author: MARING, Justice.

text:
    2007 ND 20
    Paul K. HANSON, Plaintiff and Appellee v. Donald BOEDER, Defendant and Appellant.
    No. 20060114.
    Supreme Court of North Dakota.
    Feb. 6, 2007.

      Roger J. Minch, Serkland Law Firm, Fargo, ND, for plaintiff and appellee.
    Bruce H. Carlson, McNair, Larson & Carlson, Ltd., Fargo, ND, for defendant and appellant.
   MARING, Justice.

[¶ 1] Donald Boeder appeals a judgment awarding Paul Hanson $315,194.26 in damages and costs for breach of a farm lease. We conclude the district court’s award of damages is not clearly erroneous and we affirm.

I

[¶ 2] In 1998, Hanson signed a five-year lease to farm approximately 1,350 tillable acres of Boeder’s farmland in Steele County for $50 per acre beginning with the 1999 crop year. The lease also allowed Hanson use of grain bins with a capacity of 93,000 bushels and two machine sheds located on the property. The lease addressed reimbursement for fall tillage and the requirement that Hanson farm the land in a good and farmerlike manner:

[Hanson] has reimbursed previous renter ... for fall tillage on 1173.1 acres. [Boeder] agrees that [Hanson] also will be reimbursed for fall tillage if [Hanson] doesn’t farm the land.
[Hanson] agrees to farm the land in a good and farmerlike manner and also agrees to leave the land tilled in the same manner as when he received it.

Hanson was required to pay cash rent of $67,515 per year, with half due on April 1st, and the balance due on November 1st. In 2003, Boeder and Hanson renewed the lease for another five-year period ending in 2008.

[¶ 3] During the leases, Boeder and Hanson disagreed about Hanson’s farming practices, but in 2004 and 2005 their disagreements escalated. On August 2, 2005, Boeder told Hanson he had enough of Hanson’s farming practices, the lease was over, and he had leased the land to someone else. Boeder also told Hanson not to do the fall tillage because the new tenant wanted to do the work himself.

[¶ 4] Hanson sued Boeder, alleging Boeder intended to breach the contract by leasing the land to a third party. Hanson sought to enforce the contract, or alternatively requested all damages caused by Boeder’s breach of the lease. Boeder counterclaimed alleging Hanson breached the lease by failing to farm the land in a “good and farmerlike manner.” On September 26, 2005, Boeder moved for an injunction to stop Hanson from farming the land. On October 7, 2005, Hanson moved for a temporary restraining order to prohibit Boeder from terminating or interfering with the lease. On October 11, 2005, the court granted the temporary restraining order to maintain the status quo until a hearing could be held on the parties’ motions. The court held a hearing and on November 4, 2005, entered an order denying Hanson’s request for an injunction, concluding Hanson had an adequate remedy at law and equitable relief would not be available. During this time, Hanson continued to farm the land and completed the 2005 fall tillage before November 4, 2005 when the court held specific performance was not an available remedy.

[¶ 5] After a February 2006 bench trial, the district court found Boeder’s statement to Hanson that the lease was over and he had found a new tenant constituted an anticipatory repudiation of the lease. The court dismissed Boeder’s counterclaim, finding Boeder’s repudiation was not justified because Hanson had farmed the land in a “good and farmerlike manner,” and had not breached the lease. The court awarded Hanson $815,194.26 in damages and costs for lost profits, lost use of the grain bins and machine sheds, and the value of the fall tillage.

II

[¶ 6] Boeder argues the district court misapplied the law by failing to apply the doctrine of avoidable consequences to reduce Hanson’s damages. He claims Hanson did not mitigate his damages because Hanson had an opportunity to continue farming the Boeder land, which would have substantially reduced his damages, and chose not to.

[¶ 7] “A [district] court’s determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review.” Keller v. Bolding, 2004 ND 80, ¶ 22, 678 N.W.2d 578. A finding is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 15.

[¶ 8] Section 32-03-09, N.D.C.C., addresses damages for breach of contract:

For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by the laws of this state, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.

A person injured by the wrongful acts of another has a duty to mitigate or minimize the damages and must “ ‘protect himself if he can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided.’ ” Lochthowe v. C.F. Peterson Estate, 2005 ND 40, ¶ 21, 692 N.W.2d 120 (quoting Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 797 (N.D.1976)). The duty to mitigate damages is sometimes referred to as the doctrine of avoidable consequences. See Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶¶ 37-38, 689 N.W.2d 366.

[¶ 9] The district court found that Hanson tried to mitigate his damages by looking for other farmland to rent, but was unsuccessful. The court also found that Hanson was farming 4,000 acres including the land he leased from Boeder, but had the manpower and equipment to farm up to 5,000 acres. The court concluded that even if Hanson was able to find other farmland to rent, it would not have been replacement land but land to expand his farming operation, and therefore it would not have reduced his damages.

[¶ 10] The evidence presented at trial supports the court’s findings. Hanson testified that he was not aware of any farmland available for rent and he ran advertisements in the local newspapers looking for farmland to rent. He also testified that during the course of the lease, he was farming a total of 4,000 acres but he had the ability to farm 5,000 acres, and he was always looking for more land to rent to expand his farming operation.

[¶ 11] Boeder agrees that Hanson attempted to find other farmland to rent and admits he did not present any evidence to rebut Hanson’s claim that he was unable to find any other land available to rent. However, Boeder argues Hanson did not mitigate his damages because he had the opportunity to continue farming Boeder’s land for the remaining three years of the lease, after Boeder attempted to retract his repudiation during the trial. Boeder claims his land was an appropriate substitute to mitigate Hanson’s damages because it was a good fit for Hanson’s farming operation, it was available, and Hanson still had time to prepare for the 2006 crop year.

[¶ 12] We have said, “[a] retraction of an anticipatory repudiation after the injured party sues for enforcement, or damages comes too late.” Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 478 (N.D.1986). Adopting Boeder’s argument would circumvent the law concerning retraction, because the repudiating party would be allowed to retract after a lawsuit has been commenced. Boeder’s argument would encourage parties to repudiate a contract when they think they could get better terms in an effort to force the other party to renegotiate the contract.

[¶ 13] Boeder did not attempt to retract his anticipatory repudiation before Hanson commenced this action. Rather, Boeder continued to assert that the lease was terminated Until trial, and he then changed his argument and asked the court to order specific performance or find that Hanson did not mitigate his damages because he did not continue leasing Boe-der’s land. The district court had already found specific performance was not an appropriate remedy because money damages were adequate to redress any injury Hanson had suffered. A court’s decision whether to grant specific performance is discretionary. Livinggood v. Balsdon, 2006 ND 11, ¶ 6, 709 N.W.2d 723. We conclude the district court did not abuse its discretion in deciding specific performance was not available. We further conclude the district court did not misapply the law in finding Hanson attempted to mitigate his damages. The evidence supports the court’s findings on lost profits, and we are not left with a definite and firm conviction the court made a mistake in awarding Hanson damages for lost profits.

Ill

[¶ 14] Boeder argues the district court erred in awarding Hanson damages for the lost use of the grain bins and machine sheds because it resulted in a double recovery. He claims the damages for lost profits necessarily include the loss of use of the grain bins and machine sheds.

[¶ 15] This Court generally will not consider issues a party failed to raise in the district court:

One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the [district] court so it could intelligently rule on it. The purpose of an appeal is to review the actions of the [district] court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.

Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54 (quoting Chapman v. Chapman, 2004 ND 22, ¶ 7, 673 N.W.2d 920).

[¶ 16] During trial, Hanson presented evidence of the damages he incurred due to Boeder’s anticipatory repudiation, including expert testimony on the lost profits, and the loss of use of the grain bins and the machine sheds. Boeder failed to argue at trial that awarding Hanson damages for lost profits and for the loss of use of the grain bins and the machine sheds would be a double recovery, and therefore we will not consider this issue for the first time on appeal.

IV

[¶ 17] Boeder contends the district court clearly erred in awarding Hanson damages for the fall tillage. Boeder claims Hanson was not entitled to damages for the 2005 tillage because he told Hanson not to do the fall tillage, Hanson no longer had a duty to perform any of the terms of the contract if Boeder repudiated, and Hanson had a duty to mitigate or minimize his damages. Boeder also claims there was insufficient evidence of Hanson’s expenses for performing the 2005 fall tillage, and therefore the court erred in awarding damages for tillage.

[¶ 18] Boeder failed to raise this issue in the district court, and during trial Boe-der admitted he would have to pay Hanson for the 2005 fall tillage if the court found the lease was terminated. We generally do not consider issues not raised in the district court. Heng, 2006 ND 176, ¶ 9, 720 N.W.2d 54. Nevertheless, Boeder’s argument also fails on the merits.

[¶ 19] The appropriate standard of review in an appeal challenging a district court’s award of damages is whether the court’s findings of fact are clearly erroneous. Livinggood v. Balsdon, 2006 ND 215, ¶ 14, 722 N.W.2d 716.

[¶ 20] The district court concluded the fall tillage was a future damage because Hanson would have been paid for the fall tillage at the end of the lease in 2008 if the lease was not terminated:

As stated earlier, Hanson did do the fall tillage in 2005. The farm lease specifically provides that Hanson will be reimbursed for fall tillage if he does not farm the land in 2006. Here, however, Hanson has received damages as if he would have continued farming this property through 2008. Boeder had no responsibility to pay for the fall tillage if Hanson had farmed the property. Rather, Hanson would have been entitled to the cost of the fall tillage in the fall of 2008, which would have been the last year of the farm lease, if it had not been breached earlier. This too, then, is a future damage.

The court awarded Hanson damages for the value of the tillage work based on average custom rates.

[¶ 21] The district court erred in awarding Hanson future damages for the 2008 fall tillage. If the fall tillage is a future damage, it is a damage that could have been avoided and the doctrine of avoidable consequences should have been applied. However, we will not set aside a correct result merely because the district court’s reasoning is incorrect if the result is the same under the correct law and reasoning. State ex rel. North Dakota Hous. Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 12, 720 N.W.2d 425.

[¶ 22] Under the terms of the contract Hanson was required to leave the land tilled in the same manner as he received it, and Boeder was required to reimburse Hanson for that tillage. A breaching party’s repudiation discharges the injured party’s duty to perform, and the injured party generally will not be awarded damages for any part of his loss that he could have avoided by discontinuing performance. See 9 Arthur Linton Corbin, Corbin on Contracts § 983 (interim ed. 1979). However, in the present case when Hanson initially sued Boeder, Hanson sought as relief specific performance and only requested damages as an alternative remedy.

[¶ 23] The record indicates that on September 26, 2005, Boeder requested a preliminary injunction to stop Hanson from farming the land, and specifically from completing the fall tillage. On October 7, 2005, Hanson requested a temporary restraining order to maintain the lease. The court granted Hanson’s request for a temporary restraining order, and said, “the Application should be granted on an ex parte basis to maintain the status quo and to prevent irreparable harm until a hearing can be held and the Court can determine whether a temporary injunction should be issued.” The court held a hearing on November 2, 2005, and informed the parties that specific performance would not be an available remedy because money damages would adequately redress Hanson’s damages, if the court found for Hanson. The court entered an order denying Hanson’s request for an injunction on November 4, 2005. Hanson presented evidence that the fall tillage was completed in October 2005, while the district court’s temporary restraining order was in effect and before a hearing was held on the parties’ requests for injunctions. When the court found specific performance would not be an appropriate remedy, Hanson had already completed the fall tillage. Hanson performed the fall tillage while he was still pursuing specific performance, and under these circumstances we conclude he is entitled to damages for the fall tillage.

[¶ 24] Boeder also claims there is insufficient evidence to establish Hanson’s actual damages for the fall tillage because Hanson did not present evidence of the actual expenses he incurred in completing the 2005 fall tillage. Although Hanson did not present evidence of the expenses he incurred in performing the fall tillage, he presented expert testimony about the average custom rates for tillage work. The evidence supports the court’s findings, and we conclude the district court’s finding about the amount of damages for the fall tillage was not clearly erroneous.

V

[¶ 25] Hanson argues Boeder’s appeal is frivolous, and he should be awarded interest, double costs, and reasonable attorney’s fees.

[¶ 26] Rule 38, N.D.R.App.P., provides, “[i]f the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney’s fees.” “An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.” Healy v. Healy, 397 N.W.2d 71, 76 (N.D.1986).

[¶ 27] We conclude Boeder’s appeal is not frivolous or taken in bad faith, and therefore we deny Hanson’s claim for double costs and attorney’s fees.

VI

[¶ 28] We affirm the judgment.

[¶ 29] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and

CAROL RONNING KAPSNER, and ZANE ANDERSON, District Judge, JJ., concur.

[¶ 30] The Honorable ZANE ANDERSON, District Judge, sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: ECKRICH, Circuit Judge. ZINTER, Justice

license: Public Domain

text:
    2007 SD 6
    Benjamin ELLIOTT, Petitioner and Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LAKE COUNTY, South Dakota, Respondent and Appellee, and Lake Madison Development Association, and Larry and Judy Lund, et al., Lake County Residents and Property Owners, Intervenors.
    No. 23917.
    Supreme Court of South Dakota.
    Argued May 24, 2006.
    Decided Jan. 10, 2007.
    Brian Donahoe of Cutler & Donahoe Sioux Falls, South Dakota, Attorneys for petitioner and appellant Benjamin Elliott.
    James A. Billion, Lake County States Attorney, Madison, South Dakota, Attorney for respondent and appellee Lake County Board of County Commissioners.
   ECKRICH, Circuit Judge.

[¶ 1.] In this appeal Benjamin Elliott contends that his original circuit court pleading was either a petition for a writ of mandamus or a petition for a writ of cer-tiorari. In either case Elliott argues the circuit court had subject matter jurisdiction because the original pleadings were proper both in form and substance. The circuit court found Elliott’s pleading was defective and dismissed his case for lack of jurisdiction. Elliott appeals.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] This is the second appeal involving the parties. The first appeal, Elliott v. Board of County Com’rs, 2005 SD 92, 703 N.W.2d 361 (Elliott I) , includes a complete rendition of the facts.

[¶ 3.] Elliott wanted to build and operate a hog farrowing facility. To do so he needed a building permit. He applied for a building permit on August 31, 2001. The Lake County Zoning Officer neither approved nor denied his application. The County Commissioners tabled Elliott’s application for a year. On September 3, 2002, the Commissioners denied the application.

[¶ 4.] Elliott commenced a lawsuit against the Commissioners, filing a pleading he denominated “Petition Contesting Denial of Building Permit and Notice of Appeal.” Elliott’s petition was not verified.

[¶ 5.] The circuit court deemed Elliott’s lawsuit to be a direct appeal from a decision of the Board of County Commissioners and proceeded to consider the case under SDCL 7-8-27 and 7-8-30. After a de novo trial, the circuit court affirmed the Commissioners’ decision.

[¶ 6.] Elliott appealed. In the first appeal, this Court raised the jurisdictional issue sua sponte and, upon remand directed the circuit court to “first determine whether it has jurisdiction.” Elliott I, 2005 SD 92 at ¶ 18, 703 N.W.2d at 369.

[¶ 7.] This Court raised three jurisdictional questions in Elliott I:

Whether the trial court had authority and jurisdiction under SDCL 7-8-27 and 7-8-30.
By what authority did the Commissioners deny Elliott’s building permit application — as zoning officer, as a board of adjustment, or as a board of county commissioners?
Whether Elliott’s pleadings and actions sufficiently preserved his right to appeal or were sufficiently drafted to establish jurisdiction in circuit court.

Elliott I, 2005 SD 92 at ¶ 16, 703 N.W.2d at 368.

[¶ 8.] The circuit court answered question three without deciding questions one and two.

STANDARD OF REVIEW

[¶ 9.] This appeal raises jurisdictional issues. We review issues regarding a Court’s jurisdiction as questions of law under the de novo standard of review. Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627.

ANALYSIS AND DECISION

[¶ 10.] Elliott’s petition was signed by his attorney. The petition is neither verified nor accompanied by an affidavit. Elliott asserts that his pleading can be construed either as a writ of certio-rari or a writ of mandamus.

[¶ 11.] SDCL 11-2-61 provides:

Any person or persons, jointly or severally, aggrieved by any decisions of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds for the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment. (emphasis added).

SDCL 11-2-62 provides in pertinent part: “Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment.” (emphasis added).

[¶ 12.] The term duly verified is not defined within either of these statutes; however, SDCL 21-31-2 requires that: “The application for a writ of certiorari must be made on affidavit by the party beneficially interested.” (emphasis added).

[¶ 13.] An application for a writ of mandamus includes a similar mandatory predicate: “The writ of mandamus must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon affidavit, upon the application of the party beneficially interested.” SDCL 21-29-2. (emphasis added).

[¶ 14.] Elliott argues that he has substantially complied with the law despite the absence of verification or affidavit.

[¶ 15.] A cardinal rule of statutory construction provides a presumption that the legislature does not intend to insert surplusage in its enactments. US West Communications, Inc. v. PUC, 505 N.W.2d 115, 123 (S.D.1993). The legislature requires due verification or an affidavit. SDCL 11-2-61, SDCL 21-31-2, SDCL 21-29-2.

[¶ 16.] We have previously had occasion to consider a due verification requirement in an election contest context. In the case of In re Election Contest, 2000 SD 43, ¶ 7, 607 N.W.2d 920, 922-923 we reversed a circuit court order dismissing a complaint for failure to file a duly verified complaint. We held that a statute requiring that the complaint commencing an election contest be duly verified does not require written verification and is satisfied by an oral verification contemporaneous with the signing of the pleading. In Elliott’s case there is no evidence that his petition was accompanied by such a contemporaneous oral verification.

[¶ 17.] The legislature prescribes the procedure for reviewing the actions of the county. Review may be had only by complying with the conditions the legislature imposes. Appeal of Heeren Trucking Co., 75 S.D. 329, 64 N.W.2d 292, 293 (1954). Elliott did not comply with the mandatory statutory predicates.

[¶ 18.] In summary it does not matter whether Elliott’s petition seeks certiorari or mandamus. In either case Elliott’s pleading is fatally flawed. The order of the circuit court is affirmed.

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

[¶ 20.] ZINTER, Justice, concurs with writing.

[¶ 21.] ECKRICH, Circuit Judge, for SABERS, Justice, disqualified.

ZINTER, Justice

(concurring).

[¶ 22.] I concur that the lack of verification or affidavit procedurally defaulted Elliott whether he sought certiorari or mandamus. I would add that to the extent Elliott alternatively contended that this was an appeal from a “county commission decision” to the circuit court under SDCL 7-8-28, that appeal was not authorized. In re Yankton County Com’n, 2003 SD 109, ¶ 21, 670 N.W.2d 34, 41.

[¶ 23.] Ultimately, the Lake County zoning official was the only entity authorized to act on the request for the building permit. Because that official failed to act, Elliott’s remedy at the time was to appeal to the Board of Adjustment under SDCL 11-2-55, and if not satisfied, to seek certio-rari before the circuit court under SDCL 11-2-61 and 11-2-62. Elliott could also have sought mandamus under SDCL 11-2-35 to force the zoning official to act. However, Elliott did not complete any of these avenues of review in a timely manner.

[¶ 24.] Instead, Elliott commenced this case by an unverified October 2002 Petition, claiming that on August 24, 2001, he had filed an appeal to the Board of Adjustment (the county commission acting as the board of adjustment) and a petition for mandamus. However, the 2001 appeal and the petition for mandamus were part of a separate suit that appears to have been abandoned, and therefore, those requests for review are not before us.

[¶ 25.] Consequently, Elliott seeks to resurrect the 2001 appeal to the Board of Adjustment and the petition for mandamus by referencing them in this current action. Elliott also argues that he should have been entitled to amend his 2002 pleadings to incorporate the 2001 action or to consolidate it with the current action. These requests were denied by the circuit court, and Elliott has not appealed that decision. Therefore, the 2001 appeal and petition are not reviewable by this Court as a part of the 2002 action.

[¶ 26.] Ultimately, even if the 2001 pleadings were incorporated into the 2002 action, as the Court explains, the circuit court properly declined to exercise jurisdiction because Elliott’s 2002 petition was not verified or accompanied by affidavit. Therefore, the circuit court correctly ruled that it could not entertain the current action.

      . Intervenors are not parties to the present appeal.

      . It is worth noting that the majority opinion in this decision suggested “Perhaps if counsel had attempted to retrofit the complaints with later verifications we might be compelled to rule otherwise.” In re Election Contest, 2000 SD 43 at ¶ 9, 607 N.W.2d at 923.

      . In the hearing before the circuit court, the Board contended that the form and content of Elliott’s October 10, 2002 Petition was insufficient for certiorari or mandamus relief. Therefore, this issue has been preserved for appellate review.


author: SABERS, Justice.

text:
    2007 SD 7
    William ROTENBERGER, Plaintiff and Appellee, v. Lex BURGHDUFF, Defendant and Appellant.
    No. 24097.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 27, 2006.
    Decided Jan. 10, 2007.

      Roger A. Tellinghuisen of Tellinghuisen & Gordon, P.C. Spearfish, South Dakota, Attorneys for plaintiff and appellee.
    Robert M. Nash of Wilson, Olson & Nash, P.C., Rapid City, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] After the circuit court dismissed William Rotenberger’s (Rotenberger) action against Lex Burghduff (Burghduff) for lack of prosecution, Rotenberger brought the same action thirteen months later. Burghduff alleged the action was barred by res judicata and collateral estop-pel. Rotenberger proceeded to bring a motion to vacate the order of dismissal, which the circuit court granted. The circuit court also entered an order of dismissal nunc pro tunc that made the dismissal for lack of prosecution without prejudice. Burghduff appeals three issues. We affirm.

FACTS

[¶ 2.] On July 31, 2003, Rotenberger commenced an action against Burghduff for a prescriptive easement. Rotenberger requested a declaration that he was entitled to a prescriptive easement and an injunction prohibiting Burghduff from preventing Rotenberger’s access to the trail. Burghduff filed his answer to the complaint on September 9, 2003.

[¶ 3.] For more than one year there was no action on the file. On February 4, 2005, the circuit court judge sent a letter to the attorneys for Burghduff and Roten-berger asking about dismissing the action for lack of prosecution under SDCL 15-11-11. The letter indicates the attorneys were to reply back by March 1, 2005. The record does not indicate if either party responded to the circuit court’s request. Accordingly, the circuit court dismissed the action pursuant to SDCL 15-11-11 on February 23, 2005. The record shows that the scheduling clerk sent the order of dismissal to the attorneys for both Burghduff and Rotenberger.

[¶ 4.] On July 18, 2005, Rotenberger commenced an identical action against Burghduff. Burghduff answered the complaint using the same defenses he used in the previous action. He also alleged this action was barred by res judicata and estoppel because the previous action had been dismissed by the circuit court. Eventually, the circuit court entered an order in favor of Rotenberger on the prescriptive easement and permanent injunction and Burghduff appealed. See Rotenberger v. Burghduff, No. 24143, pending.

[¶ 5.] On March 9, 2006, Rotenberger moved to vacate the February 2005 order of dismissal for lack of prosecution. A hearing was held in front of the circuit court. On March 16, 2006, the circuit court vacated the order of dismissal and entered an order of dismissal nunc pro tunc, which made the original dismissal without prejudice.

[¶ 6.] Burghduff appeals and raises the following issues:

1. Whether the circuit court abused its discretion in vacating the February 23, 2005 dismissal where Rotenber-ger made no showing of exceptional circumstances under SDCL 15-6-60(b).

2. Whether the motion to vacate the order of dismissal should have been granted when it was brought more than a year after the notice of entry of judgment.

3. Whether the dismissal of the action for lack of prosecution under SDCL under SDCL 15-11-11 and/or SDCL 15 — 6—41(b) is a dismissal with prejudice.

STANDARD OF REVIEW

[¶ 7.] “A trial court’s dismissal for failure to prosecute is reviewed under an abuse of discretion standard.” Jenco, Inc. v. United Fire Group, 2003 SD 79, ¶ 7, 666 N.W.2d 763, 765 (citing Devitt v. Hayes, 1996 SD 71, ¶ 7, 551 N.W.2d 298, 300). In reviewing for abuse of discretion we determine “whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Huber v. Dep’t of Pub. Safety, 2006 SD 96, ¶ 22, 724 N.W.2d 175, 180 (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)). Likewise, “[t]he decision to grant or deny a motion under SDCL 15—6—60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.” Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 688, 641 (citing Porter v. Porter, 1996 SD 6, ¶ 4, 542 N.W.2d 448, 449) (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)).

[¶ 8.] Whether a dismissal under SDCL 15-11-11 results in a dismissal with or without prejudice presents a question of statutory interpretation and application. As we have previously noted:

Statutory interpretation and application are questions of law, and are reviewed by this Court under the de novo standard of review. Statutes are to be construed to give effect to each statute and so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.

State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94 (additional and internal citations omitted). “We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject.” Chapman v. Chapman, 2006 SD 36, ¶ 11, 713 N.W.2d 572, 576 (additional citations omitted).

[¶ 9.] We examine Issue 3 first, whether a dismissal under SDCL 15-11-11 is with or without prejudice, as it is determinative.

[¶ 10.] Whether the dismissal of the action for lack of prosecution under SDCL 15-11-11 is a dismissal with prejudice.

[¶ 11.] Burghduff claims that the February 23, 2005 order of dismissal for lack of prosecution was a final order that dismissed the action with prejudice. Ro-tenberger argues, and the record reflects, that the order of dismissal was entered under SDCL 15-11-11. He claims that a dismissal under SDCL 15-11-11 is a dismissal without prejudice.

[¶ 12.] Burghduff cites three cases in support of his argument the dismissal was with prejudice. However, the cited cases address dismissals for lack of prosecution solely or in conjunction with SDCL 15-6-41(b). Swenson v. Sanborn County Farmers Union Oil Co., 1999 SD 61, ¶ 1, 594 N.W.2d 339, 341; Devitt, 1996 SD 71, ¶ 4, 551 N.W.2d 298, 299; Fox v. Perpetual Nat’l Life Ins. Co., 273 N.W.2d 166, 167 (S.D.1978). Two of the orders explicitly noted the dismissal was with prejudice. Devitt, 1996 SD 71, ¶ 20, 551 N.W.2d at 302 (Konenkamp, J., dissenting); Fox, 273 N.W.2d at 168. As the record reflects, this dismissal was entered under SDCL 15-11-11 and did not state whether the dismissal was with or without prejudice; therefore, these cases are inapplicable.

[¶ 13.] Rotenberger urges this Court to find a dismissal under SDCL 15-11-11 is a dismissal without prejudice. Recently, we stated as much in Jenco, Inc. v. United Fire Group, 2003 SD 79, ¶ 9, 666 N.W.2d 763, 765. In Jenco, the 3-2 decision upheld a dismissal of the case with prejudice under SDCL 15-11-11 and SDCL 15-6-41(b) when Jenco failed to prosecute its case for thirty months after the judge ordered it to obtain new counsel. Id. Significantly, it was noted that “[generally, a dismissal under SDCL 15-11-11 is without prejudice to the right to bring the action again.” Id.

[¶ 14.] In this case, the order to dismiss was under SDCL 15-11-11. The circuit court did not explicitly state whether it was with or without prejudice. However, if a dismissal under SDCL 15-11-11 is generally without prejudice, we cannot infer the dismissal is with prejudice because of silence. In fact, we come to the opposite conclusion — a dismissal under SDCL 15-11-11 is without prejudice.

[¶ 15.] This decision comports with the underlying policy of SDCL 15-11-11. “The rationale for a dismissal under SDCL 15-11-11 is to clear the court’s docket and expedite the judicial process.” Devitt, 1996 SD 71, ¶ 21, 551 N.W.2d at 302 (Konenkamp, J., dissenting). Some courts do not even allow a dismissal with prejudice in a dismissal for lack of prosecution. Id. (citing Southeast Mortgage Co. v. Sinclair, 632 So.2d 677, 678 (Fla.Dist.Ct.App.1994)). South Dakota has allowed a dismissal with prejudice under SDCL 15-11-11 in some cases, when combined with a SDCL 15—6— 41(b) motion. See Jenco, 2003 SD 79, ¶¶ 9, 19, 666 N.W.2d at 765, 768; Devitt, 1996 SD 71, ¶¶ 4, 17, 551 N.W.2d at 299, 301.

[¶ 16.] SDCL 15-11-11 is a supreme court rule, not a legislative rule. The rule was meant to operate as a clerical tool, not a substantive dismissal. It allows a circuit court to dismiss a case that is not being prosecuted in order to clear its calendar. It was not meant to forever bar a case. A case should not be dismissed with prejudice merely because the statute allows a court to clear its docket after a quota of inactivity is met.

[¶ 17.] In contrast, SDCL 15-6-41(b) provides for a dismissal with prejudice if the plaintiffs actions are egregious and operates as a dismissal with prejudice unless the judge explicitly states otherwise. This language is not in SDCL 15-11-11 and we will not read it into the statute. The inclusion of that language only in SDCL 15 — 6—41(b) demonstrates a different result is intended for a dismissal under the different statutes. A comparison of the two statutes and the plain wording of SDCL 15-11-11 demonstrate a dismissal under SDCL 15-11-11 does not operate as a dismissal with prejudice. That is the result under SDCL 15 — 6—41(b). Under SDCL 15-11-11, the dismissal is without prejudice.

[¶ 18.] In this case, the dismissal for lack of prosecution was silent regarding prejudice; therefore, the dismissal was without prejudice. As a result, Rotenber-ger could bring his action again, so long as there were no other bars preventing the action. Because the dismissal was without prejudice, the circuit court did not need to vacate the order of dismissal in order for Rotenberger to bring the July 18, 2005 action and we need not reach those issues.

[¶ 19.] Affirmed.

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

      . Harding County Civ. 05-10.

      . SDCL 15-11-11 provides:
      The court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term “record,” for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsel which justifiably result in delays in prosecution.

      . SDCL 15 — 6—41 (b) provides:
      For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the defendant’s right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in § 15-6-52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in § 15-6-41, other than a dismissal for lack of jurisdiction, or for failure to join a party under § 15-6-19, operates as an adjudication upon the merits.

      . Rotenberger did not appeal the dismissal for failure to prosecute.

      . In his brief, Rotenberger framed the issue as "Is the dismissal of the action for want of prosecution by the court under SDCL 15-11-11 and/or SDCL 15-6-41(b), a dismissal with prejudice?" However, the petition for certio-rari only questioned whether SDCL 15-11-11 was a dismissal with prejudice and the circuit court only granted the dismissal under SDCL 15-11-11. Therefore the issue is, "Whether the dismissal of the action for lack of prosecution under SDCL 15-11-11 is a dismissal with prejudice.”

      . Compare SDCL 15-11-11 with SDCL 15-6-41(b). SDCL 15-11-11 only requires no record activity for a period of a year. In contrast, 15-6-41(b) does not specifically state a period of time, but requires the plaintiff's conduct to be egregious before dismissal. See Swenson, 1999 SD 61, ¶ 21, 594 N.W.2d at 345 (citing Devitt, 1996 SD 71, ¶ 16, 551 N.W.2d at 301). Another distinguishing factor between the two statutes is that "SDCL 15-6-41(b) provides that a dismissal under that rule ... will be considered as an adjudication upon the merits of the case unless otherwise ordered by the trial court.” Fox, 273 N.W.2d at 168.


author: ZINTER, Justice. SABERS, Justice

text:
    2007 SD 10
    Curtis W. HANKS, Plaintiff and Appellee, v. CORSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant and Appellant.
    No. 24003.
    Supreme Court of South Dakota.
    Argued Aug. 30, 2006.
    Decided Jan. 17, 2007.

      Elton R. Anson of Crane & Anson, Lem-mon, South Dakota, Attorneys for appel-lee.
    Thomas E. Simmons, G. Verne Goodsell, Jonathan M. Oostra of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for appellant.
   ZINTER, Justice.

[¶ 1.] The Corson County Board of Commissioners (Board or County) contracted with a private attorney to provide legal services for the County. The circuit court found that some of the contemplated legal services fell within the scope of the Corson County State’s Attorney’s duties. To that extent, the circuit court concluded that the contract was void because it usurped the duties of an elected state’s attorney. The Board appeals. We affirm and remand for modification of the judgment to conform to the circuit court’s findings of fact and conclusions of law.

Facts and Procedural History

[¶ 2.] Curtis W. Hanks was elected as the part-time Corson County State’s Attorney in 2000. Notwithstanding this elected position, the Board contracted with Cheryl Laurenz-Bogue for certain legal services during Hanks’s term of office. The January 2003 contract, the only contract at issue in this appeal, delineated the scope of the private legal services:

In exchange for the payments set forth below, Law Firm will provide and be responsible for performing all civil representation regarding the County as may be requested, in state, federal and tribal courts, as set forth in Chpt. [sic ] 7-16, with the exception of appellate representation in the Federal Courts, absent a separate agreement with County. In addition to the obligations and responsibilities as set for [sic ] in SDCL Chpt. [sic] 7-16, Law Firm is further obligated to: (a) be available for conferences or meetings with the Corson County Commission and individual County officers as needed; (b) be available by telephone, during normal business hours, at Law Firm’s main office located in Dupree, SD, or in Faith, SD; and (c) be available to County or State law enforcement or other County officials on an emergency basis during non-business hours.

[¶ 3.] Hanks challenged the contract by invoking the circuit court’s power of appellate review over county commission decisions under SDCL 7-8-27. The circuit court initially granted Hanks appellate relief, concluding that the contract was void because it displaced the duly elected state’s attorney. On appeal of that decision to this Court, we ruled that the contract was ambiguous. Therefore, we remanded the matter for a determination of “the nature of the legal services contemplated by the Board....” Hanks v. Corson County Bd. Com’rs, 2005 SD 38, ¶ 17, 694 N.W.2d 698, 703 (Hanks I). It was also disclosed during the first appeal that Hanks held a position as a tribal judge. “Because we [were] unable to determine whether a violation of SDCL 7-16-18 disqualified Hanks from serving as state’s attorney or had some other legal effect, [we ordered that] upon remand the circuit court should hold further proceedings to determine the legal effects of any violation of this law by Hanks.” Id. at ¶ 16, 694 N.W.2d at 703.

[¶ 4.] On remand, the circuit court found that some of the contemplated legal services were within the scope of the state’s attorney’s duties. The Board now appeals this finding. With respect to the tribal judge issue, the court found that Hanks was an Associate Justice for the Standing Rock Tribe in North Dakota. The court then considered the legal effects of that tribal position. It concluded that it was without jurisdiction to remove Hanks from the tribal judgeship. It also concluded that Hanks’s judicial position had no effect on the legality of the contract. The Board does not contest these two conclusions. The Board does, however, contend that the court should have entered declaratory relief indicating that Hanks was violating SDCL 7-16-18.

Legal Effects of Hanks’s Violation of SDCL 7-16-18

[¶ 5.] As previously mentioned, the Board does not appeal the circuit court’s conclusions that it had no jurisdiction to remove Hanks from his judgeship and that the tribal judgeship did not affect the legality of the contract. Hanks’s judicial position could not have affected the legality of the contract under the facts of this case because the parties stipulated that “Hanks [had] not been disqualified as Cor-son County States [sic ] Attorney, nor [had] the County requested Curtis W. Hanks be judicially disqualified from representing Corson County, South Dakota on civil matters.” Further, at oral argument, the Board completely removed this issue from consideration by indicating they were not defending the contract based on Hanks’s apparent statutory violation:

Court: You’re not defending the contract based on the violation; you simply want a declaration of a violation as we had ... mentioned in our last opinion?
Counsel: Yes.

Therefore, under the particular facts of this case, we affirm the circuit court’s first two conclusions concerning the legal effects of Hanks’s judicial office.

[¶ 6.] The third possible effect of Hanks’s judicial office concerned his right to hold the office of state’s attorney. On this issue, the Board conceded at oral argument that it could not challenge Hanks’s right to hold that office in these proceedings:

Court: What you’re asking for then is a declaration that he’s violating the statute, no more no less, is that what you’re asking?
Counsel: That’s right ...
Court: You’re not challenging his office?
Counsel: We are not and we can’t ...

The Board acknowledged that it could not challenge Hanks’s status as state’s attorney in this county commission appeal because “quo warranto is the proper proceeding to determine title to and possession of a public office.” Burns v. Kurtenbach, 327 N.W.2d 636, 638 (S.D.1982) (citations omitted). See also State v. Jensen, 2003 SD 55, ¶ 10, 662 N.W.2d 643, 646; McElhaney v. Anderson, 1999 SD 78, ¶ 8, 598 N.W.2d 203, 205. “We have departed from this rule only in instances of ‘exceptional circumstances’ of an emergency nature involving the public interest of the entire state or a good portion of it.” Weger v. Pennington County, 534 N.W.2d 854, 859 (S.D.1995) (citation omitted). This dispute concerning a county’s decision to contract for legal services is not an exceptional circumstance of an emergency nature.

[¶7.] The Board, however, contends that .the circuit court should have entered a declaratory ruling that Hanks was violating SDCL 7-16-18. The Board asserts that the failure to enter a declaratory ruling violated our mandate in Hanks I. However, this case involves an appeal from a county commissioner decision, and no declaratory relief was sought under SDCL ch. 21-24, the Declaratory Judgment Act. That is significant because:

[T]he declaratory judgment statutes do not abrogate the ordinary rules of pleading, practice, procedure, and evidence. Even the most liberal construction that can be placed upon such statutes will not warrant the courts in granting affirmative relief by way of a declaratory judgment in the absence of pleading and proof warranting such relief.

State Highway Commission v. Sweetman Const. Co., 83 S.D. 27, 32, 153 N.W.2d 682, 684-685 (1967) (quoting Anderson, Declar atory Judgments, § 198, p. 410) (additional citation omitted).

[¶ 8.] Here, declaratory relief was not sought in the underlying appeal. 'Moreover, a declaration of a statutory violation was immaterial considering the procedural posture of this case. It was immaterial because the County did not defend the contract on the allegation that there was no Corson County State’s Attorney due to Hanks unlawfully holding a judicial office. Under these circumstances, neither the pleadings nor the proof warranted a declaratory ruling. For these reasons, we conclude that the circuit court followed our mandate to consider the legal effects of this apparent statutory violation.

Whether the Contract Exceeded the Permissible Scope of Private Attorney Representation of a County Served by an Elected State’s Attorney

[¶ 9.] In Hanks I we concluded that the contract was ambiguous concerning the intended extent of the legal services. “When there is an ambiguous contract, evidence may be introduced to determine the intention of the parties, which is a question of fact to be resolved by the fact finder.” Ford v. Moore, 1996 SD 112, ¶ 10, 552 N.W.2d 850, 855 (citation omitted). A circuit court’s findings of fact are reviewed under the clearly erroneous standard. Miller v. Jacobsen, 2006 SD 33, ¶ 19, 714 N.W.2d 69, 76 (citation omitted). ‘We will overturn the trial court’s findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made.” Id.

[¶ 10.] The Board first contends that the circuit court erred in relying on contract language to determine the intended scope of the agreement. The Board argues that the court could not look to the contract because we previously ruled that it was ambiguous. However, ambiguity does not foreclose consideration of the written contract: it simply allows the consideration of extrinsic evidence to determine the intent of that contract. “[I]f the contract ‘is uncertain or ambiguous,’ parol and extrinsic evidence may be used for clarification.” Pauley v. Simonson, 2006 SD 73, ¶ 8, 720 N.W.2d 665, 668 (citing Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261, 263-264 (S.D.1979)). Therefore, the circuit court properly considered the contract language together with extrinsic evidence to determine the intended scope of the agreement.

[¶ 11.] This brings us to the central issue: whether this contract contemplated the displacement of Hanks as the elected state’s attorney on matters in which only the state’s attorney may act. “SDCL [ch.] 7-16 does not give the Board authority to hire a lawyer to displace the state’s attorney from the duties solely designated to him.” Hanks, 2005 SD 38 at ¶ 7, 694 N.W.2d at 700. However, a County does have limited authority to contract for private legal services in three areas: “(1) for criminal and civil cases with more than one lawyer in opposition, (2) for representation in counties other than Corson County or in federal and tribal courts, and (3) for legal advice and opinions to the Board.” Id. at ¶ 12, 694 N.W.2d at 702.

Representation in Cases and Administrative Proceedings

[¶ 12.] As we noted in Hanks I, the first two exceptions are limited to representation in certain cases and adminis trative proceedings. Id. at ¶ 6 (citing SDCL 7-16-6). In this case, the record reflects that Bogue’s representation did not qualify under these exceptions because it was not limited to the statutorily authorized cases or administrative proceedings. It is unlikely that such representation could have been a significant component of the contract because, at the time the contract was negotiated, Corson County was not involved in cases outside the County, or cases in Corson County with more than one lawyer in opposition. Indeed, even though similar contracts were negotiated in 2004 and 2005, Bogue testified that she had never undertaken representation of Corson County in state, federal, or tribal court from January of 2003 through the June 2005 hearing.

[¶ 13.] Bogue, however, claimed that she was involved in administrative “matters.” She testified “[w]e had administrative matters, and those, I believe, primarily were — I think there were some trust land issues, and I think that there’s been some ongoing medical claims that dealt with [the Indian Health Service].” However, as is explained infra, ¶¶ 21-23, the evidence reflects that these administrative “matters” were not the type of administrative “proceedings” contemplated by the statute. They simply involved Bo-gue negotiating with third parties such as the Indian Health Service, the Bureau of Indian Affairs, or hospital administrators. Therefore, this part of Bogue’s representation did not qualify as an administrative proceeding under the first two exceptions.

[¶ 14.] Only one part of the contemplated representation qualified under the first two exceptions. Bogue testified that under the contract, had cases developed in federal, tribal or out of county courts, she would have been required to represent the County. Therefore, the contract was valid to the extent that it was for future representation in cases and administrative proceedings allowed under SDCL 7-16-6.

Advice and Opinions

[¶ 15.] The Board argues that legal services not involving cases or administrative proceedings qualified under the third exception involving advice and opinions. This requires us to examine the distinction between Bogue’s advice and opinions to the County and representation of the County with third persons.

[¶ 16.] The American Heritage College Dictionary, 1158, (3rd ed. 1997), defines “represent” as: “To serve as the official and authorized delegate or agent for [another].” The Rules of Professional Conduct, although not directly applicable, recognize a distinction between such representation of a client and advice given to a client. Advice is described as providing representation to the client, while representation of the client’s interests generally involves dealing with others:

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

Appendix, SDCL ch. 16-18, Preamble § 2 (emphasis added).

[¶ 17.] Considering this distinction and the state attorney’s duty to represent a county, we believe that the third exception is limited to providing advice and opinion to a county. Therefore, under this exception, Bogue was limited to providing the County with an informed understanding of its legal rights and obligations. However, the advice and opinion exception did not permit Bogue to serve as the official and authorized delegate or agent of the County in dealing with third parties. When representing the county with third parties, the representation must have involved a case or administrative proceeding falling within one of the first two exceptions. Hanks, 2005 SD 38 at ¶¶ 6, 12, 694 N.W.2d at 700, 702.

[¶ 18.] This distinction was not preserved in the legal services contemplated under the 2003 contract. That contract provided for legal services for “all civil representation” as “requested” by the Board pursuant to SDCL ch. 7-16. Although the Board contends that the reference to SDCL ch. 7-16 limited the legal services to the three exceptions, the evidence reflects that Bogue represented the County as its authorized delegate or agent on issues and matters with third parties not involving an actual case or administrative proceeding. That representation included dealing with the Bureau of Indian Affairs on Indian trust matters, hospitals regarding medical bills, and Indian Tribes on other Tribal matters. In fact, the Cor-son County Auditor, who was responsible for assigning the work, broadly described the contemplated services as: “anything that was strictly County, I certainly called Mr. Hanks or contacted him. Anything that was Federal or Native American issues, I would contact [Bogue].” (Emphasis added). Because this representation included representation of the County with third parties, the circuit court correctly concluded that some of Bogue’s representation exceeded permissible advice and opinions.

[¶ 19.] On the other hand, some of Bo-gue’s legal services did involve advice and opinions to the County. The record reflects that a substantial portion of Bogue’s work related to advice to the Board on Indian jurisdictional matters. Commissioner Hollenbeck testified that Indian jurisdictional matters were talked about in almost every Board meeting. Commissioner Mike Mickelson explained that, “I guess I’d like to clarify that in that we were hoping [Bogue’s] expertise and assistance in these matters would keep us from being involved in litigation. We had her there for her help, not for her courtroom abilities.”

[¶ 20.] On appeal, the Board argues that the entire contract was limited to permissible cases, administrative proceedings, and advice and opinions. The Board contends that there is no evidence supporting the court’s contrary findings. We disagree. First, there was inferential evidence that the County intended to partially displace Hanks. That evidence included the fact that Bogue attended approximately twenty-nine of the thirty county commissioner meetings from January of 2003, to the trial court hearing. At the same time, Hanks attended only two or three meetings. Although Hanks was available to attend the meetings, he testified that he was never asked to attend. There was also evidence of animosity between Hanks and the Board as a result of lawsuits Hanks brought against the Board. One of those suits challenged the Boards’ budgetary allocation for the state’s attorney’s office, and the Boards’ actions were found to be arbitrary and capricious.

[¶ 21.] But more directly, Bogue represented the County as its authorized delegate or agent in dealing with third parties on matters that did not involve any of the three exceptions. One example involved a dispute over a warranty claim concerning the siding on the county courthouse. Bo-gue represented the County in its attempt to get new siding from a third party, and she did not relinquish that representation until the circuit court’s ruling. Bogue testified:

Q: And the Commissioners asked you to handle that?
A: I think they asked me to respond to that, yes.
Q: Is that a Federal matter?
A: No.
Q: Is that an Indian matter?
A: No.
Q: You eventually turned that over to Mr. Hanks, though didn’t you?
A: Yes, I did.
Q: Because you recognized it wasn’t something that you should be in the middle of?
A: Because of Judge Johnson’s opinion.

[¶ 22.] Another example involved Bo-gue’s representation of the County on Bureau of Indian Affairs notices of intent to place Corson County land in trust. Although Bogue asserted that these were administrative matters, her description of her work reflects that these matters had not progressed to an administrative proceeding. She testified:

They send you that notification, and you are not required to respond; however if you do not respond as the taxing authority ... if you don’t respond, then they just proceed and put the land in trust. So you’re required to respond back.

This exchange reflects that Bogue was responding as the authorized delegate or agent of the County; i.e., the taxing authority. And in another exchange, Bogue indicated that she was responding to third parties rather than merely providing advice to the County.

Q: When you say “they put the land in trust,” who’s the acting party there?
A: I’m sorry. Bureau of Indian Affairs.
Q: Are you dealing with BIA, then, on those types of issues?
A: Correct.
Q: Do you deal with them directly?
A: You deal with them directly through the superintendent office, and from there to the Interior Board of Indian Appeals .... [and ultimately] into [federal [district [e]ourt....

But again, nothing indicates that any of Bogue’s responses were in an administrative proceeding before the Interior Board of Indian Appeals or in federal district court.

[¶ 23.] A final example involved Bo-gue’s representation of the County on indigent medical claims. Some of that representation involved dealing with the Indian Health Service. In describing the nature of the work, Bogue was asked: “And basically what you were doing is simply sending a letter to the Tribe?” She responded: “No. Either back to the admitting board or to the hospital or treating facility.” The same type of representation occurred with the South Dakota Department of Human Services. The Auditor testified that she referred billing claims from the Department of Human Services to Bogue for handling simply because the patient was a Native American. In fact, Bogue handled most notices of hospitalization from South Dakota agencies that involved Native Americans. Concededly, on one notice of hospitalization, Bogue simply provided the Auditor with advice as to how to respond. But on others, Bogue responded to the agency on behalf of the County. And the County Auditor admitted there was no reason that Hanks could not handle the Indian Health Service matters. It appears that Hanks’s services were not used because he had once advised that the County should pay a claim, but Bogue had avoided having to pay it.

[¶ 24.] In summary, the record reflects that while some of Bogue’s services involved permissible advice and opinions, other services involved representation of the County with third persons in matters not involving the cases or administrative proceedings contemplated by SDCL 7 — 16— 6. Bogue’s testimony confirmed the unrestricted nature of some of her legal services. She testified:

Q: What did you do that year to earn $25,000 under the contract?
A: I represented them on all the other issues that weren’t being litigated....
Q: So there’s really no authorization needed for you to undertake a matter for the Commission. That doesn’t need to be in the minutes with authorization for you to do it?
A: No. Because I also give advice to the Board.

(Emphasis added). However, as explained above, some of this representation went beyond advice and opinions. It involved representation of the County with third persons on matters not involving a case or administrative proceeding. In fact, the Board apparently believed that it had the right to contract with private counsel for official representation in matters not involving the statutory exception for cases or administrative proceedings. In its proposed Conclusion of Law 11, the Board specifically suggested that the circuit court adopt the position that “Bogue [was] not prohibited from contacting third parties on behalf of the Board.”

[¶ 25.] We hold that the circuit court correctly found that the contract contemplated some representation of the County outside the three exceptions recognized in SDCL 7-16-6 and Hanks I, 2005 SD 38 at ¶¶ 6, 12, 694 N.W.2d at 700, 702. For this reason, the circuit court correctly concluded that the contract was void to the extent that it exceeded those limitations.

[¶ 26.] However, there is an inconsistency between the circuit court’s conclusions of law and judgment. The court concluded that: “To the extent that the Bogue contract requires Bogue to provide services beyond the ... three areas [enumerated in Hanks /] ... it is void.” (Emphasis added.) This partial voiding of the contract is supported by the facts that the contract contemplated permissible representation in future litigation should it have arisen and Bogue provided some permissible advice and opinions. However, inconsistent with the evidence and the circuit court’s own conclusion of law, the final judgment voided the entire contract. We therefore remand with directions to modify the judgment consistent with the circuit court’s conclusions of law partially voiding the contract.

[¶ 27.] Affirmed and remanded for further proceedings consistent with this opinion.

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

[¶ 29.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result in part and writing specially).

[¶ 30.] I would affirm the circuit court in all respects and therefore concur in result in part only.

      . SDCL 7-8-27 provides:
      From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein.

      . SDCL 7-16-18 provides in part: "No state’s attorney, while in office, is eligible to hold any judicial office.”

      . We note that SDCL 7-16-18 governs a state’s attorney's eligibility to hold a judicial office rather than eligibility to hold the office of state’s attorney. The statute provides in relevant part: "No state's attorney, while in office, is eligible to hold any judicial office." (Emphasis added.)
      In contrast, SDCL 7-16-1 governs eligibility to hold the office of state’s attorney. And those eligibility requirements do not include any reference to a judicial office. Rather, the statute provides:
      A state's attorney shall be elected in each organized county of this state at each general election, who shall qualify by taking the oath of office and giving a bond as required by law. No person shall be eligible to the Office of State's Attorney who is not duly licensed to practice as an attorney and counselor at law by the Supreme Court of this state.

      . SDCL 21-28-2 is an additional remedy to determine whether a public officer's act requires the forfeiture of office. That statute provides:
      An action may be brought by any state's attorney in the name of the state, upon his own information or upon the complaint of a private party, or an action may be brought by any person who has a special interest in the action, on leave granted by the circuit court or judge thereof, against the party offending in the following cases:
      (1). When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state;
      (2) When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office;
      (3) When any association or number of persons shall act within this state as a corporation, without being duly incorporated.

        Id. However, the statute does not apply because this proceeding is neither an action brought by the state's attorney in the name of the State nor an action brought by a private party with leave of the circuit court. It is an appeal of a county commission decision.

      . The Board minutes do not reflect the intended scope of the contract. They are simply silent on the subject.

      . SDCL 7-16-6 provides:
      In all criminal cases and in civil cases if the county is a party, if two or more attorneys are employed by the defendant in a criminal case or by the opposite party in civil cases the board of county commissioners may employ counsel to assist the state's attorney in the trial of the cases at the compensation that is agreed upon between the board and counsel. In civil cases or administrative proceedings outside the county if the county or any county officers are named as parties, the board of county commissioners or county officers, if bringing suit in their official capacities or if sued in their individual or official capacities, may employ the county’s state’s attorney, deputy state’s attorney, limited deputy state's attorney or any firm, association or corporation with whom the state’s attorney, deputy state’s attorney or limited deputy state’s attorney is affiliated, to prosecute or defend the actions, and compensation in addition to the state’s attorney's salary may be paid for the legal services.
      (Emphasis added).

      . Bogue testified that there "might have been’’ one federal foreclosure action in which she filed a claim, but that may not have been during the 2003 contract. Moreover, even in that action, she indicated that when it came time to finalize the matter, the closing may have been referred to Hanks to sign a stipulation on behalf of the County.

      . Excluding this action, the record indicates that Hanks sued the Board four times. As an elected official, the state's attorney has a duty to sue a board of county commissioners in certain circumstances. See SDCL 7-16-14 (imposing on state's attorneys the responsibility of suing county commissioners for malfeasance, misappropriation of funds, or other misconduct when such suit is proper and requested).

      . The evidence further reflects that Hanks was not totally displaced. He continued to represent the County on many other issues and matters. Examples included such things as a sublease of county property, an indigent burial, the correction of tax deeds, and matters of interest to the county treasurer, register of deeds, sheriff, and director of equalization. The County Auditor testified that to her knowledge, no matters from those offices were referred to anyone other than Hanks.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 8
    Charlene BLONDO, Petitioner and Appellant, v. BRISTOL SCHOOL DISTRICT # 18-1; Bristol Board of Education; Groton Area School District # 06-6 and Groton Area Board of Education, Respondents and Appellees.
    No. 23968.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 28, 2006.
    Decided Jan. 17, 2007.

      Anne Crowson Plooster, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioner and appellant.
    Rodney Freeman, Jr., Churchill, Manol-is, Freeman, Kludt, Shelton & Burns, Huron, South Dakota, Attorneys for respondents and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] Charlene Blondo appealed the Bristol School District # 18-1 and Bristol Board of Education’s decision to nonrenew her teaching contract for the 2004-2005 school year. The circuit court affirmed the decision. Blondo appeals the circuit court’s decision. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Blondo began employment with the Bristol School District in the summer of 2000 as a kindergarten through twelfth grade music teacher. She completed her fourth year of teaching in the spring of 2004.

[¶ 3.] The Bristol School District # 18-1 (Bristol School District) and the Groton School District # 06-6 (Groton School District) submitted a reorganization plan to the South Dakota Department of Education (Department) in July of 2003 for a school district to be known as the Groton Area School District. The Department approved the plan and it was submitted to the voters of the respective school districts per the provision of SDCL lS-O^ál. Gro-ton School District voters approved and passed the plan on September 23, 2003. The voters of the Bristol School District failed to approve and pass the plan on October 21, 2003. However, on January 20, 2004, the Bristol School District voters approved and passed the reorganization plan as proposed. The effective date for the reorganization plan was set by the Department as July 1, 2004. An election for the board members of the newly consolidated school district, to be known as the Groton Area Board of Education (Gro-ton Area Board), was scheduled for April 20, 2004.

[¶ 4.] At their respective February meetings and in anticipation of the consolidation efforts that needed to be put into effect, the Bristol Board of Education (Bristol Board) and the Groton Board of Education (Groton Board) both adopted similarly revised recall policies for teachers displaced by anticipated reductions in force. It was unknown at that time how many music teachers would be needed by the newly created Groton Area School District.

[¶ 5.] At its March 8, 2004 meeting, the Groton Board voted to accept the resignation of one of its three music teachers. At its March 22, 2004 meeting, the Groton Board voted to nonrenew the teaching contracts of its remaining two music teachers, Janet Harder and Deb Jensen, due to a reduction in force as the Groton School District would cease to exist and no longer require music teachers.

[¶ 6.] On March 22, 2004, a special joint session of the Bristol Board and the Gro-ton Board was held. At that meeting, the Bristol Board voted to nonrenew Blondo’s teaching contract for the 2004-2005 school year due to a reduction in force. Blondo was properly notified of the nonrenew due to the reduction in force on March 24, 2004, at a meeting with the Bristol School District Superintendent. Blondo refused to sign acknowledgement of receipt of the notification, which was then documented by the Bristol School District Business Manager who witnessed the meeting.

[¶ 7.] On April 20, 2004, the election for the Groton Area Board of Education was held and on April 22, 2004, the first meeting of the Groton Area Board was held. It voted to issue 2004-2005 teacher contracts with a return date of May 7, 2004. After determining it needed only two music teachers for the newly consolidated school district, the Groton Area Board offered 2004-2005 contracts to Harder and Jensen under its recall policy, but not to Blondo. Harder and Jensen returned their signed contract by the May 7, 2004 deadline and no additional recalls were needed for the Groton Area School District’s music program.

[¶ 8.] Blondo subsequently gave timely notice of her intent to appeal her nonre-newal. In her appeal, Blondo stipulated that Bristol School District did not act arbitrarily or capriciously in its decision to nonrenew her contract. Instead, Blondo argued the Bristol School District and Bristol Board did not have legal authority under the provisions of SDCL Chapter 13-46 and, therefore, was not the proper entity to nonrenew her contract for the 2004-2005 school year. Relying on a circuit court memorandum decision issued by the Sixth Judicial Circuit in 1984, in Bonesteel Educ. Ass’n v. Bonesteel Bd. of Educ., Blondo argued that the Groton Area Board was the only entity with statutory authority to nonrenew Bristol School District teachers for the 2004-2005 school year, as it was the only entity that would require staffing for the next school year. Finally, Blondo asked the circuit court to order her reinstatement to the Groton Area School District as a music teacher for the 2004-2005 school year.

[¶ 9.] The circuit court affirmed the decision of the Bristol Board. It concluded that the Bristol Board possessed the legal authority to nonrenew Blondo’s contract for the 2004-2005 school year under the provisions of SDCL 13-6-64 and its reduction in force policy. It also concluded that the Bristol Board did properly and effectively nonrenew Blondo’s contract under the requirements of SDCL Chapter 13-43, and that Blondo was given proper notice of nonrenewal before the April 15 deadline pursuant to SDCL 13-43-6.4.

[¶ 10.] Blondo appeals to this Court, raising one issue:

Whether the circuit court erred when it found that the Bristol School District and Board of Education were the proper entities to reduce-in-force Blondo.

STANDARD OF REVIEW

[¶ 11.] This Court recently articulated the proper standard of review of a school board’s decision in Hicks v. Gayville-Volin School District:

SDCL 13-46-6 allows a party to appeal a school board decision. That statute provides for a de novo trial to the circuit court.
The trial in the circuit court shall be de novo according to the rules relating to special proceedings of a civil nature so far as such rules are applicable and not in conflict with the provisions of this chapter and the court shall enter such final judgment or order as the circumstances and every right of the case may require and such judgment or order may be enforced by writ of execution, mandamus, or prohibition, or by attachment as for contempt.
Id. Despite the “de novo” language of this statute, this Court has long held that the standard of review is not that traditionally used in an ordinary trial de novo. Instead, great deference is given to the good faith determinations of school boards whether to renew a teacher’s contract. Wuest v. Winner School Dist. 59-2, 2000 SD 42, ¶ 12, 607 N.W.2d 912, 915; Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D.1989). Consequently, we have repeatedly stated:
The circuit court’s review is not a trial de novo in the ordinary sense of the phrase. School boards are creatures of the Legislature and the judiciary may not interfere with their decisions unless the decision is made contrary to law. Therefore, “as long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant the school board’s decision making process.” Only the legality of the decision, not the propriety of the decision, may be reviewed by the courts. The legality of a school board’s decision is determined by a two-prong review. First, the procedural regularity of the decision is reviewed. This review includes whether the school board was vested with the authority to act and whether all procedural requirements required by law were followed. Second, the school board’s decision is reviewed to determine whether the decision was arbitrary, capricious or an abuse of discretion.
Gauer v. Kadoka School Dist. No. 35-1, 2002 SD 73, ¶ 5, 647 N.W.2d 727, 730.

2003 SD 92, ¶ 10, 668 N.W.2d 69, 73.

ANALYSIS AND DECISION

[¶ 12.] In the instant case, the only issue for this Court’s review is whether the Bristol School District and the Bristol Board were the proper entities to provide Blondo with the statutorily required notice of nonrenewal due to reduction in force. If the Bristol School District and the Bristol Board were the proper entities, there is no dispute in the record that the proper procedural requirement of notice in writing due by April 15 was followed.

[¶ 13.] SDCL 13-43-6.4 provides: “Notwithstanding §§ 13^3-6.1 to 13-43-6.3, inclusive, if a teacher’s contract is not renewed due to a reduction in staff, only written notice is required, which shall be provided by the school board to the teacher by April fifteenth.” (emphasis added). At issue is the meaning of “the school board” in the statutory language given the facts of this case.

[¶ 14.] SDCL 13-6-64 provides:

The school board members of a newly created district elected on or before the first Monday in May shall qualify and assume office as soon as can be conveniently done but not before the first Monday in January of the year in which the district will become operational. They shall organize the board as provided in chapter 13-8 and may immediately contract for services and supplies to be furnished the newly created school district for the fiscal year beginning July first of the year following the election and organization of such board. However, if a new district does not become operational, the contracts are void. The board shall meet as often as it deems necessary before the new district becomes operational, and its expenses shall constitute a legal claim under §§ 13-8-37 and 13-8-38, to be paid by the new district when operational. The school boards of existing districts reorganized into newly created districts shall continue to operate until the end of the current fiscal year, (emphasis added).

[¶ 15.] The Groton Area Board of Education did not come into existence until the election results were certified by the Brown County Auditor on April 22, 2004. Until that date, only the Groton Board and the Bristol Board existed as legal entities with the power to contract. The Bristol Board, as the duly elected governing body of a dissolving district, was legally entitled to continue functioning until “the newly elected school officers assume their offices and all duties ... have been performed.” SDCL 13-6-67. Thus, on April 15, 2004, the deadline for nonrenewal notification, the only entity in existence with legal authority to nonrenew Blondo’s contract was the Bristol Board as the Groton Area Board had yet to be elected.

[¶ 16.] Blondo’s argument that only the Groton Area Board had the legal authority to nonrenew Bristol teachers is misplaced. There is nothing in the statutory scheme under SDCL Chapter 13^13 to support her contention. All relevant statutory provisions clearly indicate that only the Bristol Board had the legal authority to nonrenew Blondo by the April 15 deadline, as it was the only legal entity in existence at the time with the legal authority to contract with tenured teachers.

[¶ 17.] Affirmed.

[¶ 18.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . SDCL 13-6-41 provides: "Upon receipt of the approval of the plan from the secretary of the Department of Education, the school board of each school district shall call a special election within each school district and all qualified voters of the district shall be entitled to vote on the proposal.”

      . SDCL 13-6-48 provides:
      The secretary of the Department of Education shall notify all school boards of each district included in the plan and boards of county commissioners affected if such plan has been approved or rejected by the voters. If the plan was approved by the voters, the secretary of the Department of Education shall issue his order to give effect to such plan. The order shall contain a description of the boundary of each school district, the date that the district shall become operative, the number of school board members to be elected and the county of jurisdiction as provided in § 13-5-14. (emphasis added).

      . SDCL 13-43-6.1 to 13-43-6.3 are not at issue in the instant case, as these code sec-lions refer to the nonrenewal of tenured teachers for cause.