text:
    2003 ND 34
    In the Interest of T.H. Keith Berger, Director of Grand Forks County Social Service Board, Assignee for T.H., Plaintiff and Appellee, v. Jeff L. Holt, Defendant and Appellant.
    No. 20020139.
    Supreme Court of North Dakota.
    March 5, 2003.

      Dale R. Rivard, Grand Forks, ND, for plaintiff and appellee.
    Jeff L. Holt, Grand Forks, ND, pro se.
   VANDE WALLE, Chief Justice.

[¶ 1] Jeff Holt appealed from a district court judgment ordering him to pay child support for his son T.H. while T.H. was in foster care. We affirm.

[¶ 2] This Court recently affirmed the juvenile court’s amended judgment which placed T.H. in the custody of the Division of Juvenile Services. In the Interest of T.M.H., 2003 ND 25, ¶ 1, 656 N.W.2d 709. In In the Interest of we described the details and chronology of T.H.’s placements with the Grand Forks County Social Service Board (“Social Services”) and the Division of Juvenile Services. See id. at ¶ 2.

[¶ 3] T.H. was first placed in foster care in September 2001. Holt claims no one informed him about his responsibility for the costs of T.H.’s foster care, until he received an Application for Default Judgment. However, the court noted an affidavit of proof of service stating Holt had been served with a copy of the summons and complaint. In May 2002, at Holt’s request, the district court heard oral argument on Social Services’ Application for Default Judgment. Social Services sought back child support from Holt for September 2001 through January 2002 and for April 2002 through May 2002. It also sought an award of ongoing child support.

[¶ 4] The district court found Holt had a duty to support T.H. Holt’s child support obligation was calculated according to the child support guidelines at $135 per month, and he was ordered to pay $945 for past care. The court also ordered Holt to pay $135 per month in ongoing child support beginning June 15, 2002, until T.H. turned eighteen years old or was no longer in foster care. As of September 30, 2002, the court suspended Holt’s child support obligation because T.H. had been released from foster care. T.H. has since turned eighteen years old.

[¶ 5] The record in this case also reflects Holt’s attempts, through subpoenas and multiple motions, to obtain T.H.’s files from various agencies, including itemized listings of the costs of T.H.’s care. Holt was allowed to review portions of T.H.’s files, but he could not make any copies and a representative of the agency had to be present during his review. The district court also denied Holt’s motion to suspend his ongoing child support and payment of arrearages pending appeal. This Court denied Holt’s Motion for Limited Remand. • In his appellate brief, Holt refers to his inability to obtain copies of the files and a “reasonable cost break down” of T.H.’s care and treatment expenditures to demonstrate why he should not have to pay child support.

[¶ 6] On appeal, Holt challenges his obligation to pay child support for T.H. He asserts Social Services’ failure to provide his son with proper supervision caused T.H. to “proceed in unruly like behavior.” Holt argues he should not have to pay child support while T.H. was in foster care because Social Services provided T.H. with “such poor services.”

[117] A parent’s obligation to support his or her child is a statutory requirement. See N.D.C.C. § 14-09-08 (stating parents have a mutual duty to support their children and either or both parents may be compelled by the court to support their children). According to N.D.C.C. § 14-08.1-01, an individual who is legally responsible for supporting a child “is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any person, institution, agency, or county social service board.”

[¶ 8] The legal duty to support remains when a child is placed in foster care. See In the Interest of L.D.C., 1997 ND 104, ¶ 5, 564 N.W.2d 298; In re KG, 551 N.W.2d 554, 555 (N.D.1996). Under N.D.C.C. § 27-20-49, a court may order parents to pay all or part of their child’s foster care costs and expenses, if they are financially able and if they have due notice and are afforded the opportunity to be heard. See In re K.G., 551 N.W.2d at 555. Section 75-02-04.1-11, N.D. Admin. Code, dealing with parental responsibility for children in foster or guardianship care, states the importance of parents

maintainpng] a tie to and responsibility for their child when that child is' in foster care. Financial responsibility for the support of that child is one component of the maintenance of the relationship of parent and child. Parents of a child subject to a guardianship order under North Dakota Century Code chapter 27-20 or 30.1-27 remain financially responsible for the support of that child.

Holt analogizes his unwillingness to pay child support to a refusal to pay for a poorly performed service contract. Because no contract existed here, his analogy fails. Holt had a legal duty to support his son, and this duty remained while T.H. was in foster care.

[¶ 9] Our child support system is an obligor-based system, which determines child support payments according to the obligor’s income. See Eklund v. Eklund, 538 N.W.2d 182, 187 (N.D.1995) (describing the rationale for adopting child support guidelines using the obligor model). Child support guidelines determine, as a rebutta-ble presumption, the amount of a parent’s child support obligation. N.D.C.C. § 14-09-09.7(3). We have previously stated “[w]e see no basis for deviating from the Legislature’s preference for uniformity, or the child support guidelines, to calculate a parent’s support obligation to his or her child in foster care.” In re K.G., 551 N.W.2d at 557 (citations omitted); see also In the Interest of L.D.C., 1997 ND 104, ¶ 5, 564 N.W.2d 298.

[¶ 10] Holt’s child support obligation was calculated according to the child support guidelines at $135 per month. We note Holt’s obligation under the child support guidelines is substantially less than the cost expended per month to care for his son; during September 2001 to January 2002 and April 2002, the foster care expenses for T.H. ranged from $1,390.06 to $3,057.78, while Holt’s obligation was determined to be $135 a month. Holt does not contest the amount of child support the court ordered him to pay, rather he asserts he should not have to pay because Social Services did not provide T.H. with “adequate care” or give T.H. “proper help.” Holt has no legal basis to protest paying support for his son while in foster care despite Holt’s inability to obtain all the records he seeks and his dissatisfaction with the services Social Services provided for T.H.

[¶ 11] We conclude Holt had a legal obligation to support his son while in foster care and his child support obligation was calculated according to the child support guidelines. We affirm the judgment.

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

      . Holt moved to appeal the district court’s "finding [sic] of fact, conclusions of law, and order for judgment.” We consider this an appeal from the subsequently entered consistent judgment. See, e.g., Hentz v. Hentz, 2001 ND 69, ¶ 1 n. 1, 624 N.W.2d 694.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2003 ND 39
    STATE of North Dakota, Plaintiff and Appellee, v. Timothy Gene KLOSE, Defendant and Appellant.
    No. 20010309.
    Supreme Court of North Dakota.
    March 5, 2003.
    Rehearing Denied March 26, 2003.

      Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for plaintiff and ap-pellee.
    Kropp Law Offices (argued by Eric P. Baumann), Jamestown, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Timothy Gene Klose appeals from a judgment of the Southeast Judicial District Court and from the court’s denial of his motion for mistrial and two motions for a new trial. On appeal, Klose argues that the district court erred in concluding there was insufficient evidence to prove he lacked criminal responsibility, in admitting the State’s exhibits into evidence, in improperly communicating with the jury, and in concluding that the jury did not render a compromised verdict. We affirm.

I

[¶ 2] Klose was charged with burglary and with the murder of his neighbor, Raymond Schultes, in the early morning of March 22, 2001. Schultes’ body had been found on the lower level of their apartment complex, at the bottom of a stairway leading to the laundry room. On October 25, 2001, a jury convicted Klose of murder. Both Klose and Schultes resided in the four-plex apartment unit in Jamestown. Klose rented an apartment on the upper level of the four-plex, and Schultes rented one on the lower level. The two men did not know each other.

[¶ 3] That Klose killed Schultes is not disputed; however, the facts that surround the killing are disputed. Klose raised an insanity defense at trial. Klose’s expert witness, Dr. Joann Roux, testified at trial that after reviewing all police records and evaluating Klose, her opinion was that he was in a profoundly psychotic state at the time of the killing. Dr. Roux reports in her psychiatric evaluation of Klose that he told her he began drinking alcohol again in March 2001, after four months of sobriety. Klose told Dr. Roux he was consuming from one-half to a liter of vodka per day up until four days before the murder, when he stopped completely. After the murder, he tested negative to alcohol and all other drugs except marijuana. A small bag of marijuana was found in Klose’s apartment after the murder.

[¶ 4] In her evaluation report, Dr. Roux stated Klose’s insanity was caused by alcohol withdrawal delirium, an aftereffect of prolonged consumption of large amounts of alcohol followed by an abrupt cessation of consumption. She stated, in her opinion, at the time of the killing Klose was experiencing delirium tremens, which affected him to such an extent, his conduct was the result of either a loss or a serious distortion of his capacity to recognize reality.

[¶ 5] Klose did not take the stand at trial. Dr. Roux testified as to what Klose had told her in her interviews with him. Dr. Roux testified that Klose stated his hallucination began by God coming to him and telling him his twelve-year-old twin daughters were going to be used to clone perfect human beings. She testified Klose told her he believed he was in space and he and his brother Randy were saving the earth from a meteorite; however, he said that at one point he thought Randy was going to kill him and his daughters. Dr. Roux testified Klose told her it was at that time he remembered Randy coming to him in space, which was actually his apartment, and pounding on his door, saying, “Timmy, Timmy, come out. I am going to get you.”

[¶ 6] Dr. Roux testified Klose told her he then went down to Schultes’ apartment because he believed his brother Randy was in there. Dr. Roux testified that Klose told her he started pounding on Schultes’ door, asking for Randy to come out. Dr. Roux testified that Klose told her he thought he heard his twin daughters crying in the apartment, and when he was unable to open Schultes’ door, he went upstairs to his apartment and got his shotgun. Dr. Roux testified that Klose said he then went back down to Schultes’ apartment, shot his way in, got into a struggle with Schultes, and shot him when Schultes was overpowering him. Dr. Roux testified Klose told her that he remembered seeing the man who he thought was his brother Randy on the floor and thinking he was dead. Dr. Roux testified that Klose said that when he realized he didn’t know for sure whether Randy was dead, he went up to his apartment to get another gun, went back downstairs, and shot Schultes, again thinking he was Randy.

[¶ 7] Dr. Roux testified Klose told her that after he believed Randy was dead, he realized he would not be able to find his daughters, so he started dragging the body toward the laundry room because, he said, at that time he thought the laundry room contained a replicator machine that would bring Randy back to life. Dr. Roux testified Klose told her that when he heard voices, he went and hid in Schultes’ apartment until he realized the voices were those of police officers. Dr. Roux testified Klose told her that when the police arrived, he still thought he had killed Randy, and when he found out he had actually killed his neighbor and not his brother, he realized he must have been suffering from delirium tremens.

[¶ 8] At trial, the State’s witness, Officer LeRoy Gross, who had examined the crime scene, testified that in Klose’s apartment he had found a broken single shotgun, a pair of socks, a towel, and a pair of boxers, all of which were soiled by what appeared to him to be blood. Gross testified that in Klose’s bathroom he had noticed the sink was fairly clean, but there were water drops around the sink with a pinkish residue to them, as though Klose had cleaned himself off at the sink. Gross also testified Klose told him that after his struggle with Schultes, he got another gun. Gross testified there was a discrepancy in Klose’s story at that point. Gross testified he believes that after the struggle, Klose must have gone back upstairs, gotten a different shotgun, gone back to Schultes’ apartment, and shot through the door. The first police officer on the scene, Officer Robert Schlenvogt, testified that when he arrived, Klose was fully dressed in clean clothing, as was depicted in an exhibit shown to the jury.

[¶ 9] Another witness for the State, Dr. George Mizell, North Dakota State Forensic Examiner, examined Schultes’ body and issued the death certificate and autopsy report. Dr. Mizell testified the evidence from his examination showed there was only one fatal gunshot wound, which was to Schultes’ head, yet other injuries on Schultes’ body indicated a struggle had occurred. Dr. Mizell testified that at the time of the autopsy, he also examined the shotgun found in Klose’s apartment. Dr. Mizell testified the shotgun was partially broken near the stock, there were red stains and a hair on it, and it likely was used to inflict the injuries present on Schultes’ back, his head, and the left side of his face.

[¶ 10] In closing argument, the State argued that because there was only one fatal shot to Schultes’ head, the struggle must have occurred prior to that shot. The State argued that after the struggle had occurred, Klose must have gone upstairs, taking the broken and bloody shotgun with him, changed his clothes, cleaned himself off with a towel, grabbed a different gun, and proceeded back downstairs to shoot Schultes in the head.

[¶ 11] During deliberation, the jury sent the court a note asking, “Have the physical and/or mental symptoms related to alcoholic withdrawal been used in this manner previously in a murder trial?” In chambers, the court discussed the question with the prosecutor and Klose’s counsel, but the conversation was not recorded. What the court, the prosecutor, and Klose’s counsel agreed upon in chambers to tell the jury is in dispute; however, both parties agreed the court could respond to the jury by written note. The court sent the jury a written response stating, “Very good question. I know of no legal precedent in North Dakota that I could put in a further jury instruction that would help you. Try to concentrate on the evidence you have before you.” Copies of the answer were provided to the attorneys. The jury acquitted Klose on his charge of burglary, and convicted him of murder. At the sentencing hearing, Klose moved for a mistrial, alleging the district court’s response to the jury’s request for further instruction on North Dakota precedent regarding delirium tremens was not what had been agreed to in chambers. He also argued he had not been provided an opportunity to read the note before it was given to the jury.

[¶ 12] Klose appeals from the judgment of conviction, the district court’s denial of his motion for mistrial, and the court’s denial of his two motions for a new trial. Klose did not appeal the district court’s denial of his motion for judgment of acquittal.

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

II

[¶ 14] Generally, granting a mistrial is “an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings of the trial which makes it evident that further proceedings would be productive of manifest injustice.” State v. Rodriguez, 454 N.W.2d 726, 730 (N.D. 1990) (citing State v. Carr, 346 N.W.2d 723 (N.D.1984)).

[¶ 15] “When a problem arises during a trial, the party affected must bring the irregularity to the court’s attention and seek appropriate remedial action.” State v. Wilson, 1999 ND 34, ¶14, 590 N.W.2d 202 (citing State v. Breding, 526 N.W.2d 465, 472 (N.D.1995)). “[W]hen defense counsel moves for a mistrial because of the prejudicial effect of the defect or occurrence, counsel must ordinarily ask the trial court to give the jury a cautionary instruction in order to properly preserve the question for appellate review.” Rodriguez, 454 N.W.2d at 730 (citing State v. Welch, 426 N.W.2d 550 (N.D.1988)). “The failure to request an instruction waives the objection to the allegedly prejudicial error.” Id. In this case, Klose argues the irregularity lies in the note that the trial judge gave the jury. Klose’s counsel was made aware of the note while the jury was still impaneled. Klose did not move for mistrial until sentencing, which was after the jury had been excused and after the trial had ended. A mistrial must be declared before the trial is over and before the jury has been discharged. See N.D.R.Crim.P. 31(d) (a mistrial may be declared before the jury is discharged); N.D.R.Crim.P. 33, Explanatory Note (“The Rule does not affect the power of the court to declare a mistrial and order a new trial prior to the verdict or finding of guilty.”); Black’s Law Dictionary 1018 (7th ed.1999); Neibauer v. Well, 319 N.W.2d 143, 145 (N.D.1982). Klose’s motion for mistrial was untimely. Klose subsequently moved for a new trial, based on the same grounds as his motion for a mistrial and on additional grounds.

Ill

[¶ 16] Klose moved for a new trial, arguing that the district court erred in concluding there was insufficient evidence to prove he lacked criminal responsibility, in admitting the State’s exhibits into evidence, in improperly communicating with the jury, and in concluding that the jury did not render a compromised verdict.

[¶ 17] In a motion for a new trial, the district court “ ‘must weigh the evidence and in doing so evaluate for itself the credibility of the witnesses.’ ” U.S. v. Rodriguez, 812 F.2d 414, 417 (8th Cir.1987) (quoting U.S. v. Lincoln, 630 F.2d 1313, 1316 (8th Cir.1980)); Perry v. Reinke, 1997 ND 213, ¶21, 570 N.W.2d 224.

“[W]hen a motion for a new trial is made and the reason given in support of the motion is [ ] there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence.”

Perry, at ¶ 21 (quoting Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982)). “A verdict is against the weight of the evidence when it is not supported by substantial evidence.” Id. at ¶ 22 (citing Olmstead v. First Interstate Bank, 449 N.W.2d 804, 807 (N.D.1989)).

[¶ 18] When we review a motion for a new trial, we do not apply the same standard as the district court and will not re-weigh the evidence on appeal. Rodriguez, 812 F.2d at 417; Perry, 1997 ND 213, ¶ 21, 570 N.W.2d 224. Our only review is whether the district court abused its discretion. Rodriguez, at 417. “An abuse of discretion occurs when the district court is unreasonable, arbitrary, or unconscionable in rendering its decision.” Perry, at ¶ 21.

[¶ 19] “In cases challenging the sufficiency of evidence to sustain a conviction we will not weigh conflicting evidence, nor judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to determine if there is substantial evidence to warrant a conviction.” State v. Hatch, 346 N.W.2d 268, 277 (N.D.1984); State v. Hartleib, 335 N.W.2d 795, 797 (N.D.1983); State v. Manke, 328 N.W.2d 799, 805 (N.D.1982).

A

[¶ 20] Klose argues there is insufficient evidence to sustain his conviction for murder, because the State failed to prove beyond a reasonable doubt that his lack-of-criminal-responsibility defense by reason of mental disease or defect did not exist at the time of the murder.

[¶ 21] Section 12.1-04.1-01, N.D.C.C., Standard for lack of criminal responsibility, states:

1. An individual is not criminally responsible for criminal conduct if, as a result of mental disease or defect existing at the time the conduct occurs:
a. The individual lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality; and
b. It is an essential element of the crime charged that the individual act willfully.
2. For purposes of this chapter, repeated criminal or similar antisocial conduct, or impairment of mental condition caused primarily by voluntary use of alcoholic beverages or controlled substances immediately before or contemporaneously with the alleged offense, does not constitute in itself mental illness or defect at the time of the alleged offense. Evidence of the conduct or impairment may be probative in conjunction with other evidence to establish mental illness or defect.

[¶ 22] Lack of criminal responsibility is a “defense” to criminal conduct, and once it is raised by a defendant, the State must prove its nonexistence beyond a reasonable doubt. N.D.C.C. § 12.1 — 01—03(l)(e); State v. Johnson, 2001 ND 184, ¶ 13, 636 N.W.2d 391.

[¶ 23] The State argues Klose killed Schultes while he was sane and alleges his recollection of the night is a cover story he invented to explain his actions. At trial, the State argued in closing that Klose went back to his apartment after his initial altercation with Schultes, changed his clothes, cleaned the blood off of himself, and proceeded back to Schultes’ apartment with the gun he then used to murder Schultes.

[¶ 24] Dr. Roux, Klose’s expert witness, testified Klose told her during the examination that he dragged Schultes’ body out of the apartment to the regenerating room, which was actually the laundry room, to regenerate his brother Randy so he could find out where his twin daughters were. At trial, the State presented evidence that Schultes’ body was dragged past the laundry room. On cross-examination, the State elicited testimony from Dr. Roux that at the time she made her diagnosis of Klose’s condition, she did not know the location of Schultes’ body as it was found by the officers at the scene. She also testified on cross-examination that Klose had not told her and she had not known that bloody clothing was found in his apartment. The State questioned Dr. Roux on whether her diagnosis of Klose’s mental condition would have been different had she known the location of Schultes’ body or known that bloody clothing had been found in Klose’s apartment. She testified, “I would certainly have liked to talk to Mr. Klose more about that. I don’t know that that would necessarily change my opinion that he was still suffering from loss of [sic] serious distortion of his capacity.”

[¶ 25] The State argues that whether or not Klose was insane at the time he broke into Schultes’ apartment is irrelevant because the evidence produced at trial along with Dr. Roux’s testimony was sufficient for the jury to find beyond a reasonable doubt Klose was sane at the actual moment he fired the fatal shot. The State argues the facts elicited at trial from Dr. Roux and the police officers’ testimony concerning Klose’s actions of cleaning himself off, dragging the body past the laundry room, and then hiding those details from Dr. Roux prove beyond a reasonable doubt that even if Klose had been insane during his first altercation with Schultes, he nevertheless was sane at the time he fired the fatal shot.

[¶ 26] Even though Dr. Roux testified she might not have changed her diagnosis of Klose had she been aware of these facts, the State provided competent evidence allowing the jury to reasonably infer Klose was sane at the time of the killing, thus fairly warranting a conviction of murder. There is no reason not to conclude the jury believed the evidence supporting the verdict and disbelieved contrary or conflicting evidence.

B

[¶ 27] Klose argues the. district court abused its discretion by admitting the State’s exhibits into evidence. The district court admitted thirty of the State’s exhibits, which consisted of a diagram of the four-plex, a calendar from Schultes’ apartment, the entire door from Schultes’ apartment, and twenty-seven photographs. The photographs were of Schultes, Klose, the apartment building, and the shotguns used in the murder. Except for exhibit number 25, a photograph of himself, Klose objected to all of the State’s exhibits as not relevant, and even if they were, their relevance did not outweigh their unfair prejudice.

[¶ 28] Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence. State v. Steinbach, 1998 ND 18, ¶ 9, 575 N.W.2d 193 (citing State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802). We will reverse the district court’s decision in admitting evidence only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. Id. All relevant evidence is allowed; however, even relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” N.D.R.Ev. 403. A district court has broad discretion in deciding whether evidence is relevant or not relevant. Steinbach, at ¶ 9. While N.D.R.Ev. 403 gives a district court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, that power should be sparingly exercised. State v. Ash, 526 N.W.2d 478, 481 (N.D.1995) (citing State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994)).

[¶ 29] Photographs may be admitted in criminal trials, at the district court’s discretion, even if the photographs could have the additional effect of exciting the emotions of the jury. Steinbach, 1998 ND 18, ¶ 10, 575 N.W.2d 193. This Court has consistently held the same rule on the general admissibility of photographs of a victim in a homicide prosecution and has stated:

“It appears to be a well-settled rule that photographs of the victim in a prosecution for homicide, duly verified and shown by extrinsic evidence' to be faithful representations of the victim at the time in question, are, in the discretion of the trial court, admissible in evidence as an aid to the jury in arriving at a fair understanding of the evidence, condition and identification of the body, even though such photographs may have the additional effect of tending to excite the emotions of the jury.”

Id. (quoting State v. Iverson, 187 N.W.2d 1, 37 (N.D.1971)). When photographs are relevant or aid a witness’s testimony, even gruesome pictures are admissible for the purpose of offering proper proof. State v. Miller, 466 N.W.2d 128, 131-32 (N.D. 1991); Iverson, 187 N.W.2d at 37.

[¶ 30] The district court stated it balanced the issues of relevance versus prejudice as discussed in Rule 403, N.D.R.Ev., and concluded that because Klose shot Schultes in the head at very close range, the more gruesome photographs that were relevant should be cropped before being allowed into evidence. The photographs were properly used to show the chain of events and the circumstances surrounding the murder. Pictures showing the placement of Schultes’ body by the laundry room were relevant. The district court did not abuse its discretion in admitting these photographs.

C

[¶ 31] Klose argues in his brief to this Court that the district court improperly communicated with the jury in his absence and that communication in this case was harmful error, even if Klose’s attorney assented to such a communication.

[¶ 32] Rule 43(a), N.D.R.Crim.P., contains a broad requirement that the defendant must be present at every stage of trial. State v. Zimmerman, 524 N.W.2d 111, 117 (N.D.1994). That the accused has a right to be present in the courtroom at every stage of his trial is one of the most basic rights guaranteed by the Confrontation Clause. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). A court errs when it communicates to the jury in the defendant’s absence. Allen, 397 U.S. at 338, 90 S.Ct. 1057. On appeal, a constitutional error may be found harmless beyond a reasonable doubt. Ash, 526 N.W.2d at 481.

[¶ 33] The requirement under N.D.C.C. § 29-22-05, however, is distinct from the defendant’s constitutional right to be present, and only addresses the defendant’s presence after the jury has begun deliberation. It states:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon them being brought into court, the information required must be given in the presence of, or after notice to, the state’s attorney and the defendant or his counsel, or after they have been called.

[¶ 34] Section 29-22-05, N.D.C.C., requires a court to respond to a jury question either in the defendant’s presence in open court or after sufficient notice has been given to the defendant.

[¶ 35] Upon receiving the written question from the jury, the trial judge met with counsel in chambers and discussed the question presented by the jury. The court’s recollection of the event was stated in its denial of Klose’s motion for new trial. The court stated:

The Court met with counsel in chambers and discussed the question. The attorneys and the Court discussed whether any of them were aware of any legal precedent that would lead to a further jury instruction on that point. No one could think of any authority on either the North Dakota appellate or trial court level. The Court excused the attorneys. The Court then drafted an answer to the question as follows: “Very good question. I know of no legal precedent in North Dakota that I could put in a further jury instruction that would help you. Try to concentrate on the evidence you have before you.” That answer was given to the bailiff who delivered it to the presiding juror. Copies of the answer were given to the attorneys.

[¶ 36] Klose’s counsel agrees he stated at the time that he did not know of any precedent, but argues here he could perhaps have found some if he had had time to research. Klose’s counsel did not ask the trial court for further time to research the question.

[¶ 37] Klose’s counsel was present in chambers the entire time the trial judge discussed what type of answer would be appropriate to give to the jury, and Klose’s counsel assented to the trial court’s giving the jury an answer in writing.

[¶ 38] Klose’s counsel stated in an affidavit that he did not receive the note until he was walking into the courtroom for the reading of the jury verdict. The jury verdict was given on the same day that the discussion in chambers occurred. Klose’s counsel stated in his affidavit that the trial judge handed him a copy of the note that was given to the'jury as he was walking into the reading of the verdict and he did not read it before the verdict was rendered because he assumed the note stated what they had agreed upon in chambers. Klose’s counsel stated that he did not view the contents of the note until he returned to his office. Klose did not object to the court’s response to the jury until the sentencing hearing.

[¶ 39] In this case, the defendant was present at every stage of the trial, including the conference in chambers, and Klose’s counsel participated in the discussion of how to respond to the jury’s question, agreed the trial judge could answer the jury by written note, and did not object to the note until five days after having received it during open court. Because Klose’s counsel was given a full opportunity to participate in the discussion and in deciding the manner in which the answer would be given to the jury, we conclude, under N.D.C.C. § 29-22-05, the district court did not communicate improperly with the jury and did not err.

[¶ 40] At oral argument, Klose argued the trial court gave the jury an answer that was not agreed to in chambers. He contends the trial court agreed not to use the word “precedent” in its written answer to the jury because that might indicate there was no precedent. Klose’s brief to this Court on appeal, however, did not address this argument; therefore, we do not consider whether the answer to the jury was a fair statement of what was agreed to in chambers. Vogel v. Roberts, 204 N.W.2d 393, 394 (N.D.1973). Even if Klose had argued in his brief that the trial court misstated what was agreed upon in chambers, Klose’s counsel did not request that the conversation be recorded, nor did he make any attempt to comply with N.D.R.App.P. 10 to preserve the defense’s recollection of the conversation.

[¶ 41] Klose also argues that if the district court’s note to the jury was a jury instruction, the district court violated N.D.R.Crim.P. 30(b), which provides:

At the close of the evidence or at an earlier time during the trial as the court reasonably directs, any party may file proposed jury instructions. The court may require each instruction to be written on a separate sheet, provided North Dakota pattern jury instructions may be requested by reference to instruction number only. The court shall inform counsel in writing of its action upon requested instructions prior to their argument to the jury. All instructions given by the court to the jurors must be read or given to them orally by the court without disclosing whether the instructions were requested.

[¶ 42] Rule 30(b), N.D.R.Crim.P., states that the district court must give counsel a written copy of an instruction prior to submitting it to the jury. The district court held in its memorandum opinion that the note given to the jury was not a jury instruction, and the court stated: “Had there been precedent, a supplemental instruction may have been considered. But, because there was no precedent, the question was answered that none was available.... The answer the Court gave to the jury was an answer and it was not an instruction.” Klose did not argue, either in his motion for mistrial or in his motion for a new trial, that the note was an additional jury instruction. Generally, a new issue cannot be considered for the first time on appeal. State v. Norby, 2002 ND 71, ¶ 4, 642 N.W.2d 924; Lang v. Bank of North Dakota, 423 N.W.2d 501 (N.D.1988). We will not consider this issue.

D

[¶ 43] Klose argues juror misconduct, contending the jury gave an inconsistent, compromised verdict by finding he lacked criminal responsibility in the burglary but was guilty of murder.

[¶ 44] When considering apparent conflicts in a jury’s verdict, we look to:

“[W]hether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the ease remanded for a new trial.”

Moszer v. Witt, 2001 ND 30, ¶ 11, 622 N.W.2d 223 (quoting Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553). On appeal, “[w]e reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence.” Id.

[¶ 45] Dr. Roux testified on direct examination that delusions from delirium tre-mens are typically more prominent at night when things are dark and that reality tends to set back in as the daylight sets in. She testified that when delusions do occur during the day, they are generally less severe because the individual experiencing them has more contacts with reality. She went on to testify that she “didn’t find it surprising that, as Mr. Klose described, when the police started talking to him when he was back in his apartment by now getting close to morning he is having all these checks on his reality that he is starting to realize that this may — this probably didn’t happen the way he remembered it. So in that sense I didn’t — I didn’t find that unusual in the case.” Dr. Roux also testified on cross-examination that an individual who is experiencing delirium tremens can fall in and out of reality-

[¶ 46] When Dr. Roux was questioned about Schultes’ body being dragged past the “regenerating” room, she testified she did not consider Schultes’ body position during her evaluation. She testified that she knew the wood stick was thrown on Schultes, but admitted Klose never told her the stick was used in the so-called regenerating process. In answering whether she thought Klose was criminally responsible, she stated she was more certain than not that he lacked criminal responsibility. When she was asked whether that leaves open substantial room for doubt, she testified that is for a jury to interpret.

[¶ 47] If the jury believed the evidence presented by the prosecution, they could have concluded that Klose was insane at the time he first entered Schultes’ apartment but regained sanity sometime before the murder. The verdict is therefore not clearly contrary to the evidence.

IV

[¶ 48] The district court did not abuse its discretion in denying Klose’s motion for mistrial or his motions for a new trial. There exists substantial evidence to support the jury’s verdict that Klose is guilty of murder. Accordingly, we affirm the district court orders and judgment of conviction.

[¶ 49] Gerald W. Vande Walle, C.J., William A. Neumann, Mary Muehlen Maring, and Carol Ronning Kapsner, JJ., concur.


author: PER CURIAM.

text:
    2003 ND 37
    In the MATTER OF THE DISCIPLINARY ACTION AGAINST William E. McKECHNIE. Loralyn K. Hegland, Assistant Disciplinary Counsel, Petitioner, v. William E. McKechnie, a Member of the Bar of the State of North Dakota, Respondent.
    No. 20020199.
    Supreme Court of North Dakota.
    March 5, 2003.

      Loralyn Kay Hegland, Assistant Disciplinary Counsel, Bismarck, for petitioner.
    James S. Hill, Zuger Kirmis & Smith, Bismarck, for respondent.
   PER CURIAM.

[¶ 1] Loralyn K. Hegland, Assistant Disciplinary Counsel, sought review of a hearing panel’s order dismissing a disciplinary proceeding against William E. McKechnie. We direct the hearing panel to conduct further proceedings.

[¶ 2] Hegland petitioned for discipline of McKechnie for alleged misconduct in representing Marvin French. Hegland alleged in the petition:

In April 1998, Marvin French retained McKechnie to represent him in an appeal of his job termination from the Grafton Development Center. French had been given the information on the manner in which the appeal had to be taken. French gave the information to McKechnie. McKechnie did not follow the proper appeal procedure. French’s case was dismissed.

The petition alleged McKechnie violated N.D.R. Prof. Conduct 1.1, requiring a lawyer to provide competent representation to a client, and N.D.R. Prof. Conduct 1.3, requiring a lawyer to act with reasonable diligence in representing a client. The petition alleged five disciplinary admonitions McKechnie had received, stated which rules were violated, and summarized the basis of each admonition.

[¶ 3] In his answer to the petition, McKechnie alleged, in part:

The attorney! ] whose legal obligation it was to pursue an administrative appeal was not William E. McKechnie but his associate, John D. Waller. At best, the assertion here amounts to a theory of negligent supervision of an attorney assigned the perfunctory task of pursuing an administrative appeal within a statutory time frame. The conduct is not ethical misconduct even if assumed to be true. It is a standard of care issue, not intentional ethical misconduct as envisioned by the North Dakota Rules of Professional Conduct.

McKechnie alleged the petition paragraph detailing his disciplinary admonitions “should be struck in its entirety and framed in a more general fashion.” A disciplinary board hearing panel granted McKechnie’s motion to strike the petition paragraph pleading the prior disciplinary admonitions. At McKechnie’s later request, the hearing panel ordered that an amended petition be filed without reference to the prior admonitions.

[¶ 4] After a hearing, the hearing panel concluded McKechnie did -not violate N.D.R. Prof. Conduct 1.1 or 1.3 and ordered the matter dismissed. Hegland sought review, and this Court granted the petition.

I

[¶ 5] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Howe, 2001 ND 86, ¶ 6, 626 N.W.2d 650. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but do not act as a mere “rubber stamp.” In re Disciplinary Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Disciplinary counsel bears the burden of proving an alleged violation of the disciplinary rules by clear and convincing evidence. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 24, 603 N.W.2d 176.

II

[¶ 6] Hegland contends the hearing panel erred in refusing to amend the petition for discipline. Hegland asserts:

Subsequent to McKechnie’s testimony that he gave French’s appeal to another attorney and that the other attorney failed to file the appeal, disciplinary counsel made a motion to amend the petition for discipline to allege a violation of Rule 5.1(c), NDRPC, regarding responsibility for a subordinate attorney’s violation of the Rules of Professional Conduct.

[¶7] “Except as otherwise provided in these rules and insofar as appropriate, the North Dakota Rules of Civil Procedure and North Dakota Rules of Evidence apply in disability and discipline proceedings.” N.D.R. Lawyer Discipl. 3.5(B). Generally, a trial court has discretion to grant or deny a request to amend a pleading under N.D.R.Civ.P. 15(a). Na-rum v. Faxx Foods, Inc., 1999 ND 45, ¶ 29, 590 N.W.2d 454. Under N.D.R.Civ.P. 15(b), a pleading can be amended to conform to the evidence if an unpleaded issue is tried by express or implied consent of the parties. However, “[cjonsent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpleaded issue.” Fleck v. Jacques Seed Co., 445 N.W.2d 649, 652 (N.D.1989). In disbarment proceedings, the United States Supreme Court has said:

The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.

In re Buffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). The hearing panel did not abuse its discretion in denying Hegland’s motion to amend the complaint to add a new asserted violation during the hearing.

III

[¶ 8] Hegland contends the hearing panel erred in striking McKech-nie’s disciplinary history from the petition for discipline. Under N.D. Stds. Imposing Lawyer Sanctions 2.5, an admonition “is a form of non-public discipline.” “A prior disciplinary history is relevant only in assessing sanctions after the allegations in the petition for discipline have been proven by clear and convincing evidence.” Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 10, 656 N.W.2d 661. Thus, “the details of prior private discipline should not be alleged in a petition for public discipline.” Id. As in Disciplinary Bd. v. McKechnie, “we conclude the hearing panel did not err in striking the detailed allegations of McKechnie’s prior disciplinary offenses from the original petition for discipline.” McKechnie, at ¶ 10.

IV

[¶ 9] Hegland contends the hearing panel erred in permitting a lawyer to testify as an expert witness. Expert testimony about whether or not a rule of professional conduct has been violated is inappropriate in disciplinary proceedings. Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 15, 656 N.W.2d 661; In re Disciplinary Action Against Boulger, 2001 ND 210, ¶ 13, 637 N.W.2d 710. As in McKechnie, at ¶ 17, “[w]e further conclude the expert testimony presented by McKechnie was not necessary to ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ N.D.R.Ev. 702. We will ignore the expert testimony in our de novo review.”

V

[¶ 10] Hegland contends the hearing panel erred in excluding French from hearing the testimony of other witnesses. At the hearing, McKechnie requested exclusion of French during testimony of other witnesses under N.D.R.Ev. 615. Hegland did not object to French’s exclusion at the hearing, and the hearing panel granted McKeehnie’s request. Because Hegland did not object at the hearing, we decline to address this issue. Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 12, 656 N.W.2d 661.

VI

[¶ 11] Hegland filed a motion asserting: (1) “Utilizing the Court’s website, disciplinary counsel discovered that Waller was admitted to the practice of law in North Dakota on October 16, 1998. Therefore, Waller was not admitted to practice law in North Dakota at the time that McKechnie claimed he gave Marvin French’s appeal to Waller to handle”; (2) “At no time in his testimony before the hearing panel did McKechnie state that when he gave French’s matter to Waller, Waller was not licensed to practice law in North Dakota”; (3) “The Court could remand this matter to the hearing panel for the panel’s consideration of the fact that Waller was not licensed to practice law in North Dakota at the time McKechnie delegated French’s appeal to Waller”; and (4) “Alternatively, the Court could consider its own admission records in conjunction with the record in this disciplinary proceeding.”

[¶ 12] A lawyer facing disbarment is “entitled to procedural due process, which includes fair notice of the charge.” In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Thus, we will not address the issue of whether Waller was licensed when French sought to appeal his job termination in the first instance, because McKechnie has had no real chance to prepare. We remand this matter to the hearing panel for consideration upon affording McKechnie proper notice and a fair opportunity to meet any charge leveled at him in this regard.

VII

[¶ 13] Hegland contends there was clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3, which provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Hegland argues: “McKechnie failed to timely file French’s appeal. Because of McKechnie’s failure, French’s case was dismissed. There was clear and convincing evidence that McKechnie violated Rule 1.3, Diligence.” Because of the impact that Waller’s admission to practice law in North Dakota in October 1998 may have on Hegland’s assertion that there was clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.3, we do not decide that issue now, but direct the hearing panel to consider that issue again when it considers the issue of Waller’s October 1998 admission to practice law in North Dakota.

VIII

[¶ 14] The matter is remanded to the hearing panel for further proceedings in accordance with this opinion.

[1115] VANDE WALLE, C.J., SANDSTROM, NEUMANN, MARING and KAPSNER, JJ., concur.


author: AMUNDSON, Retired Justice. SABERS, Justice

text:
    2003 SD 13
    A.P. & SONS CONSTRUCTION, A Partnership, Plaintiff and Appellant, v. Earle D. JOHNSON, Jr.; Earle D. Johnson, Jr., Trustee, Defendants and Appellee, P & M Bank; United States of America; Thomas C. Homola, d/b/a Hamlin Building Center; Aason Engineering Company, Inc.; F.J. McLaughlin Company, Inc.; Codington County, South Dakota; Clausen Construction, Inc., Satco Homes, Inc., and Robert Bauman, Defendants.
    No. 22318.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Jan. 29, 2003.

      J. Douglas Austin of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, South Dakota, Attorneys for plaintiff and appellant.
    Thomas F. Burns, Watertown, South Dakota, Attorney for defendants and ap-pellees.
   AMUNDSON, Retired Justice.

[¶ 1.] A.P. & Sons Construction (A.P. & Sons) brought an action seeking to hold Earle Johnson, Jr. (Johnson) and Robert Bauman d/b/a Satco Homes Inc., (Bauman), personally liable for labor and materials provided in the development of West-view Addition. The trial court found Johnson was not personally hable. A.P. <& Sons appeal. We affirm.

FACTS

[¶ 2.] Earle D. Johnson, Jr. owned forty (40) acres of land in Watertown, SD. Bauman worked in the construction business. Robert Bauman married Johnson’s niece. Bauman approached Johnson and expressed his desire to develop Johnson’s property. Bauman offered to develop the land with the intention that he would be able to build houses on the lots that were sold. Although Bauman would receive no profit from the sale of the lots, he would profit from building houses. Bauman suggested that he thought Johnson’s parents would have wanted the land to be developed. After considerable thought, Johnson agreed to Bauman’s proposal to develop the land. It was agreed that because Johnson knew nothing about developing land and spent part of the year in Mexico, that Bauman would do the ground work on the project. Bauman would hire the engineers and contractors necessary to complete the project. It was Johnson’s understanding that Bauman would coordinate the development aspect of the project.

[¶ 3.] In order to finance the development, Bauman obtained a loan from F & M Bank (Bank). Since Johnson owned the land to be developed, Johnson was required by the Bank to secure Bauman’s loan. Johnson mortgaged his land to the Bank and personally guaranteed the loan. Johnson made no other guarantees to any other party involved in the development of the land.

[¶ 4.] After obtaining the loan, Bauman contacted Ardell Aason (Aason). Bauman advised Aason of the plans to develop the Johnson land, known as Westview Addition. Aason was hired to survey and plat the land. Aason informed Bauman of the many obstacles to overcome in developing the land owned by Johnson. Aason suggested other sites that would be more suitable for development. Although Bau-man looked at some of the sites, he ultimately came back to the Johnson land.

[¶ 5.] At the outset, only the Johnson land was included in the development. Bauman approached Johnson and asked him to purchase another tract of land known as the DeVille tract. Johnson indicated that he was not interested in purchasing the land stating that he had all the land he wanted. Subsequently, Bau-man decided to purchase the DeVille tract himself, and did so using funds from the development loan. Bauman included the DeVille tract in the development plans without Johnson’s approval. Subsequently, the City of Watertown approved the plat of Westview Addition, included within was the DeVille property.

[¶ 6.] Bauman contracted with A.P. & Sons to dig trenches and install sanitary and storm sewers with water and services for twenty-eight hookups for lots in the Westview development. Johnson entered into no contracts with the contractors involved in the development. Bauman defaulted in payment for the materials and services provided by A.P. & Sons and the other contractors.

[¶ 7.] A.P. & Sons commenced an action to foreclose its mechanic’s lien. A.P. & Sons’ mechanic’s lien was found to be inferior to the Bank Mortgage. The trial court ordered a sale of the property and a sheriffs sale was held. The Bank purchased the land for the balance owing. Thus, A.P. & Sons received no funds to satisfy their liens for the materials and labor supplied.

[¶ 8.] A.P. & Sons sued Bauman and Johnson claiming they were personally ha-ble. The trial court ruled Johnson was not personally liable. A.P. & Sons appeal the following issue:

Whether the trial court erred in finding the property owner, Johnson, not personally liable for the labor and materials furnished in the development of the Westview Addition.

STANDARD OF REVIEW

[¶ 9.] This Court reviews the findings of a trial court under a clearly erroneous standard. Kokesh v. Running, 2002 SD 126, ¶ 10, 652 N.W.2d 790, 793; New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citations omitted).

Clear error is shown only when, after a review of all the evidence, we are left with a definite and firm conviction that a mistake has been made. Id The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them. Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994)(citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)). Conclusions of law are reviewed under a de. novo standard, giving no deference to the circuit court’s conclusions of law. Sherbum v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

Id. (internal quotes omitted).

[¶ 10.] We will not seek reasons to reverse the trial court.

It is well settled in this jurisdiction that a trial court’s findings of fact and decision are presumed correct and we will not seek reasons to reverse. Insurance Agents, Inc. v. Zimmerman, 381 N.W.2d 218 (S.D.1986); Northern Hills Sanitation v. Board of Com’rs, 272 N.W.2d 835 (S.D.1978). In action tried to court without jury, this court will not disturb findings unless evidence clearly preponderates against them. Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259 (S.D.1985) (citing Young v. Huffman, 77 S.D. 254, 90 N.W.2d 401 (1958)); see also City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314 (1959).

City of Winner v. Bechtold Investments, Inc., 488 N.W.2d 416, 418 (S.D.1992).

DECISION

[¶ 11.] This Court has held that “under ordinary circumstances, a property owner will not be held personally liable for work or materials furnished by a subcontractor to a contractor according to a contract between the contractor and subcontractor, where the property owner is not a party to the contract.” Sherman v. Meyer, 312 N.W.2d 373, 374 (S.D.1981). A.P. & Sons, in an attempt to circumvent this premise, has alleged that a partnership or a joint venture existed between Bauman and Johnson or in the alternative that there was an agency relationship. A.P. & Sons claim the trial court erred in not holding Johnson personally liable for the services and materials provided for in the development of Westview Addition because of the alleged special relationship between Bauman and Johnson.

[¶ 12.] The trial court found no facts supporting A.P. & Sons’ proposition that a partnership or joint venture existed between Bauman and Johnson. A partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” SDCL 48-1-2. This Court has held, “there is no arbitrary test for determining the existence of a partnership, each case must be governed by its own peculiar facts and the existence of the relationship is a question for the trier of fact except in a case where the evidence is conclusive.” Insurance Agents v. Zimmerman, 381 N.W.2d 218, 220 (S.D.1986) (quoting Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661, 663 (S.D.1959)).

[¶ 13.] A joint venture is a less formal partnership. Stallings v. Owens, 2002 SD 63, ¶ 10, 646 N.W.2d 272, 277. Generally, a joint venture is entered into for a more limited business purpose and for a more limited time. Id. Recently, this Court set forth six elements necessary to establish a joint venture:

(1) an intent to enter into a joint venture;
(2) an agreement, express or implied, among members of a group; and
(3) a common purpose to be carried out by the group;
(4) a joint pecuniary interest in that purpose;
(5) an equal right to a voice in the direction and control of the group; and
(6) a right to share in the profits and a duty to share in any losses.

Id. at ¶ 11, 646 N.W.2d at 278 (quoting Weins v. Sporleder, 1997 SD 111, ¶ 44, 569 N.W.2d 16, 28). This Court has held that all six elements must be met in order to establish a joint venture. Ethan Dairy Products v. Austin, 448 N.W.2d 226, 228 (S.D.1989).

[¶ 14.] The relationship between Johnson and Bauman cannot be classified as a partnership or a joint venture. Johnson and Bauman entered into an agreement involving land owned by Johnson. Johnson agreed to allow Bauman to develop the land. Although the parties agreed that the land was to be developed, the motivation of Johnson was clearly different from that of Bauman. Johnson’s motivation for developing the land was not only to sell the lots for profit, but also to fulfill his parent’s wishes. Bauman, on the other hand, wanted the land developed so he could profit by building houses on the lots. It is apparent there was no common purpose being carried out by Johnson and Bauman.

[¶ 15.] It is clear from the transactions entered into by Bauman that Johnson did not have an equal right to control the direction in which the development was going. Johnson specifically stated he did not want to purchase the DeVille tract of land. After Johnson’s refusal to purchase the DeVille tract, there was no discussion of Bauman purchasing the DeVille tract for the purpose of including it in the development. In fact, there was no discussion about adding it to the development project in general, regardless of who owned the land. It was Bauman who decided to purchase the land and add it to the development. Even after the purchase there was no discussion of how the DeVille tract would factor into the development of Johnson’s land. It is evident that the purchase of the DeVille tract was for the sole benefit of Bauman. Although there was no discussion between Bauman and Johnson concerning sale of lots from the DeVille tract it can be inferred that as the owner, Bauman would have received the profits from any sale of the land. Johnson had no control in the direction the development was taking.

[¶ 16.] Furthermore, the record clearly shows there was no equal right to control. All contracts were negotiated by Bauman. Johnson had no say in who was hired or contracted. Contractors submitted their bids to Bauman. Bauman hired the contractors and all correspondence concerning the project was through Bauman. Johnson had no supervisory role involving the contractors working on the project. Johnson resided in Mexico during the time the project was moving forward.

[¶ 17.] A.P. & Sons claim that Johnson signed a number of documents, including the plat, a proprietor’s certificate, and a letter of assurance, evidencing a joint venture. However, Bauman was calling the shots. The documents were not for Johnson to look over and approve. The documents were sent for Johnson to sign so Bauman could move forward with his project. This was merely routine paperwork that had to be completed by the property owner. This does not equal joint venture.

[¶ 18.] We have said, “[c]ourts should be cautious in characterizing the nature of a business relationship without first carefully examining the usage and practice peculiar to the commercial enterprise in question.” Ethan Dairy Products, 448 N.W.2d at 228. It is not unusual that a property owner hire someone to develop their land. Landowners are not developers. No where is it written that when one develops another’s land a joint venture exists.

[¶ 19.] There was no sharing of profits. It is true both Johnson and Bau-man would have received a pecuniary benefit, however, such was not a joint pecuniary interest. Whether or not Bauman constructs five homes or two homes is of no concern to Johnson. Johnson realized no profits from Bauman building houses. In addition, Bauman realized no profit from the sale of the lots. The proceeds from the sale of the lots were to be divided accordingly, Johnson receiving 25% and the other 75% being applied toward the development loan. Johnson received no cut of the profits made by Bauman for constructing a home. It is apparent that there was no sharing of profits and no joint pecuniary benefit in the development of Westview Addition.

[¶ 20.] The evidence supports the finding that no partnership or joint venture existed between Bauman and Johnson.

[¶ 21.] In the alternative A.P. & Sons alleges that Bauman was an agent for Johnson. This argument also fails. “Existence of an agency relationship is a fact specific issue.” Action Mechanical, Inc. v. Deadwood Histone Preservation Comm’n, 2002 SD 121, ¶ 35, 652 N.W.2d 742.

[¶ 22.] There are two types of agency, actual and ostensible. Actual agency exists when a principal and agent expressly agree to enter into an agency relationship. Dahl v. Sittner, 429 N.W.2d 458, 462 (S.D.1988). Ostensible agency is created when a principal by his conduct or lack of ordinary care causes a third party to believe another is acting as his agent. Id. “Whether an agency relationship has in fact been created depends upon the relations of the parties as they exist under their agreement or acts.” Id.

[¶ 23.] A.P. & Sons assert that an actual agency existed between Bauman and Johnson. In Kasselder v. Kapperman, this Court set forth factual elements necessary to establish an agency relationship including: (1) manifestation by the principal that the agent shall act for him, (2) the agent’s acceptance of the undertaking, and (3) the understanding of the parties that the principal is to be in control of the undertaking. 316 N.W.2d 628, 630 (S.D. 1982). The evidence indicates there was no agency relationship. There was no agreement that Bauman was taking on the role of an agent. Johnson allowed Bau-man to develop the land. Johnson gave no indication to Bauman or other third parties that Bauman was acting on his behalf. Johnson in no way assumed the role of a principal. Bauman was in control of this development. It was Bauman who approached Johnson and persuaded him into developing the land. Bauman was not receiving any compensation from Johnson to develop the land. It was Bauman’s desire to develop the land in order to profit from houses he built on the lots. Furthermore, Bauman purchased the DeVille tract of land despite Johnson voicing his dissent. Johnson merely agreed to development. There was no showing of a relationship in this development that showed Bauman was acting as Johnson’s agent.

[¶ 24.] The judgment is affirmed.

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

[¶ 26.] SABERS, Justice, dissents.

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

SABERS, Justice

(dissenting).

[¶ 28.] The trial court erred in concluding that there was no joint venture agreement. There was a joint venture agreement between Johnson and Bauman. The facts support all six elements necessary to joint venture as follows:

1) Intent to enter into a joint venture.
2) An agreement, express or implied, among members.
3) Common purpose.
4) A joint pecuniary interest in that purpose.
5) An equal right to a voice in the direction and control of the group.
6) A right to share in the profits and a duty to share in any losses.

1. Intent to enter into a joint venture and; 2. An agreement, express or implied, among members.

[¶ 29.] According to Johnson’s deposition testimony, he and Bauman entered into an agreement whereby Johnson would provide the land and personally guarantee the development loan and Bauman would provide his expertise and services to develop the land. Johnson was to receive 25% of the profit from sale of the developed lots and Bauman was to receive 75% of the profit to pay off his development loan. No agreement was made as to the proceeds from the sale of any houses constructed thereon. This was a typical joint venture where one person, Johnson, provided the capital, and another, Bauman, provided the labor and materials to develop the lots. This is fully supported by Johnson’s deposition, his representations to the bank and the engineer, and the behavior of the parties throughout the course of the joint venture.

S. Common purpose.

[¶ 30.] Both Johnson and Bauman had the common purpose to develop the land and sell the lots. The majority’s assertion that Johnson and Bauman had different motivations is irrelevant. The question is whether the parties had a common purpose, not what their motivation was for pursuing that purpose. Their reasons for doing so are immaterial to this discussion. The majority attempts to differentiate the motives of the parties by referring to the fact that Bauman eventually wished to build houses on the lot. While this is true, the joint venture agreement between Johnson and Bauman only dealt with the issues of development and sale of the lots. The liability at issue pertains to the costs of developing the land. The fact that Bau-man or some other contractor might eventually build houses on the lots is also irrelevant to determine whether there was a joint venture for the purpose of developing the land.

k- A joint pecuniary interest in that purpose.

[¶ 31.] Upon sale of each lot, Johnson received 25% of the profit and Bauman received 75% of the profit by having it applied directly to his development loan. Neither party to the joint venture agreement would have profited but for the agreement to develop the tract. The pecuniary interest of both parties was directly tied to development of the land. This is sufficient to show a joint pecuniary interest in their common purpose.

5. An equal right to a voice in the direction and control of the group.

[¶ 32.] Johnson had an equal right to control the direction of the development. First, Bauman could not develop the land without Johnson’s permission. Second, as the majority states, the documents signed by Johnson needed to be signed “so Bau-man could move forward with his project.” This was paperwork that “had to be completed by the property owner” in order for development to take place. Third, when Johnson declined Bauman’s proposal to purchase and include the DeVille tract, Bauman’s going forward with that purchase on his own does not eliminate the joint venture. When Bauman went beyond the bounds of the agreement, it may have changed who was liable for debts arising from the DeVille tract, but it did not change the existence of the joint venture agreement.

[¶ 33.] Likewise, the fact that Bauman may receive some of the benefits of developing the DeVille tract does not preclude a finding of joint venture as to Johnson’s land. First, the money used to purchase the DeVille tract was drawn from the development loan secured by Johnson. Second, at least three of the platted lots encompassed land on both the Johnson and DeVille tracts. Johnson would have been entitled to profits from the sale of those portions of his land that were combined with the DeVille land to make up those three lots, despite Bauman’s possible breach of the joint venture agreement. Third, Johnson states in his deposition that there had not been any discussion regarding what his share of the profits would have been from those lots. The majority errs when it states as settled fact that Johnson would not have received any profits from development of the DeVille tract in connection with the Johnson land. In fact, Johnson signed the plat and the letter that combined the two parcels.

[¶ 34.] Although he disputes it now, Johnson did take an active role in the development of the property. His own words indicate that he believed he had control in this joint venture. For example, on May 15, 1998, Johnson signed a letter to the Watertown City Engineer which began with the sentence, “I Earle D. Johnson, owner/ developer of the above described parcel agree to develop this property ...” (emphasis supplied). On October 23, 2000, Johnson writes an email to the engineer stating, “I do not condone [Bauman’s] conduct and will appreciate some developers you may recommend if it comes to that,” indicating that he is willing to replace Bauman and continue the development. On October 27, 2000, Johnson writes another email to the engineer stating, “[i]t is quite apparent to me that Bob Bauman can no longer have anything to do with the project ... I would appreciate your thoughts as to who might be capable of replacing Bob and how you recommend to proceed.” On November 2, 2000, he writes yet another email to the engineer stating, “I feel it would be in all of our best interest at this time to not inform Bob of my decision to remove [him] from the Westview Acres project ...” Finally, on the same day, Johnson sends another email to the engineer stating, “[a]s I mentioned over the telephone, Bob Bauman is no longer associated with Westview Acres ...” If Johnson had no right to control in this joint venture, why would he think he could unilaterally remove Bauman as the developer and replace him with another developer?

[¶ 35.] It is true that the contractors dealt primarily with Bauman. However, this arrangement was per Johnson and Bauman’s joint venture agreement that Bauman would do all of the “leg work” since Johnson resided in Colorado and in Mexico. Johnson retained interest and control in the development as shown by the facts that he 1) was involved in negotiations with the bank 2) took part in platting the property (a necessary element of “developing” land) and 3) requested that the engineer keep him up to date on the progress of development by sending him pictures. The fact that Johnson chose to delegate the authority to enter into the contracts and do the other leg work necessary for development does not detract from the fact that there was a joint venture agreement between Johnson and Bau-man.

6. A right to share in the profits and a duty to share in any losses.

[¶ 36.] The parties had a right to share in the profits of this joint venture. Neither of them would profit until the lots were sold. Once sold, the parties agreed that 75% of the profit would be paid toward the development loan in Bauman’s name and 25% of the profit would be paid to Johnson. There is no requirement that profits be shared equally, nor is there a prohibition against payment against a loan rather than directly to the individual holding the loan. This joint venture agreement is sufficient to show a right to share in the profits and a duty to share in the losses.

[¶ 37.] The development loan was taken in Bauman’s name and guaranteed by Johnson. Default on that loan left them both responsible for payment. Likewise, both had a duty to share in the losses.

[¶ 38.] It is unfortunate for Johnson that his business associate was incapable of performing his end of the joint venture agreement, but that does not justify a determination that no joint venture agreement existed or denying A.P. & Sons payment for its work. The trial court erred in so concluding and we should reverse.

       The dissent argues that Bauman and Johnson had equal interests in the development project. The dissent notes that Johnson and Bau-man had the right to share in the profits of the joint venture. There is no authority which requires the finding of a joint venture if two parties enter into a development project where proceeds will be divided. In Colorado Performance Corporation v. Mariposa Associates, the Colorado Court of Appeals stated, "[Ajthough two or more parties may associate together in a venture, each anticipating an individual profit to himself, no partnership is thereby created because the 'chief characteristic of a joint adventure is a joint and not a several profit.' " 754 P.2d 401, 406 (Colo.Ct. App.1987). See also Dority v. Driesel, 75 Or. App. 180, 706 P.2d 995, 998 (Or.Ct.App.l985)(review denied) (holding "[t]he fact that parties act in concert to achieve some economic objective, while relevant to the inquiry, is not enough to create a joint venture.”) From the sale of the lots Johnson was to receive 25% and the remain-
      ing 75% was to be applied to the development loan. The dissent argues that the 75% applied to the development loan should be considered Bauman’s share of the profits, however, the agreement was that the remaining 75% would be applied to the development loan, which the dissent points out, was secured by Johnson. After the development loan was paid in full, Johnson would receive 100% of the lot price. No money made from the sale of lots was going to end up in Bauman's pocket. The only profit Bauman would receive was from the sale of the homes he built.
      The chief characteristic of a joint adventure is a joint and not several profit. Profits which are severally earned, the parties merely having dealt with the same subject matter, but not for and on behalf of each other, do not meet this requirements of the existence of a joint adventure.

        Dority, 706 P.2d at 998. It is clear the profits were not to be shared jointly. Both Johnson and Bauman anticipated to profit independently of the other.


author: KONENKAMP, Justice.

text:
    2003 SD 12
    Mary Eilen THOMPSON as Trustee of the Mary Eilen Trust, Lanny G. Brantner, Jerry O. Brantner and Jon Airhart, Plaintiffs and Appellants, v. E.I.G. PALACE MALL, LLC, Western Sierra Contractors, Inc. and C.S.K. Auto Parts, Defendants and Appellees.
    No. 22349.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2002.
    Decided Jan. 29, 2003.

      Douglas R. Bleeker, Mitchell, South Dakota, Attorney for plaintiffs and appellants.
    James C. Roby of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Water-town, South Dakota, Attorneys for defendants and appellees.
   KONENKAMP, Justice.

[¶ 1.] The owners of a restaurant sought a judgment declaring that they had the right to use an adjacent mall parking lot for customer parking and truck deliveries. The trial court granted summary judgment to the mall owner. Because there are genuine issues of material fact on the question of an implied easement for access by delivery trucks, we reverse and remand that question for trial. In all other respects, we affirm.

Background

[¶2.] The plaintiffs are the owners of Fanny Horner’s Eating Establishment in Mitchell, South Dakota. The restaurant lies adjacent to the Palace Mall parking lot owned by E.I.G. Palace Mall, LLC. In their complaint, the plaintiff restaurant owners sought a judgment recognizing that they had a prescriptive right to use part of the mall parking lot for customer parking and for entrance and exit to the restaurant property. If successful, this suit would halt the intended development of the mall parking lot. The mall owner had contracted to sell a portion of the lot to C.S.K. Auto, which planned to build an auto parts store on the property.

[¶ 3.] At one time, Paul Bjornsen owned both the restaurant and mall properties. While Bjornsen owned the restaurant, the mall parking lot was purportedly used by restaurant patrons and delivery trucks. He deeded the restaurant property to the present owners on November 14, 1974.

[¶4.] Because customer and delivery truck use of the mall parking has continued since they purchased the restaurant, the plaintiffs claim that they have occupied the mall parking lot property for more than twenty years and have established open and notorious use and possession for purposes of customer parking, as well as for ingress and egress. They have represented to their patrons that they have the authority to park in the mall parking lot. The plaintiffs claim that an additional ov-

erlay of pavement was made on the mall parking lot, with the exception of the area claimed by the plaintiffs. The mall owner contends that the use of the mail’s parking lot by the general public, including the restaurant customers, was permitted because it was not adverse to the mall’s interests.

[¶ 5.] At the hearing on the mall owner’s motion for summary judgment, the plaintiffs argued that they had an implied easement and not just a prescriptive right as averred in their complaint. The circuit court considered both theories and granted summary judgment to the mall owner, concluding that the plaintiffs had neither a prescriptive nor an implied easement. The court noted that the restaurant has a separate means of street access and available parking on both sides of the restaurant, which does not require the use of the mall property. In this appeal, the plaintiffs question whether the circuit court properly granted summary judgment to the mall owner on the plaintiffs claims for (1) a prescriptive easement, and (2) an implied easement.

1. Prescriptive Easement

[¶ 6.] Generally, a prescriptive easement occurs from a use of another’s land adverse to the owner of that land or the owner’s interest in the land against which a servitude is sought. See Restatement of Property (Third) § 2.16, Servitudes Created By Prescription; cf. 'Black’s Law Dictionary 1183 (6th ed. 1991). To prove a prescriptive easement, one must show an “open, continued, and unmolested use of the land in the possession of another for the statutory period ... of 20 years.” Steiner v. County of Marshall, 1997 SD 109, ¶ 18, 568 N.W.2d 627, 631; Wolff v. South Dakota Game, Fish & Parks Dep’t, 1996 SD 23, ¶ 28, 544 N.W.2d 531, 536 n. 5; Travis v. Madden, 493 N.W.2d 717, 720 (S.D.1992).

[¶ 7.] In addition, for a prescriptive easement to exist, a party seeking the easement must use the property in a manner that is hostile or adverse to the owner. Bartels v. Anaconda Co., 304 N.W.2d 108, 110 (S.D.1981) (citing First Church of Christ, Scientist v. Revell, 68 S.D. 377, 2 N.W.2d 674, 677 (1942)). A prescriptive easement is much like a claim of ownership by adverse possession, except that with the former the adverse user acquires only an easement and not title. Wolff, 1996 SD at ¶28, 544 N.W.2d at 536 n. 5 (citations omitted). Under South Dakota statutes, the sole test for adverse possession has been said to be “physical exclusion of all others under a claim of right.” Bartels, 304 N.W.2d at 110 (citing First Church of Christ, Scientist, 2 N.W.2d at 677). Thus, a use that is merely permissive and not adverse to the interests of the property owner will not become a prescriptive easement. First Church of Christ, Scientist, 2 N.W.2d at 677.

[¶ 8.] The party asserting a prescriptive right makes a prima facie case by showing an open and continuous use of another’s land with the owner’s knowledge, creating a presumption that such use is adverse and under a claim of right. Kougl v. Curry, 73 S.D. 427, 432, 44 N.W.2d 114, 117 (S.D.1950). The presumption of a grant arises from proof of an uninterrupted adverse use for the prescriptive period. Id. However, the presumption of a prescriptive right may be rebutted by proof that the use was by permission or not under a claim of right. Id. at 433, 44 N.W.2d 114.

[¶ 9.] The plaintiffs alleged that they acquired prescriptive rights to the mall parking lot because restaurant patrons parked there and large delivery trucks used the mall lot as a means to make deliveries to the restaurant. The mall owner replies that the restaurant patrons and delivery trucks servicing Fanny Hor-ner used the parking lot permissively: they were allowed to use the lot the same as other members of the general public.

[¶ 10.] In Greenco, Inc. v. May, 506 N.E.2d 42 (Ind.Ct.App.1987), an Indiana court addressed a similar dispute. There, the owner of a restaurant adjacent to a commercial parking lot used by restaurant customers sought a prescriptive easement for customer parking and for ingress and egress. The court ruled that members of “the general public cannot, by routine and regular use, create a prescriptive easement on behalf of a landholder.” Id. at 46. A permissive use, the court reasoned, “can never ripen into an easement, regardless of how long the use is continued.” Id. (citation omitted). Here, likewise, the owner merely acquiesced in the use of the lot by members of the general public, who were permitted to use the lot and did so of their own volition. The plaintiffs established no claim of right from which the mall owner could have acquired notice of the adverse claim. Therefore, the trial court properly granted summary judgment to the mall owner on the plaintiffs’ claim for a prescriptive easement.

2. Implied Easement

[¶ 11.] The common law recognizes two types of implied easements: easements by necessity and easements implied from prior use. An easement by necessity can occur when a grantor conveys to another an inner portion of land surrounded by lands owned by the grantor or the grantor and others. Unless a contrary intent is manifest, the landlocked grantee will be entitled to have a right-of-way across the retained land of the grant- or for ingress and egress. Conversely, an easement is implied by necessity in a deed when the owner retains the inner portion, but conveys to another a surrounding parcel. 2 American Law of Property § 8.38 (A.J. Casner ed. 1952); 3 R. Powell, The Law of Real Property § 410 (P. Rohan ed. 1987); 2 G. Thompson, Commentaries on the Modern Law of Real Property § 361-64 (rep. ed. 1980); see generally 25 Am. Jur.2d Easements & Licenses § 35-37 (1966).

[¶ 12.] An easement implied from prior use arises when an owner of an entire tract of land or of two or more adjoining tracts, uses one tract, or a part of it, so that one part derives from another a benefit or advantage of an apparent, continuous, and permanent nature, and the owner later conveys part of the property without mention being made of these uses. Unless there is an express agreement to the contrary, the conveyance imparts a grant with the benefits and burdens existing at the time of the conveyance, even when such grant is not reserved or specified in the deed. 3 R. Powell, The Law of Real Property § 411 (P. Rohan ed. 1987); 2 G. Thompson, Commentaries on the Modern Law of Real Property §§ 351, 352 (rep. ed. 1980).

[¶ 13.] While the plaintiffs did' not specifically plead an implied easement by prior use in their complaint, it is apparent from their arguments in circuit court and in this Court that such an easement is what they seek. Our prior cases have not mentioned the distinction between easements by necessity and easements by prior use. In either instance, the party claiming the existence of an implied easement must show that it is necessary, though the requisite degree of necessity is not as high when an easement by prior use is sought. Compare the Restatement of Property (Third) § 2.15, Servitudes Created By Necessity, cmt d. (necessary rights include those essential to enjoyment of the property and those necessary to make effective use of the property) with the Restatement of Property (Third) § 2.12, Servitudes Implied From Prior Use (continence of prior use need only be “reasonably necessary”). See Homes Development Co., 75 S.D. at 580, 70 N.W.2d at 530 (easement was “essential” to the beneficial enjoyment of the land).

[¶ 14.] To establish an easement by implication from prior use, the claimant must show that (1) the relevant parcels of land had been in unitary ownership; (2) the use giving rise to the easement was in existence at the time of the conveyance dividing ownership of the property; (3) the use had been so long continued and so obvious as to show that it was meant to be permanent; and (4) at the time of the severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract. Peterson v. Beck, 537 N.W.2d 375, 378 (S.D. 1995); Homes Development Co., 75 S.D. at 580, 70 N.W.2d at 530; R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property § 8.4 (1984). In this case, the only inarguable element of the four is the first one. A single owner had title to both the restaurant and mall properties when the claimed uses began. In the summary judgment proceeding the court fixed its attention on the fourth element, concluding that none of the claimed uses were necessary. We will examine each claimed use.

[W]here, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law.

[¶ 15.] As to whether an implied easement arose for use of the mall parking area for customers, the circuit court ruled that the plaintiffs submitted inadequate proof on whether continuance of such use was reasonably necessary to the enjoyment of the restaurant property. The court noted that the restaurant has its own parking lot and separate street access. Allowing cars, tour busses, and other large vehicles to park in the mall lot was more convenient than necessary, even if some of the larger vehicles could not park in the restaurant lot. At the least, a claimant must establish something more than mere convenience. Jon W. Bruce and James W. Ely, Jr., The Law of Easements & Licenses in Land § 4:10 (citations omitted). We affirm the court’s ruling that the plaintiffs failed to establish an implied easement for their customer parking on the mall lot.

[¶ 16.] On the other hand, looking at the evidence in a light most favorable to the owners of the restaurant, as we are required to do, we conclude that the circuit court was premature in ruling on the question whether an implied easement for delivery truck access existed. One of the plaintiffs stated in his affidavit opposing summary judgment that “the only access for delivery trucks and big vehicles that Fanny Horners has is the [mall] parking lot, which has been continually, since 1972, used for customer parking. That the delivery trucks must use the parking lot, as they are unable to have access to the property through the driveway which is at the south end of the premises.”

[¶ 17.] The Illinois Supreme Court confronted a similar issue in Granite Properties Ltd. P’ship. v. Manns, 117 Ill.2d 425, 111 Ill.Dec. 593, 512 N.E.2d 1230, (1987). There, a grantor deeded a parcel of undeveloped land to a grantee, retaining two parcels located on either side of the deeded land. In the retained parcels were a shopping center and an apartment complex. The grantor claimed two easements over the grantee’s property: a driveway at the rear of the shopping center used for deliveries, and a driveway allowing the only access to a parking lot at the rear of the apartment complex. In upholding the grantor’s claims, the court held that the evidence supported the creation of easements by implication. The court noted that the driveways had been in use since the properties were developed and were permanent, thus their prior uses had been apparent, and those uses were reasonably necessary to the beneficial use of the grantor’s property. It would have been particularly difficult and disruptive for semi trailer trucks to make deliveries anyplace other than where they had always made them. Id. at 1233-34.

[¶ 18.] In this case, of course, we have only disputed assertions concerning the necessity of using the mall parking lot for access by large delivery trucks during the time when the same person owned both the restaurant and mall property. The circuit court concluded that because vehicles could use the restaurant’s street access, the mall parking lot access was unnecessary. However, according to the plaintiffs, the south entrance to the restaurant property will not permit large delivery trucks access for unloading. Thus we have a disputed issue of fact, which must be resolved by the trier of fact.

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

[¶ 20.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

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

      . The plaintiffs are Mary Eilen Thompson as Trustee of the Mary Eilen Trust, Lanny G. Brantner, Jerry O. Brantner, and Jon Airhart.

      . Defendant Western Sierra Contractors, Inc. is the construction contractor named to build the C.S.K. Auto Parts store.

      .Our standard of review for summary judgment has been restated in many cases and need not be repeated here. Myears v. Charles Mix County, 1997 SD 89, ¶6, 566 N.W.2d *• 470, 472; Ward v. Lange, 1996 SD 113, ¶ 10, 553 N.W.2d 246, 249 (citations omitted).

      . See Homes Development Co. v. Simmons, 75 S.D. 575, 580, 70 N.W.2d 527, 530 (1955) (citations omitted), where we also defined an implied easement as follows: