author: STRINGER, Justice.

text:
    Andrew Scott KASTNER, Respondent, Eric Nelson, Respondent, v. STAR TRAILS ASSOCIATION, a Minnesota Not For Profit association, Petitioner, Appellant.
    Nos. C5-01-1157, C4-01-1165.
    Supreme Court of Minnesota.
    July 3, 2002.

      Abrams & Smith, P.A., Paul R. Smith, Lauris A. Heyerdahl, Minneapolis, for appellant.
    Schwebel, Goetz & Sieben, P.A., Sharon L. Van Dyck, James G. Weinmeyer, for Kastner, respondent.
    Alan R. Nettles & Associates, P.A., Alan R. Nettles, for Nelson, respondent.
   OPINION

STRINGER, Justice.

Andrew Scott Kastner and Eric Nelson (collectively “respondents”) were injured in separate snowmobile accidents on trails constructed and maintained by Star Trails Association (appellant). Their ensuing lawsuits were joined for the purpose of pretrial proceedings, and in April 2001, appellant moved for summary judgment in both cases claiming recreational use immunity under Minn.Stat. §§ 604A.20-.27 (2000) and municipal immunity under Minn.Stat. § 466.03, subd. 6e (2000). In a May 11, 2001 order, the district court denied appellant’s motion concluding that the partial immunities provided by the cited statutes did not apply to appellant. Appellant’s motion for certification of the immunity question as important and doubtful for purposes of appellate review was denied. Appellant nevertheless appealed and the court of appeals concluded that the May 11 order was not immediately appealable and dismissed the consolidated appeals. We reverse and remand.

The underlying facts are not at issue for purposes of this appeal. On January 6, 1996 and January 24, 1999, respectively, respondents Nelson and Kastner were seriously injured while riding on the Star Trail snowmobile trail in Washington County. Both accidents occurred in approximately the same place on the portion of the Star Trail that traverses the property of Art Schaefer, a landowner who has permitted the county to use part of his field for a snowmobile route since 1976. Respondents filed personal injury suits alleging negligence on the part of appellant, the organization responsible for the maintenance and grooming of the snowmobile trail.

Appellant, a nonprofit organization formed to promote snowmobiling, obtained funding for the development of the Star Trail snowmobile trail through the Minnesota Trail Assistance Program (MTAP). The MTAP, also known as the grants-in-aid or GIA program, is administered by the Minnesota Department of Natural Resources and is a cost-sharing program authorizing trail user clubs or organizations to work in conjunction with a sponsoring local unit of government to establish and maintain trails in their area. In accordance with the MTAP guidelines, appellant received sponsorship from Washington County.

Appellant moved for summary judgment in both suits claiming it was entitled to recreational use immunity under Minn. Stat. §§ 604A.22 and 604A.25 (2000). Section 604A.22 provides:

Except as provided in section 604A.25, an owner who gives written or oral permission for the use of the land for recreational purposes without charge:
(1) owes no duty of care to render or maintain the land safe for entry or use by other persons for recreational purpose;
(2) owes no duty to warn those persons of any dangerous condition on the land, whether patent or latent;
(3) owes no duty of care toward those persons except to refrain from willfully taking action to cause injury; and
(4) owes no duty to curtail use of the land during its use for recreational purpose.

Appellant asserts that it qualifies as an “owner” under the language of the statute because it was the “occupant” or party “in control of the land” at the time the accidents occurred. See Minn.Stat. § 604A.21, subd. 4. Section 604A.25 provides:

Except as set forth in this section, nothing in sections 604A.20 to 604A.27 limits liability that otherwise exists:
(1) for conduct which, at law, entitles a trespasser to maintain an action and obtain relief for the conduct complained of; * * ⅜ *
Except for conduct set forth in section 604A.22, clause (3), a person may not maintain an action and obtain relief at law for conduct referred to by clause (1) in this section if the entry upon the land is incidental to or arises from access granted for the recreational trail use of land dedicated, leased, or permitted by the owners for recreational trail use.

Appellant also asserted governmental immunity, as provided in Minn.Stat. § 466.03, subd. 6e. Section 466.03, limiting the liability of municipalities, includes the following within its list of claims for which a municipality “shall be immune from liability”:

Any claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Minn.Stat. § 466.03, subd. 6e. Although specifically referencing municipalities, appellant claims that this immunity is applicable here because MinmStat. § 84.83, subd. 4(a) (2000) provides:

Recipients of Minnesota trail assistance program funds must be afforded the same protection and be held to the same standard of liability as a political subdivision under chapter 466 * * *.

On May 11, 2001, the district court denied appellant’s summary judgment motion on the basis that although the cited statutes do establish a diminished standard of care for municipalities with regard to. injuries occurring on municipal property designated for public recreational use, and this partial immunity is extended to private property owners who open their land for such use, appellant was not an “owner.” The court later denied appellant’s motion to certify the question of immunity as important and doubtful for purposes of appellate review pursuant to Minn. R. Civ. App. P. 103.03(h), concluding the question was neither important nor doubtful.

Appellant sought review in the court of appeals of the May 11, 2001 order denying summary judgment arguing that it was entitled to interlocutory review on the issue of immunity. The court of appeals, citing its decision in Harvey v. Dots, Inc., 561 N.W.2d 192 (Minn.App.1997), dismissed the appeal concluding that although governmental entities are allowed an immediate appeal when a district court denies an immunity-based summary judgment motion, nongovernmental entities are not. We granted review.

Whether the district court’s May 11 order denying respondent’s immunity-based summary judgment motion is immediately appealable requires construction of a procedural rule, see Engvall v. Soo Line Railroad Co., 605 N.W.2d 738, 740-41 (Minn.2000), and is therefore a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Generally, an order denying a motion for summary judgment is not immediately ap-pealable unless the district court certifies that the question is important and doubtful. Minn. R. Civ.App. P. 103.03(f); McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn.1995). But certain orders are immediately appeal-able under Minn. R. Civ.App. P. 103.03(j), even absent an important and doubtful certification. In these cases, the right to appeal is derived not from procedural rules, but from fundamental principles relating to the finality of judgments. See In re State & Regents Bldg. Asbestos Cases, 435 N.W.2d 521, 522 (Minn.1989). For example, we have held that interlocutory appeal is available for review of orders denying motions to dismiss for lack of personal jurisdiction, subject matter jurisdiction, and government immunity. See, e.g., Hunt v. Nevada State Bank, 285 Minn. 77, 88-91, 172 N.W.2d 292, 299-301 (1969); McGowan, 527 N.W.2d at 832-33; Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (1986). A limitation has been placed on governmental immunity appeals under the court of appeals ruling in Harvey however, denying nongovernmental entities the right to immediate appellate review of an order denying an immunity-based motion for summary judgment. 561 N.W.2d at 195. We do not believe immediate appellate review should be denied on this basis, however.

Appellant claims limited liability protection under Minn.Stat. § 84.83, subd. 4(a), entitling recipients of MTAP funds to “the same protection and ⅝ ⅜ * standard of liability as a political subdivision under chapter 466.” This “protection,” appellant asserts, should include the availability of immediate review of a court determination denying an immunity-based summary judgment motion, just as review would be available to a governmental entity under Anderson. Appellant argues that regardless of its nongovernmental status, subjecting it to a trial renders its right to immunity meaningless and therefore it should have a right to immediate review.

While respondent Kastner agrees that section 84.83, subd. 4 is applicable to appellant, he argues that the statutory language using the terms “protection” and “standard of liability” cannot be stretched to confer political subdivision status upon appellant such that it is entitled to immediate appellate review on the issue of governmental immunity under Anderson. Further, respondent argues, Minn.Stat. § 466.03 — providing exceptions to the tort liability outlined in Minn.Stat. § 466.02 (2000) — pertains specifically to immunity from liability, not immunity from suit, and immunity from liability intertwines with the merits of respondents’ underlying actions. Therefore appellant has no right to be free from trial.

Despite these points of contention, both appellant and respondent Kastner acknowledge this court’s recognition of the “collateral order doctrine,” adopted by both the United States Supreme Court and the Eighth Circuit Court of Appeals, as a general guide to interlocutory appealability. See Anderson, 393 N.W.2d at 364. In Anderson, we cited with approval the reasoning of the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that a decision of the district court denying a claim of qualified immunity is, in effect, a final determination of a right separable from and collateral to rights asserted in the main action. Anderson, 393 N.W.2d at 363-64; Mitchell, 472 U.S. at 524, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411. The Court in Mitchell ruled that such an order, to the extent it turns on a question of law, is immediately ap-pealable notwithstanding the absence of a final judgment on the merits, because, as with absolute immunity, it is denial of a right not to stand trial at all-a right that is lost if the case is permitted to proceed. 472 U.S. at 526, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411.

In reaching its conclusion, the Mitchell court applied the rationale of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), where the Supreme Court first articulated what is now known as the collateral order doctrine. Mitchell, 472 U.S. at 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411. In Cohen, the Court defined a framework for identifying “that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528. For the collateral order doctrine to apply, the order at issue must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

Although we have admired the rationale underlying the collateral order doctrine, we have not formally embraced it. In Anderson, we acknowledged that Mitchell was “well-reasoned” and “ought to be followed in analogous cases” under Minn. R. Civ.App. P. 103.03, but added the caveat “without regard to whether it must be followed.” 393 N.W.2d at 364; see also Harvey, 561 N.W.2d at 194 (observing that while this court adopted the Mitchell rationale, it did not formally adopt the federal collateral order doctrine); Engvall, 605 N.W.2d at 742 (noting that the collateral order doctrine was cited favorably in Anderson where this court held that the doctrine is useful to consider when presented with a general question of whether an interlocutory order or judgment is ap-pealable). We go beyond that now, and take this opportunity to formally adopt the collateral order doctrine as a clear analytical framework to assess the immediate appealability of an order or judgment not specifically identified in the Rules of Civil Appellate Procedure. Accordingly, we hold that a district court order or judgment that satisfies the three-part collateral order analysis emanating from Cohen is subject to immediate appellate review.

We also take this opportunity to comment on the court of appeals’ holding in Harvey which was based in part on our decision in Anderson and was cited by the court of appeals as authority for its ruling dismissing the appeals in this case. In Anderson we held that an order denying a municipality’s summary judgment motion based on immunity from suit was appeal-able, 393 N.W.2d at 363-64, but we made no determination that immediate appeal was available only to governmental entities or that nongovernmental entities should be treated differently. We perceive no rational basis for providing a governmental entity a right of immediate review of a determination relating to immunity that results in having to stand trial, but denying that right to a nongovernmental entity. Indeed in Cohen, the source of the collateral order doctrine, the parties were nongovernmental entities. 337 U.S. at 543^4, 69 S.Ct. 1221, 93 L.Ed. 1528. We disagree with the court of appeals’ interpretation in Harvey that nongovernmental entities are per se not so entitled, 561 N.W.2d at 195, and to the extent that the Harvey decision is based upon a governmental-nongovernmental distinction, it is overruled.

We further note that because we have adopted the collateral order doctrine, it is not necessary to address the distinction between immunity from liability and immunity from suit; the same analysis applies regardless of the type of immunity claimed. In light of our holding that the collateral order analysis is the appropriate framework to determine whether a district court order is immediately appealable, we reverse and remand to the court of appeals for further consideration consistent with this opinion.

Reversed and remanded.

      . Only respondent Kastner participated in the appeal to this court.

      . See Minn.Stat. § 84.83, subd. 3 (2000 & Supp.2001).

      . “Owner” is defined in Minn.Stat. § 604A.21, subd. 4 (2000) as “the possessor of a fee interest or a life estate, tenant, lessee, occupant, holder of a utility easement, or person in control of the land.”

      . “Recreational purpose” includes snowmobiling. Minn.Stat. § 604A.21, subd. 5 (2000).

      .The district court cited the definition of "owner” found in Minn.Stat. § 604A.21, subd. 4, which properly corresponds with the claim for recreational use immunity under Minn.Stat. §§ 604A.20-.27. It appears the district court applied this statutory definition of owner to defeat appellant’s claim under section 466.03, subd. 6e as well, however, "owner” is not defined in Chapter 466 and no explanation was provided as to why section 466.03, subd. 6e would not apply to appellant. Minnesota Statutes § 84.83, subd. 4(a) unequivocally states that organizations such as appellant are entitled to the protections of Chapter 466, and to require that they be an "owner” would defeat the purpose of this mandate.

      . The cited rule was amended in 2000; as a result, the content of former subsection (h) is now found at Minn. R. Civ.App. P. 103.030).

      . See also Minn. R. Civ.App. P. 103.03 advisory committee's cmt. 1998 Amendments (acknowledging that list of appealable orders in rule 103.03 is not exclusive basis for appellate jurisdiction and providing examples of instances in which an appeal may be allowed as a matter of right even though the ground for that appeal is not found expressly in rule 103.03); 3 Eric Magnuson & David Herr, Minnesota Practice Appellate Rules Ann., §§ 103.2, 103.5 (1996 & Supp.2001) (same).

      . See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir.2001).

      . Although an interlocutory appeal from such an order of judgment is available, it is not mandatory. See Engvall, 605 N.W.2d at 744-45 (holding that failure to take an interlocutory appeal permissible under the principles of the collateral order doctrine does not forfeit the right of appellate review of the interlocutory order or judgment on appeal from the final judgment).


source: Caselaw Access Project

author: HANSON, Judge.

license: Public Domain

text:
    AMERICAN STATE BANK OF OLIVIA, Appellant, v. LADWIG & LADWIG, INC., Respondent.
    No. C4-01-2185.
    Court of Appeals of Minnesota.
    June 25, 2002.

      Michael S. Dove, Alex W. Russell, Gisla-son & Hunter, L.L.P., New Ulm, for appellant.
    Ronald R. Frauenshuh, Sr., Frauenshuh & Spooner, P.A., Paynesville, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, HALBROOKS, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

Respondent farmer agreed to sell a 50% ownership interest in a combine to debtor if debtor made five annual loan payments on the combine. Appellant bank sued respondent farmer to recover possession of the combine in which the bank asserted a 50% ownership interest by foreclosure of its security agreement with debtor. The district court granted summary judgment dismissing the action, concluding that debtor had failed to make the required payments, that debtor thus had no rights in the combine, and that appellant bank’s security interest did not attach. We conclude that the question of whether debtor acquired a sufficient ownership interest in the combine for appellant bank’s security interest to attach depends on whether the combine was “delivered” to debtor. Because, there are genuine issues of material fact with respect to whether the combine was “delivered” to debtor, we reverse summary judgment and remand.

FACTS

Respondent Ladwig & Ladwig, Inc. (Ladwig) owned a John Deere 9600 combine it had purchased with financing from John Deere Credit, using the combine as collateral. In December 1991, Ladwig entered an agreement with Mark and Donna Herickhoff (Herickhoffs) which provided as follows:

This is to certify that Mark and Donna Herickhoff will have a 50% interest in the John Deere 9600 Combine, serial number M09800X637897 purchased 11-2-91, with an unpaid balance price of $62,138.78 and a total amount financed of $76,206.60, excluding heads, and including duals, providing payments are made on or before the following dates:
Principal and interest are paid to Lad-wig & Ladwig Inc. in 5 consecutive installments as per attached contract, beginning Jan. 1, 1993, and on the same day thereafter annually, with the last payment due Jan. 1,1997.

The Herickhoffs did not make the payments due in 1993, 1994, or 1995. Before January 1, 1996, Ladwig traded the combine for another John Deere 9600. Lad-wig told the Herickhoffs that they could obtain an ownership interest in the new combine by making the same five payments, but also said that they would get no ownership interest unless and until they made the payments. At the time that Ladwig traded the first combine, the agreement with the Herickhoffs was amended to reflect the trade, stating “[a]s of 1-1-96, the above combine has been traded in and agreed upon JD 9600, serial # X650923 & payments will apply on payment schedule.” The Herickhoffs made their first payment of $7,148.03 in 1996 and their second payment of $7,148.03 in early 1998, for a total of $14,296.06 of the $35,740.15 they agreed to pay.

In May 1993, the Herickhoffs granted a security interest in all of their personal property, including an alleged one-half share in the combine, to appellant American State Bank of Olivia (American). American filed a UCC-1 Financing Statement •with the county. In January 1994, the Herickhoffs submitted a balance sheet to American that listed a one-half share in the combine as an asset. After the second payment was made in January of 1998, the Herickhoffs told American that their final payment would be due in March 1998.

In February 2000, Ladwig was in danger of having the combine repossessed by John Deere Credit because of the Herick-hoffs’ failure to make the required payments. Ladwig refinanced through North American Bank of Elrosa, which paid off Ladwig’s remaining balance with John Deere Credit and believed itself to be the only creditor with a security interest in the combine, based on the information Ladwig provided.

Between 1998 and 1999, Ladwig permitted the Herickhoffs to use the combine temporarily each year to complete the harvest of their crops. The combine was otherwise stored and maintained by Ladwig, who also used it for harvesting and to provide custom combining for other farmers. In 2000, after the combine had been refinanced, Ladwig told the Herickhoffs that the two payments they had made would be treated as compensation for their use of the combine, that they were in breach of the agreement and that they would no longer be permitted to use the combine. In the fall of 2000, Herickhoffs took the combine without Ladwig’s consent, to complete their harvest. Ladwig reported the taking as a theft and the county sheriff recovered the combine and returned it to Ladwig.

The Herickhoffs defaulted on their loan with American. American demanded that Ladwig deliver the combine for liquidation, and Ladwig refused. American brought suit to recover the combine from Ladwig. Ladwig filed a motion for summary judgment, and American filed a cross motion for summary judgment. The district court granted summary judgment for Ladwig, holding that under Article 2 (the sales article) of the Uniform Commercial Code (UCC), Minn.Stat. § 336.2-401(3) (2000), the parties mould determine by explicit agreement when any ownership interest would pass and that the agreement unambiguously provided that the 50% interest would not pass to the Herickhoffs until the required payments were made in full. The court held that the Herickhoffs had no interest in the combine to which American’s security interest could attach. This appeal followed.

ISSUES

1. Did the district court err by construing the agreement to explicitly provide that no ownership interest would pass to the Herickhoffs until they paid in full?

2. Did Ladwig’s consent to the temporary use of the combine by the Herickhoffs constitute sufficient “delivery” to establish an ownership interest in the Herickhoffs to which American’s security interest would attach?

ANALYSIS

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). We view the evidence in a light most favorable to the nonmovant. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

I

American argues that the question of when title passed to the Herickhoffs under article 2 of the UCC is irrelevant because any title retained by Ladwig must be considered a purchase-money security interest and, under article 9 of the UCG, that purchase-money security interest is subordinate to American’s security interest because it was not perfected by the filing of a UCC-1 financing statement. American relies on Greenbush State Bank v. Stephens, 463 N.W.2d 303 (Minn.App.1990), review denied (Minn. Feb. 4, 1991).

In Greenbush, the bank had a perfected security interest in the property of its debtor, Stauffenecker. Id. at 307. It claimed that its interest attached to a tractor that had been purchased by Stauffe-necker but was in the possession of his neighbor, Stephens. Id. at 305. Stephens claimed to be the owner because he had provided part of the purchase price to Stauffenecker under an agreement that Stephens would own the tractor until Stauffenecker paid him back and that, until Stauffenecker paid, Stephens and Stauf-fenecker would share the use of the tractor in their respective farming operations. Id.

Our analysis began with the question of whether Stauffenecker had any ownership interest to which the bank’s security interest could attach. Id. at 306. The framework for that analysis is provided by Minn. Stat. § 336.9-203(l)(c) (1988), which provides in part that a security interest is enforceable against the debtor and third parties with respect to the collateral only if the debtor has “rights in the collateral.”

We concluded that Stauffenecker clearly had an ownership interest in the collateral, that the bank’s security interest attached to it, and that the issue thus became one of priority between the security interest of the bank and the interests of Stephens. Greenbush, 463 N.W.2d at 306-7. We characterized Stephens’ interest as a “purchase money security interest” under MinnStat. § 336.9-107 (1988), which states:

A security interest is a “purchase money security interest” to the extend that it is * ⅜ ⅜ *
(b) taken by a person who by making advances * * * gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.

Greenbush, 463 N.W.2d at 306. Given these two competing security interests, priority was determined “according to the priority in time of filing or perfection.” Id. at 307. (quoting Minn.Stat. § 336.9-312(5) (1988)). Because Stephens did not file a UCC-1 Financing Statement, his purchase money security interest was not perfected and the bank’s security interest took priority. Id. at 307.

American argues, by analogy to Green-bush, that Ladwig’s agreement to sell a 50% interest to the Herickhoffs had the legal effect of creating a purchase money security interest to 50% of the combine in Ladwig and that Ladwig’s failure to perfect that interest means that American’s perfected security interest takes priority. But Greenbush is not so completely analogous.

First, the parties were aligned quite differently in Greenbush because the purchase-money security interest was essentially held by Stephens as the “buyer” (Stauffenecker owned the tractor and transferred title to Stephens in consideration for his partial payment). Id. at 305. Here, it is argued that the purchase money security interest was held by Ladwig as the “seller.” Accordingly, while Green-bush may provide some guidance on the nature of Ladwig’s (the sellers) interest in the combine, it provides no guidance on the more crucial issue of whether the Her-ickhoffs (the buyers) acquired any ownership interest.

In fact, in Greenbush the premise for the priority analysis, that the buyer Stauf-fenecker had an ownership interest to which the bank’s security interest could attach, was not disputed. Id. at -306. If we were to realign the parties to be analogous to Greenbush, we would as easily conclude that Ladwig had a clear ownership interest in the combine, but Ladwig is not American’s debtor. Under the present facts, the premise for any priority analysis is disputed. In fact, it is the central dispute between the parties. It requires a determination of whether the Herickhoffs, as buyers, have an ownership interest in the combine sufficient for American’s security interest to attach. Until that premise is established, the characterization of Lad-wig’s interest as being a purchase-money security interest is irrelevant because there would be no other competing security interest.

Further, the agreement between Ladwig and the Herickhoffs contemplated the sale of only a partial interest to the Herickhoffs whereas, in Greenbush, the entire interest was transferred to Stephens and the entire interest was to revert to Stauffenecker if he paid Stephens in full. See id. at 305. In the present circumstance, the retention of title by Ladwig is obviously more than simply the retention of a security interest because Ladwig was to remain a partial owner even after any transfer of partial ownership to the Herickhoffs.

Given this analysis, we conclude that the district court was correct in focusing not on whether Ladwig’s interest included a purchase money security interest, but on whether the Herickhoffs had acquired a sufficient ownership interest for American’s security interest to attach. That focus appropriately takes us to the provisions of article 2 of the UCC that address the transfer of ownership. Minn.Stat. § 336.2-401 (2000) states in part as follows:

Each provision of this article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply:
(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (section 336.2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a specified property as limited by this chapter. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. * * *
(2) Unless otherwise explicitly agreed title passes to the buyer at the time * * * at which the seller completes performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place * * ⅜.
⅝ ⅝ ⅝ ⅝
(3) Unless otherwise explicitly agreed where delivery is .to be made without moving the goods,
(b) * * * title passes at the time and place of contracting.

(Emphasis added). See also Minn.Stat. §§ 336.2-105 (2000) (defining goods as “all things ⅜ * * which are movable at the time of identification to the contract for sale” and allowing the sale of a part interest).

As can be seen, the transfer of ownership may turn, in some instances, on what the parties “otherwise explicitly agreed.” Minn.Stat. § 336.2 401. Under paragraph (1), the buyer acquires “a specified property” in goods on their identification, “unless otherwise agreed.” Id. at (1). Under paragraph (2), title passes to buyer at the time of delivery, “unless otherwise explicitly agreed.” Id. at (2). Under paragraph (3), title passes at the time of contracting where delivery is to be made without moving the goods, “unless otherwise explicitly agreed.” Id. at (3). The district court construed the agreement to mean that the parties had otherwise explicitly agreed that the Herickhoffs would not have any ownership interest in the combine until they made all payments. We agree that this is the plain and ordinary meaning that must be given to the language of the agreement. But this does not end the inquiry.

II

The one instance in section 336.2-401 where the passage of title is not controlled by what the parties have otherwise explicitly agreed is described in paragraph (1), where an agreement that the seller will retain title is only given the effect of a reservation of a security interest, if the property has been “delivered.” Id. at (1). Stated another way, we read paragraph (1) to mean that the delivery of the goods establishes an ownership interest in the buyer even though the parties have otherwise explicitly agreed. See id.

The issue of when “delivery” occurs when only a partial interest in the goods is being sold is a,novel issue that was not addressed by the parties and has not been discussed in any case that we have found. In general, for delivery to occur the seller must “put and hold conforming goods at the buyer’s disposition” pursuant to the agreement. MinmStat. § 336.2-503(1) (2000). Delivery requires that the seller intend to relinquish control over the goods to the buyer by placing them at the buyer’s disposal. See Joseph Heiting & Sons v. Jacks Bean Co., 236 Neb. 765, 463 N.W.2d 817, 823 (1990) (stating that “[d]e-livery occurs when the seller does everything necessary to put goods completely and unconditionally at the buyer’s disposal”) (citation omitted). American acknowledges that “delivery” requires a transfer of possession, citing Goosic Constr. Co. v. City Nat’l Bank of Crete, 196 Neb. 86, 241 N.W.2d 521, 522 (1976) (stating “[d]elivery may also be defined as an act by which a seller parts with possession, and a buyer acquires possession.”).

This general definition of delivery must be modified in the case of the sale of a partial interest, where possession is to be shared even after the transfer of partial ownership. In such a case, the relinquishment of possession by the seller would never be “complete” or “unconditional” because the buyer will only receive a partial interest and the buyer’s right to share in the possession of the property will always be subject to the condition of the seller’s right to share in possession.

Extrapolating from these general principles to the circumstances where there is a sale of only a partial interest in equipment, we conclude that proof of “delivery,” Where the buyer is given only temporary possession, requires a showing that such possession is acquired pursuant to an enforceable right of the buyer under the agreement, and is not optional or gratuitous with the seller. More specifically, to prove delivery under paragraph (1) of § 336.2-401, American must show that the Herickhoffs hold an enforceable right under the agreement to the annual use of the combine for their harvest.

The district court did not address paragraph (1), but focused solely on paragraph (3) of section 336.2-401, where “delivery” is to occur without moving the goods. See Minn.Stat. § 336.2-401(3). In this context, the district court stated that “the combine was ‘delivered’ to Herickhoffs without it being moved * * We do not understand this statement to be a legal conclusion on the issue of delivery as it might be relevant to paragraph (1). In fact, the evidence before the court on the issue of delivery is not conclusive.

The agreement does not address the rights of the Herickhoffs to the use of the combine. Further, the affidavits provided in support of the cross-motions for summary judgment provide scant details on the facts relevant to the question of delivery. Both Ladwig and the Herickhoffs state that Ladwig only loaned the combine to the Herickhoffs for the 1993 through 1999 harvests. The evidence also shows that the Herickhoffs could only use the combine with Ladwig’s express consent. In fact, when the Herickhoffs attempted to use the combine in the fall of 2000 without Ladwig’s consent, Ladwig enlisted the sheriff to recover it. Although the parties do not dispute the fact that Ladwig controlled the combine and that the Herick-hoffs were only allowed to use it with Ladwig’s consent, we conclude that there are genuine issues of material fact with respect to whether Ladwig’s consent to the temporary use of the combine by the Herickhoffs was in recognition of an enforceable right of the Herickhoffs to share possession, so as to constitute “delivery” under the agreement. As a result, the district court erred by granting summary judgment for Ladwig.

DECISION

We agree with the district court’s conclusion that the parties explicitly agreed that the Herickhoffs would not have an ownership interest in the combine until they paid in full. But we conclude that such agreement does not control if the combine was delivered. Because there are genuine issues of material fact concerning whether delivery occurred, we reverse the summary judgment for Ladwig and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . In Greenbush, we addressed a somewhat analogous issue relating to article 9's provisions for perfection of a security interest by “possession” within 20 days after the sale. Greenbush 463 N.W.2d at 308. We concluded that the sharing of the tractor, under which the tractor was on the buyer’s farm "most of the time,” was not sufficient to meet the "possession” requirements. Id.


author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. John Allen MIX, Appellant.
    No. C1-02-288.
    Court of Appeals of Minnesota.
    June 25, 2002.
    Review Denied Aug. 20, 2002.

      Mike Hatch, Attorney General, John Do-cherty, Assistant Attorney General, St. Paul, MN; and Belvin Doebbert, Pope County Attorney, Glenwood, MN, for respondent.
    John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, and WILLIS and FOLEY, Judges.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant John Allen Mix challenges the district court’s order denying his motion for a four-week continuance to reschedule sentencing before the judge who accepted his guilty plea and who sentenced two of Mix’s co-conspirators. Mix appeals his sentence and seeks a remand for re-sentencing or, alternatively, a reduction of his sentence. We affirm.

FACTS

The state charged Kevin Lopez, Joseph Wersinger, Sarah Heaslip, and appellant John Allen Mix with various controiled-substance crimes relating to the manufacture of methamphetamine.

Wersinger pleaded guilty before Chief Judge Gerald Seibel to one count of a first-degree drug crime. Lopez entered the same plea before Judge Jon Stafsholt. Both individuals received downward dura-tional departures to 60 months from the presumptive 86-month sentence. The basis for the departures was the individuals’ cooperation with the police.

Mix and Heaslip later pleaded guilty before Judge Jon Stafsholt on August 10, 2001. Mix agreed to plead guilty to one count of conspiracy to commit a first-degree drug crime, and the state agreed to dismiss all other charges against him. There was no agreement as to sentencing, but Mix moved for both durational and dispositional departures. Judge Stafsholt sentenced Heaslip and departed downward from the sentencing guidelines.

By the time Mix was ready for sentencing, Judge Stafsholt was on a temporary medical leave. Mix was notified that Judge David Mennis would sentence him. Mix objected and moved for a four-week continuance so that Judge Stafsholt could sentence him. Chief Judge Seibel denied the motion, noting:

Since Judge Stafsholt is currently unavailable due to disability and since the defendant has been awaiting sentencing since August, it is appropriate that a new judge be assigned.

Judge Mennis then sentenced Mix on December 19, 2001, and imposed the presumptive sentence of 86 months, executed.

Contending that the district court abused its discretion by refusing to continue the sentencing and by imposing a sentence harsher than the sentence received by any of Mix’s three co-conspirators, Mix appeals.

ISSUES

1. A criminal defendant pleaded guilty before a particular judge. When the case was set for sentencing, that judge was on medical leave and a substitute judge was assigned. Did the chief judge abuse his discretion by refusing to continue the sentencing until the original judge returned?

2. Appellant’s co-conspirators received sentencing departures. Appellant was given the presumptive sentence. Was appellant’s sentence in error when there were no substantial and compelling circumstances justifying a departure and there was a rational basis for disparate sentences?

ANALYSIS

1. Motion for continuance

The grant or denial of a continuance of a court proceeding is discretionary with the district court, and we will not reverse absent a clear abuse of the court’s discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn.1987). Furthermore, the appellate court will not reverse the denial of a motion for continuance unless the moving party shows that the ruling prejudiced him. State v. King, 414 N.W.2d 214, 220 (Minn.App.1987), review denied (Minn. Jan. 15, 1988).

Mix moved for a continuance because he contended that he would suffer irreparable harm and prejudice if he were sentenced by any judge other than Judge Stafsholt. He noted that Judge Stafsholt had sentenced two of Mix’s three co-conspirators and had given them sentencing departures. He also indicated that Judge Stafsholt was familiar with the case because he had presided from the outset.

In denying Mix’s motion and assigning a substitute judge, Chief Judge Seibel relied on Minn. R.Crim. P. 26.03, subd. 13(6), which permits the chief judge to reassign a criminal matter at any stage to another judge when the judge previously assigned is under a disability.

Chief Judge Seibel gave as his reason for denying the motion the length of time the matter had been pending. It had been four months since Mix’s plea. A continuance would have extended the sentencing date at least one more month. Mix presented no evidence to Chief Judge Seibel that he, the state, or Judge Mennis could not be prepared for sentencing on December 19, 2001. The judge had received the presentence investigation report, Mix’s memorandum in support of a departure, and various reports and documents Mix offered regarding his suitability for a stayed sentence.

A court abuses its discretion when it acts arbitrarily, without justification, or in contravention of the law. See State v. Hoelzel, 639 N.W.2d 605, 610 (Minn.2002) (court abuses its discretion when it acts arbitrarily and capriciously); State v. Gilbert, 262 N.W.2d 334, 340 (Minn.1977) (court abuses its discretion if its findings are contrary to the law); State v. Woelfel, 621 N.W.2d 767, 774 (Minn.App.2001) (court abuses its discretion if it does not justify sentencing decision on the record), review denied (Minn. Mar. 27, 2001). Here, Chief Judge Seibel acted under the authority of a court rule, provided a reasonable basis for his ruling, and had no evidence that the sentencing could not be held fairly and properly. There was no abuse of discretion by the court’s denial of Mix’s motion for a continuance.

Moreover, Mix has failed to show that he was prejudiced by the denial of his motion. Implicit in his argument for the continuance was Mix’s hope that Judge Stafsholt would have granted his departure motion. Although that was Mix’s wish, the record establishes no basis for a presumption that Judge Stafsholt would have departed.

Citing evidence that Mix was the ringleader of the drug-manufacturing conspiracy, the state opposed any departure from the presumptive sentence. There was no plea agreement regarding the sentence to be imposed, and there was no evidence that Mix had cooperated with the police, the basis for at least two of the other departures.

Although Mix did offer documents in support of his effort to persuade the sentencing judge to depart from the sentencing guidelines, it is mere speculation that this information would have caused Judge Stafsholt to depart.

2. Disparate sentencing

A departure from the sentencing guidelines must be justified by substantial and compelling circumstances. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). To justify a downward departure, there must be circumstances that tend to excuse or mitigate an offender’s culpability. State v. Esparza, 367 N.W.2d 619, 621 (Minn.App.1985). Disparate sentencing of co-conspirators is warranted if there is a rational basis for distinguishing one co-conspirator’s culpability from another. State v. McClay, 310 N.W.2d 683, 685-86 (Minn.1981).

Mix argues that the sentencing court “apparently” accepted the proposition that Mix “played only a minor role in the offense.” The court did not so indicate and, in fact, had evidence from which it could be inferred that Mix played the leading role in the conspiracy.

Mix also contends that he is amenable to probation. But he admits that the court was aware that he had used drugs even after pleading guilty.

This record does not present substantial and compelling circumstances to warrant a departure from the presumptive sentence. Furthermore, there is evidence supporting the conclusion that there was a rational basis for the disparate sentencing. The district court did not err in imposing the presumptive sentence.

DECISION

The substitution of a judge for sentencing who is different from the judge who took the guilty plea is not an abuse of discretion when the plea judge was on medical leave and there was no evidence that the substitute judge could not properly proceed.

A criminal defendant is not entitled to a departure from the presumptive sentence merely because his co-conspirators received departures.

Affirmed.


author: PORITSKY, Judge.

text:
    Michael F. STIELE, a minor, by his mother and natural guardian, Janna GLADIEUX, Respondent, v. CITY OF CRYSTAL, Appellant.
    No. C5-01-2275.
    Court of Appeals of Minnesota.
    July 2, 2002.

      William J. Aase, Milavetz, Gallop & Mi-lavetz, P.A., Edina, for respondent.
    Brian Gaviglio, Carla Heyl, League of Minnesota Cities, St. Paul, for appellant.
    Considered and decided by LANSING, Presiding Judge, ANDERSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Respondent Michael Stiele was injured in a park when he jumped backwards off a fence without looking down and received a cut on his leg from a metal post that had been installed to prevent a satellite restroom from being tipped over by vandals. The City of Crystal, which operated the park, appeals from the denial of its motion for summary judgment, contending that it is entitled to both recreational use immunity under Minn.Stat. § 466.03, subd. 6e, and statutory discretionary immunity under Minn.Stat. § 466.03, subd. 6. We conclude that the city is entitled to recreational use immunity and reverse.

FACTS

On April 25, 2000, Stiele, then 11 years old, went with some friends to North Lions Park located in and operated by the City of Crystal (the city). While at the park, Stiele climbed a fence surrounding the tennis courts. Stiele jumped backwards off the fence without looking and cut his leg on a metal signpost. The signpost, which the city had installed to stop vandals from tipping over the satellite restroom, was located next to a satellite restroom. The signpost that Stiele struck was three to four feet high and was painted green.

The city had painted the tops of similar signposts orange in the past so that the satellite restroom contractor could locate the posts and so no one would walk into the posts in the off-season when the restrooms were removed.

Although the exact location of the signpost is not made clear in the record, Stiele states that he was climbing the fence “right behind” the satellite restroom on April 25, 2000. The city had received no previous complaints about the signposts.

Stiele sued the city, which responded by moving for summary judgment, claiming recreational use immunity, statutory discretionary immunity, and assumption of risk. The district court denied the city’s motion, and the city appeals, but raises only the two immunity issues.

ISSUES

I. Does statutory recreational use immunity under Minn.Stat. § 466.03, subd. 6e, bar Stiele’s claims against the city for an injury Stiele received when he jumped off a fence onto a metal signpost at the city’s park?

II. Does statutory discretionary immunity under MinmStat. § 466.03, subd. 6, bar Stiele’s claim against the city for an injury Stiele received when he jumped off a fence onto a metal signpost at the city’s park?

ANALYSIS

While denial of summary judgment is not ordinarily appealable, the supreme court recognizes an exception when the district court denies a motion for summary judgment that asserts statutory immunity. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996).

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

The application of immunity is a question of law, which this court reviews de novo. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn.App.1998). The party seeking immunity must “demonstrate facts showing that it is entitled to immunity.” Id. (citation omitted).

I.

The city’s first argument is that the doctrine of recreational immunity, found in Minn. Stat § 466.03, subd. 6e (2000), bars Stiele’s suit. Because Stiele’s injury occurred in the city’s park, it is undisputed that his claim is subject to the application of recreational use immunity. That immunity, however, is not absolute:

Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to dam'ages against a private person.

Id.

Although the statute imposes upon a municipality the same standard of care that a private person owes a trespasser, the statute does not define that standard of care. The city contends that the general trespasser standard, found in section 335 of the Restatement (Second) of Torts, is the proper standard, while Stiele contends that the child trespasser standard, found in section 339 of the Restatement, applies. In our opinion, the general trespasser standard is the appropriate standard.

As the supreme court noted in Sirek by Beaumaster v. State, Dep’t of Natural Resources, 496 N.W.2d 807, 811 (Minn.1993), section 339 does not apply where dangers “may reasonably be expected to be understood and appreciated by any child of an age to be allowed at large.” (quoting Restatement (Second) of Torts § 339 cmt. j (1965)). In the present case, Stiele was playing at the park with friends and was under no supervision. Because Stiele was apparently allowed to be at large, and the danger of a three-to-four-foot-high metal signpost should be understood by any child allowed at large — especially an 11 year old with no disability — it is our view that the general trespasser standard should apply in this case.

Moreover, in several cases the supreme court has recognized that the imposition of the more rigorous standard of section 339 may well require that parks be “childproofed.” In Sirek, the supreme court held that the general trespasser standard applied to children accompanied by adults in state parks. 496 N.W.2d at 811. In doing so, the court noted that imposing the child trespasser standard

would require the ‘childproofing’ of vast areas of state parks,'which would violate the spirit underlying the preservation of ‘Minnesota’s natural and historical heritage for public understanding and enjoyment.’ (Citation omitted.)

Id.

In Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn.1994), the court noted the Sirek court’s wariness “of requiring child proofing of state parks * * * ” ancj appiiecj ⅛6 game policy consideration in a suit against a municipality (citation omitted). While both Sirek and Johnson involved children who were under adult supervision, the same concern about requiring parks to be childproofed applies equally here. For these reasons, we conclude that the general trespasser standard, found in section 335, applies in this case.

Section 335 provides:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or seriously [sic] bodily harm to such trespassers and
(in) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Id. (quoting Restatement (Second) of Torts (1965)). Stiele must establish that all elements of section 335 have been met in order to defeat an immunity claim. Schaffer v. Spirit Mountain Recreation Area Authority, 541 N.W.2d 357, 360 (Minn.App.1995) (citation omitted). We conclude that Stiele failed to show two elements imposed by section 335:(1) the condition, to the city’s knowledge, is likely to cause death or serious bodily injury, and (2) the condition is of such a nature that the landowner has reason to believe trespassers will not discover it.

With respect to the first element, the city contends that a signpost next to a satellite restroom is not a condition likely to cause death or serious bodily injury. Conditions that satisfy this requirement “generally have inherently dangerous propensities, such as a high voltage electrical wire.” Johnson v. State, 478 N.W.2d 769, 773 (Minn.App.1991) (citing Restatement (Second) of Torts § 335 (1965) (illustration)), review denied (Minn. Feb. 27,1992). Further, “[t]he Restatement requires the condition to be likely to cause serious bodily harm, not that serious ‘might’ actually result.” (Emphasis added.) Id. In the present case, while the signpost might cause serious bodily harm (it did not in this case), it was not likely to cause death or serious bodily harm. Moreover, Stiele has to show that the city knew about any danger the signpost posed. The record demonstrates that the city had received no previous complaints or indications that the signposts might be dangerous. Thus, Stiele has failed to satisfy the element of section 335 that requires him to show that to the city’s knowledge, the condition was likely to cause death or serious bodily harm,.

The city further contends that the condition was not hidden and therefore it had no duty to protect trespassers from the condition. We agree. “Generally, whether a condition was hidden depends on whether the condition was visible, not on whether the injured party actually saw the danger.” Steinke, 525 N.W.2d at 177 (citation omitted). Here, Stiele testified that he saw the signpost after the accident. Further, a park employee testified that the signpost was in plain view if a person approached the restroom. Finally, because Stiele did not look at the ground before jumping off the fence, there is no evidence in the record that the signpost was hidden. Thus, Thiele has failed to meet the element of section 335 that requires him to show that the condition was hidden.

In short, Thiele has failed to show two of the elements he must show in order to defeat the city’s recreational use immunity defense. We conclude that the city is therefore immune from suit under Minn. Stat. § 466.03, subd. 6e.

II.

In light of our decision that the recreational immunity statute controls, it is not necessary to consider the city’s discretionary immunity claim.

DECISION

Because the city is immune from suit under Minn.Stat. § 466.03, subd. 6e, the district court erred by denying the city’s summary judgment motion.

Reversed.

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


author: WILBUR, Circuit Judge.

text:
    2002 SD 61
    JAMES RIVER EQUIPMENT CO., f/k/a Brandt Equipment Co., a South Dakota Corporation, Plaintiff and Appellant, v. BEADLE COUNTY EQUIPMENT, INC., a South Dakota Corporation, Defendant and Appellee.
    No. 21986.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2002.
    Decide May 22, 2002.

      James E. Moore and Jennifer L. Woll-man of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Rodney Freeman, Jr. and Kent A. Shelton of Churchill, Manolis, Freeman, Kludt, Shelton & Burns, Huron, South Dakota, Attorneys for defendant and appellee.
   WILBUR, Circuit Judge.

[¶ 1.] James River Equipment Co. (James River), formerly known as Brandt Equipment Co., purchased an implement dealership from Beadle County Equipment, Inc. (Seller). Used equipment constituted a significant part of the transaction. After the purchase, James River discovered that the hours of usage for five combines that were part of the used equipment inventory were not as indicated by Seller. James River sued for breach of contract and breach of express warranty. A court trial was held. The trial court found no actionable warranty existed. James River appeals. We affirm in part and reverse and remand in part.

ISSUE

[¶ 2.] Did Seller make an express warranty? If so, did Seller breach the express warranty?

STATEMENT OF FACTS

[¶ 3.] On February 23,1994, the parties entered into a written agreement for James River to purchase Beadle County Equipment for approximately $1,800,000. Ace Brandt, the principal shareholder and President of James River, negotiated and executed the agreement with Pete Mies, the President of Beadle County Equipment (Seller).

[¶ 4.] As part of the transaction, James River purchased all used equipment inventory held by Seller as of the date of the agreement. The used equipment was valued at $1,361,000. Seller identified the used equipment inventory on a separate schedule attached to the purchase agreement as Exhibit C and incorporated by reference. Seller made various representations on Exhibit C regarding the listed equipment. Among other things, those representations included descriptions regarding the number of hours the equipment had been used.

[¶ 5.] The purchase agreement entered into between the parties provided that “[a]ll representations and warranties by Seller set forth in the Agreement shall be true and correct in all material respects as of the Closing.” The agreement also provided that “Buyer acknowledges that the Purchased Assets to be purchased hereunder are being conveyed to Buyer in an ‘AS IS’ condition and that neither Seller nor Seller’s agents or employees have made any representation to Buyer concerning the condition of the Purchased Assets, or any of them, except as specifically provided in this Agreement.”

[¶ 6.] The parties gave contradictory testimony regarding whether Seller made any oral representations regarding the number of hours listed for the used equipment. After the closing on February 24, 1994, James River learned that five of the used John Deere combines had substantially more hours of use than Seller had represented in Exhibit C.

[¶ 7.] James River testified that the differences in the hours between what was represented on Exhibit C and what he actually found after closing affected the value of the combines. Seller agreed that the amount of time a machine has actually been operated as indicated by the hours of usage is a factor in determining its value.

[¶ 8.] The trial court found in favor of James River on several smaller claims which are not part of this appeal and awarded James River a total of $7,435.64 in damages. However, the trial court did not find in favor of James River on its claim for breach of express warranty.

STANDARD OF. REVIEW

[¶ 9.] The existence of an express warranty presents a mixed question of law and fact. Whether certain words were spoken or written presents a question of fact. Determining what those spoken or written words mean involves a question of law. Thus, the trial court’s findings of fact are reviewed by this Court under the clearly erroneous standard. Arnold Murray Construction, LLC v. Hicks, 2001 SD 7, ¶ 6, 621 N.W.2d 171, 174. Pursuant to this standard, we will reverse a finding of fact only “[if] we are left with a definite and firm conviction that a mistake has been made.” Id. (citations omitted).

[¶ 10.] “On appeal, this Court can read a contract itself without any presumption in favor of the trial court’s determination.” Thunderstik Lodge, Inc. v. Reuer, 1998 SD 110, ¶ 12, 585 N.W.2d 819, 822 (additional citations omitted). For that reason, the interpretation of contractual provisions is a question of law, which we review de novo. Mahan v. Avera St. Luke’s, 2001 SD 9, ¶ 15, 621 N.W.2d 150, 154. See also Icehouse, Inc. v. Geissler, 2001 SD 134, ¶ 7, 636 N.W.2d 459, 462.

DECISION

[¶ 11.] James River contends that the written statement of hours of usage for the five combines in question found in Exhibit C attached to the purchase agreement constitutes an express warranty by Seller. In addition, James River contends that when asked specifically about the accuracy of the hours listed on Exhibit C, Seller affirmatively asserted the hours were accurate.

[¶ 12.] The trial court resolved the factual disputes about what words were spoken in favor of Seller and found that there were no oral express warranties made by Seller regarding the hours on the combines. The trial court also found no actionable warranty in Exhibit C, the attachment to the purchase agreement.

[¶ 13.] The trial court was in the best position to gauge the credibility of witnesses regarding oral representations. The trial court resolved the factual disputes on this issue in favor of Seller. Thus, the trial court’s finding that no oral representations were made by Seller will not be overturned by this Court unless we are definitely convinced a mistake has been made. James River has presented no argument regarding the trial court’s finding on this issue that persuades us that a mistake has been made. Therefore, we find no error in the trial court’s findings as to oral warranties or oral representations.

[¶ 14.] The primary issue is whether the written representations made by Seller in the purchase agreement constitute an express warranty. Seller contends that the attachment to the purchase agreement, Exhibit C, merely identified the used equipment to be included in the sale. Seller further states he had no intention to warrant or guarantee the accuracy of the hours stated for the equipment. In addition, Seller argues that the opportunity to inspect prevents James River from claiming Seller misrepresented the hours on the used equipment. Finally, Seller argues the “as-is” clause in the purchase agreement effectively disclaims Seller’s description of the used equipment.

1. Purchase agreement contains express warranty

[¶ 15.] This case involves the sale of the assets of a business. The assets sold included the following fixed assets: non-John Deere parts, used equipment, other assets such as work orders, sales-in-progress, intangible personal property, customer lists, and the corporate name and goodwill.

[¶ 16.] The parties have briefed and argued the facts as if this were a sale of “goods” under Article 2 of the Uniform Commercial Code (UCC). Our decision on the express warranty issue would likely be the same utilizing either an analysis under the UCC or common law. We will analyze the breach of warranty issue in this case under the UCC.

[¶ 17.] The UCC and its predecessors, including the Uniform Sales Act, as applied to express warranties, are “consistent with the common law principle which provided that the seller who affirms any fact or makes any promise concerning the goods which he or she is selling makes an express warranty, if the buyer, relying on that affirmation or promise, is induced to buy the goods.” 2 Deborah L. Nelson & Jennifer L. Howicz, Williston on Sales § 15-6, at 377 (5th edl995) [hereinafter Williston on Sales].

[¶ 18.] Under SDCL 57A-2-313(l)(a) and (b), it would appear Seller made an affirmation of fact or offered a description of the used equipment which became a part of the agreement through the attachment, Exhibit C. Seller represented by affirmation or description that the combines described by the number of hours in Exhibit C would match those descriptions. “Statements ... [that goods] are of a certain age or year of manufacture, are express warranties. The same is true of a statement ... that the goods are not second-hand. Thus, a statement that an automobile has been driven only a few miles ... is an express warranty.” 67A AmJur 2d Sales § 735 (1985).

[¶ 19.] Seller urged the trial court to go beyond Exhibit C to determine the nature of the agreement. Seller argues that Exhibit 2, a working copy of Exhibit C, formed the basis of the bargain and that Exhibit C was attached to the agreement “simply to provide a clean copy” because Exhibit 2 had markings on it.

[¶ 20.] On Exhibit 2, someone increased the number of hours of usage on combine # 2286L from the incorrect number, 1435 hours, to the correct number, 2040 hours, and the computer-generated price of $80,000.78 was reduced to $69,000. It is not clear who made the alterations or why or when the alterations were made.

[¶ 21.] Purchase agreements “may incorporate by reference another document containing technical specifications for the product, and this will likely create an express warranty by description.” 67A AmJur2d Sales § 739 (1985) (emphasis added). See White’s Elec., Heating, Air & Plumbing v. Lewis Constr. Co., No. 02A01-9803-CH-00064, 1999 WL 605654, at *13 (Tenn.Ct.App.1999) (stating that neither physical attachment nor specific language is necessary to incorporate a document by reference; “[t]he incorporating instrument must clearly evidence an intent that the writing be made part of the contract”); U.S. v. Outer Harbor Dock & Wharf Co., 124 F.Supp. 337, 343 (S.D.Cal.1954) (holding that a contract may refer to another contract for details or conditions and that the contract referred to must be considered as a part of the contract in which the reference was made).

[If 22.] The contract in this case makes no reference to Exhibit 2. Exhibit 2 was not attached to the. contract. Therefore, the parol evidence rule prohibits consideration of Exhibit 2, which was not made part of the purchase agreement, to the extent it conflicts with Exhibit C. See SDCL § 57A-2-202 (stating that “[t]erms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as, ar.e included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement!.]”). See also Dakota. Pork Industries v. City of Huron, 2002 SD 3, ¶ 14, 638 N.W.2d 884, 886.

[¶ 23.] Exhibit C speaks for itself. See Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 17, 575 N.W.2d 225, 232 (stating that where an agreement “speaks for itself,” “[w]e are not concerned with discovering latent understandings, if to do so would controvert the terms of an unambiguous writing.”).

2. Seller’s intentions immaterial

[¶ 24.] A reading of SDCL 57A-2-313(2) would indicate that whether Seller intended the exhibit attached to the purchase agreement to be an express warranty is irrelevant. It is generally recognized that in order to create a warranty, it is unnecessary that the Seller’s representation be scrutinized as a matter of intent. Williston on Sales, supra, § 15-6 at 382.

if the affirmation or the representation is unequivocal and clearly distinguishable from seller’s mere puffing of the product and the buyer understands that affirmation or representation to be a warranty and relying on it buys the goods, the seller cannot at that point escape liability merely by claiming he or she had not intended to create the warranty.

Id.

3. Express warranty not negated by opportunity to inspect

[¶ 25.] Seller argues, and the trial court agreed in its bench decision, that James River had the opportunity to and did inspect the used equipment inventory before closing, and that opportunity and inspection negated any express warranties. The trial court relied on the case of Roper v. Noel, 32 S.D. 405, 143 N.W. 130 (1913). The Court in Roper held that, in a fraud case, an instruction should have been given instructing that a party must show that he availed himself of information existing at the time of the transaction before he can demonstrate deceit. Id. at 132. However, the trial court and Seller ignored the fact that this Court recognized that such an instruction should also inquire as to whether a warranty of the facts existed. Id.

[¶ 26.] Moreover, the UCC provides that whether an inspection was made of the goods to be purchased is not determinative of the existence of an express warranty. UCC § 2-316(3)(b) excludes only implied warranties as to defects which examination ought to have revealed. See also SDCL 57A 2-316(3)(b).

With respect to implied warranties, the Uniform Commercial Code provides that when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired, or has refused to examine the goods, there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him. But with regard to express warranties the situation is different. Under the Code, the real test of whether an express warranty exists is whether the warranty became a part of the basis of the bargain, and the Code does not exclude an express warranty where the buyer has the opportunity for inspection, or does inspect the goods.

67A AmJur 2d Sales § 699 (1985) (emphasis added)

4. The express warranty made by Seller was not disclaimed by the “as is” clause in the purchase agreement

[¶ 27.] Seller claimed that he sold the used equipment inventory to James River on an “as is” basis, and that the “as is” clause of the purchase agreement disclaimed any express warranties made. The trial court agreed in its bench decision that “there is an express provision in the agreement as well that the properties are being sold as is.... ”

[¶ 28.] “Disclaimers of warranty are to be strictly construed against the seller.” Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133, 142 (S.D.1977) (citations omitted). See also 67A AmJur2d Sales § 822 (1985) (“Warranty disclaimers under the Code are not favored and are strictly construed against the seller or manufacturer on public policy grounds.”).

[¶ 29.] The UCC contemplates that only implied warranties can be disclaimed by use of “as is” clauses. The only UCC provision addressing “as is” clauses provides that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty[.]” UCC § 2-316(3)(a); see also SDCL 57A-2-316(3)(a). The official comment to that section confirms its plain meaning, i.e., that “[o]nly implied — not express — warranties are excluded in ‘as is’ transactions.” See Tenwick v. Byrd, 9 Ark.App. 340, 659 S.W.2d 950, 952 (1983) (citations omitted). See also City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794, 796 (1974) (‘We ... conclude that the ‘as is’ language used here is ineffective to negate an express warranty.” (citation omitted)); Society Nat. Bank v. Pemberton, 63 Ohio Misc. 26, 409 N.E.2d 1073, 1076 (1979), (holding that, while an “as is” clause in a sales agreement is normally sufficient to disclaim all implied warranties, express warranties “are not so easily withdrawn from the parties’ agreement”).

In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller’s obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming “all warranties, express or implied” cannot reduce the seller’s obligation with respect to such description and therefore cannot be given literal effect under Section 2-316.

UCC § 2-313 emt 4 (1989). Regardless, “whether implied warranties have been excluded is immaterial when the buyer sues on an express warranty.” 67A AmJur2d Sales § 830 (1985). Therefore, the UCC does not permit “as is” clauses to disclaim express warranties.

[¶ 30.] The South Dakota Supreme Court, interpreting North Dakota’s UCC provisions, which are identical to SDCL 57A-2-316, stated in Husky Spray Service, Inc. v. Patzer, 471 N.W.2d 146, 151 (S.D.1991):

Section 2-316 of the UCC (NDCC 41-02-33) protects buyers from disclaimers inserted into written contracts or similar forms which are inconsistent with express warranties. Thus, where an express warranty and a disclaimer of the express warranty exist in the same sale, there is an irreconcilable conflict and the disclaimer is ineffective, (citations omitted)

CONCLUSION

[¶ 31.] Seller’s written representations in Exhibit C attached to the purchase agreement about the condition and number of hours of use as to the five combines constitute an express warranty. The number of hours of usage on several of the combines was greater than promised by Seller in the contract. Therefore, Seller breached the express warranty he made in the contract regarding the number of hours of usage for the combines in question. The trial court’s judgment as to breach of express warranty is reversed and this matter is remanded to the trial court for a determination of damages caused by the Seller’s breach.

[¶ 32.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 33.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 34.] WILBUR, Circuit Judge, for SABERS, Justice, disqualified.

      . Clearly there may be circumstances where the UCC would be inapplicable to the sale of a business. We leave that discussion for another day.

      . 57A-2-313(l)(a)(b):
      (1) Express warranties by the seller are created as follows:
      (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
      (b) Any description of the goods which is made part of the basis of the bargain ere-ates an express warranty that the goods shall conform to the description.

      . SDCL 57A-2-313(2):
      It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant” or "guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.


author: KONENKAMP, Justice.

text:
    2002 SD 63
    Troy STALLINGS, Jane Shorma, and Creative Building Corporation, Plaintiffs and Appellants, v. Leycester OWENS, Jr., Helen Owens and James Reynolds, Defendants and Appellees.
    No. 21943.
    Supreme Court of South Dakota.
    Argued March 27, 2002.
    Decided May 22, 2002.

      Rick Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, South Dakota, David V. Vrooman, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    James E. McMahon, Sioux Falls, South Dakota, Tamara A. Wilka of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, South Dakota, Attorneys for defendants and appellees Owens.
    Michael L. Luce, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees Reynolds.
   KONENKAMP, Justice.

[¶ 1.] A developer discussed with the landowners the potential sale of their land conditioned on the feasibility of obtaining sufficient lot purchasers and local government approval. When the developer obtained commitments for lot purchases and offered the landowners their asking price, the landowners nevertheless decided to sell the land to a neighbor. The developer sued the landowners for breach of an oral joint venture agreement and sued the neighbor for intentional interference with contractual relations. The circuit court granted summary judgment against the developer on all issues. We conclude that the essential elements for a binding joint venture agreement were missing and the absence of an agreement moots the question of the alleged tortious interference. Accordingly, we affirm.

Background

[¶ 2.] Defendants Leycester and Helen Owens are the owners of a 10.67-acre parcel of land in the southern part of Sioux Falls, South Dakota. James Reynolds is- a neighbor, as well as a physician-partner with Leycester Owens in North Central Heart Clinic. In the early 1980s, Reynolds had suggested to Dr. and Mrs. Owens (the Owens) that they buy the tract, with a view toward eventually building a house there. However, by the summer of 1998, the Owens,- not having developed the property, decided to sell it. As they had given Reynolds a right of “first and last refusal,” the Owens asked Reynolds whether he was interested in purchasing it. At that point, Reynolds declined to exercise his option.

[¶ 3.] Plaintiffs Troy Stallings and his wife, Jane Shorma, are land developers, operating under their business, Creative Building, Inc. In September 1998, Troy Stallings,' heard that the Owens were interested in selling the property. He called them to determine what their intentions were. At their first meeting, Leycester Owens told Stallings that he was asking $700,000 for the property. Interested, Stallings accompanied Owens to the land, and they walked it together. On that occasion, Owens also introduced him to Reynolds and his wife Debbie, and the four of them discussed development possibilities. Stallings expressed the view that the parcel might be divided into eight or nine lots for home sites. According to Stall-ings’s uncontested testimony, Reynolds mentioned that he was not, at that time, interested in exercising his option. In his own testimony, Reynolds explained his initial refusal by reference to another condition which' Owens had placed on the sale: it was to be developed only in such a way as would gather the approval of the four neighboring households. At this first meeting, Stallings understood that Reynolds had given the Owens carte blanche to develop the property as they chose.

[¶ 4.] At a second, later meeting, Stall-ings and Leycester Owens discussed the price that eight lots would be likely to bring and the cost of necessary infrastructure. By that time, Stallings had engaged the services of an engineer-surveyor, who estimated the development costs at $338,200. Stallings reckoned that the individual lots would sell for $125,000 at most; Owens thought that they might bring $150,000 each. At the end of the meeting, Stallings agreed to see whether he could find buyers willing to pay $150,000 per lot, and Owens agreed to let Stallings stake the property and to allow prospective buyers to look it over. Stallings proceeded to do so, and, according to him, told his prospects that the Owens were “selling the property to him, ... that the property was going to be divided into eight lots, and that he would then close on the property with [the Owens] and would expect them to close immediately on their lots.” According to his testimony, Stallings also imparted three more bits of information to potential buyers: (1) that the existing households in the neighborhood were generally opposed to the proposed development, (2) that if the eight-lot subdivision were not approved by the Planning Commission, they would not be obliged to purchase their lots because he would not consummate the purchase with the Owens, and (3) that he, Troy Stallings (not the Owens), was to be the home developer on all of the lots. Stallings also testified that, on more than one occasion, when he asked to put his agreement with Leycester Owens in writing, Owens responded that no contract was necessary because his word was his bond. Owens denied such an exchange.

[¶ 5.] The opposition from the neighbors stemmed from two principal causes. First, the acreage had been a defacto park for the neighborhood for over fifteen years, and the neighbors were reluctant to lose the recreational opportunities and aesthetic enhancement it afforded. Second, the proposed entry to the property would at least double the traffic on an already narrow private road. In addition, the neighbors were variously concerned about drainage, access by fire and police vehicles, and the length of the road leading to the cul-de-sac that would provide access to the new houses.

[¶ 6.] Hearing of the development plans, the neighbors began to meet in late 1998 or early 1999 to discuss what might be done to deter the development. They engaged a lawyer to advise them and a surveyor to provide an independent opinion of the likely topical impacts of the development. The neighbors also began a letter-writing campaign to the Sioux Falls Planning Commission. Because the development called for more than one house on the property, the Commission had to approve the plan before work could begin. The plan was submitted to the Commission in the early spring of 1999. After studying it, the Commission’s staff recommended that the development be limited to four single-family residences. An initial hearing before the Commission was to be held on April 7, 1999, but, learning of the staffs recommendation, Stallings’s surveyor-engineer requested a postponement until May 5, 1999, so that the plans could be reworked to address the problems mentioned in the staff report. The Commission granted the request.

[¶ 7.] The days just before the May 5 hearing were eventful. On May 3, the Owens hosted a meeting of the neighbors at their home to present the development plan, at that time somewhat revised in response to the concerns of the Commission’s staff, but still containing eight lots. The neighbors argued vigorously that the property should .be divided into no more than two lots. On the next evening, the neighbors met again to complete their planned presentation for the next day’s Commission hearing. After the meeting was over, Reynolds telephoned Leycester Owens to report that the neighbors were “dead set against” the project. During that conversation, Reynolds offered to purchase the property for $550,000. Owens rejoined that he would be willing to consider an offer of $575,000, and Reynolds amended his offer to $575,000 payable on a contract for deed at eight percent interest. On the morning of May 5th, Stallings spoke with Leycester Owens by telephone and offered to pay $600,000 for the land and to divide it into no more than four lots. Owens, in turn, telephoned Reynolds to report this offer and to ask whether it would be acceptable to the neighbors. Upon hearing that a four-residence development would still meet with the neighbors’ opposition, Owens agreed to sell the land to Reynolds for $575,000. Owens then called Stallings to tell him that he had accepted Reynolds’s offer. According to testimony, Reynolds, himself one of the neighbors opposed to a four-unit development, as much wished to save the Owens from the opprobrium of the neighbors as the Owens were, by that point, unwilling to incur it. (Despite the offer and acceptance, Owens testified nearly nine months later that his agreement with Reynolds had not yet been consummated. with an actual sale.) Neither Stallings nor Owens made a presentation to the Planning Commission.

[¶ 8.] In their complaint, Stall-ings and Shorma allege, first, that the agreement between Stallings and the Owens was a joint venture and that the Owens breached this agreement and an implied covenant of good faith; second, that Stallings and Shorma, to their detriment, reasonably relied on this agreement and suffered economic damage as a result of the Owens’ breach; third, that the Owens’ representations regarding the agreement were fraught with deceit; and, fourth, that Reynolds intentionally interfered with Stallings and Shorma’s legitimate business expectancy. The circuit court granted summary judgment against Stallings and Shorma. On appeal, we confront the following issues: (1) Did Leycester Owens and Troy Stallings establish a joint venture? (2) Does the 'statute of frauds apply to the Owens-Stallings agreement, and, if so, should the Owens be estopped from relying on it? (3) Did Reynolds tortiously interfere with the Owens-Stallings agreement? (4) Did Leycester Owens commit the tort of deceit in representing to Troy Stallings that the property was actually for sale, through Stallings, to the public generally? We need not reach Issues 2 and 3 because we rule against Stallings and Shorma on Issue 1, finding no valid joint venturfe. We do not reach Issue 4 because Stallings and Shorma specifically waived it during oral argument.

Analysis and Decision

[¶ 9.] What is understood in South Dakota to be a joint venture has developed over the last century from the more general relation of partnership. From 1908 through at least 1949, this Court spoke of joint venture and partnership as synonymous. Consider the following passages. “The execution of the contract created a ‘partnership or a joint venture, which was in essence and effect a partnership transaction, and, though the stock in trade was real estate, it was, as to the interests of the parties, to be regarded as personal property.” McPherson v. Swift, 22 S.D. 165, 173, 116 N.W. 76, 79 (1908). “He testified that in the presence of respondent the doctor made a proposition to Stroub to go to South Dakota and work the farm as a joint venture or partnership.” Douglas v. Beebe, 46 S.D. 559, 561-62, 195 N.W. 165 (1923).

The evidence of respondent, taken as a whole, and with the trial court’s decision as to its verity, is sufficient to sustain the decision that a partnership relation or that of a joint venture, existed between the parties, authorizing the sale of the premises by Bowler, binding appellant to the terms thereof.
In this approval of the trial court’s decision, on the matter of the existence of a partnership or joint venture, there is no intention to relax the established rules, which require substance and definiteness in proof of such a claim.

Hardman v. Lasell, 55 S.D. 176, 183-84, 225 N.W. 301, 304 (1929). “Under these circumstances the commissioner could readily infer that the arrangement with James was simply for the purpose of augmenting McDonald’s business, that there was no partnership or joint venture .... ” James v. McDonald, 73 S.D. 78, 83, 39 N.W.2d 478, 480 (1949).

[¶ 10.] In Davenport v. Buchanan, a case predating all those mentioned above, this Court recognized the existence of a “special partnership,” the antecedent of what we now know as a joint venture. 6 S.D. 376, 61 N.W. 47 (1894). In the Syllabus by the Court, we began the process of isolating the key elements of a joint venture:

1. A parol contract entered into between B. and D., by which they mutually agree to jointly purchase certain real property, and to contribute and pay an equal amount therefor, and to share equally in the profit or loss arising from a resale, is not an agreement for the sale of real property contemplated by section 3544 of the Compiled Laws, which requires the same, or some memorandum or note thereof, to be in writing, and subscribed by the party to be charged; but the same is held to be an agreement in the nature of a special partnership, for the purpose of dealing in a particular piece of real estate, and not within the statute of frauds.
2. The relation thus established, being of a fiduciary character, imposes upon each the duty of fair and open dealing with the other, and each has a right to rely explicitly upon the statements of the other concerning all matters pertaining to their business relations....

Id. at 376, 61 N.W. at 47. We see this process continuing in Hilde v. Flood, 81 S.D. 25, 130 N.W.2d 100 (1964). There, we found helpful guidance in Corpus Juris Secundum and American Jurisprudence:

The court’s finding that the association entered into by these parties on February 11, 1958, was a joint venture is, we think, well supported by the evidence.
... [T]he court also found that the parties were to share the profits and losses equally. This determination we think a proper one. Absent an agreement to the contrary, the law presumes they intended that each would share equally. 48 CJS, Joint Adventures § 11; 30 Am-Jur, Joint Adventures § 42. Flood made no effort to show that there was any percentage agreement to the contrary. Rather on this issue he confined himself to denying that their association on the Cheyenne project was a joint venture. On the other six projects .in which they were joint adventurers he conceded they were to ’ share equally.

Hilde, 81 S.D. at 32-33, 130 N.W.2d at 104. Then, in Fredrickson v.- Kluever, 82 S.D. 579, 152 N.W.2d 346 (1967), we distinguished partnerships and joint ventures.

A partnership is statutorily defined as an association of two or more persons to carry on as co-owners a business for profit. SDC 49.0201(1). This is ordinarily a formal association of a continuing nature for the conduct of a general business. Although a joint venture, or joint adventure as it is otherwise called, is sometimes compared to a partnership it is usually a less formal association entered into to' perform a more limited business function for a more limited time.

Id. at 582, 152 N.W.2d at 347-48 (citing Fishback v. United States, 215 F.Supp. 621 (D.S.D.1963)).

[¶ 11.] From that background, this Court, in Ethan Dairy Products v. Austin, for the first time made an explicit listing of the legal elements required for a business entity to be properly termed a joint venture, with the legal consequences that denomination carries. 448 N.W.2d 226 (S.D.1989). With an eye to two passages in the Corpus Juris Secundum, we wrote:

The elements of a joint venture are: (1) an agreement, express or implied, among members of a group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose among the members; and (4) an equal right to a voice in the direction and control of the enterprise.

448 N.W.2d at 228 (citing Fredrickson, supra; Hilde, supra). Finally, making explicit what was already implicit in Ethan Dairy, we have, in Weins v. Sporleder, settled on the following six elements, most, if not all, of which must be present for an agreement to be recognized as a joint venture. 1997 SD 111, 569 N.W.2d 16. The parties must (1) exhibit an intent to enter into a joint venture, (2) reach an agreement, express or implied, to enter that venture, (3) havé a common purpose, (4) have a joint pecuniary interest in that purpose, (5) have an equal right to a voice in the direction and control of the venture, and (6) have (a) a right to share in the profits from the venture and (b) a duty to share in its losses. Id. at ¶ 44, 569 N.W.2d at 28 (citing Ethan Dairy, 448 N.W.2d at 228).

[¶ 12.] The agreement between Leycester Owens and Stallings arose from the following fact situation: The Owens wanted to sell the land; they had given Reynolds a right of first refusal; they had also promised Reynolds that the land would not be sold for a development undertaken in opposition to the wishes of the neighbors; and upon the Owens’ initial inquiry in the summer of 1998, Reynolds indicated that he was not at that time interested in purchasing the property. In September 1998, Stallings learned that the Owens were interested in selling. Stall-ings and Leycester Owens reached an agreement that Stallings would be allowed to test the market by determining whether enough interested buyers could be found to justify his purchasing the land from the Owens at a price they would accept. With this understanding, the Owens allowed Stallings to stake the land and show it to prospective buyers. The Owens did not engage Stallings as their agent, nor did they give Stallings permission to represent to prospective buyers that the land belonged to anyone other than the Owens. In the words of his own brief,

Stallings testified that he and Owens were in a joint venture because he had to purchase the property from Owens. If Owens knew of somebody who wanted a lot, he would have them [sic] call Stall-ings. Stallings was footing the up-front costs, and, when the lots were sold, Owens was to get the first $700,000 and Stallings anything over $700,000 and the opportunity to build the houses.

[¶ 13.] As to shared intent to form a joint venture, it is clear that there was none: the Owens had property to sell, but only upon the conditions, first, that Reynolds did not offer to buy it, and, second, that the neighbors approved of the plans for developing the property. Stallings and Shorma were interested in buying the property, but only upon condition that they could find enough prospective buyers to whom they could resell the property in parcels suitable for residential lots. At best, then, we have only conditionally willing sellers and only conditionally willing buyers, and it was not entirely in the power of the one to meet the conditions of the other. The agreement they reached was itself conditional, reflecting the contingencies under which each was proceeding. There was no common purpose: the parties were independent actors, working for their own ends. They did not have a joint pecuniary purpose: the Owens were the sole owners of the property and intended to sell it under appropriate conditions. They did not intend to become part-time land developers. And Stallings and Shor-ma made no attempt to interest the Owens in developing the property. Since there was no common venture, it makes no sense even to speak of an equal voice in its direction and control. Finally, even if the sale had been consummated, the Owens were to receive a fixed price, whereas Stallings and Shorma were in a position to lose or gain from the subsequent partitioning into lots and the building of houses on them. The record shows no evidence of the existence of a joint venture between these parties.

[¶ 14.] Since no joint venture was created or, indeed, any binding legal agreement, there is no occasion for us to determine whether the statute of frauds applies, nor do we reach the question of Reynolds’s alleged tortious interference: there was no legally binding agreement with which Reynolds could have interfered.

[¶ 15.] Affirmed.

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

[¶ 17.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . In reviewing a grant of summary judgment, we must determine whether the moving party demonstrated the absence of any genuine issues of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis to support the ruling of the trial court, affirmance of a summary judgment is proper. Garrett v. BankWest, Inc., 459 N.W.2.d 833 (S.D.1990) (citations omitted).

      . Note our isolation of the equal contributions and the equal sharing of profits and losses, as well as our acknowledgment of the fiduciary character of the relationship.

      . "Joint venture," a term used interchangeably and synonymous with "joint adventure,” or coventure, has been defined: as a special combination of two or more persons, where in some specific venture a profit is jointly sought without the necessity of any actual partnership, corporate designation, or other business entity, or as an association of persons or legal entities to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.
      48A CJS Joint Ventures § 2 (1981).
      Certain requisite elements of the relation have been recognized by the courts, including intent to enter into a joint venture, community of interest in the performance of a- common purpose, a joint proprietary interest' in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained ... and usually all of these elements must be present for a joint venture to exist; but no one of the elements essential to the creation of a joint venture is alone sufficient to establish such. 48A CJS Joint Ventures § 10 (1981).

      . To quote Sporleder:

      The elements of joint venture are: 1) an intent to enter into a joint venture; 2) an agreement, express or implied, among members of a group; and 3) a common purpose to be carried out by the group; 4) a joint pecuniary interest in that purpose; 5) an equal right to a voice in the direction and control of the group; and 6) a right to share in the profits and a duty to share in any losses.
      1997 SD 111. II 44. 569 N.W.2d 16. 28.

      . As we said in Ethan Dairy, "[c]ourts should be cautious .in characterizing the nature of a business relationship without first carefully examining the usage and practice peculiar to the commercial enterprise in question.” 448 N.W.2d at 228. Unfortunately, the agreement between Owens and Stallings was singular and therefore gives us no particular guidance about relevant business practices. Accordingly, our analysis is highly fact-specific.