text:
    2002 ND 86
    MATRIX PROPERTIES CORPORATION, a Minnesota corporation, formerly known as E.W. Wylie Corporation, Plaintiff and Appellee, v. TAG INVESTMENTS, a North Dakota partnership, and James A. Grettum, an individual resident of North Dakota, Defendants and Appellants.
    No. 20010228.
    Supreme Court of North Dakota.
    May 17, 2002.
    Rehearing Denied June 5, 2002.

      Sidney J. Spaeth, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, for defendants and appellants.
   MARING, Justice.

[¶ 1] TAG Investments and James Grettum (“TAG”) appealed from a post-judgment order awarding Matrix Properties Corporation, formerly known as E.W. Wylie Corporation, (“Matrix”) $4,127.60 in costs, $48,642 in attorney fees, and $135,867.19 in damages for delay in conveying real property. We affirm the award of costs and attorney fees, and we modify the time for awarding damages for delay in conveying the land and remand for recalculation of those damages.

I

[¶ 2] This is the fourth reported appeal emanating from an action by Matrix against TAG for specific performance of an October 14, 1996 agreement granting Matrix an option to purchase real property from TAG. In this appeal, TAG argues there is no procedural or statutory basis, including jurisdiction, for this money judgment, and the judgment is void or voidable. TAG also argues judicial estoppel bars Matrix from asserting inconsistent prejudgment and post-judgment positions, Matrix was only entitled to costs allowed by law, Matrix was not entitled to damages for loss of use of the property, and Matrix was not entitled to attorney fees. Our analysis of the, issues raised by TAG requires a brief outline of the prior proceedings.

[¶ 3] In Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737 (Matrix I), we affirmed a November 2, 1999 summary judgment granting Matrix specific performance of the option agreement. We held Matrix timely and unconditionally complied with the option agreement in early July 1999. Id. at ¶ 1. We rejected TAG’S claims that Matrix did not precisely comply with the option’s notice requirement, or allow the abstract to be procured in the manner called for in the option. Id. at ¶¶ 9-13. We also rejected TAG’S claim that Matrix failed to comply with the option by not tendering the purchase money before the option deadline expired. Id. at ¶ 18. We concluded the term “purchase” did not require a tender of money, and the tender of the purchase price was an incident of performance, not a condition precedent to the exercise of the option. Id. at ¶¶ 14-18. We also concluded that, although the option to purchase had several contingencies regarding the sufficiency of TAG’S title, an objective standard governed those contingencies and Matrix had a good faith duty to raise only reasonable objections to TAG’S title. Id. at ¶¶ 23-24. We concluded that Matrix could not rescind the option at its whim, and the option was not conditional or illusory. Id. at ¶ 24.

[¶ 4] After our decision in Matrix I, Matrix sought an order declaring it was not obligated to make any additional • option payments to TAG in 2000 to retain rights under the option. In a June 26, 2000 order, the trial court granted Matrix’s motion, concluding “pursuant to the terms of the 1996 Option Agreement, [Matrix] is not obligated to make any Option Payments to [TAG] to retain rights under the Option Agreement and that [Matrix’s] valid and timely exercise of the option in July of 1999 created a binding executory contract for the purchase and sale of real property.” TAG simultaneously appealed to this Court and applied for a supervisory writ, claiming the trial court exceeded its jurisdiction, the order amended a final judgment that had been affirmed on appeal, the trial court did not have subject matter or personal jurisdiction to amend the judgment, the order was issued without due process and was in the nature of a declaratory judgment without service of a summons and complaint, and the hearing was conducted without proper notice.

[¶ 5] Meanwhile, on July 5, 2000, Matrix sought an order compelling TAG to provide Matrix with deeds for the property, or declaring the judicial transfer of the property to Matrix. On September 1, 2000, Matrix applied to this Court for a supervisory writ, asking us to clarify that the' trial court retained jurisdiction to enforce the judgment despite TAG’s pending appeal of the June 26, 2000 order. On September 25, we denied Matrix’s application, indicating a trial court has continuing jurisdiction to enforce a judgment when no stay pending appeal has been granted.

[¶ 6] On October 24, 2000, Matrix again moved for an order compelling TAG to provide Matrix with deeds for the property, or declaring the judicial transfer of the property to Matrix. On November 8, 2000, the trial court ordered the judicial transfer of the property to Matrix on November 15. According to counsel for Matrix, counsel for TAG notified Matrix that TAG would not appear at the November 15 closing, and that TAG questioned the trial court’s jurisdiction and raised a due process issue. TAG did not appear at the November 15 closing. On November 16, TAG asked this Court to vacate the November 8 order. We denied TAG’s request on November 22, and on November 24, Matrix moved for an order judicially transferring the property. On December 6, 2000, TAG sought to remove the proceeding to the federal district court for North Dakota, and the federal district court remanded the case to state court on December 21.

[¶ 7] In the interim, on December 12, 2000, in Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432 (Matrix II), we summarily affirmed the trial court’s June 26, 2000 post-judgment order under N.D.R.App. 35.1(a)(1), and we awarded Matrix double costs under N.D.R.App. 38 and 39. On December 21, the trial court ordered TAG to appear on January 5, 2001, to convey the property. On January 5, the trial court ordered conveyance of the land to Matrix under N.D.R.Civ. 70. TAG moved to vacate the January 5 order as improperly modifying the November 2, 1999 summary judgment. On February 16, the trial court denied TAG’s motion to vacate the January 5 order, and Tag appealed from the November 8, 2000 order, the January 5, 2001 order, and the February 16, 2001 order. On July 13, 2001, we summarily affirmed those orders under N.D.R.App. 35.1(a)(1) and (7), and we awarded Matrix double costs under N.D.R.App. 38 and 39. Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674 (Matrix III).

[¶ 8] Meanwhile, in a March 26, 2001 motion, Matrix sought costs, attorney fees and damages incurred because of TAG’s refusal to convey the property. The trial court continued Matrix’s motion until after our decision in Matrix III. Matrix thereafter filed an amended motion, seeking litigation costs and attorney fees incurred after this Court’s decision in Matrix I, and damages caused by TAG’s refusal to convey the property from August 15,1999, the date of the earliest possible closing under the option agreement, to January 5, 2001, the date the trial court ordered the transfer of the property to Matrix. The trial court awarded Matrix $4,127.60 in costs, $48,642 in attorney fees, and $135,867.19 in damages for loss of use of the property. TAG appealed.

II

[¶ 9] TAG argues there is no procedural or statutory basis, including jurisdiction, for this money judgment, and it is void or voidable. TAG argues Matrix’s motion

was an unprecedented post-judgment motion for damages in a specific performance action in which a final judgment had been entered almost two years earlier. Neither Matrix, nor the lower court, identified the legal basis for the unprecedented award of “costs,” “damages,” and “attorney fees” two years after a final judgment had been entered. The post-judgment motion procedure sanctioned by the lower court utterly denied TAG and Grettum their right to proper pleadings notifying them of the issues of the lawsuit, discovery, trial of issues of fact and a judicial decision based upon properly introduced evidence considered in light of the law. In other words, TAG and Grettum were denied due process of law.

[¶ 10] In an action for specific performance, a purchaser may recover damages from a seller for delay in conveying real property and the costs, if any, of recovering possession of the land. See N.D.C.C. § 32-03-21; Bumann v. Maurer, 203 N.W.2d 434, 438 (N.D.1972); Orfield v. Harney, 33 N.D. 568, 579-81, 157 N.W. 124, 127 (1916); Beddow v. Flage, 22 N.D. 53, 60, 132 N.W. 637, 640 (1911); Mitchell v. Knudtson Land Co., 19 N.D. 736, 744, 124 N.W. 946, 950 (1910). See generally, Annot., Special or Consequential Damages Recoverable, On Account of Delay in Delivering Possession, by Purchaser of Real Property Awarded Specific Performance, 11 A.L.R.4th 891 (1982); An-not., Specific Performance: Compensation or Damages Awarded Purchaser for Delay in Conveyance of Land, 7 A.L.R.2d 1204 (1949); 71 Am.Jur.2d Specific Performance § 236 (2001).

[¶ 11] In Cokins v. Frandsen, 136 N.W.2d 377, 380 (N.D.1965), however, we said a judgment on the merits is conclusive between the parties, not only, as to every matter that was litigated but also as to every matter arising out of the same cause of action which might have been litigated. See also Wolf v. Anderson, 422 N.W.2d 400, 401-02 (N.D.1988) (holding prior judgment that sellers were not entitled to specific performance in action for breach of contract for deed was res judicata and precluded subsequent action for damages where both actions were based on same factual situation); Perdue v. Kwudson, 179 N.W.2d 416, 421-22 (N.D.1970) (same). In Cokins, at 377-78 (Syllabus ¶¶ 1 and 3), we said a judgment decreeing specific performance of a contract and determining the rights of the parties is final, and any subsequent order to modify the final judgment is void unless made for the purpose of amending, correcting, or carrying out the judgment. In Cokins, 379-80, we held a post-judgment order regarding proration of taxes during a delay in conveying property was void where a prior final judgment granting specific performance of a contract for the sale of land settled all issues between the parties arising out of the contract.

[¶ 12] Here, in ordering the January 5, 2001 judicial transfer of the property, the trial court cited N.D.R.Civ.P. 70, which provides:

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.

[¶ 13] Rule 70, N.D.R.Civ.P., is nearly identical to corresponding F.R.Civ.P. 70, and we have often said when a state rule is adopted from a federal rule, we will consider the federal court’s interpretation of its rule as persuasive authority for construing our rule. See Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶6, 603 N.W.2d 475; City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 11, 575 N.W.2d 440. See also N.D.R.Civ.P. 1, Explanatory Note.

[¶ 14] Relief under F.R.Civ.P. 70 is available only after a judgment is entered. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 218, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). See 13 James W. Moore, Moore’s Federal Practice ¶ 70.03 (3rd ed.2002); 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2nd, § 3021 (1997). Both F.R.Civ.P. 70, and N.D.R.CivP. 70 specifically contemplate “application of the party entitled to performance.” Under F.R.Civ.P. 70, parties may proceed by motion ancillary to the original action to compel the specific performance of an act required by a judgment. See Spain v. Mountanos, 690 F.2d 742, 744 (9th Cir.1982); Gilbert v. Johnson, 490 F.2d 827, 829 (5th Cir.1974). Cf. Clarke v. Chicago, B. & Q.R. Co., 62 F.2d 440, 441 (10th Cir.1932) (under former equity rules). See also Linscott v. Foy, 1998 ME 206, ¶ 9, 716 A.2d 1017 (1998) (under M.R.Civ.P. 70); Scott v. Majors, 1999 UT App 139, ¶ 4-6, 980 P.2d 214 (1999) (under Utah R.Civ.P. 70).

[¶ 15] In Spain, 690 F.2d at 745, the court affirmed an additional award of attorney fees incurred in a proceeding under F.R.Civ.P. 70 to collect an initial $70,000 award of attorney fees ordered in a stipulated judgment enjoining certain prison practices. No issue was raised about the procedure for awarding additional attorney fees as part of the ancillary proceeding under F.R.Civ.P. 70. In Linscott, 1998 ME 206, ¶ 9, 716 A.2d 1017, no procedural issue was raised in a case where, as part of the original proceeding, the plaintiff filed a supplemental petition for attorney fees and a setoff of the purchase price after obtaining an order transferring property under M.R.Civ.P. 70. The Maine Supreme Judicial Court affirmed the award of attorney fees and costs as a sanction for “egregious” actions by the defaulting party. Linscott, at ¶¶ 16-19. Those authorities suggest an ancillary motion is an appropriate procedure for a court to consider issues dealing with a party’s failure to comply with a judgment requiring specific performance for a conveyance of property.

[¶ 16] In Westlake North Prop. Owners v. Thousand Oaks, 915 F.2d 1301, 1303 (9th Cir.1990), the Ninth Circuit Court of Appeals cited Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 395-97,110 S.Ct. 2447, "110 L.Ed.2d 359 (1990), for the principle that imposition of a sanction under F.R.Civ.P. 11 is a collateral issue which may be made after the main action has been terminated. Although in Westlake, at 1303-04, the Ninth Circuit ultimately concluded the trial court erred in sanctioning non-party attorneys under F.R.Civ.P. 70, the court said the trial court had jurisdiction to impose sanctions against parties under F.R.Civ.P. 70 regardless of whether the trial court had jurisdiction over the main action.

[¶ 17] In Cooter & Gell, 496 U.S. at 395-96, 110 S.Ct. 2447 (citations omitted), the United States Supreme Court said:

It is well established that a federal court may consider collateral issues after an action is no longer pending. For example, district courts may award costs after an action is dismissed for want of jurisdiction. See 28 U.S.C. § 1919. This Court has indicated that motions for costs or attorney’s fees are “independent proceeding^] supplemental to the original proceeding and not a request for a modification of the original decree.” Thus, even “years after the entry of a judgment on the merits” a federal court could consider an award of counsel fees. A criminal contempt charge is likewise “ ‘a separate and independent proceeding at law1 ” that is not part of the original action. A court may-make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated. Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.

[¶ 18] Similarly, in American State Bank v. Stoltz, 345 N.W.2d 365, 367 (N.D. 1984), we recognized this state’s settled law that a supplementary proceeding in aid of execution is not a new or separate action, but is merely a proceeding in a pending action against a judgment debtor. We said a supplementary proceeding was not an action on the judgment, but was a continuation of, and auxiliary to, the original action. Id. In Stoltz, at 367, we rejected a judgment debtor’s claim the trial court lost personal jurisdiction over him when the judgment was entered.

[¶ 19] In Mitchell, 19 N.D. at 744, 124 N.W. at 950 (quoting from Pomeroy on Contracts (2nd ed. § 474)) we said:

“All the instances in which equity thus awards damages, either in place of or in addition to some other special remedy, are particular applications of the one general principle, that complete justice should be done between litigant parties whenever jurisdiction has been acquired over them to grant any relief. This doctrine is well established, and is indeed, too familiar to require the citation of authority that whenever a court of equity has once acquired jurisdiction of a cause it will retain such cause in order to do full and complete justice between the parties with respect to the subject matter. To this end, when jurisdiction has been obtained on other grounds and for the purpose of administering an equitable remedy, damages may be assessed and adjudged in lieu of or as ancillary to the equitable relief so that the plaintiff may not be put to the trouble, expense, and delay of a second suit brought in another tribunal.”

Our statements in Mitchell about ancillary relief and the trouble, expense, and delay of a second action are equally applicable under our current rules of civil procedure, which govern the procedure in all suits of a civil nature, whether cognizable as cases at law or in equity, and which are construed to secure the just, speedy, and inexpensive determination of every action. See N.D.R.Civ.P. 1. The statements in Mitchell are also consistent with N.D.C.C. § 27-05-06(3), which confers jurisdiction on district courts for “[a]ll the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carrying into effect their judgments, orders, and other determinations.”

[¶ 20] Here, shortly after Matrix exercised the option to purchase the land in early July 1999, it initiated an action for specific performance of the option agreement. In November 1999, the trial court granted Matrix summary judgment for specific performance of the option agreement without any claim for, or award of, damages for delay in conveying the land. On June 7, 2000, this Court issued its mandate affirming the summary judgment for specific performance. Matrix then moved for an order compelling TAG to transfer the property and subsequently indicated it would seek costs, attorney fees, and damages for TAG’s delay in conveying the property. After procedural posturing and further delay by TAG, the trial court ultimately ordered the transfer of the land to Matrix on January 5, 2001, and Matrix then moved for- costs, attorney fees, and damages incurred as a result of TAG’s delay in conveying the land. Under these circumstances, we conclude Matrix’s ancillary motion for costs, attorney fees, and damages was an appropriate vehicle, as part of enforcement of the judgment under N.D.R.Civ.P. 70, for the trial court to consider awarding costs, attorney fees, and damages incurred by a delay in conveying the land. However, because Matrix could have but did not make a claim for damages for delay in conveyance in the judgment that this Court affirmed in Matrix I, we conclude Matrix may be entitled to damages only for a delay in conveying the land after our June 7, 2000 mandate in Matrix I. See Wolf, 422 N.W.2d at 401-02; Per-due, 179 N.W.2d at 421-22; Cokins, 136 N.W.2d at 380.

[¶ 21] We also reject TAG’s arguments that N.D.C.C. § 27-05-27 places exclusive authority to modify a judgment in the trial judge that rendered the November 1999 judgment, and that this money judgment, which was issued by a different trial judge, is void, or erroneously issued and voidable.

[¶ 22] Section 27-05-27, N.D.C.C., provides:

Except as provided by subsection 2 of section 29-15-21, any motion for a new trial, settlement of a proposed case, judgment notwithstanding the verdict, or vacation or modification of an order, judgment, or other proceeding, must be presented and heard before the judge before whom the matter was heard, considered, or determined, unless for any reason the judge is unable to act.

[¶23] The language of N.D.C.C. § 27-05-27 applies to “any motion for a new trial, settlement of a proposed case, judgment notwithstanding the verdict, or vacation or modification of an order, judgment, or other proceeding.” This ancillary proceeding emanated from a proceeding for the enforcement of a judgment for specific performance, and the plain language of that statute does not apply to the enforcement of a judgment. We conclude N.D.C.C.. § 27-05-27 does not apply to this ancillary proceeding.

Ill

[¶ 24] TAG argues Matrix was not entitled to damages for loss of use of the property.

A

[¶ 25] TAG argues Matrix was not entitled to any damages, because Matrix never made an unconditional tender of performance and the earliest date it can claim a tender of part of the money due to TAG was January 5, 2001, the date the trial court ordered conveyance of the land.

[¶ 26] TAG misreads a statement in Matrix II, 2000 ND 213, ¶ 1, 622 N.W.2d 432, “requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement.” According to TAG, that language “conclusively determined that TAG’s duty to convey was conditioned upon the tender of performance by Matrix.” In Matrix I, 2000 ND 88, ¶¶ 1, 14-18, 609 N.W.2d 737, however, we clearly held that Matrix “timely and unconditionally complied with the option agreement.” Our decision in Matrix I is the law of the case regarding Matrix’s compliance with the option, see Tom Beuchler Const. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987), and it is a strained interpretation of Matrix I for TAG to argue that Matrix has not unconditionally complied -with the option agreement. To the extent TAG now claims it had no duty to convey the property until Matrix made a full and actual tender of the purchase price to TAG, we again reiterate and clarify, for TAG’S benefit, that Matrix timely and unconditionally complied with the option agreement and was entitled to performance under the option agreement. To the extent TAG claims it did not delay transfer of the property because Matrix purportedly did not make a full and complete tender or actual payment of the purchase price, we reject TAG’s arguments involving that assertion. See Matrix I, at ¶¶ 1,14-18.

B

[¶ 27] TAG argues even if Matrix is entitled to damages, the trial court erred in calculating those damages. TAG states, in calculating damages, the trial court followed Matrix’s “claim that it should have interest on the liquidated purchase price of the real property from August 15, 1999, the time Matrix should have first paid TAG [under the terms of the option agreement], to January 5, 2001,” the date the trial court transferred the land to Matrix. TAG argues if Matrix is entitled to damages, those damages are limited to the rental value of the land, or an accounting and delivery of the fruits of the illegitimate possession, offset by interest on the purchase price of the land due to TAG. Because of our earlier conclusion about the time frame for damages and the procedural posture of this issue, we only need consider whether Matrix was entitled to damages for TAG’S delay in conveying the land after this Court’s June 7, 2000 mandate in Matrix I to the trial court’s judicial conveyance of the land to Matrix on January 5, 2001.

[¶ 28] Section 32-03-21, N.D.C.C., provides:

The detriment caused by the wrongful occupation of real property in cases not embraced in sections 32-03-22, 32-03-27, 32-03-28, and 32-03-29 is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the commencement of the action or proceeding to enforce the right to damages and the costs, if any, of recovering the possession.

[¶ 29] Under N.D.C.C. § 32-03-21, a seller who wrongfully occupies real property and wrongfully delays the conveyance of that property is liable for the value of the use of the property for the time of such occupation. Bumann, 203 N.W.2d at 438; See also Orfield, 33 N.D. at 579-81, 157 N.W. at 127; Beddow, 22 N.D. at 60, 132 N.W. at 640; Mitchell, 19 N.D. at 744, 124 N.W. at 950. In Bumann, at 438, we said the value of the use may be found by requiring the party at fault to make an accounting and deliver over the fruits of the illegal possession, or to pay the fair rental value of the property. We also said the delay in performance of an agreement to convey land may be the root of special as well as general damages to the buyer. Id. at 439. We cautioned, however, that double recovery should not be given, first as general damages, and again as an item of special damages. Id.

[¶ 30] We have recognized the object of a court of equity is to place parties who are not at fault as nearly as possible in the same position they would have been in if there had been no default by the other party. Orfield, 33 N.D. at 579-81, 157 N.W. at 127; Pillsbury v. J.B. Streeter, Jr., Co., 15 N.D. 174, 182, 107 N.W. 40, 43 (1906). When a conveyance of property is delayed, financial adjustments in the nature of an accounting may be made to put the parties in the same position they would have been in if the contract had been performed in a timely manner. See generally Annot., 11 A,L.R.4th at pp. 892-97; Annot., 7 A.L.R. 2nd at § 1.

[¶ 31] Here, we reject TAG’s claim it was entitled to an offset for interest on the purchase price of the land during the time TAG delayed conveying the land to Matrix. This record unequivocally demonstrates a pattern of dilatory and vexatious conduct by TAG in delaying the conveyance of the land to Matrix. Moreover, under the option agreement, Matrix was entitled to possession of the land on August 15, 1999. Although we have concluded Matrix could have but did not make a claim for damages from that date in the judgment that was affirmed in Matñx I, TAG agrees the trial court awarded Matrix interest on the purchase price of the land from August 15, 1999 to January 5, 2001, which was a valuation suggested by TAG when, in seeking to avoid closing on January 5, 2001, TAG claimed it should receive interest on the purchase price during the same time period. Matrix did not receive the fruits of TAG’s unlawful possession, or the rental value of the land during the time when TAG delayed conveying it. TAG retained the benefits from the land during the delay in conveying it, and TAG does not dispute Matrix’s claim that the property is prime development land. Under those circumstances, we conclude Matrix was entitled to the measure of damages awarded by the trial court for the delay in conveying the land from this Court’s June 7, 2000 mandate in Matrix I to January 5, 2001, the date the trial court ordered the conveyance of the land to Matrix. Accordingly, we remand this issue to the trial court to compute Matrix’s damages during that time period.

IV

[¶ 32] TAG argues Matrix was not entitled to costs and attorney fees.

[¶ 33] If there is a delay in conveying land, N.D.C.C. § 32-03-21, authorizes the award of the “costs, if any, of recovering the possession.” See Bumann, 203 N.W.2d at 438. Section 28-26-01(2), N.D.C.C., authorizes the award of reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim. See In re Estate of Dion, 2001 ND 53, ¶ 45^7, 623 N.W.2d 720. In Dion, at ¶ 47, we affirmed a trial court’s decision to award attorney fees incurred by a party in defending against frivolous post-trial motions by another party.

[¶ 34] In Matrix II and Matrix III, we summarily affirmed two prior appeals by TAG in part under N.D.RApp.P. 35.1(a)(1), which authorizes affirmance of appeals that are frivolous and completely without merit. This record demonstrates that TAG has engaged in a protracted and dilatory pattern of conduct after this Court’s decision in Matrix /, repeatedly pressing spurious claims that previously had been rejected by the trial court and this Court. See Dion, 2001 ND 53, ¶ 47, 623 N.W.2d 720. Under the circumstances of this case, we conclude N.D.C.C. §§ 32-03-21 and 28-26-01(2), authorize an award to Matrix of litigation costs and attorney fees for recovering possession of the land.

[¶ 35] A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion. Dion, 2001 ND 53, ¶¶ 44, 46, 623 N.W.2d 720; Gissel v. Kenmare Township, 512 N.W.2d 470, 477 (N.D.1994). Here, the trial court was well aware of the dilatory nature of TAG’s conduct in these proceedings. The court indicated it had reviewed the affidavits setting forth the specific costs and attorney fees and the time when they were incurred. Under the circumstances of this case, we conclude the trial court did not abuse its discretion in awarding Matrix litigation costs and attorney fees.

V

[¶ 36] TAG argues judicial estop-pel bars Matrix from asserting inconsistent prejudgment and post-judgment positions.

[¶ 37] TAG did not raise this argument in its August 21, 2001 brief in response to Matrix’s motion for costs, attorney fees, and damages, and TAG is precluded from raising the issue for the first time on appeal. See Robert v. Aircraft Inv. Co. Inc., 1998 ND 62, ¶ 14, 575 N.W.2d 672. Moreover, TAG’s argument appears to be based in part on its misplaced assertion that Matrix did not unconditionally comply with the option agreement, an assertion we specifically rejected in Matrix I and explicitly have reiterated for TAG’s benefit in this case. Accordingly, we reject TAG’s argument about judicial estoppel.

VI

[¶ 38] As Justice Vogel wrote for this Court in City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 331 (N.D.1975) (quoting from Bros. Inc. v. W.E. Grace Mfg. Co., 320 F.2d 594, 597-98 (5th Cir. 1963)), “ ‘ “It is for the public interest and policy to make an end to litigation ...’ so that ‘... suits may not be immortal, while men are mortal.” ’ ” Those comments are especially applicable to the, protracted proceedings in this case.

VII

[¶ 39] We affirm the trial court’s award of costs and attorney fees, and we modify the time period for the award of damages and remand for recalculation in accordance with this opinion.

VANDE WALLE, C.J., NEUMANN, SANDSTROM, JJ„ and WILLIAM F. HODNY, Surrogate Judge, concur.

[¶ 40] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author:
MILLER, Retired Justice,
      SABERS, Justice

license: Public Domain

text:
    2002 SD 46
    HOMESTAKE MINING COMPANY, Appellant, v. SOUTH DAKOTA SUBSEQUENT INJURY FUND, and South Dakota Department of Commerce, Division of Insurance, Appellee.
    No. 21977.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2002.
    Decided April 24, 2002.

      Brad P. Gordon of Fuller, Tellinghuisen, Gordon and Percy, P.C., Spearfish, attorneys for appellant.
    Naomi R. Cromwell, Division Counsel and Special Assistant Attorney General, and Robert C. Riter, Jr. of Riter, Mayer, Hofer, Wattier & Brown, Pierre, attorney for appellee.
    Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, amicus curiae.
   ACTION

MILLER, Retired Justice,

Acting By Appointment.

[¶ 1.] Homestake Mining Co. appeals from a declaratory judgment holding it was not entitled to reimbursement from the state’s Subsequent Injury Fund for certain workers’ compensation claims. We affirm and hold that SDCL 62-4-34.1 provided the applicable statute of limitations for Homestake to file its claims against the Fund and that a subsequent amendment of SDCL 62-4-34.7 could not revive Home-stake’s claims after the limitations period had expired and Homestake had failed to file its claims within that limitations period.

FACTS AND PROCEDURE

[¶ 2.] In the spring of 1999, when Homestake had pending workers’ compensation claims for three of its employees, it learned of the possible repeal of SDCL 62-4-34.1 setting the limitations period for filing claims against the state’s Subsequent Injury Fund. This statute required that claims against the Fund be filed with the South Dakota Division of Insurance within ninety days of either a final decision by the South Dakota Department of Labor that a compensable injury existed or approval by the Department of a settlement between the parties. (This statute was then repealed, effective July 1, 1999, by Session Law 1999, ch 262, § 3.). Although none of the three claims had been adjudicated or settled, on or before June 30, 1999 Home-stake filed all three claims with the Division of Insurance.

[¶ 3.] The Division dismissed the three claims as untimely because of their premature filing, since no final decision on their compensability or settlement had been made by the Department. (Subsequently, the claims were adjudicated or settlement approved on November 8, 1999, March 30, 2000, and October 3, 2000. However, Homestake filed no further claim against the Fund in regard to any of the three claims.).

[¶ 4.] Homestake appealed the Division’s denial of these three claims to the Department. The Fund filed a motion for dismissal based on the untimely filing pursuant to SDCL 62-4-34.1 which had been in effect prior to July 1, 1999, and claiming continuing effect of the former version of SDCL 62-4-34.7 (amended in 2001).

[¶ 5.] At a hearing before the Department, Homestake argued that the former version of SDCL 62-4-34.7, repealing the subsequent injury fund and applied retrospectively, violated its right to due process under the Fourteenth Amendment to the United States Constitution. The Department ruled that it did not have subject matter jurisdiction to consider the constitutional issue and ordered the claims dismissed as untimely filed.

[¶ 6.] Homestake appealed to the circuit court which ruled that the injuries, having occurred prior to repeal of SDCL 62-4-34.1, vested Homestake’s rights to make a claim against the Fund. The court further ruled that the provisions of the former SDCL 62-4-34.7 and 62-4-34.1 worked to unconstitutionally deprive Homestake of its right to file a claim for reimbursement from the Fund. Prior to entry of its order, the court learned that Homestake failed to provide written notice to the Department of its appeal as required by SDCL 1-26-81, which governs appeals from administrative agency decisions. The court dismissed on that basis and Homestake appealed the dismissal to this Court (docket # 21845).

[¶ 7.] Even prior to entry of the circuit court’s ruling in the administrative agency action, Homestake commenced the declaratory judgment action that underlies this appeal. Approximately one month later, it filed a motion for summary judgment asking the court to reiterate its prior ruling regarding its vested rights and the unconstitutional deprivation thereof. Fund filed a motion for a continuance, stating it had not had the opportunity to complete discovery. Following a telephonic hearing, the court granted the motion for continuance and instructed that Homestake’s motion for summary judgment would be considered at a later time.

[¶ 8.] Prior to consideration of the motion for summary judgment, Homestake became aware of additional legislative action in the 2001 Legislature (House Bill 1208) which it believed would revive the subsequent injury fund for injuries occurring before July 1, 2001. It amended its motion for summary judgment to add House Bill 1208 as additional legal grounds for a ruling in its favor. Fund objected, maintaining Homestake’s claims had not been timely filed. It argued that the claims were properly dismissed by the Division of Insurance, and that Homestake had failed to provide further timely notice of the claims against the Fund under the former SDCL 62-4-34.1 after the claims had been adjudicated or settlement approved.

[¶ 9.] The parties appeared before the circuit court on Homestake’s motion for summary judgment on April 3, 2001. The court reiterated its earlier ruling that Homestake had been unconstitutionally deprived of its vested rights by the former version of SDCL 62-4-34.7 in conjunction with 62-4-34.1. However, it agreed with Fund that Homestake had failed to make a timely claim of its subsequent injury fund claims following their adjudication or approval and it entered judgment April 12, 2001. Subsequently, Homestake withdrew its appeal with this Court from the administrative agency decision (docket # 21845). It then filed this appeal from the declaratory judgment on June 14, 2001.

[¶ 10.] On September 12, 2001, while this appeal was pending, Homestake filed a motion with the circuit court pursuant to SDCL 15-6-15(a) seeking leave to amend its complaint for declaratory judgment. The circuit court denied the motion for lack of jurisdiction.

[¶ 11.] Homestake appeals raising the following issues:

1. Whether application of SDCL 62-4-34.7, effective July 1, 2001, violates the prohibition against retroactive revival of Homestake’s claims against the Fund.
2. Whether Homestake has substantially complied with the notice requirements of former SDCL 62-4-34.1.
3. Whether the doctrine of equitable tolling is applicable.
4. Whether the circuit court abused its discretion when denying Home-stake’s motion to amend its complaint for declaratory judgment.

Upon proper motion to this Court, Dakota Truck Underwriters was granted permission to file an amicus curiae brief.

STANDARD OF REVIEW

[¶ 12.] This case turns on the application of the statute of limitations and interpretation of the effect of a statutory amendment, both questions of law. Questions of law are reviewed de novo with no deference given to the conclusions of law of the circuit court. South Dakota Subsequent Injury Fund, 1999 SD 159 at ¶ 7, 603 N.W.2d at 529 (citing Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539).

ANALYSIS AND DECISION

[¶ 13.] For reasons that will become obvious, we address Homestake’s issues in reverse order.

[¶ 14.] 1. Whether the circuit court abused its discretion when denying Homestake’s motion to amend its complaint for declaratory judgment.

[¶ 15.] Homestake asserts its right to amend its complaint under authority of SDCL 15 — 6—15(a), which provides:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has neither been placed upon the trial calendar, nor an order made setting a date for trial, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders, (emphasis added).

[¶ 16.] Homestake filed its motion to amend not only after the circuit court had entered its judgment, but also after it filed its appeal with this Court. It is settled law that after this appeal was filed, the circuit court lacked jurisdiction to consider Homestake’s motion. Cutler-Christians v. Christians, 2001 SD 104, ¶ 9, 633 N.W.2d 176, 178; Ryken v. Ryken, 440 N.W.2d 307, 308 (S.D.1989) (“An appeal from a judgment or order strips the trial court’s jurisdiction over the subject matter of the judgment or order except as to certain trivial matters; the Supreme Court then has jurisdiction until determination of the appeal.”); In re D.H., 354 N.W.2d 185, 192 (S.D.1984). Thus the circuit court properly denied the motion for lack of jurisdiction.

[¶ 17.] 2. Equitable tolling and substantial compliance.

[¶ 18.] Homestake’s issues regarding equitable tolling and substantial compliance were first raised in its motion to amend its complaint, discussed above. As such, they were not properly before the circuit court. We will not decide issues the circuit court has not had the opportunity to rule on. Klinker v. Beach, 1996 SD 56, ¶ 17 n. 3, 547 N.W.2d 572, 576 n. 3; Hawkins v. Peterson, 474 N.W.2d 90, 95 (S.D.1991); Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963) (applying the rule to review of declaratory judgment).

[¶ 19.] 3. Whether application of SDCL 62-4-34.7 effective July 1, 2001, violates the prohibition against retroactive revival of Home-stake’s claims against the Fund.

[¶ 20.] Although this issue was also part of Homestake’s motion to amend its complaint filed after this appeal was filed, it was first raised in Homestake’s amended motion for summary judgment when it asked the court to determine whether then-House Bill 1208 was applicable to its claims. As previously noted, see footnote 2 supra, House Bill 1208 was enacted into law as SDCL 62-4-34.7, effective July 1, 2001.

[¶ 21.] Under our workers’ compensation statutes, Homestake’s right to make these claims against the Fund vested at the time of the injuries. Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 19, 617 N.W.2d 151,156; Salmon v. Denhart Elevators, 72 S.D. 110, 118, 30 N.W.2d 644, 648 (1948).

Rights and obligations of an interested party under the Workmen’s Compensation Law become vested at the date of a compensable accident, unless death results. Until such time as an accident occurs the legislature may change the scale of weekly or other benefits, but to make such a change after the accident occurs would impair the obligations of contracts.

Id.; see South Dakota Subsequent Injury Fund, 1999 SD 159 at ¶ 14, 603 N.W.2d at 530 (observing that the South Dakota Subsequent Injury Fund was created under our workers’ compensation laws).

[¶ 22.] The law in effect at the time of the injuries was SDCL 62-4-34.1. It then provided:

Any claim against the subsequent injury fund shall be filed with the division of insurance within ninety days from the date of the final decision by the department that a compensable injury exists resulting in additional permanent partial or permanent total disability, or approval by the department of settlement between the parties. No claim may be filed prior to a decision or approval of settlement from' the department. The division shall conduct an investigation and make a decision on the claim within thirty days of the filing of a complete claim as set forth in § 62-4-34.4 or within a time agreed upon between the claimant and the department, (emphasis added).

There is no dispute the claims filed on or before June 30, 1999 by Homestake were filed prematurely. SDCL 62-4-34.1 employed the mandatory language “shall” and these claims were not adjudicated or settlement approved until November 8, 1999, March 30, 2000, and October 3, 2000. The statute expressly provided that “[n]o claim may be filed prior to a decision or approval of settlement from the department.” As previously noted, this statute was repealed, effective July 1, 1999. Homestake conceded to the circuit court that nothing precluded it from filing its claims against the Fund within the ninety-day period after they were adjudicated or settlement approved as SDCL 62-4-34.1 had required. However, Homestake insisted numerous times during the hearing that it did not file its claims within this time period because it believed filing would have merely been a “road exercise” since its premature claims had previously been denied.

[¶ 23.] During the 1999 legislative session, SDCL 6241-34.7 was enacted. It then provided:

Administration of the subsequent injury fund by the Division of Insurance and reimbursement of complete and valid claims shall continue until approved, denied, or settled. Any claim for reimbursement from the subsequent injury fund shall be filed by June 30, 1999. Only those claims timely filed with the division by June SO, 1999, pursuant to the requirements of § 62-⅛-3⅛.1 in effect prior to July 1, 1999, and completed by October 1, 1999, pursuant to the require ments set forth in § 62-⅛-3⅛4 in effect prior to July 1, 1999, shall be eligible for reimbursement from the subsequent injury fund. Any claim timely filed by June 30,1999, and completed by October 1, 1999, as set forth in this section, shall be approved or denied by the division pursuant to the requirements of §§ 62-4-34 to 62-4-36.3, inclusive, in effect prior to July 1, 1999. The division shall continue to make any necessary assessments pursuant to the requirements set forth in § 62-4-35 in effect prior to July 1, 1999, until all eligible claims completed as set forth in this section that are approved by the division or determined by the court to be eligible for reimbursement are paid, and until all matters in litigation concerning the subsequent injury fund are resolved. Any claim in matters being litigated concerning the subsequent injury fund is not eligible for interest or costs. Any remaining balance in the fund after all obligations of the fund have been satisfied shall be deposited in the general fund. Priority of payment shall be determined as of the date and time they are determined by the division to be complete and valid. No claim against the subsequent injury fund is vested until it is complete as set forth in this section. Any completed claim regardless of the date of injury or the date of notice of claim is subject to the two-thirds method of reimbursement pursuant to § 62-4-34 in effect prior to July 1,1999. (emphasis added).

Session Laws 1999, ch. 262, § 1. Clearly, repeal of SDCL 62-4-34.1 and promulgation of the above statute deprived Homestake of eligibility to claim reimbursement from the fund for injuries that were not “ripe” for filing prior to July 1, 1999, the effective date of these legislative actions.

[¶ 24.] The circuit court found that a constitutional due process violation occurred because, although no claim against the subsequent injury fund had yet accrued, Homestake’s rights to a remedy under applicable workers’ compensation law vested at the time of the injury. South Dakota Subsequent Injury Fund, 2002 SD 34 at ¶ 15, 641 N.W.2d at 656; Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395; Salmon, 72 S.D. at 118, 30 N.W.2d at 648. The court did not rule that SDCL 62-4-34.7 in its entirety was unconstitutional as to Homestake, but only that portion requiring claims to be filed by June 30, 1999 and completed by October 1, 1999. “ ‘Unconstitutional provisions of a statute may be extracted and the remainder left intact.’ ” SD Educ. Ass’n v. Barnett, 1998 SD 84, ¶ 32, 582 N.W.2d 386, 394 (quoting Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D.1985)).

[¶25.] When a law is found unconstitutional, it is void from its inception and the prior law remains in effect. “ ‘No law can be changed or repealed by a subsequent act which is void because unconstitutional.’ ” In re Certification of Questions (Knowles), 1996 SD 10, ¶88, 544 N.W.2d 183, 204 (superseded by statute on other grounds as stated in Peterson ex rel. Peterson v. Burns, 2001 SD 126, ¶ 37, 635 N.W.2d 556, 570) (quoting Frost v. Corp. Comm’n, 278 U.S. 515, 527, 49 S.Ct. 235, 240, 73 L.Ed. 483, 491 (1929)); Weegar v. Bakeberg, 527 N.W.2d 676, 678 (S.D.1995). Therefore, the requirements provided by SDCL 62-4-34.1, requiring Homestake to file its claims against the fund within ninety days of their adjudication or approval by the Department still applied. There is no dispute Homestake did not file its claims within this statutory period.

[¶ 26.] Homestake asserts that the 2001 amendment of SDCL 62-4-34.7 has retroactive effect and revives its claims. This statute provides:

Administration of the subsequent injury fund by the Division of Insurance and reimbursement of complete and valid claims shall continue until approved, denied, or settled. No claim for reimbursement from the subsequent injury jund may be filed based on a subsequent injury that occurs on or after July 1, 2001. Any claim for reimbursement filed as set forth in this section shall be approved or denied by the division pursuant to the requirements of §§ 62-1-31 to 62-1-36.3, inclusive, in effect prior to July 1, 1999. The division shall continue to make any necessary assessments pursuant to the requirements set forth in § 62-4-35 in effect prior to July 1, 1999, until all eligible claims completed as set forth in this section that are approved by the division or determined by the court to be eligible for reimbursement are paid, and until all matters in litigation concerning the subsequent injury fund are resolved. Any claim in matters being litigated concerning the subsequent injury fund is not .eligible for interest or costs. Any remaining balance in the fund after all obligations of the fund have been satisfied shall be deposited in the general fund. Priority of payment shall be determined as of the date and time they are determined by the division to be complete and valid. No claim against the subsequent injury fund is vested until it is complete as set forth in this section. Any completed claim regardless of the date of injury or the date of notice of claim is subject to the two-thirds method of reimbursement pursuant to § 62-4-34 in effect prior to July 1,1999. (emphasis added).

[¶ 27.] Homestake asked the circuit court to rule that on July 1, 2001, the date SDCL 62-4-34.7 was last amended, its statute of limitations period under 62-4-34.1 recommenced. However, this is not possible under the law stated by Weegar and its precedent that when a statute is declared unconstitutional, the prior law remains in effect. Id. at 678. The statute of limitations of SDCL 62^-34.1, as it was in effect at the time of the injuries, applied to Homestake’s claims. The limitations period commenced when the claims were either adjudicated or settlement approved by the Department and expired within ninety days of those dates. After that period expired and Homestake had done nothing to preserve its claims within that time, no action by the state legislature would revive these claims.

[¶ 28.] Moreover, “[statutes which affect substantive rights are not given retroactive effect.” State of Minnesota ex rel. Hove v. Doese, 501 N.W.2d 366, 369 (S.D.1993). The Hove Court cited West v. John Morrell & Co., 460 N.W.2d 745 (S.D. 1990) for this rule. In West, a workers’ compensation case, a 1980 amendment to a statute changed the triggering date for a cause of action, thereby allowing an argument that the limitations period had been enlarged. Essentially, on July 1, 1980, the employer, John Morrell & Co. became a respondent in a workers’ compensation claim that had previously expired under the statutes. This Court held that the amendment to SDCL 62-7-35 had a “definite effect upon John Morrell’s substantive rights in this case and cannot be retroactively applied under these facts.” Id. at 747.

[¶ 29.] A Florida court addressed this issue involving its state fund for subsequent injury compensation and held that a statutory amendment extending the filing period for a claim to the fund could not be applied retroactively to resurrect a claim that was “extinguished” when the limitations period in effect at the time the claim should have been filed had run. Special Disability Trust Fund v. Southern Bell Tel. & Tel. Co., 551 So.2d 575 (Fla.Dist.Ct.App.1989). The court stated:

‘The clear intent, and effect, is that the claim is barred ... it is dead and no further act by ANYONE can breathe life into the right to claim reimbursement as to those benefits.’
Florida recognizes the general principle that where a statute creates a right of action that did not exist at common law and attaches thereto a time limitation with no exceptions, the claim is forever barred if not asserted within the time limit.

Id. at 576 (emphasis in original) (citation omitted). Professor Larson has also stated this rule:

Finally, it may be noted that statutory amendments changing limitations periods are generally not applied retroactively, whether the effect of the change would be to improve or worsen the claimant’s position.

Larson’s Workers’ Compensation Law, § 126.13[5] (2000).

[¶ 30.] This is not a “hypertech-nicality” as Homestake argued to this Court, nor does it concern a notice provision, as Homestake insists on referring to it. This involves a statute of limitations period for filing a claim against the fund, as SDCL 62-4-34.4, in effect prior to July 1, 1999 but also repealed in the 1999 legislative session, then provided. “The general purpose of statutes of limitations is to limit, not extend claimants’ rights.” Peterson, 2001 SD 126 at ¶ 21, 635 N.W.2d at 564.

Amicus Curiae’s Jurisdictional Claim

[¶ 31.] The Court granted permission to Dakota Truck Underwriters (DTU) to file an amicus curiae brief with this Court. Rather than relying on the issues presented by the parties, its brief raised various issues and, among other things, argued that this Court lacks jurisdiction because the circuit court erred in granting a certificate under SDCL 15-6-54(b).

[¶32.] DTU’s assertion was the subject of a Motion to Strike Brief filed by Fund. We deferred ruling on the motion. We now reiterate our earlier holdings that it is improper for amicus to seek to widen the issues raised by the parties. Rapid City Educ. Ass’n v. Rapid City Sch. Dist. No. 51-k, 522 N.W.2d 494, 496 n. 5 (S.D.1994); Lyons v. Lederle Lab., 440 N.W.2d 769, 770 (S.D.1989). The issues raised in the amicus brief were not presented to the circuit court, therefore will not be considered in this appeal. However, jurisdictional deficiencies are addressed sua sponte, regardless of whether the parties raised the issue. Schmidt v. Royer, 1998 SD 5, ¶ 15, 574 N.W.2d 618, 622. We will address the issue of the 54(b) certificate, finding it to be a jurisdictional issue.

[¶ 33.] Our jurisdiction, as a reviewing court, is limited to review of final judgments or orders, interlocutory orders by discretion of this Court, certain original proceedings and determination of questions certified by federal courts. S.D. Const. Art. V, § 5; SDCL 15-26A-3; 15-25-1; 15-24A-1; 21-27-18.1.

[¶ 34.] DTU claims this action involves neither multiple parties nor claims, but only one claim with multiple theories and that the court abused its discretion in entering a judgment that included a 54(b) certificate. SDCL 15-6-54(b) provides:

When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and Labilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision- is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties, (emphasis added).

When multiple parties or claims are involved and a court determines issues involving only part of the claims or parties, the order or judgment lacks finality and is not appealable absent this express certification by the circuit court. Siefkes v. Watertown Title Co., 413 N.W.2d 377 (S.D.1987); Brasel v. City of Pierre, 87 S.D. 561, 211 N.W.2d 846 (1973).

[¶ 35.] Although judgment in this case is entitled “Partial Summary Judgment and Declaratory Judgment,” it is a final order addressing all of the issues raised before the circuit court and leaves no issues undetermined. The court gave Homestake every opportunity to explain at the hearing that-it was1 narrowing its issues in the summary judgment motion and that it desired the court to rule on' only two issues as compared with the multiple issues included in its complaint. In its bench decision at the close of the hearing the court declared that “[t]he question today although entitled Motion for Summary Judgment is actually a motion for partial summary judgment. I say that because during the course of the argument today counsel and the Court have narrowed the issues to be decided.” The court’s order declares “that this Summary Judgment shall serve as final Declaratory Judgment as regards the issues raised by the Motion for Partial Summary Judgment!.]”

[¶ 36.] The 54(b) certificate language was likely included in the judgment due to the multiple issues Homestake originally pled in its complaint for declaratory judgment and the fact that those issues were narrowed throughout the proceedings by its motion for summary judgment and discussions with the court at the hearing. However, even if not necessary because there appear to be no claims left to be addressed, the 54(b) language would be surplusage. Such surplusage does not deprive this Court of jurisdiction to consider an appeal from that judgment. Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 630, 245 N.W. 909 (I932).

[¶ 37.] We affirm.

[¶ 38.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and GORS, Acting Justice, concur.

[¶ 39.] SABERS, Justice, dissents.

[¶ 40.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, and being the trial judge in this case, did not participate.

[¶ 41.] MILLER, Retired Justice, Acting By Appointment, for AMUNDSON, Justice, disqualified.

SABERS, Justice

(dissenting).

[¶ 42.] I dissent.

[¶ 43.] Homestake has a vested right to pursue reimbursement from .Fund. As the majority opinion states in paragraph 21: “Under our workers’ compensation statutes, Homestake’s right to make these claims against the Fund vested at the time of the injuries.” Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 19, 617 N.W.2d 151, 156; Salmon v. Denhart Elevators, 72 S.D. 110, 118, 30 N.W.2d 644, 648 (1948).

Rights and obligations of an interested party under the Workmen’s Compensation Law become vested at the date of a compensable accident, unless death results. Until such time as an accident occurs the [Legislature may change the scale of weekly or other benefits, but to make such a change after the accident occurs would impair the obligations of contracts.

Id.

[¶ 44.] The majority opinion also cites to South Dakota Subsequent Injury Fund v. Homestake Mining Company, 1999 SD 159, 603 N.W.2d 527, in footnote one,’ which sets forth the purpose of Fund.

The SIF was created under South Dakota [workers’] compensation law for the purpose of encouraging employers to “hire or retain disabled or handicapped workers.” Those participating in the fund are éntitled to be reimbursed from SIF for that portion of the disability sustained by the previously injured employee that occurred because of or was aggravated by the existence of a previous injury or physical condition. The money within the fund comes from assessments made by the South Dakota Division of Insurance to [workers’] compensation insurance carriers and self-insured employers.

Id. at ¶ 14, 603 N.W.2d at 530 (internal citations omitted) (emphasis added).

[¶ 45.] Homestake’s rights against Fund vested before the Legislature’s attempted repeal of Fund in 1999. Home-stake submitted its claims to Fund prior to June 30, 1999, thus making Fund aware that it intended to preserve its rights to reimbursement. At all times, Fund knew of Homestake’s claims. It cannot claim ignorance or surprise at their existence. Simply stated, Fund can claim no harm as a result of allowing Homestake to pursue reimbursement for its vested workers’ compensation claims.

[¶ 46.] Moreover, the repeal of SDCL 62-4-34.1 during the 1999 Legislative Session and the 2001 enactment of SDCL 62-4-34.7 purported to bar Homestake from claiming reimbursement from Fund for its vested claims. By prohibiting Homestake from seeking reimbursement for vested claims, from a fund which Homestake paid into, the Legislature negated the very purpose of Fund, which is to encourage employers to hire or retain disabled or handicapped workers and reimburse the employers if the employees suffer work-related injuries.

[¶ 47.] The Legislature should not be permitted to arbitrarily eliminate statutes under which these vested claims were created. By condoning the Legislature’s actions, the majority opinion is allowing the Legislature to deprive Homestake of its own money.

[¶48.] At all times material herein, Fund was on notice of Homestake’s claims. Under Smith v. Neville, a unanimous opinion, Fund should be estopped from claiming otherwise. 539 N.W.2d 679 (S.D.1995). In Smith, a motorist, who was involved in a collision with a state snowplow, received a check from the state’s claims adjuster for property damage. Id. at 680-81. The motorist then filed suit, seeking damages for personal injuries. Id. The State moved for summary judgment alleging that the motorist failed to provide timely notice to the State. Id. This Court determined that the State’s actions, specifically the adjuster’s act of sending the motorist a check, “[would have caused] an objectively reasonable person to believe that the proper authorities of the State had received notice and that nothing else was necessary on the part of the private citizen to have his claim processed.” Id. at 682. Accordingly, the State and its employee were estopped from claiming a defense of failure to timely notify in order to “prevent manifest injustice.” Id. (citation omitted).

[¶ 49.] In this case, an objectively reasonable person would not only believe, but know, that Fund was on notice of Home-stake’s claims. In fact, it is undisputed that Fund knew. To prevent manifest injustice, Fund should be estopped from now claiming that Homestake’s vested claims are untimely. We should reverse and remand to the trial court to decide these claims on their merits. Anything short of that is robbing Homestake of its own money-

      . We stated a brief explanation of the Fund and its purpose in South Dakota Subsequent Injury Fund v. Homestake Mining Co., 1999 SD 159, 603 N.W.2d 527:
      The SIF was created under South Dakota worker's compensation law for the purpose of encouraging employers to 'hire or retain disabled or handicapped workers.' Sioux Falls School District v. South Dakota Subsequent Injury Fund, 504 N.W.2d 107, 107 (S.D.1993); Oesterreich v. Canton-Inwood Hospital, 511 N.W.2d 824, 827 (S.D.1994); Casualty Reciprocal Exchange, 1999 SD 2 at ¶ 14, 589 N.W.2d at 206; See generally 5 Larson, Worker’s Compensation Law, § 91 (1999). Those participating in the fund are entitled to be reimbursed from SIF for that portion of the disability sustained by the previously injured employee that occurred because of or was aggravated by the existence of a previous injury or physical condition. SDCL 62-4-34. The money within the fund comes from assessments made by the South Dakota Division of Insurance to worker’s compensation insurance carriers and self-insured employers. SDCL 62-4-35.

        Id. at ¶ 14, 603 N.W.2d at 530. See also South Dakota Subsequent Injury Fund v. Heritage Mutual Ins. Co., 2002 SD 34, ¶ 2, 641 N.W.2d 656.

      . House Bill 1208 laid the legislative groundwork for the amendment to SDCL 62-4-34.7 that became effective July 1, 2001.

      . This statute identified SDCL 62-4-34.1 as a statute of limitations and provided what must be filed to complete the claim:
      A claim is considered complete if it contains records, reports or any other evidence which shows the following:
      (1) The claim was filed with the appropriate agency within ninety days from the date a decision or approval of an agreement is obtained from the department;
      (2) The final decision or approved agreement from the department finding that the injury is a subsequent injury and is a compensable injury resulting in additional permanent partial or permanent total disability;
      (3) The total amount of compensation, medical and hospital expenses, paid to or on behalf of the employee by the employer if self insured, or the insurance carrier of an employer;
      (4) Reimbursement requested by specific amount, and the calculations which justify the amount requested;
      (5) Medical documentation specifically setting forth that the employee incurred any prior injury, compensable or noncompensable, which caused disability;
      (6) Medical documentation specifically setting forth the degree or percentage of disability attributable to any prior injury, and the reasons for arriving at those determinations;
      (7) medical documentation specifically setting forth that the employee incurred a compensable subsequent injury which caused additional permanent partial or permanent total disability;
      (8) Medical documentation specifically setting forth the degree or percentage of disability reasonably attributable to the subsequent injury standing alone, as if no other injury had occurred, and the reasons for arriving at those determinations;
      (9) Medical documentation specifically setting forth the degree or percentage of disability attributable to the combined injuries that also establishes that the disability attributable to the combined injuries is substantially greater than the disability attributable to the subsequent injury standing alone, as if no other injury had occurred, and the reasons for arriving at those determinations;
      (10) If the degree or percentage of disability attributable to the combined injuries is greater than the sum total of the degree total of the degree or percentage of disability attributable to any prior injury standing alone and the subsequent injury standing alone, supporting medical documentation, including vocational rehabilitative evaluations and reports, if applicable; and
      (11) Any other information deemed pertinent by the Division of Insurance during the course of its continuing investigation of the merits of a claim.
      An incomplete claim is considered filed if filed within the ninety-day statute of limitations established in § 62-4 — 34.1, but the thirty days for completion of the investigation of the claim does not begin to run until the claim is complete, (emphasis added).

      . In fact, the court's last comments, to the parties after providing its bench decision were: ''[t]hat’s a partial summary judgment. I don’t know if there are other issues left in this case or not frankly, but I presume you’ll tell me later if there are." Attorney for Homestake responded, "yes, sir;” attorney for Fund responded, "okay." Nothing more, except for the motion to amend Homestake's complaint which was filed after this appeal and dismissed, has been filed in this action that would give any indication that any issues were left pending. Homestake also filed a successful motion to supplement the record for appeal with copies of its June 25 and 29, 1999 letters to the Division of Insurance, making its premature claims regarding the three employees, and the Department of Labor’s order denying these claims.

      . In Western Bldg. Co., we explained:
      What is denominated the judgment in this case must be deemed, as a matter of law, one or the other of two things. It is either final judgment, in which evenfthe language seeking to retain further jurisdiction of the cause should be regarded as mere surplus-age and void and ineffective for any purpose, or it is not a judgment at all but merely an interlocutory order, in which event the record would have to be made and the appeal would have to progress in all respects as an appeal from an order and not as an appeal from a judgment. It is apparent in this case that issue was joined upon proper pleadings, and trial was had and final judgment could and should have been entered. We deem it proper under the circumstances of this case, therefore, to treat the determination and direction of the trial court, although purporting to be interlocutory in form, as the final judgment in the cause and to disregard as ineffective for any purpose the portion thereof purporting to retain further jurisdiction in the matter.

        Id. at 911.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 50
    STATE of South Dakota, Plaintiff and Appellee, v. Thomas HOLWAY and Ellie Holway, Defendants and Appellants.
    Nos. 22075, 22079.
    Supreme Court of South Dakota.
    Considered on Briefs March 25, 2002.
    Decided May 1, 2002.

      Mark W. Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellant Thomas Holway.
    Eric D. Whitcher, Rapid City, South Dakota, Attorney for defendant and appellant Ellie Holway.
   GILBERTSON, Chief Justice.

[¶ 1.] Thomas Holway and his ex-wife, Ellie Holway, were co-defendants tried together and convicted of three counts of delivery of drug paraphernalia in violation of SDCL 22-42A-4 and SDCL 22-3-3. The Holways allege a violation of procedural due process by claiming SDCL 22-42A-4 is unconstitutionally vague. Both defendants also appeal the sufficiency of the evidence as it relates to their intent to sell the smoking devices to contain, conceal or inhale a controlled substance, as well as their knowledge of the objects’ drug-related nature. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Thomas Holway is a co-owner of Video Blue, an adult bookstore in Rapid City, South Dakota. Ellie Holway is an employee at Video Blue. The Holways attended a trade show in Las Vegas and determined that it would be “very lucrative” to carry certain smoking devices for sale in the store. Thomas Holway contacted the Pennington County State’s Attorney, Glenn Brenner (Brenner), to determine if selling the devices would be legal. Brenner read the statute to him and informed him that if it could be proven that the devices could be used for smoking marijuana, law enforcement would be involved.

[¶ 3.] When Thomas contacted Brenner a second time and showed him a “sample” pipe, Brenner referred him to Todd Love, the drug prosecutor for the Attorney General’s Office. One of the Holways did contact Love with the same questions presented to Brenner. Love informed the Video Blue representative that it is illegal to deliver, or to possess with the intent to deliver, any drug paraphernalia. He also informed him that he would not be able to claim immunity based upon anything Brenner had said to them. Love explained that the State Attorney General’s Office could prosecute Video Blue’s owners and employees for drug violations even if the Pennington County State’s Attorney did not.

[¶ 4.] In April 2000, the devices were put out for sale in two display cases at Video Blue. The display cases contained various items used for smoking including: pipes, water pipes, bongs, wood dugouts, and carburetors. They also contained roach clips and pipes disguised to look like cigarette lighters, lipstick containers, and hi-liter felt tip markers. Each display case had a sign stating “All paraphernalia sales are only sold with the understanding that the purchaser has only legal intent for its use.” Yet, no cigarette or pipe tobacco was sold in the store.

[¶ 5.] On April 14, 2000, the South Dakota Division of Criminal Investigation (DCI) began investigating Video Blue based on allegations that drug paraphernalia was being sold there. Four officers were involved in the investigation: Deputy Sheriff Jeff Whittle (Whittle), Deputy Sheriff Martin Graves (Graves), Detective Dale McCabe (McCabe), and DCI Supervising Agent Robert Overturf (Overturf).

[¶ 6.] Whittle entered the store on April 14, 2000, and purchased a “one-hitter,” a small water pipe, and a wood “dugout” pipe from Ellie. Ellie gave him a free package of screens, which are commonly used to prevent a marijuana smoker from inhaling the seeds and stems. When Whittle made a comment about how a friend of his got caught selling items like these, Ellie pointed to the sign. Whittle mockingly replied that he, of course, had only legal intent. Ellie raised her hands and said, “Well, I don’t want to know about it.” She also acknowledged Whittle’s comment about a wood dug-out being an “old standard.”

[¶ 7.] Graves entered the store on April 18, 2000, and purchased a red bong and a metal pipe from Ellie. McCabe also entered the store on April 18. He purchased a school bus pipe and a blue hi-liter pipe from Ellie. McCabe asked Ellie if they made a pipe that looked like a police car. She replied “They would probably frown upon that.” McCabe also inquired whether he could get a discount. Ellie spoke with Thomas, who agreed to the discount. She also gave McCabe a free package of screens.

[¶ 8.] Thomas and Ellie were each charged with seven counts of delivery of drug paraphernalia in violation of SDCL 22-42A-4 and SDCL 22-3-3. The two were tried together before a jury on June 5-6, 2001. Thomas and Ellie were each convicted on three of the seven counts and sentenced to 90 days in jail on count I, and two years in prison on counts III and VII. The terms were to run consecutively, with execution of the prison sentences suspended. Both defendants appeal the following issues:

1. Whether SDCL 22-42A-4 is unconstitutionally vague and encourages arbitrary enforcement, thereby causing a violation of procedural due process.

2. Whether the evidence was sufficient to convict Thomas and Ellie Holway on counts I, III and VII of delivery of drug paraphernalia.

STANDARD OF REVIEW

[¶ 9.] First, whether the enforcement of SDCL 22^42A-4 amounts to a violation of procedural due process is a constitutional question reviewed by this Court de novo. City of Pierre v. Blackwell, 2001 SD 127, ¶ 7, 635 N.W.2d 581, 584 (citing Steinkruger v. Miller, 2000 SD 83, ¶ 8, 612 N.W.2d 591, 595).

[¶ 10.] Second, this case involves the statutory interpretation of the definition of “drug paraphernalia.” This interpretation is a question of law reviewed by this Court de novo. H & W Contracting, LLC v. City of Watertown, 2001 SD 107, ¶ 17, 633 N.W.2d 167, 173 (citation omitted).

[¶ 11.] Third, “[i]n determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (quoting State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421). Therefore, we must accept the most favorable inferences to be fairly drawn in favor of the verdict. State v. Charles, 2001 SD 67, ¶ 10, 628 N.W.2d 734, 737 (citation omitted). We will not reweigh or resolve conflicts in the evidence. State v. Karlen, 1999 SD 12, ¶ 49, 589 N.W.2d 594, 605. Nor will we pass on the credibility of the witnesses. Id. “No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” Buchholz, 1999 SD 110 at ¶ 33, 598 N.W.2d at 905 (quoting Knecht, 1997 SD 53 at ¶22, 563 N.W.2d at 421).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether SDCL 22-42A-4 is unconstitutionally vague and encourages arbitrary enforcement, thereby causing a violation of procedural due process.

[¶ 13.] The standard for determining whether a statute is unconstitutionally vague is whether it “give[s] a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” State v. McGill, 536 N.W.2d 89, 95 (S.D.1995). While a statute must define the crime with clarity and certainty, there is no bar to its broad application. Id. (citation omitted). Furthermore, a party challenging the constitutionality of a statute bears the burden of overcoming a strong presumption to the contrary. State v. Hoeft, 1999 SD 24, ¶ 15, 594 N.W.2d 323, 326.

There is a strong presumption that the laws enacted by the [Legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.

State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175 (quoting Sedlacek v. Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989)) (additional citations omitted).

[¶ 14.] The Holways claim that SDCL 22-42A-4 is unconstitutionally vague and encourages arbitrary enforcement. Specifically, they allege that the scienter requirement in SDCL 22-42A-1, the definitional section, “competes” with the scienter requirement in SDCL 22-42A-4, the penalty section. The Holways argue that, as a result of this “contradiction,” they did not have sufficient notice of what conduct is prohibited.

[¶ 15.] Notably, the Holways do not assert that the statute is overbroad, but only that it is unconstitutionally vague as applied to them. In essence, they claim that their right to procedural due process has been violated'. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 362, 369 (1982) (holding claimant cannot assert vagueness challenge as applied to others unless statute proscribes constitutionally protected conduct); People in the Interest of P.B., 339 N.W.2d 121, 123 (S.D.1983) (stating vagueness challenge, when First Amendment rights are not involved, is limited to the specific facts of the case). Therefore, we must determine whether the scienter requirements of the two sections, as applied to the facts of this case, actually conflict and, therefore, failed to give the Holways sufficient notice that selling certain smoking devices constitutes illegal delivery of drug paraphernalia.

[¶ 16.] The Holways assert that the language in SDCL 22-42A-4 “knowing the drug[-]related nature of the object” creates an objective classification of drug-related objects and, thereby, conflicts with the subjective intent requirement in SDCL 22-42A-1. In addition, the Holways claim that it has universally been held that all statutes penalizing the delivery of drug paraphernalia must be based upon the subjective intent of the possessor because no object is per se illegal. This, however, is only partially true.

[¶ 17.] While a drug paraphernalia statute may have a mens rea element to ensure “that those acting in good faith are not swept within a law’s broad or ambitious language,” it must also have an objective standard for determining what is drug paraphernalia. See Garner v. White, 726 F.2d 1274, 1278 (8thCir.l984) (rejecting constitutional challenge to Arkansas drug paraphernalia statutes) (citations omitted). This objective standard serves to avoid the very same arbitrary enforcement that the Holways complain of herein. The United States Supreme Court, in considering a federal statute defining drug paraphernalia as “ ‘any equipment, product, or material of any kind which is primarily intended or designed for use’ with illegal drugs” stated that the phrase “primarily intended” constitutes an objective standard for determining what is drug paraphernalia. Posters ’N’ Things, Ltd. v. United States, 511 U.S. 513, 517-18, 114 S.Ct. 1747, 1750, 128 L.Ed.2d 539, 547 (1994) (quoting 21 USC § 857(d)). The Supreme Court upheld that statute as giving sufficient notice as to what conduct is prohibited. Id. at 526, 114 S.Ct. at 1754, 128 L.Ed.2d at 552.

[¶ 18.] Likewise, the South Dakota statute provides “[t]he term ‘drug paraphernalia’ means any equipment, products and materials of any kind which are primarily used, intended for use or designed for use” with illegal drugs. SDCL 22-42A-1. While the South Dakota provisions may consider the knowledge and intent of the possessor, both provisions also have objective standards for determining what constitutes drug paraphernalia. Furthermore, as in Gamer, the South Dakota law “is virtually identical to the Model Drug Paraphernalia Act, which has now been upheld by this circuit ... and in every other circuit considering its constitutionality.” 726 F.2d at 1278-79 (citations omitted). The objective standard referred to by the language of SDCL 22-42A-4 does not conflict with the objective standard set forth in SDCL 22-42A-1. Nor does either of these standards conflict with the mens rea requirement.

[¶ 19.] The Holways further maintain that SDCL 22-42A-4 encourages arbitrary enforcement because different prosecutors may view the statutes differently. As explained above, the very standard in SDCL 22-42A-1 that the Holways complain is too objective is the same standard that prevents such arbitrary enforcement. See, e.g., Gen. Stores v. Bingaman, 695 F.2d 502 (10thCir.l982) (rejecting discriminatory enforcement challenge on basis that statute contained examples and relevant factors to provide sufficient guidance for authorities in applying the Act uniformly). All law enforcement requires some degree of judgment. A law is not rendered unconstitutionally vague merely because the decision of one official applying the factors is different from that of another official applying those same factors.

[¶ 20.] 2. Whether the evidence was sufficient to convict Thomas and Ellie Holway on counts I, III and VII of delivery of drug paraphernalia.

[¶ 21.] SDCL 22-42A-4 sets forth the elements for the crime of delivering drug paraphernalia:

No person, knowing the drug[-]related nature of the object, may deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to ... contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or marijuana in violation of this chapter. Any person who violates any provision of this section is guilty of a Class 6 felony.

The definition of drug paraphernalia is found at SDCL 22-42A-1:

The term “drug paraphernalia” means any equipment, products and materials of any kind which are primarily used, intended for use or designed for use by the person in possession of them, ... containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body any controlled substance or marijuana in violation of the provisions of this chapter. It includes, but is not limited to:
(10) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:
(a)Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
(e) Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
(f) Miniature cocaine spoons and cocaine vials;
(g) Chamber pipes;
(h) Carburetor pipes;
(i) Electric pipes;
(j) Air-driven pipes;
(k) Chillums;
(l) Bongs; and
(m) Ice pipes or chillers.

Therefore, to sustain a conviction, the State is required to prove that: (1) the defendant delivered or possessed with the intent to deliver an object; (2) that object is drug paraphernalia; (3) the defendant knew of the drug-related nature of the object; and (4) the defendant knew or reasonably should have known that the object would be used to introduce illegal drugs into the human body.

[¶ 22.] The Holways claim that they cannot be guilty because SDCL 22-42A-1 requires those in possession to intend the objects for drug use. They claim that because they did not intend the items for drug use and the undercover officers to whom they sold the objects did not intend or actually use them for drugs, the conviction cannot be sustained. We disagree. The statute identifies drug paraphernalia in the disjunctive. It includes objects “primarily used” for drug use, objects intended for drug use by the person in possession of them, or objects designed for drug use by the person in possession of them. The Holways cannot escape liability by pretending to ignore the most common use of such objects.

[If 23.] While the Holways claim that the objects could have been used to smoke tobacco, we agree with the trial court’s characterization of the items herein as being “primarily used” to introduce illegal drugs into the human body. The Holways also assert that they did not know of the objects’ drug-related nature. But the jury was justifiably incredulous. It is difficult to believe that those who chose to sell such items because they would be “very lucrative,” but who first made inquiries to the State’s Attorney and the Attorney General to determine how they could escape liability, did not have a clue as to the drug-related and illegal nature of such items.

[¶ 24.] Furthermore, liability in this case is not affected by the fact that one individual owned the store and supplied the objects while the other actually made the sales. SDCL 22-3-3 provides that those who intend to promote or facilitate a crime are to be held accountable as a principal to the crime. SDCL 22-42A-2 provides that a court, in determining whether an object is drug paraphernalia, may consider statements by the person in possession of the object, direct or circumstantial evidence of intent, national and local advertising concerning the object’s use, the manner in which the object is displayed, the existence or scope of legitimate uses, and expert testimony.

[¶ 25.] Ellie actually sold the items at issue. She gave both Whittle and McCabe the free packages of screens, which are commonly used for smoking marijuana, when they purchased the pipes. She indicated that she recognized a wood dug-out as being an “old standard.” Yet, an expert witness testified that it certainly is not an “old standard” for smoking tobacco. When Whittle commented on the possible illegality of selling the items, she pointed to the sign and informed him that she did not want to know about his supposedly “legal intent.” Her reply to McCabe’s question of whether she had any pipes shaped like police cars indicates that she knew law enforcement would “frown upon” having a pipe, used for smoking marijuana, designed in such a shape.

[¶ 26.] Thomas not only owned the store that the items were sold in, but he was also intricately involved in stocking the items for sale. His statements to Brenner are indicative of his knowledge that the items he wished to sell were legally questionable, at best. The fact that he approved the discount to McCabe indicates he supervised the sales of the items. There was evidence that he displayed the items at issue with many others specifically enumerated within SDCL 22-42A-l(10) as constituting drug paraphernalia. Copies of Cannabis Culture and High Times, magazines advocating drug use, show photographs advertising the very same objects.

[¶ 27.] The facts laid out above give sufficient reason for a jury to believe, beyond a reasonable doubt, that not only were the objects drug paraphernalia, but that Thomas and Ellie knew or reasonably should have known of the objects’ drug-related nature. Accepting, as we must, the evidence and the most favorable inferences to be drawn therefrom in favor of the verdict, we do not see that the judgment was in error. Therefore, we affirm the decision of the trial court.

[¶ 28.] SABERS, AMUNDSON and • KONENKAMP, Justices, and GORS, Acting Justice, concur.

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

      . Love was not sure whether he talked to Thomas Holway or Robert Holway, Thomas’ father and co-owner of Video Blue.

      . Thomas and Ellie Holway were convicted on count I for delivering a cigarette bat, count III for delivering a "dug-out” pipe, and on count VII for delivering a camouflaged hi-liter pipe.