(c)(3) and other state tax exemptions, imposes a duty to charge the discounted rates that insured and Medicare/Medicaid patients receive. However, this is the very claim that Patients now disavow. It is also a claim that has been rejected by virtually every court that has considered the issue. Therefore, the circuit courts properly dismissed this type of allegation.

Patients’ Beliefs Concerning Post-Care Charges

[¶ 38.] Patients finally allege that they “believed that Defendants] would make good faith efforts to determine a person’s ability to pay following evaluation or treatment and would not bill or charge those ... who were unable to pay. Thus [they] believed that free care or reduced cost care would be provided ... based upon [their] ability to pay....” (Emphasis added.) However, these conclusory statements of belief are not sufficient to survive a motion to dismiss.

[¶ 39.] To survive a motion to dismiss, a plaintiff “must allege causation with sufficient particularity such that we can determine whether the factual basis for its claim, if proven, could support an inference of proximate cause.” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 770 (2d Cir.1994). “ ‘[C]oncluso-ry allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.’ ” 2 James Moore, Moore’s Federal Practice, § 12.34(l)(b) (3rd ed 2006) (quoting Campbell v. San Antonio 43 F.3d 973, 975 (5th Cir.1995)). “While facts must be accepted as alleged, this does not automatically extend to bald assertions, subjective characterizations, or legal conclusions. The plaintiff need not include evidentiary detail, but must allege a factual predicate concrete enough to warrant further proceedings.” Id. (quoting DM Research v. College of American Pathologists, 170 F.3d 53, 55-56 (1st Cir.1999) (citations omitted)).

[¶ 40.] In this case, Patients have only pleaded subjective characterizations of belief and legal conclusions of proximate cause that are untethered to any factual predicate that could constitute causation. In fact, Patients’ subjective beliefs are totally at odds with their pleadings. Patients did not plead that the Hospitals made any representations involving post-eare determinations of ability to pay. Furthermore, Patients’ alleged damages could not have arisen as a result of such beliefs because they did not plead that it was their beliefs that caused them to select these Hospitals in lieu of other healthcare providers. Rather than alleging that they sought care at these facilities because they believed they would receive post-treatment reduction of charges, they specifically alleged that they entered into contracts that required them to pay the full, undiscount-ed prices that were pre-set by the Hospitals. Therefore, Patients’ subjective and conclusory allegations of belief and proximate cause failed to state a claim of causation.

[¶ 41.] For all of the foregoing reasons, the circuit courts’ dismissals are affirmed. In light of this disposition of the substantive theories that are central to each case, we need not reach the parties’ remaining issues and arguments.

[¶ 42.] Affirmed.

[¶ 43.] GILBERTSON, Chief Justice, and KONENKAMP, and MEIERHENRY, Justices, and MACY, Circuit Court Judge, concur.

[¶ 44.] MACY, Circuit Court Judge, for SABERS, Justice, disqualified.

      . Two of the actions were initially filed in federal court, but were voluntarily dismissed and re-filed in circuit court. The third was removed to federal court, but later remanded to circuit court.

      . South Dakota Rule 12(b)(5) is similar to Federal Rule of Civil Procedure 12(b)(6). South Dakota’s version provides in part:
      Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (5) Failure to state a claim upon which relief can be granted....
      SDCL 15 — 6—12(b)(5).

      . Additional theories were presented in the circuit courts, including: unjust enrichment and constructive trust.

      . It is debatable whether Patients preserved this claim by raising it below. Almost all of the allegations in the complaints either directly or indirectly allege a failure to charge the discounted price others received. Patients did, however, argue at the circuit court hearing in Nygaard and Dosch as follows:
      Well, there is no question that there is different pricing, but the question that we’re seeking to litigate, your Honor, is are the contracts with our clients, are they — are they commercially reasonable, are they fair, do they violate the South Dakota Fair Trade Practices Act, do they violate any of the contractual premises of the duty of good faith and fair dealing?
      But Patients then continued:
      And if you look — I don't think you can look at any single one of those groups of contracts in the abstract. I think they can only be understood when they are compared one to the other.... [W]e anticipate that when we discover those contracts they are going to say here's a list of prices that we'll pay for this list of services....
      And what we think we're going to see, and what they are conceding essentially, is that when we do see these contracts they are going to say the prices that the federal government pays are X, the prices that the insurance companies pay are two times X, and the prices charged — retail prices charge to the uninsured are three times X....
      Based on this latter argument and the pleadings, we understand the circuit court's view of Patients’ claim. We also observe that one need go no further than examining the Patients' proposed class to understand the circuit court’s view. The proposed class included all uninsured patients who had paid (and persons or entities that had paid on behalf of such patients) "an amount for medical care in excess of the amount charged to Defendant[s'] Medicare, Medicaid, or other insured patients.” We finally observe that Burghers failed to respond to RCRH's argument that Burghers did not present their clarified position to the circuit court in that case.
      Nevertheless, in the interests of judicial economy, we choose to address the "clarified” claim.

      .The conclusion that hospital price terms are not open when pre-set prices can be ascertained through extrinsic sources is also well supported in trial court decisions. See Buckner v. Banner Health System, CV 2005-003052 (MaricopaCntySuperCt.Ariz., November 22, 2005) (concluding that when a contract states “usual and customary charges,” there is no ambiguity in relation to statutory price posting requirements, and no implied terms may be asserted); Pitts v. Phoebe Putney Health System, Inc., Civ 04CV1991-3, 2005 WL 5176797 (DoughertyCntySuper.Ct.Ga., June 23, 2005) (concluding that when prices are set out in a chargemaster, no implied terms are necessary), aff'd, Pitts v. Phoebe Putney Memorial Hosp., Inc., 279 Ga.App. 637, 631 S.E.2d 830 (2006); Elliot Hospital v. Boemer, 04-C-739 (HillsboroughSuper.Ct.N.D.N.H., July 15, 2005) (concluding that when "usual and customary” is stated and a chargemaster sets forth the charges, there are no implied contractual obligations); DiCarlo v. St. Mary’s Hospital, 2006 WL 2038498, Civil Action No. 05-1665 (Dist.N.J., July 19, 2006) (unpublished) (no contract or good faith and fair dealing claims were permitted because “all charges” is a definite price term when a chargemaster exists).

      . Burghers do, however, point that out under 42 CFR 413.20(d)(2)(vi), hospitals that provide care to Medicare patients must have records of “[pjatient service charge schedules” available for review. Patients’ pleadings allege that all three Hospitals provided care to Medicare patients.

      . Patients’ own case of Doe v. HCA Health Services of Tennessee, Inc., 46 S.W.3d 191 (Tenn.2001), demonstrates why Patients’ pleadings fail to state a claim under the implied price term theory. In HCA, the contract only required the payment of "charges” for the hospitalization. Id. at 194. The Tennessee Supreme Court concluded that the term "charges” was not "sufficiently definite,” and therefore, it allowed imputation of a fair and reasonable price term. Id. at 197. However, the Tennessee Court specifically noted that the contract in issue contained no " 'reference to some document, transaction or other extrinsic facts ... from which its meaning may be made clear.’ ” Id. (quoting 1 Richard A. Lord, Williston on Contracts, § 4:27 at 593 (4th ed 1990)). Therefore, it appears the Tennessee Court would have found no open price term had that contract involved pre-set charges that were fixed and determinable.

      . Q: you’re essentially agreeing that the adhesion claim is part of the breach of contract.
      A: It is.
      Q: And, that the adhesion claim is essentially defensive in nature, in that, it only prevents the enforcement of unconscionable terms, it’s not a sword by which there's some cause of action for ... damages, necessarily
      A. Right, for bad faith.
      A. What it does is it prevents them from enforcing the term of the contract that says they get to set the price....

      . Burghers’ and Dosch’s bills were discharged in bankruptcy. Therefore, it appears that the defense is also moot in those cases.

      . Dosch’s pleadings did not make the identical factual allegations concerning the provision of care regardless of ability to pay that were made in the other complaints. However, the complaints are sufficiently similar to make our analysis applicable to all.

      . This claim was incorporated by reference from the Patients' pleadings on equitable tolling.

      .SDCL 37-24-1(7) defines "merchandise” as "any object, wares, goods, commodity, intangible, instruction, or service!.]” SDCL 37-24-1(8) defines "person” to include "a natural person or his legal representative, a partnership, a limited liability company (domestic or foreign), a corporation (domestic or foreign), a trust, an incorporated or unincorporated association, and any other legal entity!.]”

      . Both intentional and negligent misrepresentation also require reliance. Ducheneaux v. Miller, 488 N.W.2d 902, 915 (S.D.1992); Fisher v. Kohler, 2002 SD 30, ¶ 10, 641 N.W.2d 122, 126-127.

      . Patients also argue that Hospitals violated the Trade Practices Act by omitting the price terms (a material fact) from the standardized agreements. However, Patients did not fairly plead that the omission of a price term violated this Act. We acknowledge that the complaints repeatedly refer to “unspecified and undiscounted charges,” or “undisclosed” charges. However, when fairly read, each of these references is fatally tied to either the non-actionable and abandoned claim for the discounted pricing or the non-actionable claim for an imputed price term. Therefore, this claim was correctly dismissed.

      . See Darr v. Sutter Health, 2004 WL 2873068 (N.D.Cal.2004) (unpublished); Ferguson v. Centura Health Corp., 358 F.Supp.2d 1014 (D.Colo.2004); Burton v. William Beaumont Hosp., 347 F.Supp.2d 486 (E.D.Mich.2004); Gardner v. North Mississippi Health Servs., Inc., 2005 WL 1312753 (N.D.Miss.2005) (unpublished); Wright v. St. Dominic Health Servs., Inc., 2005 WL 743339 (S.D.Miss.2005) (unpublished); Quinn v. BJC Health Sys., 364 F.Supp.2d 1046 (E.D.Mo.2005); Shriner v. ProMedica Health Sys., Inc., 2005 WL 139128 (N.D.Ohio 2005)(unpublished); Lorens v. Catholic Health Care Partners, 356 F.Supp.2d 827 (N.D.Ohio 2005); Amato v. UPMC, 371 F.Supp.2d 752 (W.D.Pa.2005); Bobo v. Christus Health, 227 F.R.D. 479 (E.D.Tex.2005).


source: Caselaw Access Project

author: CALDWELL, Circuit Judge. ZINTER, Justice,

license: Public Domain

text:
    2007 SD 35
    LAMAR OUTDOOR ADVERTISING OF SOUTH DAKOTA, INC., Petitioner and Appellant, v. CITY OF RAPID CITY, a municipality, The Rapid City Council and Tom Johnson, Mike Schumacher, Sam Kooiker, Deb Hadcock, Karen Gunderson Olson, Bill Okrepkie, Ray Hadley, Ron Kroeger, Malcom Chapman, and Bob Hurlbut, in their capacity as members of the Rapid City Council and Brad Solon, in his official capacity as Building Official for the City of Rapid City, Respondents and Appellees, and Epic Outdoor Advertising, LLP, Intervenor and Appellee.
    No. 24015.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2006.
    Decided April 4, 2007.

      Robert L. Morris of Day, Morris Law Firm, Belle Fourche, South Dakota, Attorneys for petitioner and appellant.
    Joel P. Landeen, City Attorney’s Office, Rapid City, South Dakota, Attorneys for respondent and appellee.
    Michael P. Reynolds of Barker and Reynolds, Rapid City, South Dakota, Attorneys for intervenor and appellee.
   CALDWELL, Circuit Judge.

[¶ 1.] Lamar Outdoor Advertising of South Dakota, Inc. (Lamar) petitioned the circuit court for a writ of certiorari to annul the action taken by the Rapid City Common Council (City Council) and a writ of mandamus to compel City Building Official Brad Solon (Building Official) to issue a stop work order to Epic Outdoor Advertising (Epic). The circuit court found the City Council had jurisdiction to hear the matter. The circuit court ended its inquiry there, finding Lamar failed to make the required showing that the City Council acted fraudulently, arbitrarily or with willful disregard of undisputed or indisputable proof. We affirm.

FACTS

[¶2.] In 2002 the City Council made considerable revisions to Chapter 15.28 of the Rapid City Municipal Code (RCMC) in order to better regulate signs within Rapid City, South Dakota. Chapter 15.28, referred to as the sign code, was a response to the City Council’s findings that off premise signs adversely affect the scenic beauty of the city and that the previous regulations adopted by the city were inadequate to protect the scenic beauty of the Black Hills. Preamble to RCMC § 15.28, Ord. 3813.

[¶ 3.] From 2002 until 2004 few exemptions existed in the revised sign code. In 2004 the City Council broadened an exemption for signs constructed for a public purpose. The original 2002 building permit exemption stated:

The following types of signs and activities are exempt from the provisions 15.28.040(A) [sic] :
10. Signs required or specifically authorized for a public purpose by any law, statute or ordinance; which may be of any type, number, area, height above grade, location, illumination, or animation, required by law, statute or ordinance under which the signs are erected. In no event, however, shall such sign or part thereof contain an advertising message.

RCMC § 15.28.080(B)(10), Ord. 3813. In 2004 it was changed to:

The following types of signs and activities are exempt from provisions 15.28.080(A):
10. Signs required or specifically authorized for a public purpose, which may be of any type, number, area, height above grade, location, illumination, or animation.

RCMC § 15.28.080(B)(10), Ord. 4030.

[¶ 4.] In March 2005, relying on the public purpose exemption of the ordinance, Epic began construction of four electronic reader boards in four different locations, all in railroad right-of-ways in Rapid City. Epic did not obtain a permit before beginning construction. Shortly after construction began, the Building Official red tagged the signs and issued a stop work order because Epic had not obtained a sign permit.

[¶ 5.] On April 20, 2005, Epic appealed the Building Official’s decision to the Sign Code Board of Appeals (Board), pursuant to RCMC § 15.28.270. In its appeal, Epic argued that it did not need a sign building permit because it was utilizing the public purpose exemption of the sign code. After deliberations, the Board voted to continue Epic’s appeal to May 18, 2005, so that notice of the hearing could be sent to all adjacent landowners. At the conclusion of the May hearing, the Board upheld the Building Official’s decision that Epic did not fit within the public purpose exemption. Epic appealed the decision of the Board to the City Council on May 24, 2005.

[¶ 6.] Around that same time the City Council amended the sign building permit exemption that Epic was attempting to utilize. The new language of the exemption provided:

The following types of signs and activities are exempt from the provisions 15.28.080(A):
* * *
10. Signs for a public purpose, as declared by the City Council, which may be of any type, number, area, height above grade, location, illumination, or animation; provided that any request for such a declaration can only be made by a public body exercising governmental authority.

RCMC § 15.28.080(B), Ord. 5067. The City Council sought to change the exemption, in part, because the Council found it was in the best interest of the public to amend the language of the section for the purpose of clarifying both the language and the original intent of the Council and for insuring that all future uses of this exemption would be approved by the Council. Preamble to Ord. 5067. The ordinance also contained a section that specifically stated that it would be retroactive and apply to all signs that are currently proposed or under construction. Ord. 5067. The ordinance was first read May 16, 2005, and became effective July 5, 2005.

[¶ 7.] Epic’s appeal of the Board’s decision was heard during a July 18, 2005, City Council meeting. Epic strenuously disputed the City Attorney’s argument that only signs approved by a governing body or a body exercising governmental authority could use the public purpose exemption. Epic relied on the plain language of the ordinance effective at the time it began construction, which did not identify what body was required to specifically authorize signs for a public purpose. Epic also disputed the City Attorney’s contention that the signs would not serve a public purpose, highlighting all of the civic and charitable organizations that would be allowed to use the signs at no cost. These groups included, but were not limited to, the Journey Museum, the Dahl Fine Arts Center, the Convention and Visitors Bureau and the Rapid City Area Hospitality Association.

[¶ 8.] After considering the arguments, the City Council voted 9-1 to overturn the decision of the Board and allow the signs to be finished under the public purpose exemption to the sign code as it existed when construction began.

[¶ 9.] On October 3, 2005, Lamar filed a petition for writ of certiorari challenging the jurisdiction of the City Council’s decision to overturn the Board and a writ of mandamus seeking to compel the Building Official to reinstate the stop work order on all four of Epic’s signs. On October 14, 2005, Epic filed a motion for leave to intervene, which was granted after a hearing on the motion held October 28, 2005. The parties stipulated to the certified record of all proceedings that were presented to the Board and the City Council on November 15, 2005.

[¶ 10.] On December 2, 2005, a hearing was held on Lamar’s petitions for writ of certiorari and writ of mandamus. No additional evidence was offered at the hearing. The Honorable Judge A.P. Fuller issued a memorandum opinion denying Lamar’s requests on December 21, 2005, relying on the certified record and the arguments of counsel. In his decision, Judge Fuller found that the City Council had jurisdiction to hear the appeal of the Board and that Lamar failed to show that the City Council exceeded its jurisdiction by acting fraudulently, arbitrarily or with willful disregard of undisputed or indisputable proof.

[¶ 11.] Lamar filed a motion for reconsideration on December 27, 2005. On January 11, 2006, Judge Fuller signed the findings of fact and conclusions of law denying Lamar’s petitions and their motion for reconsideration. Lamar filed its notice of appeal on February 17, 2006.

STANDARD OF REVIEW

[¶ 12.] “In certiorari proceedings, the initial scope of review is limited to determining whether the inferior courts, officers, boards or tribunals had jurisdiction to take the action under review, and whether they properly utilized their authority.” In re Writ of Certiorari as to Wrongful Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101, ¶ 9, 668 N.W.2d 538, 542. Our review is also limited:

Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. “When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law.”

Id. (quoting Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 6, 567 N.W.2d 880, 883). In addition, because the facts in this case are undisputed, we are left with only questions of law. We review questions of law de novo. Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568.

ISSUE

[¶ 13.] Did the City Council have jurisdiction to consider Epic’s appeal of the Board’s interpretation of the city sign code?

DECISION

[¶ 14.] Lamar filed a writ of cer-tiorari, contending that the City Council exceeded its jurisdiction when it overturned the decision of the Board. SDCL 21-31-1 provides:

A writ of certiorari may be granted by the Supreme and circuit courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

[IT 15.] Chapter 15.28 of the RCMC regulates the construction of signs within the city. Section 15.28.270 of the sign code governs appeals. In relevant part, it states:

1. Any person aggrieved or [sic] by any officer, department, board or bureau of the city affected by any decision of the Building Official may appeal to the Common Council the decision of the Sign Code Board of Appeals.

RCMC § 15.28.270(I)(1).

[¶ 16.] In this case, Epic attempted to utilize the public purpose exemption in the sign code, which at that time exempted “signs required or specifically authorized for a public purpose^]” RCMC § 15.28.080(B)(10), Ord. 4030. The Building Official placed a stop work order on the signs. The Board agreed with the Building Official’s determination that the four signs did not fit the definition of the ordinance. Epic was affected or aggrieved by the Board’s decision and appealed it to the City Council, asking the City Council to determine whether Epic fell within the express language of the exemption. Accordingly, the City Council’s jurisdiction to hear the appeal was proper.

[¶ 17.] The circuit court stopped its review there. In doing so, it found that Lamar failed to produce any specific evidence that the City Council did not follow its own ordinances when it found that Epic’s signs fit the definition of public purpose and allowed Epic’s signs to remain in a railroad right-of-way. The circuit court relied on a series of cases in Cole v. Board of Adjustment of the City of Huron, in making its decision to stop the inquiry at this point. 1999 SD 54, 592 N.W.2d 175 (Cole I); 2000 SD 119, 616 N.W.2d 483 (Cole II).

[¶ 18.] As recognized by the Court in Cole I, South Dakota law is well established regarding a writ of certiorari. “[T]he only question presented on certiora-ri is whether the lower tribunal exceeded its jurisdiction.” Cole I, 1999 SD 54, ¶ 10, 592 N.W.2d at 177 (citing Hamerly, 1998 SD 43, ¶ 14, 578 N.W.2d at 569 (“[T]he circuit court should ... [limit] its judgment to a reversal of the Board’s final decision as illegal and in excess of its jurisdiction.”); Willard v. Civil Service Board of Sioux Falls, 75 S.D. 297, 298, 63 N.W.2d 801, 801 (1954) (“Review of circuit court proceedings on certiorari extends only to determination of whether board which circuit court reviewed acted without jurisdiction or in excess of jurisdiction; court will not review matters of evidence in absence of showing that board acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.”); Kirby v. Circuit Court, McCook County, 10 S.D. 38, 40-41, 71 N.W. 140, 141 (1897) (“[T]he only questions to be considered in this court [on a writ of cer-tiorari] are whether the court, upon the record before it, exceeded its jurisdiction, or whether that court has failed to regularly pursue the authority of such court.”)).

[¶ 19.] The Cole cases are similar in both facts and procedure to the matter now before us. In Cole, Casey’s General Stores sought a variance from the Board of Adjustment for the City of Huron to permit the construction of a gas station and convenience store in an area zoned residential. The Board of Adjustment granted the variance after finding that the land had been vacant for fifty years and was in a transition from a residential to a commercial area. An adjacent landowner filed a writ of certiorari with the circuit court, arguing that the Board’s actions were not consistent with the zoning ordinances. The circuit court granted the petition finding that the Board’s decision did not comply with the City’s zoning ordinance. The City appealed the decision.

[¶ 20.] In Cole I, this Court found that the circuit court improperly reviewed the record de novo in making its determination that the Board did not comply with the ordinance. 1999 SD 54, ¶ 11, 592 N.W.2d at 177. The case was remanded with direction for the circuit court to apply the correct standard of review. Id. In Cole II, this Court again reversed the circuit court, which found the variance had been granted illegally and in excess of the Board’s jurisdiction because the Board “failed to make any finding ‘that there exists special conditions which constitute an unreasonable deprivation of use.’ ” 2000 SD 119, ¶ 6, 616 N.W.2d at 485. “Instead of reviewing whether the Board exceeded its jurisdiction in granting the variance, the circuit court tried the case on the merits, by analyzing [the] Huron City Ordinance ... and concluding that there was no evidence supporting the Board’s finding of a special condition to justify the variance.” Id. ¶ 11.

[¶ 21.] This Court stated that the Board of Adjustments has “wide discretion in deciding whether or not to grant a variance to a zoning ordinance, and in reviewing that decision, the circuit court may not substitute its discretion for that of the Board.” Id. ¶ 17. This limitation on scope of review prevents “courts from usurping policy decisions from other branches of government.” Id. (citation omitted). Courts must not review the merits of a petition or evidence for the purpose of determining the correctness of a finding, in the absence of a showing that the Board “acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.” Cole I, 1999 SD 54, ¶ 10, 592 N.W.2d at 177; Willard, 75 S.D. at 298, 63 N.W.2d at 801.

[¶ 22.] Like in Cole, Lamar argues that the City Council exceeded its jurisdiction by failing to apply its own city ordinances. The circuit court properly held that Lamar did not meet its burden of showing that the City Council, in making its decision to reverse the Board, acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.

[¶ 23.] Lamar claims that the City Council exceeded its jurisdiction by reversing the Board because the signs lie in a railroad right-of-way. To support its contention, Lamar points to RCMC § 15.28.080 of the sign code, which is entitled sign building permits. RCMC § 15.28.080(A) provides that, except as otherwise provided, it is unlawful to “erect, construct, enlarge, move or convert any sign in the city, or cause the same to be done without first obtaining a sign building permit[.]” Section 15.28.080(B) describes signs and activities that are exempt from obtaining a sign code permit. Because the exemption refers specifically to the sign building permit section of the sign code, Lamar argues that the public purpose exemption does not exempt anything other than the need for a permit.

[¶ 24.] However, the plain language of the exemption goes further than simply exempting a permit. RCMC § 15.28.080(B)(10) exempts, “signs required or specifically authorized for public purpose, which may be of any type, number, area, height above grade, location, illumination, or animation.” (Emphasis added). The ordinance allows for signs authorized for public purpose to be constructed without a permit, but it also states that the sign may be of any type, area, height above grade, location, illumination and animation of signs. The City Council did not exceed its jurisdiction by permitting the signs to be located in the railroad right-of-way.

[¶ 25.] Lamar also contends that the City Council exceeded its jurisdiction by failing to apply the recently passed retroactive public purpose exemption to Epic’s signs. This Court has held that zoning laws may not be retroactively applied so as to deprive property owners of prior vested rights by preventing a use that was lawful before the enactment of zoning laws. City of Marion v. Rapp, 2002 SD 146, ¶ 6, 655 N.W.2d 88, 90. The City’s sign code is similar in nature and the same rationale applies. The Building Official stopped construction of the signs. The City Council determined the signs fit within the public purpose exemption. To apply the new ordinance retroactively would divest Epic of its property rights in the signs that were legal when construction began. The City Council did not exceed its jurisdiction in failing to apply a law that is legally questionable.

[¶ 26.] The circuit court also held that Lamar failed to point to any specific evidence that the City Council, in making their determinations, acted arbitrarily or with willful disregard. We agree. “[C]ertiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding, at least in the absence of fraud, or willful and arbitrary disregard of undisputed and indisputable proof [.] ” Willard, 75 S.D. at 298, 63 N.W.2d at 801. It was Lamar’s burden to put forth evidence that the City Council’s decision was made in some arbitrary fashion and it failed to do so. Because this came before the circuit court on a writ of certiorari, this Court’s inquiry will end here. Accordingly, the decision of the lower court to deny the writ of certio-rari and writ of mandamus is affirmed.

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

[¶ 28.] ZINTER, Justice, concurs specially.

[¶ 29.] CALDWELL, Circuit Judge for KONENKAMP, Justice, disqualified.

ZINTER, Justice,

(concurring specially).

[¶ 30.] I concur and write to clarify when a retroactive application of zoning ordinances is impermissible.

[¶ 31.] The Court states that zoning laws may not be applied retroactively to deprive property owners of prior vested rights by preventing a use that was lawful before the enactment. See supra ¶ 25 (citing City of Marion v. Rapp, 2002 SD 146, ¶ 6, 655 N.W.2d 88, 90, for the proposition that zoning ordinances cannot be retroactively applied to deprive a person of vested rights). This rule, although simply stated, is difficult to apply. The difficulty arises in determining when a property owner acquires vested rights. The Indiana Supreme Court set forth the elements of vested rights in a billboard case.

As a general proposition, the courts have been willing to hold that the developer acquires a “vested right” such that a new ordinance does not apply retroactively if, but only if, the developer “(1) relying in good faith, (2) upon some act or omission of the government, (3) ... has made substantial changes or otherwise committed himself to his substantial disadvantage prior to a zoning change.”

Metro Dev. Comm’n of Marion County v. Pinnacle Media, L.L.C., 836 N.E.2d 422, 425-426 (Ind.2005) (citing John J. Delaney and Emily J. Vaias, Recognizing Vested Development Rights as Protected Property in Fifth Amendment Due Process and Takings Claims, 49 Wash U J Urb Contemp L 27, 31-35 (1996)) (other citation omitted), aff'd and explained on reh’g, Metro. Dev. Comm’n of Marion County v. Pinnacle Media, L.L.C., 846 N.E.2d 654 (Ind.2006). See also, 8 Patrick J. Rohan and Eric Damian Kelly, Zoning and Land Use Controls, ch 52D (discussing the concept of vested rights). The Indiana Supreme Court ultimately held that although construction of a structure was deemed sufficient to create vested rights, having a building permit on file did not necessarily create vested rights. Metro Dev. I, 836 N.E.2d at 428; Metro Dev. II, 846 N.E.2d at 656-657.

[¶ 32.] In this case, the amended ordinance added a new requirement that only a public body could request the public purpose exemption. See supra ¶ 6. However, that new provision could not be applied retroactively because construction of Epic’s signs started before the new ordinance was adopted. The law is well settled that construction generally meets the vested rights test. “Structures in the course of construction at the time of the enactment or the effective date of the zoning law are exempt from the restrictions of the [new] ordinance.” Metro Dev., 836 N.E.2d at 426.

      . The ordinance should be 15.28.080(A), which is the Sign Building Permit section of the sign code.

      . The letter sent to Epic from the Building Official provided:
      Construction of a sign structure has commenced in the 1400 Block of West Main Street in Rapid City in the railroad right-of-way. City records reveal no permit for this construction. Signs erected without permits are considered unlawful (RCMC § 15.28.010), therefore the Building Official has determined that the signs shall be removed (RCMC § 15.28.030). Also, a conditional permit for an off-premises sign is required. City records also reveal that no conditional permit has been issued for this location.

      .RCMC § 15.28.270 provides that ''[t]here is created a Sign Code Board of Appeals to hear and decide appeals and decisions made by the Building Official.”

      . Lamar argues that the circuit court's findings of facts and conclusions of law were not appropriate in this case because no evidence outside of the certified record was taken. The facts in this matter are set forth in the certified record, which was agreed upon by all sides. That some facts are set out in a findings of fact format is irrelevant.


author: KONENKAMP, Justice.

text:
    2007 SD 38
    GREAT WESTERN BANK, Plaintiff and Appellee, v. H & E ENTERPRISES, LLP and Phillip Hines, Defendants and Appellants. and T. Kelly Johnson and Marcie L. Johnson, Defendants.
    No. 24250.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided April 11, 2007.
    David J. Jencks of Jencks & Jencks, P.C., Madison, South Dakota, Attorneys for plaintiff and appellee.
    Ronald A. Parsons, Jr. of Johnson, Hei-depriem, Miner, Marlow and Janklow Sioux Falls, South Dakota, Richard L. Ericsson of Ericsson, Ericsson and Leibel, Madison, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[H I.] When two experts give contrary opinions on the value of property in a mortgage foreclosure action, is a trial court bound to accept the opinion of one expert? Here, the court ruled that it had to accept one opinion or the other, even though it believed neither opinion was entirely acceptable. Because the court misapprehended its role in assessing expert testimony, we reverse and remand for a new hearing under the proper standard.

Background

[¶ 2.] On November 24, 2000, Phillip Hines executed a personal guarantee of $90,748.60 on behalf of H & E Enterprises, LLP. The guarantee secured the loan obligation of H & E to Security Bank, through its predecessor in interest, Maas Investment Partners. The loan was also secured by a mortgage on the commercial building and real property at 222 North Egan Avenue in downtown Madison, South Dakota. Commonly known as the Mason’s Building, the property sits on the corner of Egan Avenue and Second Street.

[¶ 3.] Over a period of years, H & E Enterprises paid down the principal balance on the loan. But when the loan matured on December 5, 2005, H & E defaulted. In February 2006, Security Bank’s loan to H & E was assumed by Great Western Bank. Great Western brought a foreclosure action on the note and mortgage against both H & E and Hines (defendants). By May 1, 2006, the remaining balance due on the loan was $72,077.95.

[¶ 4.] Great Western moved for summary judgment on the amount due on the loan plus interest. Defendants did not challenge the motion, and the court granted judgment for $73,911.49, plus interest. Great Western then moved for a court determination of the fair and reasonable value of the property, for the purpose of determining the amount of the deficiency, if any, in accord with SDCL 21-47-16.

[¶ 5.] At the hearing, Great Western and defendants each called an expert witness on valuation. Great Western’s expert, Norma Goth, took into consideration the condition of the building and the demand for that type of structure. She testified that the fair and reasonable value of the property was $45,000. She used the sales approach, explaining that the cost approach was not reliable because of the building’s age. She also thought the income approach was unreliable because, in her opinion, the building was not rentable.

[¶ 6.] Defendants’ expert, Ted Thoms, used both the cost and income approaches and testified that based on those methods the value of the property was approximately $92,000. However, after Thoms took into account his inspection of the building and other relevant information, he stated that in his opinion the fair and reasonable value of the property was between $75,000 and $85,000 and that he would expect it to sell for $80,000. Defendants also called to the stand Jerry Seidel, the Lake County Director of Equalization. He testified that at the time of his last inspection and appraisal for tax purposes in August 2004, the fair market value of the building was $95,400, and the real estate was $22,100, for a total of $117,500.

[¶ 7.] After the testimony, counsel presented their closing arguments to the court. Great Western requested that the court value the property at $45,000, but acknowledged that “the court does have widened discretion here.” Counsel for Great Western explained that he “did not believe” the court “has to necessarily adopt Ms. Goth’s appraisals or Mr. Thoms’,” as the court “has some latitude in that regard[.]” Defendants’ counsel closed by arguing that the value of the property “is certainly not $45,000, and if anything, it’s a minimum of $85,000 or higher based upon the evidence presented!.]”

[¶ 8.] At the conclusion of the hearing, the court stated:

I tell you where the court ends up, on this matter the value is presented by expert testimony, the court is bound by the expert testimony. The court can’t simply substitute its judgment, and if I could substitute my judgment I would reach something in between, but that’s simply the court’s opinion, and there’s no evidence to support anything in between.
The 80 to 90,000 the court finds is too high. This property was sold, it appears back in 2001 for $74,000. It has depreciated since then, it’s been vacant for some years now. It is to some extent falling apart inside. The building’s a white elephant.
The court will adopt the appraisal that was established by Ms. Goth as being the best valuation, that being the $45,000.... Again, the valuation by Mr. Thoms’ office, when the court looked at that the court’s first response is wow, that’s high. So we’ll throw that one out and use the $45,000 figure. Okay. Thank you.

In the court’s written findings and conclusions, it reiterated that it was “bound by expert testimony” and “may not simply substitute its own judgment on the matter, as there is no evidence to support the same.” Therefore, the court ruled that “$45,000 is the best valuation of the property.”

[¶ 9.] Contending that the court was not “bound by expert testimony,” defendants objected to the findings and offered their own proposed findings of fact and conclusions of law. Specifically, defendants proposed, “[f]or purposes of SDCL 21-47-16, the [cjourt’s determination of the fair and reasonable value of property need not be identical to that of any particular expert so long as it is within permissible limits and has a meaningful and adequate evidentiary support.” The court rejected defendants’ proposed findings and conclusions. Defendants appeal, asserting that the court erred as a matter of law when it declared that it was bound by the expert testimony.

Analysis and Decision

[¶ 10.] Whether the court erred in making its declaration about expert opinion is a question of law reviewed de novo. See O’Bryan v. Ashland, 2006 SD 56, ¶ 11, 717 N.W.2d 632, 636. According to defendants, the court “erroneously held that it had no discretion under the law to vary from the dollar amounts of the appraisals offered by the parties’ experts.” We have often said that fact finders are not required to accept an expert’s opinion. As with all witnesses, it falls on the trier of fact to decide whether to believe all, part, or none of an expert’s testimony. Sauer v. Tiffany Laundry & Dry Cleaners, 2001 SD 24, ¶ 14, 622 N.W.2d 741, 745 (citations omitted); Lewton v. McCauley, 460 N.W.2d 728, 732 (S.D.1990) (citation omitted). Nothing in SDCL 21-47-16 requires a court to accept one expert’s valuation over another. Indeed, when it comes to property valuation, fact finders are not bound to passively “accept in toto the testimony of the expert whose testimony in their opinion was entitled to the greater weight.” See Santa Clara County Flood Control and Water Conservation Dish v. Freitas, 177 Cal.App.2d 264, 268, 2 Cal.Rptr. 129 (Cal.Ct.App.1960). As the trier of fact, the circuit court was permitted to weigh and evaluate the expert opinions with their supporting data and take such parts as it saw fit.

[¶ 11.] Great Western argues that regardless of what the court said it “applied the correct burden of proof to the evidence presented by requiring the mortgage holder to show competent proof of the value of the mortgaged premises” and concluded “that the best and most reasonable valuation of the property was $45,000[.]” Great Western further contends that the court’s statement that it was bound by the expert testimony “is a proper legal conclusion and application of the law.” Specifically, it asserts that the court “was bound to follow the evidence admitted at the hearing by the respective parties and not simply to substitute its own judgment where no evidence supported it.” And, in Great Western’s view, the court “entered various findings of fact to support why it believed the $45,000 appraisal of Ms. Goth was the best valuation.”

[¶ 12.] Nonetheless, while we ordinarily defer to a court’s fact findings, when those findings are “made under an erroneous view of the law or an incorrect legal standard,” they “receive no deference.” See 1 Childress and Davis, Federal Standards of Review § 2.16 (3d ed. 1999). This rule “is uncontroversially stated in all courts.” Id. at § 2.16 n1. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Vinick v. United States, 205 F.3d 1, 6 (1st Cir.2000). Here, the court’s legal error taints all of its findings. And, the error was more than inadvertent: it was repeated in both its oral remarks and its written findings. Thus, even if the court’s ultimate valuation of $45,000 had some evidentiary support in the record, the court’s ruling was issued under the false legal premise that it, as the trier of fact, could not conclude that the fair and reasonable value was an amount in between the experts’ valuations.

[¶ 13.] In sum, the circuit court’s statement that “there’s no evidence to support anything in between” cannot be reconciled with its erroneous declaration that the court is bound by expert testimony. We cannot determine what the court meant when it said first, that it is bound by expert testimony, and then that if it was not bound it would pick a value in between, and finally, that there was no evidence to support anything in between. Therefore, we reverse the court’s ruling and direct the court to determine the fair and reasonable value of the property consistent with the correct legal standards.

[¶ 14.] Reversed and remanded.

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

[¶ 16.] ZINTER, Justice, deeming himself disqualified, did not participate.

       Some courts recognize exceptions to this rule, but none are applicable here.


author: SABERS, Justice. MEIERHENRY, Justice

text:
    2007 SD 37
    Douglas K. JACKSON and Stacey E. Jackson, Plaintiffs and Appellees, v. CANYON PLACE HOMEOWNER’S ASSOCIATION, INC., Defendant and Appellant.
    No. 24249.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided April 11, 2007.

      Kurt E. Solay, Michelle C. Bratton of Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Thomas E. Simmons of Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Douglas K. Jackson and Stacey E. Jackson (Jackson) brought a declaratory action against Canyon Place Homeowner’s Association (Homeowner’s Association) alleging the use of a community dumpster on one of the lots violated Canyon Place Subdivision’s (subdivision) restrictive covenants. The parties brought cross-motions for summary judgment. The circuit court granted Jackson’s motion for summary judgment and Homeowner’s Association appealed. We affirm.

FACTS

[¶ 2.] The parties stipulated to the following facts. The subdivision, located in the Black Hills, is subject to restrictive covenants that were recorded in October of 1995. The particular covenant in question, number seven, provides:

No lot shall be used or maintained as a dumping ground for rubbish. Garbage or other waste materials shall be kept in sanitary containers and all incinerators, composters, and other equipment for storage or disposal of such material shall be kept in a clean and sanitary condition. No outdoor storage of non-functional or unused automobiles, boats, motor homes, or refuse will be allowed. Recreational vehicles and boats will be stored out of public view or garaged.

[¶ 3.] In September of 1998, a meeting of the Homeowner’s Association was held, where the members in attendance decided to construct a community dumpster. The action was taken because individual garbage pick-up was costly and less practical during the winter months due to some steep roads. Neither Jackson was at the meeting.

[¶ 4.] In 1999, Homeowner’s Association poured a concrete pad on the Quinn Lot and placed an eight-foot-wide dumpster on the concrete pad to be used as the community dumpster. This dumpster is across from Jackson’s driveway and visible from the common road and Jackson’s property. Rhonda Quinn, owner of the Quinn lot, later granted an easement for the placement of the dumpster in June of 2002. The easement is recorded, but Jackson contests its validity. The Homeowner’s Association enclosed the dumpster with a wood fence in 2003.

[¶ 5.] Jackson has fought against the community dumpster since 1999. The community dumpster has been discussed at every Homeowner’s Association meeting from 1999 to 2005. Jackson objected to the location of the dumpster and any improvements or future expansion plans. In 2004, Jackson told the Homeowner’s Association meeting that the community dumpster violated the covenants. Jackson made a motion for the removal of the dumpster and proposed each household should arrange for individual garbage service. Jackson’s proposal failed to carry a majority vote.

[¶ 6.] At the 2005 homeowner’s meeting, Jackson reiterated that the community dumpster violated the subdivision’s covenants. Jackson then brought a declaratory judgment action against Homeowner’s Association. Both parties filed motions for summary judgment. The circuit court granted Jackson’s summary judgment motion and ordered Homeowner’s Association to remove the community dumpster within sixty days and permanently enjoined it from placing a community dumpster on any lot in the subdivision, “in so far as such placement violates the covenants.” Homeowner’s Association appeals.

STANDARD OF REVIEW

[¶ 7.] Since the parties stipulated to the facts, there are no disputed facts precluding summary judgment. The trial court’s “interpretation of a covenant is a legal question which we review de novo.” Halls v. White, 2006 SD 47, ¶4, 715 N.W.2d 577, 579 (citing Harksen v. Peska, 1998 SD 70, ¶ 11, 581 N.W.2d 170, 173).

[118.] Whether the restrictive covenant that states no lot shall be used as a dumping ground for rubbish prohibits a community dumpster site for garbage.

[¶ 9.] The interpretation of a restrictive covenant involves the same rules of construction for contract interpretation. Id. ¶ 7 (citing Harksen, 1998 SD 70, ¶¶ 11-20, 581 N.W.2d at 173-74). When the wording of the covenant is unambiguous, “its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature.” Id. We have noted that,

A term is ambiguous if it is reasonably capable of being understood in more than one sense. Piechowski v. Case, 255 N.W.2d 72, 74 (S.D.1977). Thus, a covenant is ambiguous if we have “a genuine uncertainty as to which of two or more meanings is correct.” Harksen, 1998 SD 70, ¶ 15, 581 N.W.2d at 173 (citation omitted). A finding of ambiguity, however, requires more than the disagreement of two parties as to the meaning of a term.

Id.

[¶ 10.] Jackson claims, and the circuit court agreed, that the plain meaning of the words used in the covenant prohibit the use of a community dumpster. Homeowner’s Association argues that the plain meaning of the covenant wording merely prohibits garbage from being left loose on the ground. It maintains that the garbage is required to be in “sanitary containers” and the community dumpster meets the covenant requirements.

[¶ 11.] The terms, “dumping ground” and “rubbish” are not defined in the document. However, failing to define terms does not automatically result in an ambiguity. Halls, 2006 SD 47, ¶ 8, 715 N.W.2d at 581. We may use statutes and dictionary definitions to determine the plain and ordinary meaning of undefined words. Id.; Divich v. Divich, 2002 SD 24, ¶ 12, 640 N.W.2d 758, 762 (consulting the American Heritage College Dictionary and South Dakota statutes to define the term “benefit”).

[¶ 12.] The dictionary definition of “ground” is “the surface of the earth; an area used for a particular purpose.” Merriam Webster Dictionary Online, located at www.m-w.com (last viewed on April 6, 2007). “Dump” is defined as “to let fall in or as if in a heap or mass; to get rid of unceremoniously or irresponsibly.” Id. The dictionary also specifically lists “to dump refuse” as an example of word usage. More importantly, “dumping ground” is also defined in this dictionary, as “a place to which unwanted people or things are sent.” Id. “Rubbish” is “useless waste or rejected matter.” The dictionary specifically lists trash as an example of rubbish.

[¶ 13.] If the plain meaning of “dumping ground” is a place where unwanted things are sent, then a community dumpster is a dumping ground. Members of the subdivision send their unwanted rubbish or trash to the dumpster. According to the restrictive covenant, the Homeowner’s Association cannot use the Quinn lot, or any other lot, as a dumping ground for rubbish. Therefore, it cannot use the lot for a community dumpster.

[¶ 14.] Interpreting line one of covenant seven to prohibit the community dumpster is strengthened when viewed in conjunction with the covenant’s third sentence. See Dissolution of Midnight Star, 2006 SD 98, ¶ 12, 724 N.W.2d 334, 337 (“We ... give effect to the language of the entire contract and particular words and phrases are not interpreted in isolation.”). Line three of the covenant provides in part, “no outdoor storage of ... refuse will be allowed.” Given the plain meaning of the words used in both lines one and three of covenant seven, the community dumpster is clearly prohibited.

[¶ 15.] Homeowner’s Association argues that rubbish means “abandoned refrigerators, drums, or disabled vehicles.” However, the term is not defined that particular way in the covenant. Garbage fits into the categories of “rubbish” and “refuse” and the dictionary specifically lists trash as an example of rubbish.

[¶ 16.] Moreover, Homeowner’s Association’s claim that the second line of covenant seven, “garbage must be in sanitary containers,” means the covenant is not violated by a community dumpster is without merit. The community dumpster may satisfy that second line, but it does not satisfy the first or third line of covenant seven, especially when the third line of covenant seven, which provides in part, “no outdoor storage of ... refuse will be allowed” is considered. Because the first and third lines of covenant seven do not allow for the use of a community dumpster or outside storage of refuse, we affirm.

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

[¶ 18.] ZINTER and MEIERHENRY, Justices, concur in result.

MEIERHENRY, Justice

(concurring in result).

[¶ 19.] I concur in result and agree that the language of the covenant prohibits the use of a community dumpster. However, the third sentence of the provision rather than the first sentence creates the prohibition. The first sentence merely prohibits using one of the lots for dumping rubbish on the ground. Here, rubbish is not being dumped on the ground; it is stored on the lot in garbage containers. Thus, the facts do not fall within the first sentence’s prohibition. It is the third sentence in the provision that applies. The third sentence prohibits “outdoor storage of ... refuse.” The dictionary definition of refuse is “trash.” American Heritage Dictionary 1040 (2d ed. 1985). Consequently, trash cannot be stored outdoors. Since the community dumpster accumulates and stores trash outdoors on one of the lots, it violates the covenant.

[¶ 20.] ZINTER, Justice, joins this special writing.