author: VANDE WALLE, Chief Justice.

text:
    2003 ND 53
    John Daniel LAWRENCE, aka Dan Lawrence, Plaintiff and Appellant, v. Tina Lucille DELKAMP, Defendant and Appellee.
    Nos. 20020244, 20020291.
    Supreme Court of North Dakota.
    April 1, 2003.

      William E. McKeehnie, McKechnie Law Office, P.C., Grand Forks, for plaintiff and appellant.
    Arnold V. Fleck, Fleck Law Office, Bismarck, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] John Daniel Lawrence appealed from a July 30, 2002 amended judgment suspending Lawrence’s visitation rights with his son. Lawrence also appealed from a September 16, 2002 judgment awarding the child’s mother, Tina Lucille Delkamp, costs and attorney fees for defending against Lawrence’s July 3, 2001 motion to modify custody. We hold the district court did not abuse its discretion in awarding Delkamp costs and attorney fees in proceedings involving custody and visitation issues between Lawrence and Del-kamp. We further hold the district court did not err in denying Lawrence an evi-dentiary hearing on his request to change custody or in requiring that Lawrence’s visitation with his son be supervised. We affirm both judgments from which Lawrence has appealed, but we deny Del-kamp’s request for double costs and attorney fees on appeal.

I

[¶ 2] Lawrence and Delkamp were never married to each other, but they had a son who was born in August 1992. Through paternity proceedings and a series of amended judgments and orders, Del-kamp was awarded custody of the child with visitation for Lawrence, who was also ordered to pay child support. In a February 2, 2000 order the district court restricted Lawrence’s visitations with the child to supervised visits at the Family Safety Center in Bismarck. Lawrence appealed from that order, and in Lawrence v. Delkamp, 2000 ND 214, ¶ 13, 620 N.W.2d 151, this Court reversed the order, con-eluding the district court erred in finding Lawrence had committed domestic violence for purposes of deciding custody and visitation issues under N.D.C.C. § 14-09-06.2(l)(j). We remanded the case to the district court for a redetermination of visitation and of Delkamp’s request for costs and attorney fees.

[¶ 3] After remand, the district court entered an order on September 26, 2001 awarding Lawrence supervised visitation with his son on the second Saturday of each month in accordance with the “time, costs, and location” mechanisms set out in the court’s February 2, 2000 order. The court also reconfirmed its February 2, 2000 order awarding Delkamp costs of $1,696.70 under N.D.C.C. § 14-17-15.

[¶ 4] On July 6, 2001 Lawrence filed a motion for change of custody, which was denied by separate order of the court filed September 26, 2001. Lawrence’s subsequent motion for reconsideration was denied on January 15, 2002. Judgment was filed on September 16, 2002 awarding Del-kamp costs and attorney fees of $3,234.67 for her defense of Lawrence’s motion to change custody. A separate judgment was entered on July 30, 2002 suspending Lawrence’s visitations with his son “until [Lawrence] successfully completes a domestic violence treatment program offered through one of the state’s human service centers.”

II

[¶ 5] Lawrence asserts the district court’s award of $1,696.70 costs to Del-kamp on remand from the prior appeal is erroneous, as a matter of law. In its February 2, 2000 order the district court denied Delkamp’s request for attorney fees but awarded her costs on motions she brought for modification of Lawrence’s visitations and for a psychological evaluation of Lawrence, explaining:

[Delkamp] seeks attorney’s fees and costs associated with the two motions most recently before the Court. She argues [Lawrence] is in a much better financial posture to pay part or all of her attorney’s fees than she is. Further she suggests [Lawrence] is using the Courts to “break” her financially and that this is one more example of the emotional abuse he has visited upon her over the years. [Lawrence] resists.
This Court has authority to award costs and reasonable attorney’s fees pursuant to N.D.C.C. § 14-17-15. [Del-kamp] prevailed on both motions before the Court. She has provided the Court with an itemized list of costs associated with the motions. She is entitled to reimbursement for them. [Lawrence] shall pay [Delkamp] $1,696.70 by March 15, 2000. [Delkamp’s] request for attorney’s fees is denied.

Lawrence appealed from that order, and after our remand the district court entered an order on September 26, 2001 reconfirming its award of costs to Delkamp:

The Court finds the award of costs as determined in the February 2, 2000 Order appropriate. The Court finds Del-kamp prevailed on both motions. Del-kamp is not financially able to absorb the costs at issue. Lawrence is in a position to pay these costs, and due to Lawrence constantly filing motions requiring Delkamp to respond.

[¶ 6] In paternity proceedings the court may award costs under N.D.C.C. § 14-17-15, which provides, in part:

The court may order reasonable fees of experts and the child’s guardian ad litem and other costs of the action and pretrial proceedings, including genetic tests, to be paid by the parties in proportions and at times determined by the court.

The court has discretion under this statute to apportion the costs between the parties. Mougey v. Salzwedel, 401 N.W.2d 509, 515 (N.D.1987). Although the court can, under this statute, award all of the costs against one of the parties, the reasons for such an apportionment must be set forth by the court. Id. at 516. The district court was correct in finding that Delkamp essentially prevailed on both motions. She had moved for a psychological evaluation of Lawrence and the parties stipulated to a domestic violence assessment making that motion moot. Delkamp had also moved for modification of visitation which the court granted in the form of specified supervised visitation between Lawrence and his son. While this Court, in deciding Lawrence’s appeal from the February 2, 2000 order, concluded threats made by Lawrence to Delkamp did not constitute domestic violence we, nevertheless, characterized the threats as “serious and reprehensible” and further stated that Lawrence’s threatening behavior was relevant to determining the “custody and visitation issues.” Lawrence, 2000 ND 214, ¶ 8, 620 N.W.2d 151. The district court recognized that in addition to Delkamp receiving favorable results on her motions, the evidence also demonstrated that Lawrence was in a much better financial position than Delkamp to pay for the paternity proceedings. Under these circumstances, we conclude the district court did not abuse its discretion in awarding Delkamp $1,696.70 in costs for the motion proceedings.

Ill

[¶ 7] Lawrence asserts the district court erred, as a matter of law, in denying Lawrence an evidentiary hearing on his motion for a change of custody. On July 6, 2001 Lawrence filed a motion for change of custody, asserting that Delkamp was sabotaging his relationship with his son and was denying him visitations with the child. The controlling statute is N.D.C.C. § 14-09-06.6:

1. Unless agreed to in writing by the parties, no motion to modify a custody order may be made earlier than two years after the date of entry of an order establishing custody, except in accordance with subsection 3.
2. Unless agreed to in writing by the parties, if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion, except in accordance with subsection 3.
3. The time limitation in subsections 1 and 2 does not apply if the court finds:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.
4. A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an eviden-tiary hearing.

The party seeking modification of a custody order bears the burden of showing a change of custody is required, and the trial court’s decision on the issue is a finding of fact subject to the clearly erroneous standard of review. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480. A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case by alleging, with supporting affidavits, sufficient facts which, if un-contradicted, would support a custody modification in favor of that party. O’Neill v. O’Neill,'2000 ND 200, ¶5, 619 N.W.2d 855.

[¶ 8] Lawrence concedes his motion was brought within two years of a prior disposition by the court of the custody issue on its merits. He also concedes that under the statute he is entitled to an evidentiary hearing on his motion only if he presents a prima facie case of Del-kamp’s “persistent and willful denial or interference with visitation” between Lawrence and his son. The district court, in its September 26, 2001 order denying Lawrence’s motion for change of custody and request for evidentiary hearing on the motion, explained:

The Court in determining whether or not Lawrence has established a prima facie case justifying a modification, takes into consideration the affidavit filed by Lawrence and the responsive affidavits of Delkamp, Cassie Roberdeau, and Dennis Larkin.
The information presented in Lawrence’s affidavit does not specifically address the factors set out in N.D.C.C. § 14 — 09—06.3C3).
Lawrence’s affidavit continues to regurgitate the same information presented to the Court in prior motions made by Lawrence in his bid to have custody changed. “The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if un-contradicted, to support a finding in her favor, that party has made a prima facie case.” Helbling vs. Helbling, 541 N.W.2d 443 (N.D.1995). Lawrence’s affidavit lists no specifics as to the alienation of Rylan from him by Delkamp. Lawrence’s affidavit raises the issue of Delkamp moving Rylan out of state, and this issue was before 'the Court when it made its order in 1999. This is not a new issue and does not support Lawrence’s motion for change of custody. Lawrence’s affidavit in claiming alienation of Rylan by Delkamp sets out no specifies wherein visitation has been attempted and denied or that the previous court orders regarding visitation have been violated....
This Court finds Lawrence has failed to establish a prima facie case justifying modification of child custody. Lawrence’s motion for an evidentiary hearing on the underlying motion for change of custody is Denied along with the motion for change of custody itself.

(Emphasis in original.) We hold the district court’s conclusion that Lawrence failed to present a prima facie case as required under N.D.C.C. § 14-09-06.6(4) is supported by the record, and the district court, therefore, did not commit error in denying Lawrence’s motion without affording him an evidentiary hearing.

[¶ 9] On November 6, 2001 Lawrence filed a motion requesting the court to reconsider its decision to not allow a custody hearing. The court denied the motion by order on January 15, 2002, explaining:

The Court has reviewed the motion to reconsider and the attached affidavits .... The Court does not find any basis to reconsider its order of September 21, 2001 [filed September 26, 2001]. Lawrence’s request raises no new arguments and simply attempts to raise the same arguments attempted in Lawrence’s previous motion.

[¶ 10] Lawrence’s affidavit in support of the motion to reconsider generally states, “[e]fforts were made in 1998, 1999 & 2000 to visit Rylan, all of which did not happen because of Delkamp’s willful intransigence.” However, Lawrence neither provided the court with specific facts nor articulated instances showing how Del-kamp has willfully obstructed visitations. We conclude, therefore, the district court did not err in denying the motion to reconsider.

IV

[¶ 11] Lawrence asserts the district court’s finding that supervised visitation was required is clearly erroneous. In its February 2, 2000 order the district court stated that the court had previously ordered Lawrence to participate in and successfully complete a domestic violence program offered through the state’s human service centers. In its order on remand, filed September 26, 2001, the court ordered that except for the portions remanded by this Court the February 2, 2000 order remained in effect and explained its reasons for requiring supervised visitation:

In regards to visitation of Rylan by Lawrence, the Court finds after considering N.D.C.C. 14-09-06.2 (best interests and welfare of child) that any visitations between Rylan and Lawrence must continue to be supervised as set out in the judgment dated February 2, 2000. This Court finds that even though Lawrence was determined not to have committed domestic violence, the acts that are of record in regards to threats to Delkamp and Rylan necessitate any visitation being supervised. Lawrence’s contact with Rylan appear[s] to be minimal in the past, and supervised visits will allow the progress of the relationship to be monitored for Rylan’s benefit. This Court further notes Lawrence fails to provide to the Court any indication that he has attempted to seek help or counseling in accordance with • recommendations by the Court and other professionals involved in this case. To the contrary, Lawrence appears to strike out at any professional involved with making a recommendation that is contrary to Lawrence’s position. Lawrence’s actions did not fit the definition of domestic violence. The actions of record are inappropriate and need to be addressed before the best interests and welfare of Rylan will permit unsupervised visits.

In its subsequent order of February 26, 2002 the district court explained why continued supervised visits without Lawrence completing a domestic violence treatment program could endanger the child:

The evidence indicates continuing supervised visits, prior to the defendant successfully completing a domestic violence treatment program, will likely endanger the child’s physical or emotional health. Under N.D.C.C. § 14-05-22(2), such a conclusion supports suspension of the plaintiffs visitation rights....
The plaintiff has been diagnosed as an emotional batterer who is in need of treatment. The record establishes that emotional abuse can often be more detrimental than physical abuse. The plaintiffs apparent refusal to seek appropriate group treatment, combined with the fact that the child is now at an age which makes the child more susceptible to emotional harm then [sic] ever before, arising not only from the pattern of emotionally abusive behavior, but also as the result of the “on again and off again” relationship the plaintiff has pursued with the child, indicates it’s time to suspend plaintiffs visitation rights.
It is in the best interests of the parties’ minor child, Rylan, that the plaintiffs visitation rights be suspended until the plaintiff successfully completes a domestic violence treatment program offered through one of the state’s human service centers.

[¶ 12] While Lawrence argues in his brief that the district court erred in imposing supervised visitations he does not specifically object to the court’s decision to suspend visitation until Lawrence receives counseling. Although we held in Lawrence, 2000 ND 214, ¶ 12, 620 N.W.2d 151, that Lawrence’s threats “did not denote immediacy so as to place Delkamp in fear of harm occurring without delay” and, therefore, did not constitute domestic violence under N.D.C.C. § 14-09-06.2(1)©, we expressly stated his threats were both serious and reprehensible and the trial court could consider that behavior in deciding custody and visitation issues. Lawrence, at ¶ 8. Consequently, it was appropriate for the trial court to consider all of Lawrence’s actions, including his serious threats, in requiring Lawrence to receive counseling to address his behaviors as a condition of visitation. The trial court’s decision on visitation is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Sevland v. Sevland, 2002 ND 110, ¶5, 646 N.W.2d 689. We conclude the district court’s findings that Lawrence is in need of counseling and that his visitation rights should be suspended until he receives that counseling are not clearly erroneous.

V

[¶ 13] Lawrence asserts the district court abused its discretion in awarding Delkamp costs and attorney fees of $3,234.67 on the ground that Lawrence’s motion for a change of custody was frivolous. The district court explained the award of costs and attorney fees in its order filed on September 26, 2001:

This Court upon review of the multiple filings by Lawrence in this case, coupled with proof of Delkamp’s inability to pay to defend the July 3, 2001 motion to modify custody filed by Lawrence, and the determination that this motion is simply a repeat of the previous motions filed by Lawrence and therefore frivolous, awards Delkamp reasonable costs and attorneys fees incurred in responding to Lawrence’s motion to modify custody.

Section 28-26-01(2), N.D.C.C., provides, in part:

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney’s fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in their favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim.

For purposes of this statute, a claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in his favor. Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991). An award of attorney fees under this statute lies within the sound discretion of the trial court, and its determination will be disturbed on appeal only for an abuse of discretion. In re Estate of Dion, 2001 ND 53, ¶46, 623 N.W.2d 720. The purpose of the legislature in enacting N.D.C.C. § 14-09-06.6 was to “curtail repeat custody litigation.” Quarne v. Quarne, 1999 ND 188, ¶9, 601 N.W.2d 256. Lawrence concedes his motion to change custody was brought within two years of the court having decided custody issues on their merits in the case and, therefore, just to get an evidentiary hearing he had a burden of making a prima facie case that Delkamp was willfully interfering with his visitation privileges. Yet, Lawrence again presented to the district court only conclusory allegations without specific facts in his affidavits to show how Delkamp was thwarting Lawrence’s visitations with his son. Under these circumstances, we cannot conclude the district court abused its discretion in awarding Delkamp costs and attorney fees on the ground that Lawrence’s motion for a change of custody was frivolous.

VI

[¶ 14] Delkamp asserts Lawrence’s appeal is frivolous and she requests double costs and attorney fees under N.D.R.App.P. 38, which provides:

If 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.

Under this rule, our Court may award single or double costs including reasonable attorney fees if we find that an appeal is frivolous. See Rolin Mfg., Inc. v. Mosbrucker, 1997 ND 139, ¶7, 566 N.W.2d 819. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith. State ex rel. Bd. of University & School Lands v. Bladow, 462 N.W.2d 453, 458 (N.D.1990). We do not find all of Lawrence’s assertions on appeal to be so devoid of merit as to warrant Rule 38 sanctions. The request for double costs and attorney fees on appeal is, therefore, denied.

VII

[¶ 15] We hold the district court did not err in awarding Delkamp $1,696.70 in costs for motions relating to the paternity and custody issues in this case. We hold the district court did not err in denying Lawrence’s motion for change of custody or in denying him a hearing on the motion. We hold the district court did not err in awarding Delkamp $3,234.67 for costs and attorney fees on the ground that Lawrence’s motion for a change of custody was frivolous. We further hold the district court’s findings that Lawrence should receive counseling prior to having unsupervised visitation, that supervised visitation is appropriate under the current circumstances of this case, and that Lawrence’s visitation should be suspended until he receives counseling. We, therefore, affirm the July 30, 2002 and September 16, 2002 judgments of the district court.

[¶ 16] SANDSTROM, NEUMANN and MARING, JJ., and RICHARD W. GROSZ, District Judge, concur.

[¶ 17] The Honorable RICHARD W. GROSZ, District Judge, sitting in place of KAPSNER, J., disqualified.

      . This is a typographical error in the order. The court is obviously referring to N.D.C.C. § 14-09-06.6(3).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 ND 54
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Thomas K. SCHOPPERT, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court, Petitioner, v. Thomas K. Schoppert, Respondent.
    No. 20030097.
    Supreme Court of North Dakota.
    April 2, 2003.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On April 2, 2003, an Application for the Interim Suspension of Thomas K. Schoppert, a member of the Bar of North Dakota, and a certified copy of the Judgment in a Criminal Case in United States of America Thomas K. Schoppert, District of North Dakota, Northwestern Division, Case Number C4-02-67, was filed under N.D.R. Lawyer Discipl. 4.1D by Paul W. Jacobson, Disciplinary Counsel. The Judgment in a Criminal Case shows that Schoppert was found guilty of four counts of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201. Each count for which Schoppert was convicted is a felony.

[¶ 2] N.D.R. Lawyer Discipl. 4.1D provides that upon the filing with the Court of a certificate or other satisfactory evidence of conviction demonstrating that a lawyer has been convicted of a serious crime, the Court shall enter an order immediately suspending the lawyer pending final disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 3] Under N.D.R. Lawyer Discipl. 4.1C, a serious crime is any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit any of those crimes.

[¶ 4] ORDERED, under N.D.R. Lawyer Discipl. 4. ID, Thomas K. Schoppert’s certificate of admission to the Bar of the State of North Dakota is SUSPENDED effective immediately and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 5] FURTHER ORDERED, that Thomas K. Schoppert comply with N.D.R. Lawyer Discipl. 6.3

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


author: GORS, Circuit Judge. ZINTER, Justice,

text:
    2003 SD 24
    Daniel C. RINDAL and Raymond J. Shape, Plaintiffs and Appellees, v. Gail SOHLER and Janet Sohler, Defendants and Appellants.
    Nos. 22246, 22258.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 30, 2000.
    Decided March 5, 2003.

      Frank B. Morrison, Jr. of Morrison Law Offices Whitefish, Montana, William F. Day, Jr. of Lynn, Jackson, Shultz & Le-Brun, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.
    Steven M. Johnson and Ronald A. Parsons, Jr. of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, South Dakota, Attorneys for defendants and appellants.
   GORS, Circuit Judge.

[¶ 1.] Daniel C. Rindal (Rindal) and Raymond J. Shape (Shape) sued Gail Soh-ler and Janet Sohler (Sohlers) for failure to carry out the provisions of an agreement for cancellation of contracts for deed. The trial court entered an order for equitable adjustment. Sohlers appealed. Rin-dal and Shape filed a notice of review. We reverse.

FACTS

[¶ 2.] Rindal and Shape bought a 2,700 acre ranch from Sohlers in 1987 for $840,000 on two contracts for deed. Rin-dal and Shape were feeding up to 20,000 to 30,000 head of cattle for the Louis Dreyfus Company. The Dreyfus deal soured over the disappearance of about 4,000 head of cattle. Rindal and Shape were indicted in Yankton County in November 1991. State v. Shape, 517 N.W.2d 650 (S.D.1994). The charges were eventually dismissed.

[¶ 3.] In 1989, Rindal and Shape quit paying on the contracts for deed after they had paid $180,000 principal and $219,450 interest for a total of $339,450. Shape subsequently filed a Chapter 12 bankruptcy. Sohlers obtained relief from the automatic stay on August 27, 1991. On October 16, 1991, an agreement for cancellation of contracts for deed was signed. Rindal and Shape agreed to deed back the ranch and Sohlers agreed to make immediate efforts to resell the ranch. If the ranch was resold, Sohlers would pay Rindal and Shape any excess over Sohlers’ expenses. Rindal and Shape quitclaimed the ranch back to Sohlers. Sohlers took various steps to resell the ranch. Shape did not leave. In November 1992, Sohlers obtained a court order to evict Shape who left the property in such deplorable condition that it took years and thousands of dollars to return it to serviceable condition. For example, the pasture land was overgrazed, the property was infested with weeds, dead cattle were left all over the property, holes were cut in buddings and the water was left running which flooded a large area.

[¶ 4.] After the deed-back, Sohlers restored the property and land values increased over the years. In May 1997, Rindal and Shape sued the Sohlers to get the ranch back claiming the Sohlers had breached the agreement for cancellation of contracts for deed by not reselling the ranch and giving them the excess money referred to in the agreement.

[¶ 5.] The trial court held a trial with an advisory jury. When the jury found that Sohlers had not breached the agreement for cancellation of contracts for deed, the trial court rejected the advisory verdict and found that the Sohlers had breached the agreement. The trial court then concluded that an equitable adjustment under Beitelspacher v. Winther, 447 N.W.2d 347 (S.D.1989), and former SDCL 21-50-2, repealed 1992 SessL ch 157, was the appropriate remedy. Sohlers appealed and Rindal and Shape filed a notice of review.

STANDARD OF REVIEW

[¶ 6.] The trial court’s findings of fact are reviewed under the clearly erroneous standard. Estate of Fountain v. Schroeder, 2001 SD 189, ¶ 6, 637 N.W.2d 27, 28. “The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.” Id. Questions of law are reviewed de novo. Bergee v. Bd. of Pardons and Paroles, 2000 SD 35, ¶ 4, 608 N.W.2d 636, 638. This Court will only overturn a trial court’s conclusions of law when the trial court erred as a matter of law. Estate of Fountain, 2001 SD 139, at ¶ 6, 637 N.W.2d at 28. When there is a mixed question of fact and law, the court will review the issue de novo. Id.

DECISION

A. Res Judicata and Claim Preclusion.

[¶ 7.] In 1992, after signing the cancellation of contracts for deed and quitclaim deeds returning the property to Soh-lers, Shape refused to vacate the premises. Sohlers then filed an action for forcible entry and detainer to evict Shape. Soh-lers argued that the 1992 judgment evicting Shape precluded the present lawsuit under the doctrine of res judicata. The trial court held that the only issue addressed in 1992 was possession and that the alleged breach of contract was not raised and was not precluded.

[¶ 8.] Res judicata precludes re-litigation of issues that were litigated between the same parties in a prior action. Faulk v. Faulk, 2002 SD 51, ¶ 16, 644 N.W.2d 632, 635. Shape did not raise a claim for breach of contract in the forcible entry and detainer action even though the Sohlers had already failed to resell the property by the time the action for forcible entry and detainer was commenced (which was obvious since Sohlers were evicting Shape). Claim preclusion forecloses litigation of matters that could have been asserted in a prior action. Lee v. Rapid City Area School Dist., 526 N.W.2d 738, 740 (S.D.1995).

[¶ 9.] To determine whether Shape could have asserted the claimed breach of contract in the forcible entry and detainer action, we turn first to SDCL 21-16 — 4, which provides:

An action under the provisions of this chapter cannot be brought in connection with any other except for rents and profits or damages but the plaintiff may bring separate actions for the same if he so desire.

Construing this provision, this Court has sometimes allowed additional equitable claims in actions for forcible entry and detainer. LPN Trust v. Farrar Outdoor Advertising, 1996 SD 97, ¶ 10, 552 N.W.2d 796, 798-99. However, this Court has also held that a vendor could not combine strict forfeiture of a contract for deed in an action for forcible entry and detainer. BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 863-64 (S.D.1995). Forcible entry and detainer is a summary remedy for speedy possession of real estate. LPN Trust, 1996 SD 97 at ¶ 10, 552 N.W.2d at 798. However, courts should also hear other relevant matters to avoid a multiplicity of suits. Id.

[¶ 10.] It does not matter whether Shape could have raised Sohlers’ claimed failure to make adequate efforts to resell the property. Rindal was not a party to the forcible entry and detainer action. Therefore, Rindal is not foreclosed by res judicata or claim preclusion from litigating the claim that Sohlers breached the agreement for cancellation of contracts for deed. The issue of equitable adjustment under Beitelspacher is the same whether the plaintiffs are Rindal and Shape or only Rindal.

B. Breach of contract.

[¶ 11.] Rindal and Shape and the Sohlers entered into an agreement for cancellation of contracts for deed. The agreement called for cancellation of the contracts for deed and for Rindal and Shape to quitclaim the property back to the Soh-lers. Sohlers agreed to make immediate efforts to resell the ranch. If the ranch was resold, Sohlers would pay Rindal and Shape any excess over Sohlers’ expenses. Rindal and Shape claimed Sohlers failed to make the immediate efforts to sell the ranch required under the contract. Soh-lers claimed they made immediate and extensive efforts to resell the ranch. The facts were in dispute and the evidence was conflicting. Rindal and Shape’s suit is based on an alleged breach of the agreement for cancellation of contracts for deed. They asked for specific performance, re-conveyance of the property, an order canceling the quitclaim deeds and for money damages. On the day of trial, in an apparent effort to avoid a jury trial, Rindal and Shape disclaimed their request for money damages for breach of contract and indicated they were proceeding only for equitable relief.

[¶ 12.] An essential element to equitable relief is the lack of an adequate remedy at law. Knodel v. Kassel Tp., 1998 SD 73, ¶ 8, 581 N.W.2d 504, 507; Bienert v. Yankton School Dist., 63-3, 507 N.W.2d 88, 90 (S.D.1993); Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 265 (S.D. 1985); Hein v. Marts, 295 N.W.2d 167, 171 (S.D.1980); Anderson v. Kennedy, 264 N.W.2d 714, 717 (S.D.1978). Rindal and Shape cannot disclaim their remedy at law and elect to sue in equity to avoid a jury trial. Haberer v. Rice, 476 N.W.2d 276, 277 (S.D.1991).

[¶ 13.] Rindal and Shape’s suit is not a proper suit for equity. Rindal and Shape have a plain, adequate and speedy remedy at law for money damages for breach of contract. Dairy Queen v. Wood, 369 U.S. 469, 473, 82 S.Ct. 894, 897, 8 L.Ed.2d 44, 48 (1962); First W. Bank, Sturgis v. Livestock Yards Co., 466 N.W.2d 853, 856-57 (S.D.1991). Breach of contract presents a pure question of fact, Moe v. John Deere Co., 516 N.W.2d 332, 335 (S.D.1994), for a jury, C & W Enterprises v. City of Sioux Falls, 2001 SD 132, ¶ 19, 635 N.W.2d 752, 758; Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 21, 602 N.W.2d 58, 63; Swiden Appliance v. Nat. Bank of S.D., 357 N.W.2d 271, 277 (S.D.1984). A suit for money damages also preserves the Sohlers’ right to a jury trial.

[¶ 14.] The court recognized that the present action was really only for money damages during the hearing held before the trial commenced:

The only question is monetary damages that they’re going to get if there was a breach of the contract and how that’s accomplished....

The court’s comment was correct. The equitable adjustment ordered by the court will only result in a money judgment for breach of contract. The circuit court turned a breach of contract case into an equitable adjustment case and denied the Sohlers a jury trial to which they were not only entitled but which they also subsequently won.

[¶ 15.] Even though the advisory jury found that the Sohlers did not breach the agreement for cancellation of contracts for deed, the court found that the Sohlers did not make the required effort to sell the ranch. Equitable adjustment would not have been a remedy for breach of contract then and should not be a remedy now. The equitable adjustment ordered by the court arose under former SDCL 21-50-2, repealed 1992 SessL ch 157, which provided for equitable adjustment in an action to foreclose a contract for deed. SDCL 21-50-2 provided in part:

The court in such actions shall have the power to equitably adjust the rights of all the parties [to the contract for deed]....

Equitable adjustment was combined with strict foreclosure to ameliorate the harsh effects of forfeiture and to prevent unjust enrichment. Beitelspacher, 447 N.W.2d at 351. Sohlers never brought an action to foreclose the contracts for deed and this action by Rindal and Shape is for breach of contract.

[¶ 16.] Since there was no action for foreclosure of the contracts for deed, there was no foreclosure. Therefore, Rindal and Shape were never entitled to equitable adjustment. Rindal and Shape gave up their right to an equitable adjustment when they entered into the agreement for cancellation of contracts for deed. The cancellation of contracts for deed (a separate document from the agreement for cancellation of contracts for deed) specifically provided:

The undersigned [Rindal and Shape] further acknowledge that this instrument shall constitute a total disclaimer of any right, title dr interest in the aforementioned real estate ....

The quitclaim deeds further waived any rights under the cancelled contracts for deed. SDCL 43-25-8.

[¶ 17.] The trial court erred as a matter of law by ordering equitable adjustment when there was a plain, speedy and adequate remedy at law for money damages for breach of contract. Furthermore, equitable adjustment ceased to exist as a remedy on July 1, 1992, when the legislature’s repeal of former SDCL 21-50-2 took effect. Therefore, equitable adjustment had no application to this action commenced in 1997. Rindal and Shape had no right to a remedy that no longer existed.

NOTICE OF REVIEW

[¶ 18.] Rindal and Shape filed a notice of review claiming that Sohler’s attorney fees should not be considered when the court made an equitable adjustment. Since an equitable adjustment is not proper, we will not address Rindal and Shape’s notice of review.

CONCLUSION

[¶ 19.] The trial court’s order rejecting the jury’s advisory verdict and for equitable adjustment is reversed. This Court has authority to reinstate an advisory verdict. Nizielski v. Tvinnereim, 453 N.W.2d 831, 834 (S.D.1990). Both sides fully tried the breach of contract issue to the jury. Since the jury has already found that the Sohlers did not breach the agreement for cancellation of contracts for deed, there is no need to retry this case. On remand, the trial court is directed to reinstate the jury verdict and to enter judgment in favor of Sohlers and against Rin-dal and Shape.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur.

[¶ 21.] ZINTER, Justice, concurs in part and dissents in part.

[¶ 22.] GORS, Circuit Judge, for SABERS, Justice, disqualified.

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

ZINTER, Justice,

(concurring in part and dissenting in part).

[¶ 24.] I concur with all of the Court’s opinion except for its reinstatement of the advisory jury’s verdict. The Court relies upon Nizielski v. Tvinnereim, 453 N.W.2d 831 (S.D.1990) for authority to reinstate an advisory jury’s verdict. In my judgment, neither Nizielski nor SDCL 15-6-39 (RCP 39) warrant reinstatement of an advisory jury verdict under the facts of this case.

[¶ 25.] Although Nizielski reinstated a jury verdict, it actually supports the conclusion that reinstatement of this advisory verdict is not warranted. In Nizielski, this Court held that fundamental fairness required reinstatement of a binding jury verdict that had been set aside after trial. However, the Court’s holding was expressly premised on the facts that (1) those parties had consented to trial by jury, (2) the parties reasonably expected the jury’s verdict to be binding, and (3) the trial court did not treat the jury’s verdict as advisory until after the jury had returned its verdict. Nizielski noted that the timing of a trial court’s notification to treat the jury’s verdict as advisory is the critical issue in determining whether to reinstate a jury verdict. Nizielski, 453 N.W.2d at 834. Significant to this appeal, Nizielski stated that notification was required “to ensure fair notice to the litigants of the arena in which they find themselves in; and, further so that they can knowledgeably proceed with a mental determination as to how they can effectively conduct voir dire examination having a basic viewpoint of the role of the jury in the proceeding.” Id. That pre-trial notice of the type of jury to be used in the trial, a prerequisite for reinstatement, is absent in this case. Because these parties were given notice that jury verdict would be advisory, we should not, on appellate review, now change the nature of the verdict without the opportunity of the parties to retry their case.

[¶ 26.] The federal courts apply this reasoning under Fed.R.Civ.P. 39, the counterpart to our advisory jury statute, SDCL 15-6-39. In Pradier v. Elespuru, 641 F.2d 808 (9th Cir.1981), the Court of Appeals considered a remarkably similar case. In that case, a defendant had demanded a jury trial. However, like the case before us, the trial court impaneled an advisory jury, and the plaintiff acquiesced in that trial to an advisory jury. After trial, the trial court overturned the advisory verdict, and the defendant appealed. The Court of Appeals concluded that even though the trial court erred in denying the defendant a jury trial as a matter of right, the advisory verdict, which favored the successful defendant/appellant, could not be reinstated. The Court of Appeals held that the ease had to be remanded for retrial before a non-advisory jury. It did so even though the advisory verdict was the verdict the successful de-fendanVappellant sought, and even though the plaintiff/appellee had acquiesced to the advisory jury. It reasoned:

The advisory jury verdict may not be substituted. The entire trial took place with the understanding that the jury’s verdict would be advisory only. There are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury.

Pradier, 641 F.2d at 811 (further citations omitted). See also 88 FedProc, LEd § 77:151 (stating, “[wjhere a court improperly substitutes an advisory jury for a jury trial and an entire trial takes place with the understanding that the jury’s verdict would be advisory only, the entire case must be remanded for a retrial before a regular jury.”)

[¶ 27.] This rule and its underlying reasoning apply in the case we are considering. At the outset, it is conceded that Sohler’s liability for breach of contract is the same issue to be determined in both trials. However, Rindal’s and Shape’s strategy, including the evidence and theories they will present, will very likely differ in an action for damages for breach of contract than in their ostensible claim for the “equitable relief’ that they submitted to the advisory jury. This is evident from their arguments to Judge Rusch on the first morning of the advisory jury trial. At that critical time, Rindal and Shape adamantly indicated that they were not prepared to try a breach of contract case seeking damages. They then proceeded to try their case to the advisory jury as a matter of equity. We should not, therefore, reinstate the advisory jury verdict. We should remand this legal claim for breach of contract damages to a non-advisory jury.

      . The expenses included the amount needed to pay off the contracts for deed between Rindal and Shape and the Sohlers, to pay off the mortgage Shape had placed on the land, to pay off any other liens, to pay real estate taxes and to pay the Sohlers' legal fees.

      . Sohler contacted neighbors and customers and distributed brochures at his livestock auction business in Yankton. Sohler showed the property to prospective purchasers, adjoining property owners and two local Hutterite colonies. Negotiations with the Weborgs (neighbors) and Lavern Koupal (who later rented the land) fell through when they saw the devastated condition of the property. Shape’s mortgage of the land to a Nebraska Bank also made sale of the land difficult. Sohler even tried to sell the ranch to the Nebraska banker and bank that held Shape's mortgage. Finally, Sohlers listed the ranch with Century 21 Real Estate agent Harvey Youngberg, who specialized in commercial and agricultural property.


author: ENG, Circuit Judge.

text:
    2003 SD 26
    CITY OF ABERDEEN, Plaintiff and Appellee, v. Timothy RICH, Thomas Tobin, Sea Corporation, a South Dakota Corporation, Defendants and Appellants, and Roger Huff, Huff Development Corporation, a South Dakota Corporation, Defendants.
    Nos. 22321, 22328.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2002.
    Decided March 5, 2003.

      Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Richard L. Russman of Rice, Ewinger & Russman Aberdeen, South Dakota, Attorneys for defendants and appellants Rich, Tobin and SEA Corporation.
    Bruce Cutler of Thurow, Cutler & Bat-teen Aberdeen, South Dakota Development, Attorneys for defendants Huff and Huff.
   ENG, Circuit Judge.

[¶ 1.] This case stems from two land transactions between the City of Aberdeen (City) and: former mayor Timothy Rich; former city attorney Thomas Tobin; Roger Huff and Huff Development, Inc.; and, SEA, Inc. City brought a declaratory judgment action against Rich, Tobin, Huff, Huff Development and SEA to determine whether the two land transactions should be declared null and void due to violations of SDCL 6-1-1. In a previous appeal, this Court affirmed the trial court’s finding that the statute of limitations had run with regard to the first transaction. However, this Court reversed a trial court ruling with respect to amendment of the complaint on the second transaction and remanded the ease for further proceedings to determine the liability of the defendants to City and to subsequent purchasers. The trial court awarded City $60,728.23 in damages. This Court affirms in part and reverses in part the trial court’s award.

FACTS AND PROCEDURE

[¶2.] This case stems from two land transactions between City and Rich, Tobin, Huff and Huff Development and SEA. During all times relevant to this action, Rich was mayor of Aberdeen and Tobin was the Aberdeen City Attorney.

[¶ 3.] City brought a declaratory judgment action against Rich, Tobin, Huff, Huff Development and SEA to determine whether the two land transactions should be declared null and void pursuant to SDCL 6-1-1 which provides in pertinent part that:

It shall be unlawful for any officer of a ... municipality ... who has been elected or appointed, to be interested, either by himself or agent, in any contract entered into by said ... municipality ... in the purchase of any real or personal property belonging to the ... municipality. ... Such contract shall be null and void from the beginning.

[¶ 4.] The trial court found that any action based upon the first land transaction was time barred when there was no evidence of fraud or deceit. This Court affirmed that finding in a previous appeal. This Court also upheld the trial court’s finding that the defendants’ involvement in the second land transaction violated SDCL 6-1-1 and that the actions of the city attorney and mayor were fraudulent and deceitful. City of Aberdeen v. Rich, 2001 SD 55, 625 N.W.2d 582.

[¶ 5.] This appeal concerns the issue of liability under the second land transaction. That transaction involved a trade and sale of land between SEA and City that took place on May 30, 1995. On that date, Rich, in his capacity as mayor, quitclaimed some city land to SEA and SEA quit-claimed its property to City in addition to making a cash payment of $817. On that same date, SEA sold seven lots in the newly purchased/traded land to a third party for $77,000.

[¶ 6.] In the previous appeal, this Court remanded the case to the trial court for a determination of defendants’ liability to City and to subsequent purchasers. This Court also instructed the trial court to give due consideration to its rulings in Carlson v. City of Faith, 75 S.D. 432, 67 N.W.2d 149 (1954); Speckels v. Baldwin, 512 N.W.2d 171 (S.D.1994); and, Himrich v. Carpenter, 1997 SD 116, 569 N.W.2d 568. On remand, the parties entered into a stipulation of facts and submitted briefs to the trial court. The trial court heard oral argument and made its decision from the bench, entering a judgment for City in the amount of $60,728.23. The judgment consisted of: the entire profit Rich, Tobin and SEA received on the sale of the property; half of the audit fee; and half of the abstract fee. However, the parties agreed to set-off the damages award by the amount expended by the defendants in making the property suitable for residential ■ housing. The trial court did not award attorney fees and did not award pre- or post-judgment interest.

[¶ 7.] Rich, Tobin and SEA, Inc. bring this appeal and City has filed a notice of review. The following issues are raised by Rich, Tobin, SEA and City and are to be determined by this Court:

Whether the trial court erred by awarding City monetary damages as a result of a contract that was rendered null and void as a matter of law.
Whether the trial court erred by awarding City audit and abstract fees in the form of disbursements.
Whether the trial court erred in refusing to award City interest and attorney’s fees.

STANDARD OF REVIEW

[¶ 8.] When evidence is presented without the appearance of live witnesses, but by way of deposition and stipulated facts, we are free to determine the facts as if presented here for the first time unaided by any deference to the trial court. Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995); Zacher v. Homestake Min. Co. of Cal., 514 N.W.2d 394, 395 (S.D.1994); State v. Abourezk, 359 N.W.2d 137, 142 (S.D.1984); State Automobile Casualty Under. v. Ruotsalainen, 81 S.D. 472, 479, 136 N.W.2d 884, 888 (1965).

[¶ 9.] We review a trial court’s conclusions of law under a de novo standard. Muhlenkort, 530 N.W.2d at 660; State v. Harris, 494 N.W.2d 619, 622 (S.D.1993)(citing Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991)). Under this standard of review, “ ‘conclusions of law “are given no deference by this court on appeal.’ ” ” Muhlenkort, 530 N.W.2d at 660; Accord Harding Cty. v. S.D. Land Users Ass’n, 486 N.W.2d 263, 264 (S.D. 1992); Rusch, 479 N.W.2d at 499; Beville v. Univ. of S.D./Bd. of Regents, 420 N.W.2d 9,11 (S.D.1988).

ANALYSIS AND DECISION

Gross Profits

[¶ 10.] City requested a damage award of $77,000. This is the amount of money SEA sold property for on the same day the trade/sale was approved by City. The trial court found that “the -wrong lay at the creation” of the void transaction. As a result, the court ordered the defendants to relinquish the $77,000 gross profit. This award is consistent with this Court’s holdings in Carlson, supra; Speckels, supra; and Himrich, supra.

[¶ 11.] Conflict of interest statutes have their origins in the general principal that “no man can faithfully serve two masters, whose interests are or may be in conflict.” San Diego v. S.D. & L.A.R.R. Co., 44 Cal. 106, 1872 WL 1247 (1872). The general rule is strict enforcement of conflict of interest statutes so as to provide a strong disincentive for officers who might be tempted to take personal advantage of their public offices. Thomson v. Call, 38 Cal.3d 633, 214 Cal.Rptr. 139, 699 P.2d 316 (1985).

[¶ 12.] In Carlson, supra, the defendants, while city councilmen, received money from the city for goods and merchandise sold to the city individually or through corporations in which they were interested. This Court held that even though the councilmen were not acting fraudulently, they were bound to refund to the city the money paid to them on the sales in view of the statute making such transactions unlawful, null and void. Carlson, 75 S.D. at 434-36, 67 N.W.2d at 150-51. Similarly, in this case, SEA must refund to City money paid to it on the sale in light of the fact that the transaction was unlawful, null and void. In fact, such a conclusion is even more appropriate here because the trial court found actual fraud in this case. See City of Aberdeen, 2001 SD 55 at ¶ 23, 625 N.W.2d at 587.

[¶ 13.] In Speckels, supra, the Custer City Attorney entered into a lease-purchase agreement with the city where a for-profit corporation in which the attorney was a principal leased land from the city for twenty years. That same day, the attorney’s corporation sublet the property to another corporation. This Court held that $700,000 in lease payments were unlawfully appropriated by the attorney and a fellow investor and that those payments had to be repaid to the city because the rent received by the investors deprived the city of that amount of money. Speckels, 512 N.W.2d at 175-176. Similarly, in this case, the defendants have deprived the city of $77,000. This money should be returned to City in accordance with this Court’s holding in Speckels.

[¶ 14.] Finally, in Himrich, supra, the Custer City Attorney and fellow investor from Speckels, supra, argued that they were entitled to recover under the equitable defense of unjust enrichment. This Court recognized that, “ ‘he who comes into equity must come with clean hands[.]’ ” Himrich, 1997 SD 116 at ¶ 22, 569 N.W.2d at 573 (quoting Myers v. Smith, 208 N.W.2d 919, 921 (Iowa 1973)). Since the attorney and his fellow investor engaged in a purposeful violation of their fiduciary duties as public officers when they entered into a contract with the city for personal gain, this Court refused to condone that conduct and found no entitlement to equitable relief. See Himrich, 1997 SD 116 at ¶¶ 19-22, 569 N.W.2d at 573-574. This Court continues to adhere to the principles set forth in Himrich and, therefore, denies equitable relief and affirms the trial court’s award of the $77,000 in gross profits.

[¶ 15.] Strict enforcement of conflict of interest laws has been the principle adhered to by courts throughout this country. In Thomson, supra, the taxpayer plaintiffs challenged the validity of a transaction in which the defendant purchased a parcel of land from a husband and wife and then conveyed that parcel to the City of Albany while the husband was a member of the Albany City Council. Despite the fact that the husband and wife were not acting fraudulently, they were liable to the city for the proceeds they received from the sale, plus interest, while the city retained title to the land. This was consistent with the policy that “the city or agency is entitled to recover any consideration which it has paid, without restoring the benefits received under the contract.” Thomson, 214 Cal.Rptr. 139, 699 P.2d at 324.

[¶ 16.] The ruling in Thomson is consistent with this Court’s holding in Bo-zied v. City of Brookings, 2001 SD 150, 638 N.W.2d 264, that parties cannot be paid under void public contracts. In Bo-zied, a construction company was awarded a construction contract with the City of Brookings after the owner of the company resigned from the planning committee responsible for developing the project package. After construction began, the city issued a series of change orders. Those change orders were never submitted for public bidding, but were completed by the original construction company. The change orders were held to be a void contract. This Court determined that “no matter how innocent a contractor may be, there can be no recovery on a void contract, even to right a gross injustice.” Bozied, 2001 SD 150 at ¶ 19, 638 N.W.2d at 272.

[¶ 17.] This Court also recognized that, absent a showing of “ ‘fraud, undue influence, or collusion, in the making of the payment,’ ” several courts have allowed a contractor to retain funds already paid but not to recover additional funds. Bozied, 2001 SD 150 at ¶20, 638 N.W.2d at 272 (quoting Tobin v. Town Council of Sundance, 45 Wyo. 219, 17 P.2d 666, 674 (1933)). See also Elview Construction Co. Inc., v. North Scott Community, 373 N.W.2d 138, 144 (Iowa 1985); Gamewell Company v. City of Phoenix, 216 F.2d 928, 941 (9th Cir.1954); Village of Pillager v. Hewitt, 98 Minn. 265, 107 N.W. 815, 816 (1906); Robert A. Shapiro, Right of Municipal Corporation to Recover Back From Contractor Payments Made Under Contract Violating Competitive Bidding Statute, 33 ALR3d 397 (1970). However, “[s]uch a conclusion, will by necessity, be tempered by the facts of each case.” Bo-zied 2001 SD 150 at ¶23, 638 N.W.2d at 273. Since this case involves fraud and deceit, the defendants should not be allowed to retain funds already paid. See id.

[¶ 18.] Therefore, this Court affirms the trial court’s award of $77,000 gross profits and will not allow any equitable relief to the defendants. Furthermore, in accordance with the agreement of the parties and in compliance with this Court’s policy of strict enforcement of conflict of interest laws, City is entitled to keep all of the benefits of the void contract pursuant to the holding in Bozied, supra. This includes the return of City’s land, City’s retention of the property and the $817 conveyed to it by SEA and an award of the gross profits to City. Since the parties agreed to a set-off, it will be upheld.

Pre and Post-judgment Interest

[¶ 19.] Pursuant to SDCL 21-1-13.1, “[a]ny person who is entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage oecurred[.]” The defendants argue that City is not entitled to prejudgment interest because it cannot be obtained if damages remain uncertain until determined by the court. See SDCL 21-1-11. However, the adoption of SDCL 21-1-13.1 in 1990 abrogated the rule that prejudgment interest cannot be obtained if damages remain uncertain until determined by a court. Fritzel v. Roy Johnson Const., 1999 SD 59, ¶ 12, 594 N.W.2d 336, 339. Under the present rule in SDCL 21-1-13.1, prejudgment interest is allowed from the day the loss or damage occurred regardless of whether the damages are certain. Id.

[¶ 20.] The trial court erred in its determination that no interest should be allowed based on this Court’s holding in ■Carlson, 75 S.D. at 438, 67 N.W.2d at 152. The trial court failed to recognize that after that 1954 case, South Dakota adopted SDCL 21-1-13.1 which makes prejudgment interest mandatory. Therefore, City is entitled to prejudgment interest from the date the void contract was entered into, May 30,1995.

[¶ 21.] City is also entitled to post-judgment interest on the award. SDCL 15-16-3 states that “[w]hen a judgment is for the recovery of money, interest from the time of the verdict or decision until judgment be finally entered must be added to the judgment of the party entitled thereto.” Therefore, City is entitled to interest for the time between December 19, 2001, when the verdict was rendered, until February 20, 2002, when the judgment was satisfied.

[¶ 22.] The trial court erred in refusing to allow an award of interest.

Set-off

[¶ 23.] The parties agreed to set-off the award by $24,118.07, the amount expended by the defendants in making the property suitable for residential housing. The issue before this Court is whether the $24,118.07 should be deducted from the $77,000 before or after interest is calculated.

[¶ 24.] This Court has already determined that the damages are $77,000; however, the parties stipulated to set-off this amount by $24,118.07, thereby reducing the amount of damages to $52,881.93. Therefore, prejudgment interest accrued on the $52,881.93 from May 30, 1995, the date of the transfer.

Attorney’s fees

[¶ 25.] The general rule is attorney’s fees are allowed when there is either a contractual agreement that the prevailing party is entitled to attorney’s fees or there is statutory authority authorizing an award of attorney’s fees. See Matter of Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142. Since there is no contractual agreement and no statutory authority, the only way that attorney’s fees can be awarded is if this Court determines that City, as a victim of fraud, is entitled to such an award.

[¶ 26.] In Jacobson v. Gulbransen, 2001 SD 33, 623 N.W.2d 84, the prevailing party argued that he was entitled to attorney’s fees because the lawsuit was induced by fraud. He urged this Court to carve out an exception to the general rule that attorney’s fees may only be awarded by contract or when explicitly authorized by statute. See O’Keefe, supra. This Court declined to carve out such an exception then and it declines to do so now.

Abstract Fees and Audit Fees

[¶ 27.] The abstract fees and audit fees awarded by the trial court were not consistent with this Court’s strict construction of SDCL 15-17-37. This Court has consistently limited taxation of costs to those disbursements specifically authorized by statute. Furthermore, this Court has been extremely hesitant to allow disbursements for “other similar expenses and charges” as mentioned in SDCL 15-17-37. See Nelson v. Nelson Cattle Co., 513 N.W.2d 900 (S.D.1994); Atkins v. Stratmeyer, 1999 SD 131, 600 N.W.2d 891; Zahn v. Musick, 2000 SD 26, 605 N.W.2d 823.

[¶ 28.] This Court explained the philosophy behind its strict construction of cost or disbursement statutes in State Highway Commission v. Hayes Estate, 82 S.D. 27, 44-45, 140 N.W.2d 680, 690 (1966), stating:

Under our statute fees paid photographers are not specifically mentioned, so if allowable, they must come within the term of “procuring necessary evidence.” We believe the statute should be construed not to cover photographer fees and expenses. The language used is broad and comprehensive and we do not say such evidence was not necessary to a proper trial of the action. However, the same is true of much that is done in procuring necessary evidence for use at the trial. For example, most discovery proceedings are designed and initiated to procure necessary evidence. The same purpose is intended when written statements are taken from witnesses or prospective witnesses or when experts are retained and consulted. The time and money expended and the techniques employed in many instances are limited only by the ingenuity of the person using them. Much of what is done procures evidence which is necessary for the trial. Yet quite generally amounts expended and disbursements made in preparing for trial are not considered as necessary in an allowance of costs. See Annotation 97 ALR2d § 15. We can visualize where to allow the expense of obtaining photographs to be taxed against an unsuccessful litigant might open the door to a “Pandora’s Box” with wide variation between circuits and judges within the same circuit as to what is allowable and in what amount. Questions immediately arise as to how many photographs are considered necessary and of what type and size. What about money paid for moving pictures which more frequently are being used in personal injury cases? Can the expense be taxed only if paid to a professional photographer and should it include travel charges? If the photographs are taken by an attorney in the case, or an investigator, are such expenses chargeable? Myriad situations fraught with difficulty in application present themselves. (footnote added).

[¶ 29.] This leaves the Court with the perplexing question of where to draw the line. Such duty is practically impossible; therefore, this court upholds its policy of strict construction of SDCL 15-17-37 pursuant to Atkins and Nelson. As a result, neither abstract nor audit fees shall be included as taxable disbursements under SDCL 15-17-37.

[¶ 30.] That part of the judgment awarding gross profits is affirmed; that part of the judgment denying attorney fees is affirmed; that part of the judgment denying pre- and post-judgment interest is reversed; that part of the judgment awarding abstract fees and audit fees is reversed; and, we find that the set-off should be deducted from the award of gross-profits before pre- and post-judgment interest is calculated.

[¶ 31.] KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, and TRANDAHL, Circuit Judge, concur.

[¶ 32.] ENG, Circuit Judge, for GILBERTSON, Chief Justice, disqualified.

[¶ 33.] TRANDAHL, Circuit Judge, for SABERS, Justice, disqualified.

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

      . At the time of the transfer, SEA had four equal stockholders: Rich, Tobin, Huff and City Engineer, Francis Brink.

      . $77,000.

      . $5,866.30.

      . $1,980.

      . $24,118.07.

      . Generally, a trial court’s findings of fact are accorded great deference. However, without regard to the labels used, when those "findings” proceed from stipulated facts, as in the instant case, the "findings” are tantamount to conclusions of law, with the stipulation of facts being the functional equivalent of true findings of fact. See Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). See also City of Spencer v. Hawkeye Security Ins. Co., 216 N.W.2d 406, 408 (Iowa 1974) ("Where the facts are not in material dispute, interpretation placed thereon by trial court becomes a question of law which is not conclusive on appeal.”); Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo.1979)(only issue on appeal was whether trial court drew the proper legal conclusions from the stipulated facts). On appeal, this court reviews conclusions of law for legal correctness. Copper State Thrift & Loan v. Bruno, 735 P.2d 387, 389 (Utah App. 1987). See Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

        Diversified Equities v. Amer. Sav. & Loan, 739 P.2d 1133, 1136 (Utah Ct.App.1987).

      . This was the same date defendants sold the property for residential development and received proceeds of $77,000.

      . "Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts and other similar expenses and charges.” SDCL 15-17-37

      . While this Court's explanation in Hayes dealt with the prior cost statute, SDCL 15-17-4, the reasoning was used in the chain of cases used to decide Nelson. Nelson expressly relied on Heer v. State, 432 N.W.2d 559 (S.D.1988). Heer was decided upon the authority of Wagner v. Wagner, 83 S.D. 565, 163 N.W.2d 339 (1968). In turn, Wagner relied on Hayes.


author: KONENKAMP, Justice. SABERS, Justice

text:
    2003 SD 25
    Douglas HOFELDT, Plaintiff and Appellant, v. Roy MEHLING, Defendant and Appellee.
    No. 22380.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided March 5, 2003.

      Timothy R. Whalen, Lake Andes, South Dakota, Attorney for plaintiff and appellant.
    Kent R. Cutler, Kimberly R. Wassink of Cutler & Donahoe, Sioux Falls, South Dakota, Attorneys for defendant and appel-lee.
   KONENKAMP, Justice.

[¶ 1.] In a land sale, after the buyer made the required down payment, the seller failed, in violation of the contract, to deliver clear title for nearly five years. During this time, the buyer was permitted to farm the land and obtain subsidy payments for it. He paid no rent and kept all the subsidies. When the seller finally delivered clear title and the sale closed, the seller sued the buyer to obtain rent and subsidies, claiming that the buyer had been unjustly enriched. The circuit court ruled that the buyer had not been unjustly enriched because he only received what he would have been entitled to had the seller delivered title promptly in accord with the contract. Because we find no abuse of discretion, we affirm.

Background

[¶ 2.] In 1972, Roy Mehling began leasing agricultural property in Hand County from Douglas Hofeldt’s aunt. Under their arrangement, Mehling retained two-thirds of the proceeds from his crops and paid the remaining one-third as rent. Each year Mehling paid the rent following the harvest. After the aunt passed away, Ho-feldt inherited the property. He continued the lease arrangement. In March 1995, the parties canceled their lease and entered a contract for deed.

[¶ 3.] Under the terms of the contract, the purchase price for the land was $91,200, with $3,000 as a down payment, and the remainder was due within thirty days or upon Hofeldt’s delivery of a warranty deed. In addition, the contract provided for no interest and the buyer was to have possession of the property, along with any rent, issues, and profits from the date of final payment. The seller was required to promptly cure any title defects and provide title to the property clear of all encumbrances. Mehling paid the down payment and secured financing for the remaining amount.

[¶ 4.] Shortly thereafter, the abstract revealed that title to the property was encumbered by an IRS lien. Mehling immediately notified Hofeldt of the lien and Hofeldt assured Mehling that he would promptly resolve the matter. After a month had passed, Mehling offered to modify the contract to provide for installment payments rather than a lump-sum payment. Hofeldt declined. He wanted to resolve the matter so that the sale could be closed.

[¶ 5.] Mehling soon discovered that, without title to the land, he was unable to enroll the property in federal farm programs. He sought and obtained written authorization from Hofeldt that allowed him to enroll the property in the Farm Service Agency (FSA) program. Thus, with Hofeldt’s knowledge and assistance, Mehling continued to possess and farm the land and retain the profits from the property.

[¶ 6.] Over the years, from 1995 to 1999, Hofeldt and Mehling had several phone conversations in which they discussed Hofeldt’s progress in clearing the title. During their discussions, both continued to express their desire to close the deal. Mehling’s lender was not pleased about holding the loan open for him. Mehling claims to have lost opportunities to purchase other properties while this matter was pending. Hofeldt regularly reassured Mehling that he would promptly resolve the situation and see that the hen was removed. At no time during these discussions, however, did Hofeldt ever mention the payment of rent. Hofeldt and Mehling did discuss real estate taxes. Although the contract provided that Mehling was to pay the property taxes, Hofeldt agreed to pay them until they were able to close. Mehling later tendered reimbursement for those taxes.

[¶ 7.] Hofeldt said he had two attorneys and one accountant working on the Internal Revenue Service lien, but progress was slow. Unknown to Hofeldt, the lien was removed in January 1997. Notice that the lien had been released was mailed to Hofeldt and his Nebraska attorney, however, Hofeldt had moved to another address and his legal counsel failed to advise him on this matter. Finally in October 1999, Hofeldt and his South Dakota lawyer discovered that the lien had been removed. Now that Hofeldt was able to provide Mehling with a warranty deed, they made arrangements to close on the contract for deed.

[¶ 8.] After the transaction closed, Ho-feldt sued Mehling for unpaid rent and reimbursement of subsidies for the years 1995 through 1999. Mehling asserted several affirmative defenses to these claims, including waiver, estoppel, laches, and possession. The circuit court granted judgment for Mehling. Hofeldt appeals on the following issues: (1) “Whether the trial court erred in holding in favor of Mehling in light of the express terms of the contract for deed.” (2) “Whether Hofeldt was entitled to recover from Mehling rents and other damages on the theory of unjust enrichment.”

Analysis and Decision

[¶ 9.] A trial court’s findings of fact will not be set aside unless they are clearly erroneous. SDCL 15-6-52(a). We will declare a finding of fact clearly erroneous only if we are definitely and firmly convinced that a mistake has been made. First Nat’l Bank in Brookings v. Kuechenmeister, 2002 SD 9, ¶ 12, 639 N.W.2d 184, 187 (citing Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994)). We review the trial court’s conclusions of law de novo. Carstensen Contracting, Inc. v. Mid-Dakota Rural Water System, Inc., 2002 SD 136, ¶ 8, 653 N.W.2d 875, 877 n. 2. Unjust enrichment is an equitable concept. Our standard of review for cases in equity is abuse of discretion. Kuechenmeister, 2002 SD 9 at ¶ 12, 639 N.W.2d at 187 (citing Mattson v. Rachetto, 1999 SD 51, ¶ 9, 591 N.W.2d 814, 817). An abuse of discretion occurs only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Mattson, 1999 SD 51 at ¶ 9, 591 N.W.2d at 817 (citations omitted).

1. Parol Evidence Rule

[¶ 10.] Hofeldt contends that the trial court violated the parol evidence rule when it considered the parties’ discussions and conduct following the execution of their unambiguous contract for deed. Although we agree with Hofeldt that the contract for deed is unambiguous, the par-ol evidence rule is inapplicable here.

[¶ 11.] The parol evidence rule bars extrinsic evidence of prior negotiations offered to contradict or supplement a written contract. E. Allan Farnsworth, Farnsworth on Contracts § 7.2, at 209-10 (2d ed 1998). It is a rule of substantive law, not of evidence. Auto-Owners Ins. Co. v. Hansen Housing, Inc., 2000 SD 13, ¶ 14, 604 N.W.2d 504, 510 (citations omitted). Codified in SDCL 53-8-5, the rule provides that “[t]he execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” (Emphasis added.) By its express statutory language, the rule does not apply to conduct and statements taking place after a contract has been executed. Thus, evidence of negotiations occurring after a written agreement will not be excluded by the parol evidence rule. See Farnsworth, supra, § 7.3, § 7.6, at 228 (2d ed 1998). Indeed, contractual rights and remedies may be modified or waived by subsequent conduct. Moe v. John Deere Co., 516 N.W.2d 332, 335 (S.D.1994). Therefore, the trial court did not violate the parol evidence rule when it considered the events occurring after the contract for deed was executed.

[¶ 12.] The express terms of the contract for deed did not require Mehling to pay rent to Hofeldt while the sale was pending. Although Hofeldt argues that the contract term providing that “[t]he Buyer [Mehling] shall have possession of said property and the rents, issue and profits thereof from the date of the final payment on this contract,” obligates Mehl-ing for the rent until the final payment, a plain reading of the contract simply does not require Mehling to pay Hofeldt rent. In addition, Mehling received a cancellation of their 1994-1995 lease agreement before executing the contract for deed. At no time during the almost five-year pen-dency of the contract did Hofeldt ever demand rent from Mehling. When Mehl-ing contacted Hofeldt in the spring of 1995 to offer to convert the contract into an installment arrangement, Hofeldt never mentioned the issue of rent. Before the execution of the contract for deed, Mehling had always paid his rent immediately following the harvest, yet Hofeldt never inquired about the rent after each year’s harvest. Hofeldt knew that Mehling was occupying and farming the property.

[¶ 13.] Hofeldt seeks a portion of the subsidies Mehling received during the years before the sale closed. He assisted Mehling in getting the FSA payments by completing an authorization form allowing him to do so. Hofeldt never suggested that he should share in a portion of these payments. Nor was there any mention of sharing payments in the authorization agreement Hofeldt signed. Hofeldt never told Mehling that he expected a share of the FSA payments at any time during their several conversations over the years. Under these circumstances, an obligation to pay rent and to reimburse FSA payments cannot reasonably be implied. Thus, we see no error in the trial court’s ruling that Mehling was not contractually obligated to pay rent or reimburse subsidies.

2. Unjust Enrichment

[¶ 14.] Hofeldt contends that Mehling was unjustly enriched in receiving the subsidies and in failing to pay rent. Because unjust enrichment is an equitable remedy, a court has discretion to grant or deny it. Adrian v. McKinnie, 2002 SD 10, ¶ 9, 639 N.W.2d 529, 533 (citing Englehart v. Larson, 1997 SD 84, ¶ 12, 566 N.W.2d 152, 155); Matter of Estate of Donahue, 464 N.W.2d 393, 394 (S.D.1990). When a court exercises its discretion after weighing the equities of a case, we will not interfere on appeal absent a showing of an abuse of discretion. Rehfeld v. Flemmer, 269 N.W.2d 804, 808 (S.D.1978); see also Red River State Bank v. Reierson, 533 N.W.2d 683, 691 (N.D.1995) (citation omitted) (courts have discretion to grant equitable remedy of restitution to prevent unjust enrichment).

[¶ 15.] The Restatement of Restitution declares that “[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of Restitution § 1 (1937). The comment to this section explains that “[a] person is enriched if he has received a benefit. A person is unjustly enriched if the retention of the benefit would be unjust.” Restatement of Restitution § 1 cmt. a (1937) (emphasis added). Unjust enrichment occurs “when one confers a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain that benefit without paying.” Parker v. Western Dakota Insurors, Inc., 2000 SD 14, ¶ 17, 605 N.W.2d 181, 187 (citing Juttelstad v. Juttelstad, 1998 SD 121, ¶ 19, 587 N.W.2d 447, 451 (other citations omitted)).

[¶ 16.] When unjust enrichment is found, the law implies a contract obligating the beneficiary to compensate the benefactor for the value of the benefit conferred. Mack v. Mack, 2000 SD 92, ¶ 27, 613 N.W.2d 64, 69. For Hofeldt to prevail on his claim of unjust enrichment, he must show: (1) Mehling received a benefit; (2) Mehling was aware he was receiving a benefit, and (3) that it is inequitable to allow Mehling to retain this benefit without paying for it. Action Mechanical, Inc. v. Deadwood Historic Preservation Comm’n, 2002 SD 121, ¶21, 652 N.W.2d 742, 750 (citing Juttelstad, 1998 SD 121 at ¶ 19, 587 N.W.2d at 451); Bollinger v. Eldredge, 524 N.W.2d 118, 122-23 (S.D.1994).

[¶ 17.] While the trial court found that Mehling received a benefit and was cognizant of that benefit, it concluded that Ho-feldt failed to prove the third element, that it was inequitable to allow Mehling to retain the benefit without paying for it. Regarding the first element, Mehling obtained a benefit by not having to pay Ho-feldt rent or repay a part of the subsidies he received. Mehling does not dispute that he received a benefit, although this arrangement also purportedly impaired his ability to purchase other land. With respect to the second element, certainly Mehling was aware of the benefit.

[¶ 18.] On the third element, proof of unfairness in retaining the benefit without payment, the relevant inquiry is whether the circumstances are such that equitably the beneficiary should restore to the benefactor the benefit or its value. United States v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 607 (8thCir.l999) (citing Frigillana v. Frigillana 266 Ark. 296, 584 S.W.2d 30 (1979)). In weighing the equities of the matter, the trial court explained, “Mehling only received what he would have received had Hofeldt acted diligently in the beginning. The only arguable unjust enrichment is the benefit of having Hofeldt pay the taxes over the years. In this instance, Mehling has tendered those taxes.”

[¶ 19.] To grant relief in equity to Hofeldt, considering his own failure to adhere to the express terms of the contract to deliver clear title, seems neither obviously justified nor necessarily fair. The parties had the opportunity to discuss this question over the years, and now it would not be equitable for a court to inject its nose in their arrangement to insert a remedy the parties never contemplated. In view of the law and the circumstances of this case, we conclude that the trial court, in weighing the equities, did not abuse its discretion in ruling that Hofeldt was not entitled to restitution for unjust enrichment.

[¶ 20.] Lastly, Hofeldt argues that the circuit court erred by implicitly accepting Mehling’s affirmative defenses. As we have affirmed the trial court on the previous issues, it is unnecessary to address this question.

[¶ 21.] Affirmed.

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

[¶ 23.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 24.] I would affirm this case but modify it to the extent of the unjust enrichment. Mehling got the rents, profits and ASC payments without paying anything except the real estate taxes. Throughout all five years, Mehling had all the benefits from the land, but never parted with the purchase price for the land.

In other words, he had the use of his purchase money all five years and was unjustly enriched to that extent at the expense of the seller Hofeldt.

[¶ 25.] Having the use of the purchase price should be treated in the same manner as the real estate taxes, which Mehling eventually tendered. The trial court was wrong to say Mehling did not profit from the delay. He did, it is called unjust enrichment.

[¶ 26.] The majority opinion sets forth the correct law in ¶ 15, but fails to follow it:

The Restatement of Restitution declares that “[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of Restitution § 1 (1937). The comment to this section explains that “[a] person is enriched if he has received a benefit. A person is unjustly enriched if the retention of the benefit would be unjust.” Restatement of Restitution § 1 cmt. a (1937) (emphasis added). Unjust enrichment occurs “when one confers a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain that benefit without paying.”

(citations omitted).

[¶27.] Therefore, all three prongs of unjust enrichment as set forth in ¶ 16 are present:

1. Mehling received a benefit;
2. Mehling was aware he was receiving a benefit;
3. It is inequitable to allow Mehling to retain this benefit without fully paying for it.

[¶ 28.] Here, Mehling (1) received a benefit; (2) Mehling was aware he was receiving a benefit, and (3) it is inequitable to allow Mehling to retain this benefit without fully paying for it. Determining the value of the use of the purchase price money is a relatively easy simple interest calculation for the time period of five years.

       In 1989, Hofeldt suffered a head injury. As a consequence, Hofeldt claims his personal affairs had not been attended to and that he had not filed his personal income tax returns for four or five years thereafter. An accountant by trade, Hofeldt apparently had a dislike for the Internal Revenue Service. He claims that the IRS dragged its feet on removing the lien.


text:
    2003 SD 26
    Charles M. HOFFMAN d/b/a Customer Service, L.L.C., Plaintiff and Appellant, v. Ray S. OLSEN, Defendant and Appellee.
    Nos. 22448, 22459.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided March 5, 2003.

      Jay C. Shultz of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Bruce A. Hubbard of Hansen & Hubbard, Sturgis, South Dakota, Attorneys for defendant and appellee.
   PER CURIAM.

[¶ 1.] Charles Hoffman, doing business as Customer Services, LLC, (hereinafter Hoffman) appeals the trial court’s denial of attorney’s fees in this mechanics’ lien foreclosure action and also claims that the trial court improperly reduced the amount owing for the services performed. By notice of review, Ray Olsen asserts that the trial court erred in awarding any amount to Hoffman.

FACTS AND PROCEDURE

[¶ 2.] Olsen hired Marcy Barber to make improvements to his ranch property. Specifically, he hired her to install tin siding on a granary and fuel shed, using hail-damaged tin that had previously been removed from another building. Barber provided Olsen with a quote of $1,350 plus materials and excise tax to install the tin siding. There was no written contract.

[¶ 3.] Barber then hired Hoffman as a subcontractor on the job. As was customary with other jobs on which the two had worked, Hoffman was to receive half of the amount paid for labor in exchange for performing half of the work with Barber. Barber would be responsible for the materials and excise tax. Barber and Hoffman spent two days siding the granary and fuel shed. The total bill submitted to Olsen was for $1,580.74, with $1,375 representing labor. Determining that the siding job was “shoddy and amateur,” Olsen refused to pay the bill and hired a third party to remove and replace the tin siding.

[¶ 4.] In response, Hoffman filed a mechanics’ hen against Olsen in the amount of $1,659.80. This included the amount represented in the original bill plus $79.06 in incidental costs for fifing the lien. Hoffman brought a foreclosure action against Olsen for the amount of the lien, and Olsen counterclaimed for the amount he paid the third party to redo the job.

[¶ 5.] The trial court determined that based on Hoffman and Barber’s arrangement of splitting the labor profit, the most Hoffman could recover was half of the labor claimed in the mechanic’s lien ($687.50). After hearing the evidence, the trial court awarded Hoffman a lien in the amount of $450 as a reasonable amount for the work performed. The trial court entered the following findings of fact:

1. Olsen contracted with Barber and that Barber then hired Hoffman as a subcontractor.
2. Barber and Hoffman performed the work with equal contributions of labor.
3. Barber and Hoffman put in approximately 30 hours of work.
4. The average hourly rate charged for Barber and Hoffman’s services was $22.91 per person.
5. The amount sought in the mechanics’ lien represented the contributions of Barber and Hoffman; despite the fact Barber did not file a mechanics’ lien.
6. Hoffman attempted to recover the cost of material and excise tax through the mechanics’ lien.
7. The siding job performed by Barber and Hoffman was adequate but could have been better; specifically, there was a gap in the siding around the fuel tank on the fuel shed.
8. The third party hired to remove and re-side the buildings charged $5.31 per hour, per person.
9. The reasonable value of Hoffman’s labor was $450.

The court concluded that the remaining amounts for labor, materials and tax could only be claimed by Barber who had not filed a mechanic’s hen. As provided by SDCL 44-9-41, the trial court awarded Hoffman’s costs but denied attorney’s fees.

[¶ 6.] Hoffman appeals asserting that the trial court should have awarded attorney’s fees as provided by SDCL 44-9-^12 and that by failing to enter findings, or providing any analysis whatsoever in its decision denying attorney’s fees, a remand is required. Hoffman also contends that the trial court erred in only awarding $450. By notice of review, Olsen contends the trial court erred in awarding any amount to Hoffman. We affirm.

STANDARD OF REVIEW

[¶ 7.] “This Court has rigorously followed the rule that authority to assess attorney’s fees may not be implied but must rest upon a clear legislative grant of power.” Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142. In cases where attorney’s fees are statutorily authorized, the trial court’s ruling is reviewed under an abuse of discretion standard. Estate of Siebrasse, 2002 SD 26, ¶22, 640 N.W.2d 747. “Conclusions of law are reviewed de novo and are given no deference on appeal.” Rusch v. Ranker, 479 N.W.2d 496, 499 (S.D.1991). We review the circuit court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25.

ANALYSIS

ISSUE ONE

[¶ 8.] Whether the trial court abused its discretion in denying Hoffman attorney’s fees.

[¶ 9.] The findings of fact and conclusions of law entered below indicate that: “Attorney’s fees are denied to both plaintiff and defendant.” The trial court’s memorandum decision also states: “Attorney’s fees are denied to both parties.” Olsen contends that Hoffman failed to preserve this issue for appeal. We agree.

[¶10.] SDCL 44-9-42 provides:

The court shall have authority in its discretion to allow such attorney’s fees and receiver’s fees and other expenses as to it may seem warranted and necessary according to the circumstances of each case, and except as otherwise specifically provided in this chapter [Mechanics’ and Materialmen’s Liens].

Hoffman urges that a remand is required because the trial court did not enter find-mgs of fact and conclusions of law in denying attorney’s fees. This Court has consistently required a trial court to enter findings of fact and conclusions of law when ruling on a request for attorney’s fees. Pengra v. Pengra, 429 N.W.2d 754, 757 (S.D.1988); Hartman v. Wood, 436 N.W.2d 854, 857 (S.D.1989); Michlitsch v. Meyer, 1999 SD 69, ¶ 20, 594 N.W.2d 731, 735; Ridley v. Lawrence County Com’n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259. “Despite the absence of findings, however, an appellate court may decide the appeal without further findings if it feels it is in a position to do so.” Ridley, 2000 SD 143, ¶ 13, 619 N.W.2d at 259.

[¶ 11.] Although attorney’s fees are allowed by statute in lien foreclosure actions, Hoffman failed to present evidence to the trial court supporting his claim. The record does not reflect a requested amount or documentation in support of attorney’s fees. Given this state of the record, Hoffman has not demonstrated that the trial court abused its discretion in denying attorney’s fees. A remand for findings on the issue of attorney’s fees would serve no purpose but to provide Hoffman an opportunity to argue an issue that should have been raised before the trial court in the first instance.

ISSUE TWO

[¶ 12.] Whether the trial court erred in awarding Hoffman $450.

[¶ 13.] Hoffman contends that the trial court improperly “reformed a portion of the contract” in its award; whereas, Olsen contends the trial court improperly awarded anything to Hoffman because his work was without value. The trial court found that Hoffman, as the subcontractor, did not have a contract with Olsen since the agreement for the work was between Olsen and Barber; nor did Hoffman prove an account with Olsen. Notably, Barber was not a party to this action.

[¶ 14.] South Dakota law allows a party who has contracted with the property owner a mechanic’s lien for an amount stated in the contract. In other cases, the lien is for the “reasonable value of the work done, and of the skill, material, and machinery furnished.”

If the contribution be made under a contract with the owner and for an agreed price, the lien as against him shall be for the sum so agreed upon together with the cost of any additional material or work agreed upon, otherwise, and in all cases as against others than the owner, it shall be for the reasonable value of the work done, and of the skill, material, and machinery furnished.

SDCL 44-9-6 (emphasis added). Since the trial court found there was no contract between Olsen and Hoffman, the first part of SDCL 44-9-6 does not apply. The trial court properly determined that the lien sum should be for “the reasonable value of the work done, and of the skill, material, and machinery furnished.” Id.

[¶ 15.] The parties presented a significant amount of evidence concerning the quality of the work performed. The trial court also heard evidence of the costs of the material for this job, the apportionment of the costs for material and tax, Olsen’s cost of hiring the third party to remove and replace the tin siding and the manner in which the labor and material were divided between Barber and Hoffman. The trial court awarded $450 of a possible $687.50 (representing half of the total labor billed) for Hoffman’s work as the fair and reasonable value of his labor. This conclusion is in accord with the trial court’s finding that the work “was not visually appealing but for the most part it was functional and substantially conformed to the intended purpose to reasonably weather proof the structures, with the exception of the gap under the fuel tank on the fuel shed.” This same finding also operates to dispel Olsen’s contention that the trial court erred by awarding any amount to Hoffman. We find the court’s findings of fact are supported by the record and are not clearly erroneous

[¶ 16.] Therefore, the judgment below is affirmed.

[¶ 17.] GILERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

[¶ 18.] SABERS, Justice, disqualified.