author: SANDSTROM, Justice.

text:
    2003 ND 198
    VND, LLC, a North Dakota Limited Liability Company, Plaintiff and Appellant, v. LEEVERS FOODS, INC. d/b/a Leevers County Market, a North Dakota Business Corporation, Defendant and Appellee.
    No. 20030091.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
    Rehearing Denied Jan. 14, 2004.

      Mark G. Schneider, Schneider, Schneider & Phillips, Fargo, for plaintiff and appellant.
    Daniel M. Traynor (argued) and Thomas E. Rutten (appeared), Traynor, Rutten & Traynor, P.C., Devils Lake, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] VND is appealing a Southeast Judicial District Court judgment denying summary eviction of Leevers Poods, Inc., under N.D.C.C. ch. 33-06. After a hearing on the motion for eviction, the district court found there had been no material breach of the written lease by Leevers, as required by N.D.C.C. § 33-06-01(8), found Leevers was entitled to equitable relief from the termination of the lease because of its substantial investment in the leased premises, and denied summary eviction. VND argues the district court erred in allowing Leevers to present counterclaims and affirmative defenses to its summary-eviction claim. VND also argues that Leevers admitted it breached the lease and that these breaches were sufficient for summary eviction in that they were material. Finally, VND argues that Leevers’ substantial investment in the leased property does not entitle it to equitable relief from the termination of the lease. Because this ease is not suitable for summary eviction, we affirm.

I

[¶ 2] Leevers is a North Dakota corporation that operates a supermarket in Jamestown known as Leevers County Market. VND is a limited liability company and owns a shopping mall in Jamestown known as Park Plaza Mall. Leevers entered into a lease on November 27, 1981, with the former owner of the Park Plaza Mall, Paul J. Bjornson. On October 21, 1997, VND purchased the Park Plaza Mall and assumed the lease.

[¶ 3] The lease provides for monthly rental payments of $10,417.00. Leevers leases approximately 57.22 percent of the space available for tenants in Park Plaza Mall and pays 57.22 percent of the common area maintenance charges for the Park Plaza Mall in addition to its monthly rent. Leevers claims it has paid approximately one million dollars in monthly rent and maintenance charges since October 21, 1997. Leevers also contends it made long-term capital investments estimated at 3.9 million dollars. These investments include fixtures and other leasehold improvements of 1.8 million dollars, including $142,000 paid for improvements to the Park Plaza Mall parking lot. VND claims that maintenance charges of over $20,000 are unpaid, owing, and continuing to accrue.

[¶ 4] Leevers claims it has not paid its maintenance charges because of past overcharges. Leevers investigated and found it was likely that the common area meters supplied utilities for other tenants in the Park Plaza Mall. On January 16, 2001, Leevers notified VND of this problem and gave VND an opportunity to cure. On January 29, 2001, VND asked Leevers to give proof of its allegations. On March 25, 2002, Leevers provided proof of $20,597.00 in overpaid utilities and stated it would deduct overpayments from future bills for the maintenance charges. On March 29, 2002, Leevers claims VND gave it an accounting, providing credit to Leevers for the overpayment of maintenance utilities from October of 1997 forward; Leevers claims VND acknowledged a $17,580.19 credit. VND denies acknowledging a credit. VND informed Leevers that any deductions of maintenance overpayments by Leevers would be treated as a separate default of the lease. Leevers began applying the alleged credit to its monthly maintenance statements. Leevers did not send a notice of default to VND with regard to the maintenance charges.

[¶ 5] Leevers claims it has paid for a pro-rata share of all-risks insurance on the building in addition to maintaining its own liability insurance under the lease. Leev-ers notified VND that it was no longer going to pay for 57.22 percent of VND’s cost of purchasing liability insurance, claiming the language of the lease did not require this payment. Prior to the hearing, Leevers agreed to resume paying for this insurance and to reimburse VND for the pro-rata cost for those months when the insurance was not paid.

[¶ 6] On August 9, 2002, VND gave Leevers written notice of default, alleging Leevers was in default for failing to pay common area maintenance charges, for unilateral setoff of rents due, and for failing to pay its pro-rata share of liability insurance. On September 5, 2002, Leev-ers responded to the notice of default, stating it was applying an acknowledged credit due in maintenance charges and denying it owed a pro-rata share of VND’s liability insurance under the lease. On September 10, 2002, notice of intention to evict was served upon Leevers; no demand for damages or for rents and profits was made with the notice. Leevers did not vacate the premises. VND brought a suit against Leevers for summary eviction. A hearing on the motion for eviction was held on October 24, 2002.

[¶7] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 8] VND argues Leevers was precluded from asserting any counterclaims or affirmative defenses in this summary eviction action because it demonstrated Leevers failed to pay rent and otherwise materially breached the lease.

[¶ 9] “ ‘The interpretation of a statute is fully reviewable on appeal.’ ” State v. Norman, 2003 ND 66, ¶ 14, 660 N.W.2d 549 (quoting Overboe v. Farm Credit Servs., 2001 ND 58, ¶ 9, 623 N.W.2d 372 (citation omitted)). “ ‘Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute.’ ” Id.

[¶ 10] Section 33-06-04, N.D.C.C., provides:

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

[¶ 11] “The purpose of the no-counterclaim provision in the eviction statutes ‘was to get a speedy determination of possession without bringing in any extraneous matters.’ ” Anderson v. Heinze, 2002 ND 60, ¶ 11, 643 N.W.2d 24 (quoting Nomland Motor Co. v. Alger, 77 N.D. 29, 31, 39 N.W.2d 899, 900 (1949)). See also South Forks Shopping Center v. Dastmalchi, 446 N.W.2d 440, 443 (N.D.1989).

[¶ 12] “In an eviction action, the defendant may show the character of the possessory rights claimed by the parties.” Anderson, 2002 ND 60, ¶ 11, 643 N.W.2d 24 (citation omitted). However, “ ‘the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.’ ” Id. (quoting Vidger v. Nolin, 10 N.D. 353, 354, 87 N.W. 593, 593 Syllabus ¶ 3 (1901)).

[¶ 13] The right to possession in this case depends on whether or not Leev-ers failed to pay rent and whether or not there were any material breaches. The evidence regarding the strained relationship is important in determining whether a material breach has occurred. See generally Restatement (Second) of Contracts § 241 (1977). Further, because whether rent is paid goes to Leevers’ right of possession, affirmative defenses and counterclaims regarding the payment of rents must be allowed. We conclude the district court did not misapply the law in this case by allowing evidence of the strained relations between Leevers and VND and by allowing Leevers to present evidence on whether rent was paid.

III

[¶ 14] VND argues the trial court erred in failing to summarily evict, because Leevers admitted it failed to pay $20,000 in past due “additional rents” and over $10,000 in past due pro-rata portions of the landlord’s liability insurance.

A

[¶ 15] Whether failure to pay $20,000 in past due “additional rents” is sufficient to compel summary eviction depends on whether the “additional rents” are considered rents for the purposes of N.D.C.C. § 33-06-01(4).

[¶ 16] Section 33-06-01, N.D.C.C., provides the grounds for maintaining a summary eviction action. Section 33-06-01(4) provides that an action of eviction to recover the possession of real estate is maintainable in the proper district court when a lessee fails to pay rent for three days after the rent becomes due.

[¶ 17] Section three, additional rent, of the lease agreement provides:

Lessee agrees to pay its pro-rata share of mall maintenance and cleaning, mall lighting, mall landscaping, mall heat and air conditioning, and parking lot repair and maintenance. Such pro-rata share shall be made on the basis of the square feet of the floor area of the building which is a part of the demised premises as related to the total [leaseable] square footage of the floor area in the Shopping Center.

[¶ 18] Whether “additional rents” are considered rents for summary eviction purposes is discussed in Rector, Church Wardens, Vestrymen v. Chung King House of Metal, Inc., 193 Misc.2d 44, 747 N.Y.S.2d 292 (N.Y.CityCiv.Ct.2002). This case deals with a summary nonpayment proceeding under New York Consolidated Law Service, Real Property Actions and Proceedings Law § 711, summary proceedings to recover possession of real property. The purpose of the New York statute is similar to the purpose of the North Dakota statute dealing with summary eviction. N.D.C.C. § 33-06-01. The purpose of each statute is to provide a landlord with an inexpensive, expeditious, and simple means to obtain possession of leased premises for nonpayment of rent. See Rector, 747 N.Y.S.2d at 295; see also Anderson, 2002 ND 60, ¶ 11, 643 N.W.2d 24 (The purpose of the no-eounterclaim provision in the eviction statutes is to get a speedy determination of possession.). We have held that claims arising from a lease unrelated to possession cannot be maintained in a summary proceeding. Anderson, at ¶ 11. Similarly, the New York court has held that “claims arising from a residential lease which are unrelated to rent or additional rent cannot be maintained in a summary proceeding.” Rector, 747 N.Y.S.2d at 295-96 (citing Binghamton Hous. Auth. v. Douglas, 217 A.D.2d 897, 630 N.Y.S.2d 144 (3rd Dept. 1995) (landlord may seek judgment for money owed for rent but not other charges) (citations omitted)).

[¶ 19] According to New York law, whether a claim for electrical charges arising from a commercial lease can be maintained in a summary proceeding depends upon “both the character of the claim and the terms of the commercial lease.” Id. at 296 (citations omitted). A summary proceeding action can be brought when the lessor and lessee stipulate that something is an additional rent and these additional rents are not paid. See River View Assoc. v. Sheraton Corp. of America, 33 A.D.2d 187, 306 N.Y.S.2d 153, 156 (N.Y.A.D.1969); see also Petrakakis v. Crown Hotels, Inc., 3 A.D.2d 635, 158 N.Y.S.2d 15, 16 (N.Y.A.D.1956) (taxes not treated as rent for purposes of maintaining summary proceeding action because unpaid taxes were not expressly made part of the rent).

[¶ 20] In Rector, electrical charges were not additional rent because they did not fall under the definition of “additional rent” in the lease. Rector, 747 N.Y.S.2d at 297. The case before us is distinguishable from Rector because the maintenance charges at issue fall directly under the heading “additional rents.” This case is more analogous to River View Assoc. in which the court concluded utility and insurance charges were not additional rent because the lease did not so provide, but found taxes, licenses, and water to be additional rent because they were described as such in the lease. 33 A.D.2d 187, 306 N.Y.S.2d 153, 155-56 (N.Y.A.D.1969).

[¶ 21] Morningside Studios v. Lucille Hotel Corp., 70 Misc.2d 760, 334 N.Y.S.2d 735 (N.Y.City Civ.Ct.1972) explains in detail why failure to pay additional rent under a commercial lease may be the basis for an order and warrant of eviction:

As a matter of business practice and policy, commercial leases designate certain tenant’s obligations as “additional rent” to enable the landlord to enforce them effectively and to proceed summarily against a tenant who defaults in this obligation.... In my opinion, these obligations [real estate taxes, sewer and water charges, assessments, vault and rental taxes] are sufficiently material to the lease to warrant their enforcement by a warrant of eviction. Failing to do so would result in the tenant not performing its material obligations as diligently as agreed and would place the landlord in a difficult position.

70 Misc.2d 760, 334 N.Y.S.2d 735, 737 (N.Y.Civ.Ct.1972).

[¶ 22] The court explained:

The expression “additional rent” is deliberately used as words of art, and is well-known in the real estate industry as being as enforceable as the monthly rental. Therefore, the failure to pay “additional rent” under a commercial lease may be the basis for an order and warrant of eviction and not only for a money judgment.

Id.

[¶ 23] The Restatement (Second) of Property has also explained that payments for the use of the premises, such as taxes or other sums, may be treated as rent by an agreement in the lease, so that a default will give rise to all the remedies for a failure to pay rent. Restatement (Second) of Property § 12.1 cmt. a, illus. 1 (1977). The Restatement bases this assertion on Allbaugh v. United States, 184 F.2d 109 (8th Cir.1950). Id. at reporter’s notes p. 421. Allbaugh states:

By long-settled principles of landlord and tenant law, where a lessee has agreed to pay taxes as rental and does not make payment of them to the proper public authority when they are due, the amount thereof becomes a debt owing to the lessor and is collectible as such, like any other delinquent rent.

Allbaugh, 184 F.2d at 112.

[¶ 24] We conclude the common area maintenance charges, as “additional rents,” and defined as such in the lease, are rents for the purposes of summary eviction under N.D.C.C. ch. 33-06.

[¶ 25] Because these additional rents were unpaid, VND claims it is entitled to automatic eviction. VND relies on South Forks for this proposition. South Forks Shopping Ctr. v. Dastmalchi, 446 N.W.2d 440, 444 (N.D.1989). In South Forks, the tenant argued no rent was owed because the landlord was in breach of another part of the lease. Id. at 442. In South Forks this Court concluded it was “unaware of any authority in this state for permitting a commercial tenant to both remain in possession and refuse to pay-rent when a landlord breaches a covenant of the lease, unless the terms of the lease so provide.” Id. at 444. In South Forks, the landlord breached an agreement to lease different space to the tenant; this Court concluded this agreement was independent of the rent due for the lease of present space. Id. This Court held the two promises were not concurrent and conditional and therefore concluded that because rent was unpaid, South Forks was entitled to eviction. Id. at 444-45. The situation between Leevers and VND is distinguishable because there are not two independent promises; in this case rent has been overpaid, and a credit is due. We conclude failure to pay rent when a credit is due cannot justify a summary eviction and cannot be said to be a breach of the lease.

[¶ 26] The district court did not specifically conclude whether the additional rents were rents for the purposes of summary eviction. The district court did, however, conclude South Forks was distinguishable from the present case. The district court found the parties had several disputes related to common area maintenance charges and Leevers had been correct on most of the issues raised. The district court found VND repeatedly over-billed Leevers for items not allowed by the terms of the lease.

[¶ 27] Although the district court’s findings of fact and conclusions of law should be stated to afford us a clear understanding of the court’s decision, the findings are adequate if we can understand from them the factual basis for the district court’s determination. Gross v. Sta-Rite Industries, Inc., 322 N.W.2d 679, 682 (N.D.1982). “[Although findings of fact could be more definite, [lack of specificity] alone does not make them erroneous.” Id. We conclude the district court did not err in denying an action for summary eviction on the basis of Leevers’ failure to pay rent. Further, its findings adequately inform us of the basis for the decision.

R

[¶ 28] VND argues the district court erred in failing to summarily evict for material breach of the lease, because Leevers owed past due pro-rata insurance premiums under the lease. VND argues Leev-ers admitted to owing the premiums and the district court mischaracterized its admission as a settlement. VND argues that even if Leevers does not owe premiums under the lease, it owes the premiums on the basis of custom and usage, waiver, and laches.

[¶ 29] The district court in its Memorandum Opinion stated:

A question of the liability insurance and a prorating of that liability insurance and the cost of the liability insurance has been a recent issue. After meeting with counsel the Court suggested that the defendant, because of its prior payment of the percentage of the premises liability insurance continue to maintain that relationship by paying the liability insurance. In open court the defendant agreed to make the liability insurance payment. Once the liability matter had been settled....

The finding on this matter stated:

10. The Defendant gave notice to the Plaintiff that they were no longer going to pay for 57.22 percent of the Plaintiffs cost of purchasing liability insurance because the language of the lease did not require this payment. The Defendant agreed prior to the hearing to resume paying for this insurance and to reimburse the Plaintiff for the pro-rata cost for those months when such insurance was not paid.

The district court also found no material breach of the lease agreement.

[¶ 30] Section 33-06-01(8), N.D.C.C., provides that an action of eviction to recover the possession of real estate is maintainable in the proper district court when the “lessee violates a material term of the written lease between the lessor and lessee.”

[¶ 31] “[W]hether there has been substantial performance of a contract is a question of fact. The question of whether a lease has been fully complied with should also be treated as a finding of fact because the rules of construction relating to contracts generally apply to the construction of leases.” Kolling v. Goodyear Tire and Rubber Co., 272 N.W.2d 54, 60 (N.D.1978).

[¶ 32] “Whether a contract should be canceled for breach depends upon the facts of each case.” Sandberg v. Smith, 234 N.W.2d 917, 919 (N.D.1975); see also Hutton v. Janz, 387 N.W.2d 494, 498 (N.D.1986). “A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made.” Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196.

[¶ 33] Leevers argues it engaged in a reasonable interpretation of the lease regarding the payment of liability insurance. It maintains the lease agreement does not require payment of a pro-rata share of VND’s premises liability insurance. Leev-ers claims it has complied with the lease by paying its pro-rata share of “All Risk” insurance on the building in addition to maintaining its own liability insurance.

[¶ 34] Leases are subject to the rules of contract construction. Prairieview Nursing Heme v. North Dakota Dept. of Human Services, 1999 ND 142, ¶ 10, 598 N.W.2d 116. If the intent of the parties can be determined from the language of the contract alone, the interpretation of the contract is a question of law. Spagnolia v. Monasky, 2003 ND 65, ¶ 10, 660 N.W.2d 223. “If a written contract is unambiguous, extrinsic evidence is not admissible to contradict the written language.” Prairieview Nursing Home, at ¶ 10. “[T]his court has consistently held a lease will ordinarily be construed most strongly against the lessor.” Ehrman v. Feist, 1997 ND 180, ¶ 10, 568 N.W.2d 747 (citations omitted).

[¶ 35] The written lease in this case states:

Lessor is to provide and secure, at Lessor’s expense, building insurance on an “All Risk” form in an amount equal to the replacement value of the budding on the demised premises; such insurance shall protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises. Certificates evidencing such insurance shall be delivered to Lessee.
Lessee shall reimburse Lessor by payment of its pro-rata share of the premium upon receipt by Lessee of invoice accompanied by insurance bills. Such pro-rata share to be determined as in paragraph Eight.
Lessee agrees to provide at its expense public liability insurance in an amount equal to at least $1,000,000 (combined single limit).

[¶ 36] When a lessee was required to insure equipment under an “All Risk” form, this Court concluded that the language of the lease, by its own terms, required insurance for damage to the equipment. This Court concluded the provision of the lease was not applicable to damages for personal injury. The lease provided:

INSURANCE: Lessee agrees at its expense to keep said equipment insured under a contractor’s ALL RISK form with not more than $250 deductible clause, containing a loss payable clause in favor of Lessor. Satisfactory evidence of this as well as public and property damage liability coverage with minimum limits of 250/500/250 will be furnished Lessor.

Barsness v. General Diesel & Equipment Co., Inc., 422 N.W.2d 819, 825 (N.D.1988) (indemnity case).

[¶ 37] The lease requires Leevers to reimburse VND for insurance of an “All Risk” form for damages or destruction to the building. The lease, by its own terms, requires reimbursement only for damages to the building and other insurable portions of the premises and is not applicable to damages for personal injury (“such insurance shall protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises”). Furthermore, Leevers was already providing $1,000,000 in public liability insurance at its own expense.

[¶ 38] In interpreting another contract provision dealing with all-risk insurance, the Sixth Circuit Court held the term “any loss” could not mean the defendants were required to insure against every conceivable happening. The court held that the term should be read in the context of the whole paragraph. The court determined the term “any loss” meant all losses discussed in the contract provision or otherwise covered under the “all risk” policy the defendants obtained. The provision stated:

10.5.1 The Owner shall obtain and maintain property insurance in a form acceptable to the Contractor upon the entire Project for the full cost of replacement at the time of any loss. The insurance shall include as additional insureds the Contractor, Subcontractors and Subsubcontractors. This insurance shall insure against loss from the perils of fire and extended coverage, and shall include “all risk” insurance for physical loss or damage including without duplication of coverage, at least: theft, vandalism, malicious mischief, transit, collapse, false work, temporary buildings, debris removal, flood, earthquake, testing, and damage resulting from defective design, workmanship or material. The Owner shall increase limits of coverage, if necessary, to reflect estimated replacement cost.

Chelm Mgmt. Co. v. Wieland-Davco Corp., No. 00-3768, 23 Fed.Appx. 430, 432 (6th Cir.2001).

[¶ 39] In the Chelm Mgmt. case the defendant was required to purchase rather than reimburse for insurance; however, the court was interpreting the type of loss for which the defendant was liable to purchase insurance. Similarly, the lease agreement between Leevers and VND should be read as requiring Leevers to reimburse for all-risk insurance to protect against “any loss” to the building or other insurable portions of the premises. The provision should not be construed as requiring reimbursement for any loss whatsoever.

[¶ 40] In Garofalo v. Saint Joseph’s Hosp., 2000 ND 149, 615 N.W.2d 160 we stated:

The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity. N.D.C.C. § 9-07-02. A contract is interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting. N.D.C.C. § 9-07-03. “The whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. Each clause is to help interpret the others.” N.D.C.C. § 9-07-06. A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates. N.D.C.C. § 9-07-12.

2000 ND 149, ¶ 8, 615 N.W.2d 160.

[¶41] Given the aforementioned cases and the rules of contract construction, we conclude the language of the contract should govern. The language of the contract is clear and explicit and does not involve an absurdity. The lease provision in question specifically includes the purpose of the insurance (“such insurance shall protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises”). Interpreting the contract to include liability for things not specifically indicated in the paragraph would lead to an absurdity.

[¶ 42] VND argues Leevers is nonetheless required to pay a pro-rata share of VND’s liability insurance on the basis of custom and usage, waiver, and laches.

[C]ustom and usage may be given effect as part of a written contract where the agreement is silent or ambiguous on a point, and where there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom. Tong v. Borstad, 231 N.W.2d 795 (N.D.1975). The custom or usage must be proved as any other fact. Peterson v. McCarney, 254 N.W.2d 438 (N.D.1977). Whether or not a custom or usage exists is a question of fact.

Hager v. Devils Lake Pub. Sch. Dist., 301 N.W.2d 630, 634 (N.D.1981).

[¶ 43] Because the language of the lease is not ambiguous, VND’s argument regarding custom and usage need not be considered.

[¶44] In Pfeifle v. Tanabe, 2000 ND 219, 620 N.W.2d 167, this Court held:

A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 13, 571 N.W.2d 363. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver generally is a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id. Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract. Dangerfield v. Market, 252 N.W.2d 184, 191 (N.D.1977).

2000 ND 219, ¶ 18, 620 N.W.2d 167.

[¶ 45] “Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.” Williams County Social Services Bd. v. Falcon, 367 N.W.2d 170, 174 (N.D.1985). In Diocese of Bismarck Trust v. Ramada, Inc., this Court held:

Laches does not arise from the passage of time alone, but is a delay in enforcing one’s right which is prejudicial to another. Schmidt v. Schmidt, 540 N.W.2d 605, 608 (N.D.1995); Wehner v. Schroeder, 354 N.W.2d 674, 676 (N.D.1984). In addition to the passage of time, parties against whom a claim of laches is sought to be invoked must be actually or presumptively aware of their rights and must fail to assert those rights against parties who in good faith changed their position and cannot be restored to their former state. Wehner, 354 N.W.2d at 676.

553 N.W.2d 760, 767 (N.D.1996).

[¶ 46] Because Leevers is not asserting a right or trying to bring a claim, we conclude that laches and waiver do not apply.

[¶ 47] As a matter of law, we conclude Leevers was not obligated to pay a pro-rata share of liability insurance. Leevers, however, stipulated it would nonetheless pay the liability insurance, having paid it in the past.

[¶ 48] At trial, following off-the-record discussions between the court and counsel in chambers and before the first witness was called, Leevers stipulated it was obligated to pay the past due insurance premiums and all future premiums:

MR. RUTTEN: We won’t stipulate that it is a material breach but will stipulate that — that the defendant would be obligated to pay that amount, whatever it is.
MR. SCHNEIDER: General liability premises portion of the insurance.
MR. RUTTEN: Right.
THE COURT: Whatever has been in existence from time [im]memorial; right?
MR. RUTTEN: That’s correct.
THE COURT: ... [I]t is still an open issue if you want it. But if you are willing to accept the stipulation—
MR. SCHNEIDER: We are willing to accept the stipulation that they agree that they have a legal duty, and they did, and would now be willing to pay all general premises portion of their pro-rata share. We reserve the right of arguing that it is a material breach and, of course, Mr. Rutten is going to argue that it is not a material breach.
THE COURT: Okay. I will accept that stipulation. Anything else?

[¶ 49] During the course of the trial, there was further testimony regarding the stipulation:

Q: [By Mr. Schneider] Now we have stipulated in court now that — that you did have a duty to pay the general premises liability portion of the insurance at all times including all times during the tenancy my client assumed since 1997?
A: That’s correct....
Q: [By Mr. Rutten] And so you are willing to pay that insurance from the time you quit paying it right up to the present and continue to pay it then?
A: That’s correct. Even if the language of the lease says we don’t have to we have agreed to that.
Q: [By Mr. Rutten] Okay. And that the other reason is because you had paid it all this time in the past?
A: Right. We — yes, that’s correct.

[¶ 50] This was again discussed later on in the trial:

Q: [By Mr. Rutten] Now you now agreed in open court to stipulate that despite — in the insurance issue — despite the fact that you now believe that the lease didn’t allow you to do that or didn’t require you to pay general premises liability that you nonetheless had the legal responsibility to pay that; correct?
A: We so stipulated....
Q: [By Mr. Rutten] Just one matter of clarification with respect to the stipulation relating to insurance. Is it your understanding that we stipulated to pay the insurance because it had been paid over the years based on custom and usage but you are not stipulating — that that paragraph, Section 10 of the lease, requires you to pay a pro-rata share of the landlord’s liability insurance? You are not stipulating to that; are you? A: No.

[¶ 51] VND argues this stipulation was an admission by Leevers to having breached its duty to pay its pro-rata share of insurance and the only issue left to determine was whether the failure to pay this obligation under the lease violated a material term of the written lease agreement. Leevers, on the other hand, argues this stipulation was a compromise to settle the issue. It maintains that it was not obligated to pay the insurance under the lease. In its memorandum opinion, the district court, which had participated in the off-the-record discussions, also construed the stipulation as a settlement of the issue. Leevers made it very clear it was not conceding it had committed a breach. The stipulation was only to pay the insurance and not an agreement that failure to pay was a material breach.

[¶ 52] We conclude the district court did not err in failing to construe this stipulation as an admission. We further conclude the district court did not err in concluding there was no material breach of the lease agreement.

IV

[¶ 53] VND argues that Leevers has misstated the facts, that these facts are not supported in the record, and that double costs should be imposed. VND also argues Leevers raises the issues of waiver and estoppel for the first time on appeal. We conclude these arguments would have been brought more properly in a motion; nevertheless, we find them without merit.

[¶ 54] Because there has been no breach of the lease and because as a matter of law Leevers was not obligated to pay a pro-rata share of VND’s liability insurance under the terms of the written lease prior to its stipulation, we do not need to discuss whether the court erred in determining that any breaches were immaterial, nor do we need to decide whether Leevers’ substantial hardship can be considered. Because all rent has been paid and because Leevers has not committed any breaches of the lease, we conclude this case is not appropriate for summary eviction and therefore affirm the judgment of the district court.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 197
    STATE of North Dakota, Plaintiff and Appellee, v. Mark John WALTZ, Defendant and Appellant.
    Nos. 20030119, 20030120, 20030121.
    Supreme Court of North Dakota.
    Dec. 19, 2003.

      Thomas H. Falck, Jr., Assistant State’s Attorney (appeared), and third-year law student Carmell Berry (argued), under the Rule on Limited Practice of Law by Law Students, Grand Forks, for plaintiff and appellee.
    Steven M. Light, Larivee & Light, Grand Forks, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Mark John Waltz appealed from criminal judgments entered against him for possession of drug paraphernalia, possession of methamphetamine with intent to deliver, and possession of marijuana in a motor vehicle. We affirm.

I

[¶ 2] On March 11, 2002, Officers Lam-pi and Riedinger of the Grand Forks Police Department responded to a report that a person was passed out in a vehicle at the Taco John’s on Gateway Drive in Grand Forks. They found Waltz sitting in the driver’s side of his running van at the drive-up window with his window open, his check book in one hand and a pen in the other, his head slumped down to his chest, the cai’ in drive, and his foot on the brake. Officer Lampi parked his patrol car in front of Waltz’s van, approached the van, reached inside and put it in “park,” and shut off the engine. Waltz awoke as Officer Lampi reached over him to remove the keys.

[¶ 3] Officer Lampi asked Waltz if he knew where he was and, after looking around, Waltz answered he was in Grand Forks. Officer Lampi asked him where in Grand Forks and, after looking around again, Waltz stated he was at Taco John’s. In response to further questioning by Officer Lampi, Waltz stated he was sleeping because he was really tired after bringing his brother to a long-term care facility and was on his way to Fargo. Waltz stated he had not been drinking. Officer Lampi asked Waltz to step out of the vehicle to perform field sobriety tests.

[¶ 4] When Waltz was getting out of the vehicle, Officer Lampi noticed a knife in a case on Waltz’s hip. Officer Lampi asked Waltz if he could pat him down and if he had any drugs, alcohol, or anything that could be used as a weapon. Waltz stated he had a flask in his pocket and gave it to Officer Lampi. Waltz agreed to Officer Lampi’s request for the pat-down. During the pat-down, Officer Lampi found two lighters and a two-inch long silver container that looked like a pill ease. Officer Lampi then escorted Waltz to the patrol car to complete the field sobriety tests. Officer Lampi testified Waltz was “a little sideway, stumbly” as he escorted him down the driveway, which had patches of ice, to the patrol car.

[¶ 5] Officer Lampi placed Waltz in the back seat of the patrol car, read him his Miranda rights, and conducted three field sobriety tests. Officer Lampi asked Waltz to recite the alphabet from F to Y (Waltz recited it from F to Z); he asked Waltz to count backwards from 86 to 68 (Waltz counted 86, 87, 85 and continued down to 68); and he administered a finger dexterity test which Waltz could not complete. Officer Lampi concluded Waltz failed the sobriety tests and arrested him for actual physical control of a vehicle while under the influence of drugs or another substance.

[¶ 6] Before the field sobriety tests were completed, the officers had discovered a white powdery substance inside the silver container. Waltz claimed it was a concoction his mother or grandmother made for him. Following the arrest, the officers searched Waltz’s van and found drug paraphernalia and baggies containing a white powdery substance inside a backpack in the back seat, four metal flasks containing liquid inside an open cooler, and a lemonade container with a green, leafy substance inside. Waltz was taken to the Grand Forks Police Department where he refused to take a chemical test. Subsequent tests showed the white powdery substance in the baggies and the silver container was methamphetamine.

[¶ 7] Waltz was charged with possession of drug paraphernalia, possession of methamphetamine with intent to deliver, and possession of marijuana in a motor vehicle. He moved to suppress the evidence discovered during the searches, claiming his constitutional rights were violated. The district court found the evidence discovered in the van was admissible because it was discovered during a search incident to a lawful arrest. The court concluded Officer Lampi improperly opened the silver container without a warrant. However, it found the contents were admissible because they would have been discovered in the subsequent lawful search of Waltz’s van. On appeal, Waltz contends all the evidence should have been suppressed because there was no probable cause for the arrest.

II

[¶ 8] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article I, Section 8 of the North Dakota Constitution require searches and seizures to be reasonable. Absent an exception, “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A warrant-less search is unreasonable unless it falls within an exception to the warrant requirement. State v. Tognotti, 2003 ND 99, ¶ 7, 663 N.W.2d 642. “The State has the burden of showing that a warrantless search falls within an exception to the warrant requirement.” State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410. This Court, following the United States Supreme Court, has held “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile,” including any containers found therein. State v. Hensel, 417 N.W.2d 849, 852 (N.D.1988) (quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). On the other hand, “evidence seized [incident] to an invalid arrest is inadmissible” if it does not fall within another exception to the exclusionary rule. State u Haverluk, 2000 ND 178, ¶ 9, 617 N.W.2d 652. Therefore, whether the evidence discovered in the van should have been suppressed in this case depends upon whether there was probable cause to arrest Waltz. Waltz contends there was no probable cause for Officer Lampi to arrest him for actual physical control of a motor vehicle while under the influence of drugs or another substance.

[¶ 9] Whether probable cause exists is a question of law fully reviewable on appeal. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. However, in assessing a trial court’s decision regarding suppression:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Tollefson, 2003 ND 73, ¶ 9, 660 N.W.2d 575 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1).

[¶ 10] Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed. State v. Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703. The officer does not have to “possess knowledge of facts sufficient to establish guilt.” Hensel, 417 N.W.2d at 852. In determining whether probable cause to arrest existed, we evaluate the totality of the circumstances. Sonsthagen, 2003 ND 90, ¶ 17, 663 N.W.2d 161.

[¶ 11] Section 29 — 06—15(l)(a), N.D.C.C., authorizes an officer to make a warrantless arrest when there is probable cause to believe a suspect has committed a public offense in the officer’s presence. Waltz was arrested for being in actual physical control of a vehicle while under the influence of drugs or another substance, which is a violation of N.D.C.C. § 39 — 08—01(l)(c). “[T]he essential elements of actual physical control are ‘(1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs, or other substances.’ ” Rist v. N.D. Dep’t of Transp., 2003 ND 113, ¶ 14, 665 N.W.2d 45 (quoting Haverluk, 2000 ND 178, ¶ 15, 617 N.W.2d 652); see N.D.C.C. § 39-08-01. Cases evaluating probable cause to arrest for actual physical control of a vehicle while under the influence of alcohol are relevant in assessing probable cause for actual physical control while under the influence of drugs. Cf. Sonsthagen, 2003 ND 90, ¶ 19, 663 N.W.2d 161 (“In determining what is necessary to establish probable cause to arrest a driver for driving while under the influence of drugs, we are guided by what we have stated is necessary to arrest a driver for driving while under the influence of alcohol”).

A.

[¶ 12] Waltz was passed out in his vehicle while it was still running in front of the drive-up window of a fast food restaurant; he was slow answering questions regarding where he was; he had difficulty walking to the patrol car; and he failed the field sobriety tests. This is not a case of a person intentionally resting in his vehicle. Instead, the facts indicate Waltz inadvertently passed out or fell asleep while waiting in his running car at the drive-up window of a restaurant. Waltz claimed he fell asleep because he was really tired. However, assuming Waltz’s explanation was true, it is nevertheless reasonable to believe that a driver falling asleep in a running vehicle at the drive-up window of a restaurant indicates impairment. Waltz’s difficulty answering basic questions regarding where he was is further indication of mental impairment.

[¶ 13] We have previously held staggering is a relevant factor indicating impairment. Baer v. Dir., N.D. Dep’t of Transp., 1997 ND 222, ¶ 13, 571 N.W.2d 829; see also State v. Salhus, 220 N.W.2d 852, 855 (N.D.1974). Waltz claims his difficulty walking is easily explained because the driveway was slippery due to ice patches. When evaluating probable cause to search, we have stated that even though conduct may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” State v. Ringquist, 433 N.W.2d 207, 215-16 (N.D.1988) (quoting United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)). Similarly, Waltz’s explanation for his difficulty walking does not preclude suspicion of impairment. Rather, Officer Lampi’s testimony indicates he determined Waltz’s difficulty walking was a result of being impaired either because “he was tired ... or something else.” There is no indication from Officer Lampi’s testimony that Waltz had difficulty walking because he slipped on any of the ice patches on the driveway.

[¶ 14] Waltz contends his failure to successfully complete the field sobriety tests does not support a finding of probable cause. Officer Lampi testified the field sobriety tests “indicate sobriety or [whether the person is] under the influence of things.” We have previously evaluated a person’s failure to successfully complete field sobriety tests as an indicator of physical or mental impairment. Sonsthagen, 2003 ND 90, ¶ 22, 663 N.W.2d 161; see also Kahl v. Dir., N.D. Dep’t of Transp., 1997 ND 147, ¶ 17, 567 N.W.2d 197 (failing field sobriety tests is relevant in determining probable cause). Taken together, the fact Waltz was passed out in his vehicle, was slow answering questions regarding his location, had difficulty walking to the patrol car, and failed the field sobriety tests indicates he was physically or mentally impaired to an extent which rendered him incapable of safely driving. See N.D.C.C. § 39 — 08—01(l)(c).

[¶ 15] Furthermore, there was reason to believe Waltz’s impairment was caused by alcohol, drugs, or another substance. Officer Lampi testified there was no odor of alcohol and Waltz did not have bloodshot eyes. Further, an SD2 breathalyzer revealed no alcohol in Waltz’s system. However, Waltz did produce a flask and the pat-down search revealed a two-inch pill container. Although these items alone do not establish probable cause, they do create suspicion Waltz was impaired because he was under the influence of some substance. When this is considered along with Waltz’s level of impairment, it is reasonable to conclude Waltz was under the influence of drugs or another substance. See People v. Munsey, 18 Cal.App.3d 440, 95 Cal.Rptr. 811, 815 (1971) (“The probability that defendant’s condition was produced by alcohol having been tentatively eliminated, it became reasonable to entertain and hold a strong suspicion that defendant was under the influence of a narcotic”).

[¶ 16] Probable cause does not require information that would establish guilt. In this case, Waltz was clearly impaired. His level of impairment combined with the surrounding facts and circumstances created reasonable grounds to believe he was under the influence of drugs or another substance. Section 39-08-01(l)(c), N.D.C.C., provides:

1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
c. That person is under the influence of any drug or substance or combination of drugs or substances tó a degree which renders that person incapable of safely driving.

Therefore, we hold there was probable cause to arrest Waltz for actual physical control of a vehicle while under the influence.

Ill

[¶ 17] Waltz contends the evidence discovered in the silver container should have been suppressed because the officers’ search of the container was beyond the scope of his consent to the pat-down. Evidence obtained by unlawful police conduct is admissible if the prosecution proves by a preponderance of the evidence that the evidence would have inevitably been discovered by lawful means. State v. Olson, 1998 ND 41, ¶ 16, 575 N.W.2d 649 (citing State v. Johnson, 531 N.W.2d 275, 279 (N.D.1995) and Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). The substance discovered in the container was not necessary to establish probable cause to arrest Waltz. See Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703; Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa,” if the fruits of the search were not necessary to support probable cause to arrest). Assuming this evidence was initially obtained by an invalid search, it would have inevitably been discovered in the valid search incident to Waltz’s arrest. See Olson, at ¶ 17.

[¶ 18] For the reasons stated herein, the judgments of the district court are affirmed.

[¶ 19] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


text:
    2003 ND 189
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 1 WITH CHAMBERS IN GRAND FORKS, North Dakota, NORTHEAST CENTRAL JUDICIAL DISTRICT.
    No. 20030326.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
   ORDER

[¶ 1] On November 10, 2003, the Honorable Bruce E. Bohlman, Judge of the District Court, with chambers in Grand Forks, Northeast Central Judicial District, notified the Supreme Court of his intention not to seek reelection when his term ends December 31,2004. Under Section 27-05-02.1(4) a vacancy is created.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the Northeast Central Judicial District was posted November 12, 2003, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through December 15, 2003. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of the vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed December 15, 2003, by the Northeast Central Judicial District.

[¶ 5] On December 12, 2003, The Honorable John T. Paulson, Presiding Judge for the Southeast Judicial District, filed a request to transfer Judgeship number 1 from the Northeast Central Judicial District to the Southeast Judicial District. The Court recognizes that the most current weighted caseload study shows that the Southeast Judicial District has a shortage of .76 judicial full time equivalent positions while the Northeast Central District has a surplus of 1.00 judicial full time equivalent positions. The study shows some districts with a shortage greater than .76 judicial full time equivalent positions. The weighted caseload study generally reflects the need for judges in the districts. It contains some subjective valuations and is not a precise mathematical measurement of the need for judicial services in the districts. Section 4 of N.D. Sup.Ct. Admin. R. 7.2 provides additional criteria for consideration of the retention or transfer of the judgeship. See Matter of the Judicial Vacancy in Northwest Judicial District, 2001 ND 199, 637 N.W.2d 3. The population trends are not as pronounced between the Southeast Judicial District and the Northeast Central Judicial District as the population trends between the Northwest Judicial District and the East Central Judicial District when Judgeship No. 6 was transferred. Id. The differences indicated in population trends and the weighted caseload study alone do not rise to the level that would at this time necessitate the transfer of Judgeship No. 1 from the Northeast Central Judicial District to the Southeast Judicial District.

[¶ 6] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 7] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 8] IT IS HEREBY ORDERED, that Judgeship No. 1 at Grand Forks in the Northeast Central Judicial District be filled by election.

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


text:
    2003 ND 190
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 4 WITH CHAMBERS IN FARGO, North Dakota, EAST CENTRAL JUDICIAL DISTRICT.
    No. 20030333.
    Supreme Court of North Dakota.
    Dec. 19, 2003.
   ORDER

[¶ 1] On November 13, 2003, the Honorable Michael O. McGuire, Judge of the District Court, with chambers in Fargo, East Central Judicial District, notified the Supreme Court of his intention not to seek reelection when his term ends December 31, 2004. Under Section 27-05-02.1(4) a vacancy is created.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the East Central Judicial District was posted November 14, 2003, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through December 17, 2003. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of the vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed December 15, 2003, by the Presiding Judge for the East Central Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 4 at Fargo in the East Central Judicial District be filled by election.

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


author: ZINTER, Justice.

text:
    2003 SD 137
    Daniel J. CHRISTENSEN, Plaintiff and Appellant, v. Deanna L. CHRISTENSEN, Defendant and Appellee.
    No. 22763.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Nov. 25, 2003.

      Douglas R. Kettering, Yankton, Attorney for plaintiff and appellant.
    Michael D. Stevens of Blackburn & Stevens Yankton, Attorney for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Deanna Christensen moved to compel her ex-husband, Daniel Christensen, to pay delinquent child support. After trial, judgment was entered in favor of Deanna for the amount required by a prior court order although Deanna had requested a modification for a lesser amount. Daniel appeals, arguing that the trial court erred in failing to retroactively reduce ar-rearages to the modified amount requested by Deanna. He also argues that some of the support payments were forgiven by a private agreement between the parties. We affirm the trial court’s award for the full amount of the prior court order for those arrearages accruing prior to Deanna’s motion for modification (September 2000 through October 2001). We reverse the trial court’s award for the full amount of the prior court order for those arrearag-es accruing after Deanna’s motion (November 2001 through October 2002). We remand for entry of the modified amount requested in Deanna’s motion, and we remand for the re-calculation of pre-judgment interest.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Daniel and Deanna Christensen were divorced in December 1997. Pursuant to the divorce decree, Daniel and Deanna were granted joint legal custody of their two sons. Deanna was granted physical custody, subject to visitation by Daniel. The visitation included two months of extended summer visitation each June and July.

[¶ 3.] During his two months of extended summer visitation, Daniel’s court-ordered child support obligation was reduced in half. For the rest of the year, Daniel was ordered to pay $722.64 per month if he provided health insurance for the boys, and $798.04 if he did not. Daniel was also ordered to pay alimony in the amount of $250.00 per month for five years.

[¶ 4.] Soon after the divorce, Deanna moved to Rapid City with the boys. After living in Rapid City for almost two years, she and Daniel started talking about reconciliation. Deanna asked Daniel to move to Rapid City, but Daniel declined. Instead, Deanna agreed to move back to Yankton. Deanna quit her job in Rapid City in August 2000, but could not move until October when her lease expired.

[¶ 5.] Although Deanna agreed to move, both, parties wanted to avoid a situation where the boys would start school in Rapid City and then have to move to Yankton after the school year began. Therefore, Deanna and Daniel decided that the boys should stay with Daniel after his extended summer visitation and start school in Yankton that fall. Consequently, in addition to his summer visitation in June and July, the boys lived with Daniel during August and September of 2000. During that time, Deanna lived in Rapid City and drove to Yankton every weekend to see the boys. When Deanna’s lease ended in October, she moved to Yankton and rented her own apartment. After the move, Deanna and Daniel shared physical custody equally, each exercising alternating weeks of custody.

[¶ 6.] In a further attempt at reconciliation, they also entered into a loose, informal “agreement” regarding child support. Deanna testified that in October 2000, the month she moved back to Yankton, she:

[T]old [Daniel] to hold off for now [on making child support payments] because we were trying to reconcile. I thought, my belief was we were going to be together as a family so just to hold off for now. But I had asked for the alimony to continue.

As a result, Daniel stopped making his child support payments. However, Daniel also stopped paying alimony and his share of the children’s health insurance.

[¶ 7.] Consequently, Deanna’s attorney sent Daniel a letter on December 22, 2000. The letter requested Daniel to become current on his alimony, child support and health insurance obligations. However, with respect to child support, the letter indicated that “Deanna is willing to forgo child support for the months of September, October, November, and December [2000] even though she does not have to since there is no Order stopping these payments.” (Emphasis added.) The letter summarized the following delinquent payments requested for calendar year 2000:

$ 649.00 July: $250.00 Alimony + $399.00 (1/2 child support)
$ 649.00 Aug: $260.00 Alimony + $399.00 (1/2 child support)
$ 330.00 Sept: $250.00 Alimony + $ 80.00 Insurance
$ 330.00 Oct: $250.00 Alimony + $ 80.00 Insurance
$ 330.00 Nov: $250.00 Alimony + $ 80.00 Insurance
$ 330.00 Dec: $250.00 Alimony + $ 80.00 Insurance
$2,618.00

Daniel paid Deanna the $2,618.00 in response to the letter. He also assumed that he was no longer responsible for the child support that had accrued in September, October, November, and December 2000.

[¶ 8.] In a continuing attempt to reconcile, Daniel and Deanna went to marriage counseling and church for a brief period. However, by April 2001, Deanna determined that she and Daniel would not be able to reconcile. She felt that reconciliation was no longer a priority of Daniel’s, and that he had drifted back into behaviors that had caused the parties to divorce.

[¶ 9.] Daniel also failed to pay child support in 2001. Consequently, on October 18, 2001, Deanna filed a motion and notice of hearing on a number of child custody and child support matters, including requests: (1) that she and Daniel share physical custody of the boys; (2) that the court grant her a judgment against Daniel for $5,568.03 in child support arrearages for October 2000 through and including October 2001 ($428.31 x 13 months); (3) that future child support be modified to $428.31 per month; and (4) that Daniel pay his 71% of the children’s health insurance.

[¶ 10.] For reasons not reflected in the record, Deanna’s motions were not heard until October 10, 2002. After the October 2002 trial, Daniel was ordered to pay: (1) $3,192.16 in delinquent child support for the months of September, October, November, and December of 2000 ($798.04 x 4 months = $3,192.16); (2) $9,576.48 in delinquent child support for the year 2001 ($798.04 x 12 months = $9,576.48); and, (3) $7,980.40 in delinquent child support for the months of January through October, 2002 ($798.04 x 10 months = $7,980.40). The court also found that Deanna was entitled to pre-judgment and post-judgment interest, plus attorney fees, tax and costs.

[¶ 11.] Daniel appeals, and we review the following issues:

I. Whether the trial court erred in awarding Deanna $3,192.16 in child support for the months of September, October, November, and December 2000, the months she allegedly forgave Daniel’s obligation.
II. Whether the trial court erred in awarding Deanna delinquent child support in the full amount of the prior court order for the year 2001, and for the months of January through October 2002, even though Deanna had filed a motion for modification requesting a lesser amount.
III. Whether the trial court erred in awarding Deanna prejudgment interest.
IV. Whether Deanna is entitled to attorney fees on appeal.

STANDARD OF REVIEW

[¶ 12.] The interpretation and application of our child support statutes are questions of law. Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992). “Questions of law are reviewed de novo.” Roberts v. Roberts, 2003 SD 75, ¶ 8, 666 N.W.2d 477, 480 (citing Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181). Daniel’s arguments that waiver and equitable estoppel preclude the court’s award present a mixed question of law and fact. “Mixed questions of law and fact that require the reviewing court to apply a legal standard are reviewable de novo.” Bennett v. Peterson, 2003 SD 16, ¶ 13, 657 N.W.2d 698, 701 (citing Phipps Brothers, Inc. v. Nelson’s Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D.1993); Crouse v. Crouse, 1996 SD 95, ¶ 6, 552 N.W.2d 413, 415).

ANALYSIS AND DECISION

I. Whether the trial court erred in awarding Deanna $3,192.16 in child support for the months of September, October, November, and December 2000, the months she allegedly forgave Daniel’s obligation.

[¶ 13.] Daniel points out that on December 22, 2000, Deanna sent the letter offering to “forgo” child support payments for these months if Daniel would pay her $2,618.00. That figure appears to have represented Daniel’s past-due alimony, insurance obligation, summer reduced child support, and one month of child support after the boys began living with Daniel. Daniel argues that the letter led him to believe that if he paid the $2,618.00, Deanna would forgive his remaining 2000 child support arrearages.

[¶ 14.] However, Deanna did not agree to “forgive” her right to the child support arrearages. Deanna first told Daniel that he could “hold off for now” because she believed that they were going to be a family again. She later indicated in the letter that there was no court order upon which an elimination could be based, see supra ¶ 7, so she offered to “forgo” the arrearages. Furthermore, this “agreement” to “forgo” was based upon the expected reconciliation of the parties and Daniel making his other payments. Therefore, as fairly read, the “agreement” was only an offer to forgo arrearages, and that offer was premised both on Daniel’s payments and upon reconciliation. However, neither premise occurred: Daniel did not stay current on his payments, and the parties did not reconcile.

[¶ 15.] More importantly, Daniel’s reliance on this type of agreement is misplaced as a matter of law. “Parents are obligated to provide support for their children. This obligation is not only a matter of public policy, but is also statutory.” Vander Woude v. Vander Woude, 501 N.W.2d 361, 363 (S.D.1993) (citing SDCL 25-5-18.1; SDCL 25-7-6.1). One of the statutory obligations “requires that any agreement relieving a party of its support obligations be in writing and have the approval of the court.” Id. (emphasis added).

An agreement between parents or other responsible persons relieving a party of any duty of support or responsibility or purporting to settle past, present or future support obligations as settlement or prepayment may not act to reduce or terminate any rights of the department of social services or any support obligee to recover from parents or other responsible persons for support provided, unless the department or any support obli-gee has consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.

SDCL 25-7A-17 (emphasis added). These requirements are intended to inhibit a person’s “ability to contract away a duty of support.” Vander Woude, 501 N.W.2d at 364 (quoting Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D.1988)). Accordingly, “this court does not look favorably upon agreements to modify child support that have not received the court’s approval.” Id. In fact, such agreements are generally prohibited because they are against public policy.

The parents cannot make a valid irrevocable contract which will reheve them of the duty to support and educate their minor children; the rights of children to support and maintenance cannot be bargained away. Accordingly, parental agreements which have the effect of making a child a public charge cannot be countenanced, and a support agreement which is injurious to the best interest of a child is invalid for any purpose. In particular, the father may not by contract avoid his duty to support and educate his minor children, and a wife cannot contract away the right of children to be supported by their father. An agreement between the father and mother which attempts to relieve the father of his obligation is, as between the father and children, ineffective as a violation of public policy; and where the father and mother are equally and jointly charged by statute for the maintenance of their children, an agreement by the mother to perform her statutory duty does not discharge the father’s statutory obligation.

Thomas v. Hauge, 2002 SD 12, ¶ 8, 639 N.W.2d 520, 521-22 (citation omitted).

[¶ 16.] In this case, the December 2000 “agreement” was not reduced to writing or approved by a court. The trial court relied on these omissions specifically finding that “[t]he parties’ [sic] never entered into a written agreement or stipulation that [Deanna] would forgive or eliminate child support. Further, no agreement was submitted and approved by the court that forgave or eliminated [Daniel’s] child support obligation to [the children].”

[¶ 17.] Therefore, Daniel may not rely on the December 2000 “agreement” to eliminate any of his child support obligations. That conclusion is especially appropriate in cases like this where the “agreement” is nebulous and susceptible of different interpretations. The trial court recognized the problems caused by such informal arrangements and admonished the parties:

[W]hen you reach separate agreements about what you were going to do and where the kids are going to live, you’re free to reach an agreement, you are free to reduce it to writing so that there’s no question. But you chose not to do that. You chose to engage in some kind of a vague agreement that now we’re in Court and you’re fighting with each other about because you didn’t have a clear understanding. That you didn’t get any Court approval and you didn’t get it reduced down to any written agreement where there’s a firm and clear understanding. ... And in the future if the parties want to reach an agreement that’s different than the Court’s Order then you better get the Court’s order of approval.

We agree.

[¶ 18.] Daniel, however, also argues that the affirmative defenses of equitable estoppel and waiver bar recovery of this child support. In support of this argument, Daniel relies on Bennett, 2003 SD 16, 657 N.W.2d 698. However, in Bennett the obligor’s equitable estoppel and waiver arguments were “unpersuasive” and “not a viable defense.” Id. ¶ 20 & n.3. Bennett stated that “[w]e will not allow such a carefully crafted policy [involving limitations on reducing child support arrearag-es] to be defeated by the invocation of equitable defenses in circumstances where [the obligee] has not affirmatively misled the [obligor] to believe [the obligor] would bear no responsibility.” Id. ¶ 21 (quoting Department of Human Servs. v. Bell, 711 A.2d 1292, 1295-96 (Me.1998)) (further citations omitted). We see no affirmative misleading by Deanna here.

[¶ 19.] Daniel’s estoppel and waiver arguments also fail because estop-pel and waiver are affirmative defenses, which Daniel failed to plead or argue to the trial court. A defendant is required to plead affirmative defenses. Jurgensen v. Smith, 2000 SD 73, ¶ 21, 611 N.W.2d 439, 442 (citing SDCL 15-6-8(c)). See also High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, 535 N.W.2d 839, 845 (S.D.1995) (stating that “[a] party has ‘a duty to plead’ affirmative defenses; failure to do so results in a bar to the defense”). Here, Daniel failed to plead or argue these affirmative defenses, and as a result, they were waived. “We will ordinarily decline to review issues not properly presented to the trial court.” Estate of Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶ 15, 670 N.W.2d 918 (citing Knudson v. Hess, 1996 SD 137, ¶ 8, 556 N.W.2d 73, 75).

[¶ 20.] We conclude that the trial court did not err in awarding Deanna $3,192.16 in delinquent child support for the months of September, October, November, and December of 2000.

II. Whether the trial court erred in awarding Deanna delinquent child support in the full amount of the pri- or court order for the year 2001, and for the months of January through October, 2002, even though Deanna had filed a motion for modification requesting a lesser amount.

[¶ 21.] In Deanna’s October 2001 motion, she sought a judgment against Daniel for $5,568.03 in child support arrearages. That amount was not, however, based upon the prior court ordered obligation of $798.04/$722.64 per month: she only requested $428.31 per month. Deanna’s $428.31 request was based upon her motion for a modification. Deanna’s request was calculated by offsetting each party’s obligations because they were equally sharing physical custody. Deanna stated:

Even though [Daniel] and I have been sharing custody equally, I believe that I am entitled to child support inasmuch as his salary exceeds mine. I believe that [Daniel] should have paid me child support in the sum of $428.31 which is the difference between what he was to pay ($722.64) when I had full custody and my financial obligation [294.33, her 29% share of the joint obligation] as the custodial parent; i.e. $722.64-$294.33 = $428.31.

[¶ 22.] Deanna’s request for a modification before her October 2001 motion would have required the trial court to retroactively modify the child support that Daniel was ordered to pay under the prior court order. However, as the trial court recognized, “[i]t is well established that: ‘[a]ny unpaid support bee[omes] an unpaid judgment against [the payor spouse] as a matter of law, not subject to retroactive modification.’ ” Faulk v. Faulk, 2002 SD 51, ¶ 12, 644 N.W.2d 632, 634 (further citations omitted). Moreover, “[sjtatutorily, courts and administrative entities may not retroactively modify past due child support obligations except for the period in which there is a pending petition for modification.” Vander Woude, 501 N.W.2d at 363 (citing SDCL 25-7-7.3). Even then, a court may modify only “from the date that notice of hearing of the petition has been given_” SDCL 25-7-7.3. Thus, we must separately analyze the arrearages accruing before Deanna’s motion for modification and notice of hearing and those accruing thereafter.

Arrearages Accruing Before the October 2001 Modification Motion

(September 2000 through October 2001)

[¶ 23.] In determining that Daniel owed the full court ordered obligation of $798.04 per month for the pre-motion ar-rearages, the trial court correctly relied upon the fact that there had been no motion filed to modify the court-ordered amount, and there was no written agreement approved by the court. See SDCL 25-7-7.3. Therefore, that part of the trial court’s decision awarding Deanna the full court-ordered amount of $798.04 per month for September 2000 through the time of the October 2001 modification motion is affirmed. See Vander Woude, 501 N.W.2d 361; Thomas, 2002 SD 12, 639 N.W.2d 520.

Arrearages Accruing After the October 2001 Modification Motion

(November 2001 through October 2002)

[¶24.] On October 18, 2001, Deanna filed the motion that requested a modification of child support. On October 18, 2001, she also gave notice of a scheduled hearing on that motion. Therefore, pursuant to SDCL 25-7-7.3, the monthly support obligation accruing thereafter was subject to modification.

Any past due support payments are not subject to modification by a court or administrative entity of this state, except those accruing in any period in which there is pending a petition for modification of the support obligation, but only from the date that notice of hearing of the petition has been given to the obli-gee, the obligor, and any other parties having an interest in such matter.

(Emphasis added.)

[¶ 25.] Deanna’s motion and notice of hearing satisfied these modification requirements. Moreover, Deanna only sought the modified amount of $428.31 per month. Therefore, the trial court erred in continuing to enforce the prior monthly order of $798.04 after the October 18, 2001 motion and notice of hearing. We reverse that part of the judgment and remand for entry of judgment for $5,139.72: the requested amount of $428.31 for the 12 months from November, 2001 through October, 2002.

III. Whether the trial court erred in awarding Deanna prejudgment interest.

[¶ 26.] Daniel only raised this issue in the event the principal amount of the award was adjusted in this appeal. Because we have adjusted the amount of child support arrearages accruing after the motion for modification, we must also remand this issue for the re-calculation of interest.

IV. Whether Deanna is entitled to attorney fees on appeal.

[¶ 27.] Deanna filed a motion with this Court for $1,399.20 in attorney fees on appeal. The motion was supported by an affidavit and an itemized statement of legal services provided. See Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). “SDCL 15-17-38 provides that attorney fees may be granted in cases of domestic relations and support.” Jacobson v. Jacobson, 2000 SD 60, ¶ 30, 611 N.W.2d 210, 217. “In determining if a party is entitled to attorney fees, we consider ‘property owned by each party, their relative incomes, the liquidity of the assets, and whether either party unreasonably increased the time spent on the case.’ ” Pesicka v. Pesicka, 2000 SD 137, ¶ 20, 618 N.W.2d 725, 728 (quoting Abrams v. Abrams, 516 N.W.2d 348, 352 (S.D.1994)). We also consider the reasonableness of the fee request. Considering the fact that Daniel earns nearly three times the amount that Deanna earns, and that Daniel’s refusal to pay child support necessitated Deanna’s litigation of this matter, we grant Deanna’s motion in the amount of $1,399.20.

[¶ 28.] Affirmed in part, reversed in part, and remanded.

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

      . The parties have not indicated why Deanna only requested "1/2 child support” for the month of August. However, this payment was not under review by the trial court, so we also decline to review it.

      . In her affidavit supporting her motion, Deanna explained why she only sought $428.31 per month, instead of the court-ordered amount of $722.64 with insurance and $798.04 without insurance. That explanation is discussed at ¶ 21, infra.

      .The record reflects that the October 30, 2001 scheduled hearing was continued four times. With one exception, the record does not reflect the reasons for these delays.

      . SDCL 25-5-18.1 provides in relevant part: "The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1....” SDCL 25-7-6.1 provides:
      The parents of a child are jointly and severally obligated for the necessary maintenance, education and support of the child in accordance with their respective means. Until established by a court order, the minimum child support obligation of a parent who fails to furnish maintenance, education and support for his child, following a continued absence from the home, is the obli-gor’s share of the amount shown in the support guidelines, commencing on the first day of the absence. For the purposes of this section, "continued absence from the home,” means that the parent or child is physically absent from the home for a period of at least thirty consecutive days, and that the nature of the absence constitutes family dissociation because of a substantial severance of marital and family ties and responsibilities, resulting in the child losing or having a substantial reduction of physical care, communication, guidance and support from the parent.

      . On appeal, Daniel also seeks a deviation in his child support obligation pursuant to SDCL 25-7-6.10(6), which states:
      Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors: ... (6) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child....
      Daniel also failed to plead or argue this to the trial court. Therefore, we decline to consider it on appeal.

      . Ordinarily, the appropriate method to calculate an adjustment for extended visitation arrangements is through an abatement or cross credit, rather than Deanna's method of off-set. Pursuant to SDCL 25-7-6.14:
      [U]nless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order an abatement of not less than thirty-eight percent nor more than sixty-six percent of the child support if:
      (1) A child spends ten or more days in a month with the obligor; and
      (2) The days of visitation and the abatement amount are specified in the court order;
      The court shall allow the abatement to the obligor in the month in which the visitation is exercised, unless otherwise ordered. The abatement shall be pro-rated to the days of visitation. It shall be- presumed that the visitation is exercised. If the visitation exercised substantially deviates from the visitation ordered, either party may file a petition for modification without showing any other change in circumstances.
      As used in this section, shared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents share the duties, responsibilities, and expenses of parenting. In a shared responsibility situation, unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order a shared responsibility cross credit. The cross credit shall be calculated by multiplying the combined child support obligation using both parents' monthly net incomes by 1.5 to arrive at a shared custody child support obligation. The shared custody child support obligation shall be apportioned to each parent according to his or her net income. A child support obligation is computed for each parent by multiplying that parent's portion of the shared custody child support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are offset, with the parent owing more child support paying the difference between the two amounts. It shall be presumed that the shared responsibility parenting plan is exercised. If the parenting plan exercised substantially deviates from the parenting plan ordered, either party may file a petition for modification without showing any other change in circumstances.
      The court shall consider each case individually before granting either the basic visitation or shared responsibility adjustment to insure that the adjustment does not place an undue hardship on the custodial parent or have a substantial negative effect on the child's standard of living.
      Although Deanna and Daniel did not follow this statute, there was no objection to Deanna's method of modification for the shared visitation and custody arrangement.

      . $3,192.16 for the months of September, October, November, and December 2000 ($798.04 x 4 months = $3,192.16); and $7,980.40 for the months of January through October 2001 ($798.04 x 10 months = $7,980.40).


author: MEIERHENRY, Justice.

text:
    2003 SD 135
    Daryle BALSTER, Plaintiff and Appellee, v. Phil WIPF, Defendant and Appellant.
    No. 22706.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Nov. 25, 2003.

      Ron J. Volesky, Wessington Springs, Attorney for plaintiff and appellee.
    Casey N. Bridgman of Bridgman and Adel, Huron, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Daryle Balster and Phil Wipf had various business arrangements involving fanning and livestock. Balster brought this action claiming nonpayment of rent. Wipf counterclaimed alleging breach of express and implied contract. Balster filed a summary judgment motion. Wipf appeals the summary judgment dismissing his counterclaim. We reverse.

FACTS

[¶ 2.] In 1996 and 1997, Balster and Wipf had express contracts relating to several business arrangements. First, they entered into a share agreement on livestock. The parties agree that Balster was to provide cows and bulls, pasture, hay-land, and machinery. Balster was also to provide fuel and twine and maintain his equipment for putting up hay. Wipf was to provide the labor required for the care of the livestock. Wipf was to receive twenty percent of the calf crop, and Bal-ster eighty percent. The parties disagree as to Balster’s compliance with the livestock agreement. In particular, Wipf claims that Balster failed to keep his machinery in working order.

[¶ 3.] The second express contract between them was a share crop agreement. Balster was to provide one-third of the fertilizer, herbicide and similar items with Wipf providing two-thirds. Wipf was to provide machinery and labor. Upon harvest, Wipf was to receive two-thirds of the crop, and Balster one-third of the crop.

[¶ 4.] The final express contract between Balster and Wipf was a rental agreement. Balster rented Wipf pastureland on an annual basis to be paid in two installments. In 1996, Balster provided such pasture and Wipf paid the rent. In 1997, however, Wipf paid the first installment but refused to pay the second in the amount of $6,450.00.

[¶ 5.] Balster filed suit against Wipf to recover the rent due. Wipf counterclaimed asserting that Balster owed him for services and equipment provided to Balster. Wipf claimed that what Balster owed him offsets the rent he owed. Specifically, Wipf claimed the following itemi-zations:

1. Grain drills — 1995—400 acres @ $4.00/acre $ 1,600.00
2. Corn planting — May 1996 — 250acres @ $7.00/acre $ 1,750.00
3. Baling — July 1996 — 850 bales @ $5.00/bale 4,250.00
4. Hay cutting — July 1996 — 200 acres @ $7.00/acre 1,400.00
5. Cultivating — July 1996 — 500 acres @ $5.00/acre 2,500.00
6. Combine corn — -1996—150 hours @ $10.00/hour 1,500.00
7. Stack wagon — 1996 & 1997 — 200 stacks @ $5.00/hour 1,000.00
8. Haybine — 1996 & 1997 — 320 acres @ $4.00/acre 1,280.00
9. Baler — 1996 & 1997 — 600 bales @ $2.50/bale 1,500.00
10. Tractor — 1996 & 1997 — 200 hours @ $20.00/hour 4,000.00
11. Bull rent — June-September 1997 — 2 bulls @ $500/bull 1,000.00
12. Corn planting — 1997—320 acres @ $7.00/acre 2,240.00
13. Spring wheat planting — 1997—260 acres @ $10.00/acre 2,600.00
14. Winter wheat planting — 1997—380 acres @ $10.00/acre 3,800.00
15. Dog care — 600 days (⅞ $2.00/day 1,200.00
17. Hay/Grain loading — 1996 & 1997 1,300.00
$34,920.00

[¶ 6.] Balster amended his complaint by including, in addition to the pasture rent, the following:

1. Disking — Fall 1995 — 250 acres @ $7.50/acre $ 1,875.00
2. Combine rent — 1996—450 acres @ $10.00/acre 4,500.00
3. Electric bill — 1996 800.00
4. Truck rent — 1996 & 1997 1,000.00
5. Sprayer rent — 1996 & 1997 — 200 acres @ $4.00/acre 800.00
6. Stackmover & hay wagon rent — 1996 & 1997 1,000.00
7. Assistance for haying & hauling — 1996 & 1997 3,000.00
8. House rent — 1996 & 1997 — $200/month 2,400.00
9. Swather rent — 1997—245 acres @ $4.00/acre 980.00
10. Disk & tractor — 1997—100 acres @ $5.50/acre 550.00
11. Disking — 1997—180 acres @ $7.50/acre 1,350.00
12. Grain bin rent — 1000 bu Millet 6mo. .03 mo. 180.00
13. Grain bin rent — 2000 bu what [sic] 3mo. .03 mo. 180.00
14. House rent — January 1998 200.00
15. Electricity & water — January 1998 200,00
$19,015.00
Pasture rent — second installment 1997 6,450.00
25,465.00

[¶ 7.] Balster moved for summary judgment, withdrawing all his claims (nos. 1-15 listed in ¶ 6) except for the pasture rent. In ruling on the summary judgment motion as to Wipfs claims, the trial court ruled that there was no evidence of consent which is a required element for a valid contract. The court determined that the parties discussed but never reached an agreement with regard to the items for which Wipf sought compensation. Specifically, the court ruled that Wipfs counterclaim be dismissed in whole because there was no consent and, therefore, no contractual agreement either orally or in writing regarding the matters that Wipf is claiming Balster owes him.

STANDARD OF REVIEW

[¶ 8.] Our standard of review for summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(e), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] 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.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied, (citations omitted).

Hasse v. Fraternal Order of Eagles # 2421, 2003 SD 23, ¶ 7, 658 N.W.2d 410, 412. In this case we must determine whether a genuine issue of material fact exists concerning the formation of a contract between the parties and whether the trial court correctly applied the law.

DECISION

[¶ 9.] The trial court erred by granting summary judgment dismissing Wipfs counterclaim. Specifically, the trial court incorrectly determined that there was no consent as a matter of law. Contracts can be either express or implied. SDCL 53-1-3. Under statute, “[a]n implied contract is one, the existence and terms of which are manifested by conduct.” SDCL 53-1-3. We recently reiterated that “the existence of an implied contract between parties creates a genuine issue of material fact to be decided by the jury” unless “reasonable minds could not differ.” Van De Walle & Assoc., LLC v. Buseman, 2003 SD 70, ¶ 10, 665 N.W.2d 84, 87 (citations omitted). Here, taking the evidence in the light most favorable to the nonmoving party, reasonable minds could differ as to consent being manifested by the parties’ conduct. We note the following:

1. The parties had an arrangement wherein they did work for each other and shared or loaned equipment to each other.
2. Wipf claimed and Balster admitted that Balster requested Wipf do certain work for which he was not compensated.
3. Both parties mentioned “settling up of accounts,” albeit they disagree as to what that entailed.
4. Wipf testified that he believed that when they “settled up accounts” he would be compensated.
5. Wipf testified that when he let Bal-ster use his bulls they did not discuss the price but that he requested payment.
6.Wipf admits to owing Balster for various services and equipment that Balster provided.

Wipfs evidence, taken in the light most favorable to him, was sufficient to get past summary judgment and to proceed with his claims for breach of contract.

[¶ 10.] Wipf raises on appeal a claim of unjust enrichment, which was not the subject of the summary judgment motion nor did the trial court address it. Therefore this Court will not address it.

[¶ 11.] We reverse the summary judgment and remand for trial.

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

      . Wipf also claims an amount to be determined during discovery for hauling bushels of grain to the elevator in 1996 and 1997. He claims the reasonable charge to be ,05<f/bush-el.

      . There is a discrepancy in item no. 8. $200 per month is claimed for house rent. However, the time period covers two years. The total amount claimed does not reflect two years rent at $200/month.