author: ZINTER, Justice.

text:
    2003 SD 99
    CITIBANK (S.D.), N.A., Plaintiff and Appellant, v. Tonette L. HAUFF, Defendant, Third-Party Plaintiff and Appellee, v. David Hauff, Third-Party Defendant.
    No. 22664.
    Supreme Court of South Dakota.
    Argued May 29, 2003.
    Decided Aug. 13, 2003.

      Roberto A. Lange of Davenport, Evans, Hurwitz and Smith Sioux Falls, SD, for plaintiff and appellant.
    Robert Gusinsky of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, SD, for defendant, third-party plaintiff, and appel-lee.
   ZINTER, Justice.

[¶ 1.] While Tonette Hauff and David Hauff were married, Tonette applied for and received a Citibank credit card account. Although it was Tonette’s account, she authorized David to obtain a card and become an authorized user of her account. In preparation for their subsequent divorce, Tonette and David paid off the account. After the divorce, the credit cards expired, Tonette left the marital home, but Citibank sent renewal cards to Tonette at that home. Without telling Tonette, David fraudulently took possession of the new cards, he activated them through a telephone call with Citibank, and he made charges using the new cards. Citibank subsequently commenced an action against Tonette for the charges made by David with the new cards he activated. Tonette denied that she was liable, and she counterclaimed for intentional infliction of emotional distress and barratry. The circuit court granted Tonette’s motion for summary judgment against Citibank on the collection action. The court denied Citibank’s motion for summary judgment against Tonette on her counterclaim. Citibank appeals both rulings. We affirm the summary judgment against Citibank on its collection action, and we reverse the circuit court’s denial of summary judgment for Citibank on Tonette’s counterclaim.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Tonette applied for and obtained a credit card account from Citibank. Although it was Tonette’s account, she authorized her husband David to obtain an additional card and become an authorized user of the account.

[¶ 3.] In 1998, Tonette and David were in the process of getting a divorce. In preparation for the divorce, Tonette contacted Citibank to determine the amount required to pay off the account. Tonette and David subsequently obtained a home equity loan from Black Hills Federal Credit Union (BHFCU) to pay off three different credit cards, including the Citibank account.

[¶ 4.] The parties disagree whether the account was closed when the balance was paid from the proceeds of the home equity loan. Citibank contends that it did not receive a required written notice that To-nette wished to close the account. A BHFCU home equity loan checklist also failed to indicate that the credit union sent a written notice to close the account when the loan proceeds were advanced. However, Carolie Zacher, the BHFCU employee who handled the home equity loan, testified (by affidavit) that she may have sent a termination letter without indicating so on the checklist. Additionally, HaufPs’ other accounts were closed when BHFCU made the loan to pay off the accounts.

[¶ 5.] It also appears that prior to Citibank’s receipt of the payoff, Tonette told Citibank that she wanted the account closed. This occurred during a collection call Citibank made to Tonette. The parties agree that during the call, Tonette informed Citibank that the account would soon be paid off and that she wanted the account closed. Citibank, however, contends that its representative told Tonette that she would have to call a customer service number to close the account. To-nette testified (by affidavit) that she did not remember being told that she had to call customer service. Tonette testified that after this conversation and the payment from BHFCU, she believed that the account was closed. However, the account was not closed.

[¶ 6.] After the divorce, Tonette moved from the marital home, and David resided there. Although Tonette’s “account” was not closed, it is undisputed that on their face, the plastic credit cards expired in the fall of 1998. However, pursuant to a Citi- • bank internal procedure, it sent renewal cards to Tonette at the former marital residence. David opened Tonette’s letter, found the new cards, and Citibank permitted him to “activate” them by a telephone call. David subsequently made the charges at issue using the new cards. David did all of these acts without To-nette’s knowledge or permission.

[¶ 7.] Tonette first learned that her ex-husband made these charges in May 1999. When Citibank called Tonette to collect for the charges, Tonette informed Citibank that she and David were divorced, and that she thought the account had been closed in July 1998. Citibank immediately closed the account upon receiving Tonette’s information.

[¶ 8.] Tonette refused to pay Citibank for the charges made by David. Citibank eventually brought this collection action naming only Tonette as a party. Tonette filed a counterclaim alleging intentional infliction of emotional distress and barratry. Tonette also filed a third party complaint against David.

[¶ 9.] After substantial discovery, the circuit court granted Tonette’s motion for summary judgment on the collection action. The circuit court denied Citibank’s motion for summary judgment on To-nette’s. counterclaim for intentional infliction of emotional distress and barratry. The circuit court certified its decisions as final orders under SDCL 15-6-54(b). Citibank now appeals both decisions raising two issues, which we restate as follows:

1. Whether under the terms of the credit card agreement, an “account holder” is liable for charges made by an “authorized user” when the “account holder’s” authorized cards had expired on their face, and Citibank permitted the non-account holder to activate new renewal cards.
2. Whether Citibank was entitled to summary judgment on Tonette’s counterclaims for intentional infliction of emotional distress and barratry.

DECISION

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

In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Braun v. New Hope Township, 2002 SD 67, ¶ 8, 646 N.W.2d 737, 739 (quoting South Dakota State Cement Plant Comm’n v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01).

[¶ 11.] 1. Under the terms of the credit card agreement, an “authorized user,” who was not the “account holder,” was not entitled to activate newly issued renewal cards thereby subjecting the “account holder” to liability for subsequent unauthorized charges on the new cards.

[¶ 12.] A credit card contract is similar to an insurance contract in that it is negotiated and prepared exclusively by the issuer. “[Consequently, it should be construed narrowly against the creditor.... This rule blends two independent canons of construction: first, ... a contract is interpreted against its drafter and second, ... a contract of adhesion should be strictly construed.” Gray v. American Exp. Co., 743 F.2d 10, 18 (D.C.Cir.1984) (internal citations omitted). Consequently, in cases like this, where liability between a cardholder and the account holder is not clear, courts have construed the agreement strictly against the credit card issuer who drafted the agreement. Cleveland Trust Co. v. Snyder, 55 Ohio App.2d 168, 380 N.E.2d 354, 360 (1978).

We will not, however, “seek out a strained or unusual meaning for the benefit of [one party].” (citations omitted). We read and understand ... contracts “according to the natural and obvious import of the language, without resorting to subtle and forced construction or the purpose of either limiting or extending their operation.” (citations omitted).

Dakota, Minnesota & Eastern R.R. Corp. v. Heritage Mut. Ins. Co., 2002 SD 7, ¶ 11, 639 N.W.2d 513, 515-16 (quoting Farm and City Ins. v. Estate of Davis, 2001 SD 71, ¶ 6, 629 N.W.2d 586-87).

[¶ 13.] Applying these principles of construction, we believe that the terms of the Citibank agreement control the disposition of this dispute. In that agreement, Citibank created two separate and distinct classifications of users. That distinction is seen in the burdens and privileges given the “account holder,” but denied to a mere “authorized user” in the “Additional Cards” provision of the agreement. That provision allowed an account holder like Tonette to name another person as an authorized user of the card. However, the authorized user’s privileges were specifically limited to the right of access and use of “the card” and account. The agreement did not also make an authorized user an “account holder,” nor did it grant the authorized user any of the other rights that the owner of the account possessed. The Additional Cards provision simply provided:

You may request additional cards on your account for yourself or others and you may permit another person to have access to the card or account number. However, if you do, you must pay us for all charges made by those persons, including charges for which you may not have intended to be responsible. You must notify us to revoke permission for any person you previously authorized to use your account. If you tell us to revoke another person’s use of your account, we may close the account and issue a new card or cards with a different account number. You are responsible for the use of each card issued on your account according to the terms of this Agreement.

(emphasis added).

[¶ 14.] Thus, under the agreement, an “authorized user” was only given the privilege to access and use the account and card authorized by the account holder. Moreover, only the account holder was responsible for the account. This language does not suggest that non-account holders had contractual authority to exercise the account holder’s ownership right of authorizing the issuance of new cards. Therefore, we see no contractual authorization for a mere user to effectively exercise the account holder’s ownership right to authorize new renewal cards at a time when the only authorized cards had expired on their face.

[¶ 15.] This conclusion is supported by Citibank’s own testimony. Randy Neal, a Citibank representative, acknowledged the distinction between an account holder and an authorized user. He also conceded that an authorized user could not exercise all rights of the account holder. The owner’s reserved rights included such things as changing’the account’s “PIN” number or requesting a credit line increase: things usually associated with ownership rights.

[¶ 16.] Terry Ryning, another Citibank representative, specifically testified about the right to authorize new cards after expiration. He acknowledged that “[the agreement] does not say that” an authorized user can activate new renewal cards.

Attorney: Do you know where in this document it allows a secondary cardholder to reopen, open or activate a card?
Neal: Offhand I could — I would say I don’t know where specifically, if anywhere, it would say that or address that.

Instead, Neal indicated it was only Citibank’s internal procedures that allowed an authorized user to activate renewal cards after the only cards that the account holder had authorized had expired. Moreover, Neal conceded that the account holder was not notified of this internal procedure.

[¶ 17.] The trial court also focused on this absence of contractual authority for an authorized user to activate renewal cards when the only authorized cards had expired. The trial court specifically questioned whether there was any language in the agreement that authorized a mere user to activate a new card after the authorized card had expired:

Judge: Was there any representation that [Tonette] okayed the use of that card, the activation of the new card? Counsel: Certainly okayed the use of the account by David Hauff. The activation of new cards, no. That call was by David Hauff.
Judge: My question is I want some authority, if you can find some anywhere, first of all, just from Citibank, that a person not responsible for the debt, for the account, can activate cards. Is there anything in writing anywhere that you know of in Citibank’s records that allows that?
Counsel: Other than the additional cards and closing your account, I’m not aware of it.

(emphasis added).

[¶ 18.] Like the trial court, we find no authority in the agreement for a non-account holder, whose rights are limited to use of a validly issued card, to also possess the account ownership right to activate new cards at a time when the only authorized cards were expired. We reach that conclusion noting that a contract may consist of several writings and all writings must be read together to determine the terms of the agreement. See generally, Aamot v. Eneboe, 352 N.W.2d 647, 650 (S.D.1984). Therefore, the expiration language on the original cards was as much a part of the total agreement as the “Additional cards” provision. That expiration language, when coupled with the language distinguishing account holders from mere users, protected Tonette. It protected her because David was not authorized to in effect issue new cards by activating renewal cards on an account that only had expired cards outstanding.

[¶ 19.] We acknowledge Citibank’s argument- that the “card” may have expired for “internal purposes,” but under the written agreement, the “account” remained open. Nevertheless, as noted above, the entire agreement between the parties included the language on the card itself, and that language indicated that the only authorized card had expired. We hesitate to believe that David would have been able to make these charges with the expired cards, or that if he had, Tonette would have been liable for such charges. Therefore, even if Tonette did not comply with the technical requirements to close her “account,” the agreement, including the expiration language on the card itself, was sufficient to prevent David from circumventing use of his expired card.

[¶ 20.] We conclude that the language of a credit card contract, as a contract of adhesion, must be narrowly construed against the creditor as the drafter of the agreement. Gray v. American Exp. Co., 743 F.2d 10, 18 (D.C.Cir.1984). Here, there was no language in the agreement that explicitly or impliedly allowed an “authorized user” to activate newly issued renewal cards. Because David’s card had expired, and because Citibank allowed a non-account holder to activate renewal cards not authorized by Tonette or the agreement, the account holder was not hable for the subsequent unauthorized charges.

[¶21.] 2. Citibank was entitled to summary judgment on Tonette’s counterclaim for intentional infliction of emotional distress and bar-ratry.

[¶22.] The circuit court denied Citibank’s motion for summary judgment on Tonette’s counterclaim. The merits of the motion were not addressed by the court because it wanted to wait for our ruling on the validity of Citibank’s collection action. Nevertheless, the summary judgment facts were fully developed and submitted. Because the summary judgment record was fully developed, we consider whether that record supports Tonette’s counterclaim for intentional infliction of emotional distress or barratry.

Intentional Infliction Of Emotional Distress

[¶23.] A party must prove four elements to establish a claim for intentional infliction of emotional distress.

The tort is proved by establishing that the defendant (1) by extreme and outrageous conduct, (2) acted intentionally or recklessly to cause the plaintiff severe emotional distress, (3) which conduct in fact caused the plaintiff severe distress, and (4) the plaintiff suffered an extreme, disabling emotional response to the defendant’s conduct.

Harris v. Jefferson Partners, L.P., 2002 SD 132, ¶ 11, 653 N.W.2d 496, 500.

[¶ 24.] It is for the court to initially determine whether a party’s conduct may be reasonably regarded as so extreme and outrageous as to permit recovery. Id.; Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 429 (S.D. 1994). We have defined “extreme and outrageous conduct” as “conduct exceeding all bounds usually tolerated by decent society and which is of a nature especially calculated to cause, and does cause, mental distress of a very serious kind.” Richardson v. East River Elec. Power Coop., Inc., 531 N.W.2d 23, 27 (S.D.1995) (quoting Tibke v. McDougall, 479 N.W.2d 898, 907 (S.D.1992)).

For conduct to be “outrageous,” it must be so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Tibke, 479 N.W.2d at 907 (further citations omitted).

[¶ 25.] The conduct that Tonette relies upon to support her intentional infliction of emotional distress claim does not rise to this level: it only involves collection contacts reasonably made by collecting creditors. The first allegedly offensive contacts involved collection calls at To-nette’s place of employment after Tonette had retained an attorney who had written to Citibank. According to Tonette, the Citibank collection representative was a person named Sherry. After Sherry called Tonette, Tonette initiated a return call to Sherry to find out what progress had been made on collecting the account from David. Tonette argues that Citibank should not have contacted her after she retained counsel. However, the mere fact that the Citibank representative spoke with Tonette after Tonette had retained counsel does not support a claim for intentional infliction of emotional distress. We believe that as a matter of law, these particular contacts were not “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” M

[¶ 26.] Tonette also asserts that Citibank collection representatives yelled, made her feel like a criminal, and threatened garnishment. Although Tonette and her friends testified that Tonette was very upset by these collection calls, a reasonable person is expected to be able to withstand some extent of collection activity.

Extreme and outrageous conduct does not consist of mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must expect a certain amount of rough language and occasional inconsiderate or unkind acts.

SD Pattern Jury Instruction (civil) 145-06. See also Harris, 2002 SD 182, ¶ 11, 653 N.W.2d at 500.

[¶ 27.] Here, Tonette complains of conduct that is typical of collection activity found non-actionable. See generally Wade v. Ford Motor Credit Co., 455 F.Supp. 147, 151-52 (D.Mo.1978). Therefore, even accepting Tonette’s version of the collection calls, they were at the most, “indignities, threats, annoyances ... rough language and occasional acts that are definitely inconsiderate and unkind.” They were not, however, “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Tibke, 479 N.W.2d at 907.

[¶ 28.] Tonette finally argues that because the collection attempts continued for approximately two years, and because Citibank attempted to call her the day after her son passed away, Citibank’s conduct was extreme and outrageous. Tonette relies on Ruple v. Brooks, 352 N.W.2d 652 (S.D.1984).

[¶ 29.] The facts of this case are materially distinguishable from Brooks. In Brooks, the defendant’s conduct was much more egregious and unreasonable because Brooks acted with knowledge that the plaintiff had just suffered a traumatic event. Here, the only call to Tonette after her son’s death did not reach her. Moreover, Brooks did not involve collection calls, but a series of obscene phone calls. In fact, that defendant pled guilty to “two counts of using a telephone to call another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using any obscene or lewd language or by suggesting any lewd or lascivious act contrary to SDCL 49-31-31.” Id. at 653-54. Unlike Brooks, Citibank’s conduct did not involve criminal conduct. Citibank’s collection efforts were substantially different than the obscene phone calls in Brooks. The facts of this case are similar to those where we have found no intentional infliction of emotional distress.

Barratry

[¶ 30.] Civil barratry exists when a party brings a frivolous or malicious claim. SDCL 20-9-6.1 provides:

Barratry is the assertion of a frivolous or malicious claim or defense or the filing of any document with malice or in bad faith by a party in a civil action. Barratry constitutes a cause of action which may be asserted by filing a pleading in the same civil action in which the claim of barratry arises or in a subsequent action. A claim of barratry shall be determined in the same manner as any other substantive cause of action asserted in that civil action.

[¶ 31.] “A frivolous action exists when ‘the proponent can present no rational argument based on the evidence or law in support of the claim’.... To fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling.... [F]rivolousness ‘connotes an improper motive or [a] legal position so wholly without merit as to be ridiculous.’ ” Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶14, 619 N.W.2d 254, 259 (further citations omitted).

[¶32.] A malicious action is one brought for an improper, unjustifiable motive.

“[A]n action is malicious if it ‘is begun in malice, and without probable cause to believe it can succeed, and which finally ends in failure.’ ” ... Malice “exists when the proceedings are instituted primarily for an improper purpose.” An improper purpose occurs in situations where:
the plaintiff in the original action was actuated by any unjustifiable motive, as where he did not believe his claim would be held valid, or where his primary motive was hostility or ill will, or where his sole purpose was to deprive the defendant of a beneficial use of his property or to force a settlement having no relation to the merits of the claim.

Stratmeyer v. Engberg, 2002 SD 91, ¶ 20, 649 N.W.2d 921, 926 (further citations omitted).

[¶ 33.] Although we hold today that Citibank did not have a legal claim against Tonette, Citibank’s action was not frivolous or malicious. Citibank raised rational arguments based on the evidence and law in support of its claim. The discovery and briefing also reflect that the claim did not lack merit to the extent that no reasonable person could expect a favorable judicial ruling or that it was so wholly without merit as to be ridiculous. We finally see no evidence to support the notion that Citibank had an improper motive when it commenced its collection action against To-nette.

[¶ 34.] Consequently, we reverse the denial of Citibank’s motion for summary judgment on the intentional infliction of emotional distress and barratry claims. We affirm the summary judgment in favor of Tonette on the collection claim.

[¶ 35.] GILBERTSON, Chief Justice, KONENKAMP and MEIERHENRY, Justices, and JOHNS, Circuit Judge, concur.

[¶ 36.] JOHNS, Circuit Judge, sitting for SABERS, Justice, disqualified.

      . Tonette had not informed Citibank of a change in address.

      . The record reflects that Citibank unsuccessfully attempted to collect from David.

      . 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 liabilities 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.

      . The agreement resolves the dispute in favor of Tonette even assuming, as we must do on a motion for summary judgment, that Tonette did not successfully close her account.

      . "[Y]ou, your, and yours,” were defined as the account holder (rather than a mere user). The account holder was responsible for the account.

      . There is no prohibition on parties talking with one another even though they are represented by counsel. As stated in the comment to Code of Professional Conduct, Rule 4.2, "parties to a matter may communicate directly with each other.” SDCL ch. 16-18 (appendix at Rule 4.2, Comment). This may, however, be a violation of the Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692.

      . On several occasions, we have affirmed grants of summary judgment where the alleged conduct did not satisfy the "extreme and outrageous” standard. Harris, 2002 SD 132, ¶ 18, 653 N.W.2d at 501-02; Richardson, 531 N.W.2d at 27-29; Nelson v. WEB Water Dev. Ass’n, Inc., 507 N.W.2d 691, 699 (S.D.1993); Speck v. Federal Land Bank of Omaha, 494 N.W.2d 628, 633 (S.D.1993); Tibke, 479 N.W.2d at 907; Mackintosh v. Carter, 451 N.W.2d 285, 287 (S.D.1990); Groseth Int’l,

        Inc. v. Tenneco, Inc., 440 N.W.2d 276, 280 (S.D.1989).
      Furthermore, in the cases where we have reversed summary judgments because there was extreme and outrageous conduct, the facts were far more outrageous than those at issue here. See Reeves v. Reiman, 523 N.W.2d 78 (S.D.1994) (while plaintiff was nude and intoxicated, defendant walked her down the hall in front of classmates and placed her alongside another male known to have a sexually transmitted disease); Kjerstad, 517 N.W.2d 419 (employer used peep hole in restroom wall to view female employees using restroom); Ruane v. Murray, 380 N.W.2d 362 (S.D.1986) (landlord made sexual advances and subsequently harassed tenant whom he knew to have psychiatric problems); Brooks, 352 N.W.2d 652 (obscene phone calls were actionable where caller knew that plaintiff had recently endured traumatic experience at work including being fired).


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice

license: Public Domain

text:
    2003 SD 101
    In the Matter of the Petition for WRIT OF CERTIORARI AS TO the WRONGFUL PAYMENTS OF ATTORNEY FEES MADE BY the BROOKINGS SCHOOL DISTRICT SCHOOL BOARD without legal authority.
    No. 22496.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Decided Aug. 13, 2003.

      Thomas H. Harmon of Tieszen Law Office, Pierre, SD, for appellant School Board.
    Ellie M. Vandenberg, Volga, SD, for ap-pellee Taxpayers.
   ZINTER, Justice.

[¶ 1.] Craig Culver, Leon Pesall, Marcia Williams, Henry Williams, Robert Thorson, Hugh Barnett, Robert Schwartz and Diane Culver (Taxpayers) obtained a writ of certiorari setting aside a Brookings School. Board (Board) payment of legal fees. The Board had reimbursed two private citizens for the legal fees they incurred in their private legal action to overturn a decision of a school election recount board. The circuit court granted the writ, concluding that the Board’s reimbursement of private attorney fees was in excess of its authority. We hold that, under the spécifíc facts of this case, the Board was not authorized to reimburse the private legal fees. However, we reverse that part of the order that, in a certiorari proceeding, ordered the affirmative relief of requiring the Board to commence a legal action to recover the payment. We also reverse the circuit court’s award of Taxpayers’ attorney fees at trial because the Taxpayers’ application was not itemized. We grant Taxpayers’ itemized request for appellate attorney fees.

FACTS AND PROCEDURAL HISTORY

[¶2.] In 2001, the Board adopted a budget increase, which required that it “opt-out” of a statutory limitation on spending. See SDCL 10-13-36. The Board’s decision to opt-out of the spending limitation was subsequently referred to a public vote. Although the public initially voted to uphold the Board’s decision to opt-out of the spending limitation, a number of voters filed a petition for a recount. During the recount, it was discovered that 77 absentee ballots had not been properly “stamped,” and the school recount board invalidated those unstamped ballots. The invalidation of those ballots overturned the original election result and disallowed the Board’s proposed spending increase.

[¶ 3.] However, two private citizens, Aelred Kurtenbach and Craig Johnson (hereinafter referred to as Kurtenbach, Johnson, or private citizens) challenged the recount board’s decision by filing an election contest and a petition for writ of certiorari. Kurtenbach and Johnson alleged that the recount board had been illegally convened, and therefore, the recount board’s decision was a nullity. That dispute eventually reached this Court, and we agreed that the recount board was illegally constituted. Consequently, the decision of the recount board was overturned. This would have reinstated the original election result and permitted the Board to opt-out of the spending limitation. See In re the Petition for Writ of Certiorari as to the Determination of Election on the Brookings School District’s Decision to Raise Additional General Fund Property Tax Revenues in the Amount of $750,000, 2002 SD 85, 649 N.W.2d 581 (Brookings I).

[¶ 4.] This action for certiorari arose because, after the trial in Brookings I, the Board reimbursed the private citizens for the legal fees they incurred in overturning the decision of the recount board. The legal services were provided by Attorney Richard Helsper. Although Helsper was also the Board’s attorney, he appeared in Brookings I as counsel of record for the private citizens. This dispute arose because the Board subsequently voted to pay for the private citizens’ legal fees.

[¶ 5.] The facts relating to the legal services are undisputed. It appears from the record that the day after the recount, Helsper began researching the possibility of commencing an election contest and a certiorari proceeding. From the Friday following the recount until the following Tuesday when the private citizens’ action was filed, Helsper spent substantial time on this matter. During that period of time, Kurtenbach’s and Johnson’s names appear in Helsper’s billings, and the school superintendent “informed” the Board that the Board was going to pay the attorney fees incurred by Kurtenbach and Johnson. However, the Board did not act to approve the superintendent’s recommendation. Moreover, the record does not reflect that the Board agreed to participate in the litigation, employ Helsper to represent the Board’s interests in the litigation, or authorize anyone else to assert the Board’s interests. Consequently, the record reflects that Helsper appeared solely as counsel for Kurtenbach and Johnson in the Brookings I litigation.

[¶ 6.] However, after the Brookings I proceedings concluded in circuit court, the Board voted to pay the private citizens’ legal fees. At Board meetings in December of 2001 and January of 2002, the Board voted to pay $12,169.78 for the private citizens’ legal fees incurred in Brookings I.

[¶ 7.] Taxpayers subsequently filed this action for writ of certiorari seeking a review of the legality of the Board’s decision to pay the fees. The circuit court concluded that the Board did not have the authority to pay Kurtenbach’s and Johnson’s private attorney fees. The circuit court also ordered the Board to take the affirmative act of suing Kurtenbach and Johnson to recover the expenditure. The Board appeals raising numerous questions that we have consolidated into the first 3 issues. Taxpayers raise issue 4.

1. Whether the trial court erred in concluding that the Board had no express or implied authority to pay the legal fees of these private citizens.

2. Whether the trial court, in an action for certiorari, had jurisdiction to order the affirmative relief of requiring the Board to commence a suit to recover the payment.

3. Whether the trial court erred in awarding trial attorney fees that were not itemized.

4. Whether Taxpayers are entitled to their itemized attorney fee request in this appeal.

[¶ 8.] On Issue 1, we conclude that a school board has authority to pay legal fees to protect, its interests in litigation. However, this Board exceeded its authority when it paid the legal fees of private citizens incurred in litigation in which the Board was not a party, did not employ counsel, and did not elect to appear or assert its interests. On Issue 2, we reverse that portion of the order that required affirmative relief as a remedy in an action for certiorari. On Issue 3, we reverse the Taxpayers’ award of non-itemized attorney fees. On issue 4, we grant Taxpayers’ itemized request for appellate attorney’s fees.

SCOPE AND STANDARD OF REVIEW

[¶ 9.] In certiorari proceedings, the initial scope of review is limited to determining whether the inferior courts, officers, boards or tribunals had jurisdiction to take the action under review, and whether they properly utilized their authority. Our scope of review is also limited:

Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. “When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law.”

Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 6, 567 N.W.2d 880, 883 (internal citations omitted). Moreover, because the facts in this case are essentially undisputed, we are left with questions of law. We review questions of law de novo. Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568.

DECISION

1. The Board was not authorized to pay these private citizens’ legal fees.

[¶ 10.] The dispositive question is whether the Board had authority to pay a private citizen’s legal fees in an action where the Board was not a party, and it did not elect to assert an interest, employ counsel, or participate in the litigation. In considering that question, we start by noting that school boards are creatures of statute with limited powers. Therefore, a school board cannot exercise power unless it is expressly granted or necessarily implied by statute. Haas v. Independent Sch. Dist. No. 1 of Yankton, 69 S.D. 303, 306, 9 N.W.2d 707, 708 (1943). Although public bodies may exercise implied powers that are necessarily implied from statute, the implication

... should be clear and undoubted, and the party claiming through [it] should be able to point [it] out with certainty and precision.... Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of emergency — conclusions that, if possessed, it might be beneficially exercised, are very dangerous sources of corporate authority.... Implications spring from the necessities of some power actually conferred, and not from notions of what would be convenient or expedient under particular circumstances.

State ex rel. Bell v. Board of County Comm’rs of Beadle County, 68 S.D. 287, 241-242, 300 N.W. 832, 834 (1941) (internal citations omitted).

[¶ 11.] Here, the Board relies on two statutes as authority for its decision. The Board first notes that SDCL 13-5-1 grants school boards the power to “sue and be sued.” SDCL 13-5-1 provides:

Any territory organized for the express purpose of operating not less than a thirteen-year school program and governed by an elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.

Id. (emphasis added). The Board also notes that SDCL 13-8-39 grants school boards the power to “employ any necessary personnel” for the operation of the schools, which it contends should include attorneys.

[¶ 12.] We agree that these statutes provide general authority to employ counsel and expend funds for litigation involving a school board or litigation in which a school board may have an interest. We do not, however, believe they give a school board express or implied authority to gratuitously, after-the-fact, pay legal fees incurred by a private litigant when the Board was not a party or participant in the action, the Board had not employed the attorney to appear and represent the Board’s interests, and the Board had not authorized the litigants to represent the Board’s interests.

As provided and limited by law, the school board has general charge, direction and management of the schools of the district and control and care of all property belonging to it. The school board may levy taxes, borrow money, employ any necessary personnel, lease real and personal properly, carry liability and other insurance, or in lieu of insurance, make other arrangements, including entering into agreements with others, which agreements may create separate legal or administrative entities pursuant to chapter 1-24, to protect and assist the school board in meeting obligations arising from such acts or omissions for which the school board may be legally liable, purchase all necessary books and equipment, purchase real property and erect necessary buildings for the operation of such schools.

[¶ 13.] The statutory language compels this conclusion. Although SDCL 13-5-1 provides that a school board may “sue and be sued,” this Board did not sue, nor was it sued in Brookings I. Moreover, the Board did not appear or participate as an interve-nor or amicus curiae. Although the Board now claims that it possessed standing and therefore “could have” pursued the writ of certiorari in Brookings I, the Board did not in fact assert that claim of standing and appear in any capacity in the Brookings I litigation. Under those circumstances, the power to sue and be sued under SDCL 13-5-1 does not include the authority to reimburse a private citizen’s legal bills simply because some hypothetical claim of standing “may have” existed and the Board “could have” filed a lawsuit.

[¶ 14.] So also, although SDCL 13-8-39 authorizes a school board to employ necessary personnel (which includes counsel), this Board does not claim that it actually employed Helsper for the Brookings I litigation. Indeed, the record reflects that Helsper appeared solely for Kurtenbach and Johnson, and the Board’s only vote on the issue was to gratuitously reimburse those private citizens for their legal fees after the trial was concluded. Thus, absent some employment of counsel, SDCL 13-8-39 provides no express or implied authority to pay a private citizen’s legal fees.

[¶ 15.] We emphasize that our opinion today does not affect a school board’s general authority to hire an attorney or pay legal fees to assert a board interest in litigation, including litigation involving an opt-out of the spending limitation. While not binding on this Court, it is interesting to note that on two occasions the South Dakota Attorney General has opined that school districts may employ attorneys and pay legal fees with school district funds in contested election matters. See 1951 OpAtt’yGen 239 (employment of attorney to contest petition for formation of a school district) and 1965 OpAtt’yGen 75 (employment of attorney to prohibit the holding of a reorganization election). However, in both cases, the attorneys were working for the school boards rather than for private litigants. Therefore, while there are situations in which a school board may use school district funds to pay legal fees, those situations do not include cases where the board is not participating as a litigant, has not employed an attorney to represent its interests in the litigation, or has not authorized any other person to assert its interests. We simply hold that, under the facts of this case, the Board had no authority to gratuitously, after-the-fact, reimburse private litigants for their private legal expenses at the conclusion of litigation in which the Board never appeared or agreed to assert a Board interest.

[¶ 16.] The Board also asserts a procedural defense to the certiorari action. The Board argues that a writ of certiorari “does not lie to correct errors of law, but rather brings for review only the record of proceedings before the board.” The Board asserts that it acted within its statutory authority, and therefore, this Court should not review whether the Board complied with the technical aspects of the law. The Board cites three cases for this argument: Austin v. Eddy, 41 S.D. 640, 172 N.W. 517 (1919); State ex rel Woodcock v. Ghitty, 40 S.D. 164, 166 N.W. 633 (1918); and State ex rel Johnson v. PUC, 381 N.W.2d 226 (S.D.1986). However, these cases are inapplicable because even though the scope of review is limited under certio-rari, this case involves a situation where the Board exceeded its statutory authority. Therefore, certiorari was an appropriate remedy.

[¶ 17.] The Board next argues that the reimbursement was authorized by our decision in Agar Sch. Dist., 527 N.W.2d at 288-89. However, Agar did not address a school board’s express or implied statutory authority to reimburse a private litigant’s legal fees. The pertinent language of Agar only addressed claims of maintenance and champerty in a taxpayer’s suit that was initiated by a school board. In that context, we merely held that the defenses of maintenance and champerty did not bar a good-faith suit by taxpayers even if initiated by a school. We did not, however, address the propriety of gratuitous, after-the-fact financing of litigation in which the Board never employed counsel or asserted an interest.

[¶ 18.] The Board finally argues that the circuit court did not sign or file an actual writ of certiorari, but instead only “granted” the writ in a memorandum opinion. We conclude that this procedural omission does not warrant a reversal.

[¶ 19.] SDCL 21-81-3 and 21-31-6 provide that a writ must be directed to and served upon the inferior board. After the original writ is issued, the inferior tribunal must generally be given an opportunity to file a return, and after the parties have been heard, the judge may issue a judgment on the merits. SDCL 21-31-7.

[¶ 20.] In this case, it appears that the initial writ was not served upon the Board, and a formal return was not filed. However, it also appears that there were communications between the court and counsel concerning the timing of these procedural requirements in light of the fact that the Board had filed a motion to dismiss. Ultimately, both parties were given an opportunity to fully brief and present the merits of their case in the course of the circuit court’s consideration of the motion to dismiss. In fact, the stipulation of facts from the underlying election case was utilized. Therefore, even though the initial writ was not issued or served, and although the Board did not file a return, the court’s decision on the motion to dismiss addressed the substantive issues that are now involved in this appeal. We therefore find no prejudicial error as a result of the procedural omissions.

2. The trial court had no jurisdiction, in a certiorari proceeding, to affirmatively order a governmental entity to take legal action to recover funds expended without authority.

[¶ 21.] The Board argues that the trial court exceeded the proper scope of remedies available under certiorari when the court ordered the Board to take legal action against Kurtenbach and Johnson to recover the attorney fees. The order provided:

IT IS FURTHER ORDERED the School Board take whatever -actions necessary to recover the funds illegally given to Mr. Kurtenbach and Mr. Johnson. This would include if necessary, legal proceedings against those individuals. Such action to commence within thirty (30) days from the date of this writ.

[¶22.] As noted previously, certiorari only allows a court to address whether the inferior board, court, officer or tribunal exceeded its jurisdiction. SDCL 21-31-1. Moreover, Hamerly v. City of Lennox Board of Adjustment, 1998 SD 43, 578 N.W.2d 566, determined that generally, the remedies under certiorari do not include the power to order affirmative acts. In Hamerly, citizens of Lennox petitioned for a writ of certiorari after the city’s Board of Adjustment decided that the rebuilding of a burned structure did not violate the city’s zoning ordinance. The circuit court not only determined that the Board of Adjustment erred, but also affirmatively ordered the removal of the building. On appeal, we affirmed the trial court’s issuance of a writ, but reversed the circuit court’s affirmative order to remove the building. We held that in certiorari “the circuit court should have limited its judgment to a reversal of the Board’s final decision as illegal and in excess of its jurisdiction.” Id. at ¶ 14. That ruling was consistent with the statutory limitation on remedies in certiorari to “either affirming or annulling or modifying the proceedings below.” SDCL 21-31-7.

[¶ 23.] Consequently, we agree that the circuit court’s order to sue exceeded the scope of the remedies available under cer-tiorari. We reverse that part of the circuit court’s order that affirmatively ordered the Board to initiate a legal action within thirty days against Kurtenbach and Johnson for recovery of the fees.

3. The trial court erred in awarding attorney’s fees that were not itemized.

[¶ 24.] The Board argues that the circuit court erred in granting the Taxpayers’ request for their attorney’s fees incurred in the proceedings below. In ruling on a request for attorney’s fees, the trial court must enter findings of fact and conclusions of law, supporting its decision. Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 792 (further citations omitted). Moreover, although attorney’s fees are allowed in taxpayer actions under SDCL 15-17-45 and 15-17-46, these Taxpayers did not present evidence or an itemized statement supporting their claim. The record only reflects that the Taxpayers submitted a non-itemized request for $4991.25 in fees. In her brief, counsel for the Taxpayers asserts that “[t]his attorney’s word should be good enough.” However, as we recently reiterated in Hoffman, entitlement to attorney’s fees requires documentation in support of that request. Id. at ¶ 11. Because the Taxpayers failed to present documentation or an itemization to support their request, appellate review is precluded, and we reverse the award of fees incurred at trial.

4. Taxpayers are entitled to itemized appellate attorney’s fees.

[¶ 25.] Taxpayers have moved for appellate attorney’s fees. SDCL 15-26A-87.3 permits an award of appellate attorney’s fees if they are otherwise allowable and if they are accompanied by a verified, itemized statement of the legal services rendered. Taxpayers’ appellate request contains a sworn statement of the hours spent briefing this appeal. Moreover, the request is authorized under SDCL 15-17-45 and 15-17-46. Those statutes allow the recovery of attorney’s fees in the event of a recovery of an improper expenditure. However, those statutes also require that the fees must be recovered from the proceeds collected. Therefore, we grant the Taxpayers’ fee request of $2,369.60 to be collected from the proceeds should there be a recovery as a result of this action.

[¶ 26.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, concur.

[¶ 27.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 28.] I would reverse Issues 1, 2 and 3 and not reach Issue 4 because the taxpayers would not be the successful party.

[¶ 29.] Issue 1 is key to the case and where the majority opinion misses the mark.

[¶ 30.] SDCL 13-5-1 provides:

Any territory organized for the express purpose of operating not less than a thirteen-year school program and governed by an elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.

(emphasis supplied).

[¶ 31.] SDCL 13-8-39 provides in part:
[T]he school board has general charge, direction and management of the schools of the district and control and care of all property belonging to it. The school board may levy taxes, borrow money, employ any necessary personnel, lease real and personal property, ... purchase all necessary books and equipment, purchase real property and erect necessary buildings for the operation of such schools.

(emphasis supplied).

[¶ 32.] The majority opinion attempts to convince us that despite all these direct and express powers, the School Board does not have the express or implied power to defend its decision to opt out of spending limitations or did not cause Kur-tenbach and Johnson to bring this election contest for the School Board. Nonsense.

[¶ 33.] SDCL 12-22-3 may have caused the parties and the trial court to believe that the School Board could not bring an election contest because the statute provides in part that: “[s]uch contest may be instituted by any registered voter who was entitled to vote on a referred or submitted question!.]” A more accurate reading makes it obvious that any member of the School Board who was a registered voter could have brought such action.

[¶ 34.] In fact, that is very close to what actually happened. The Superintendent contacted the School Board’s attorney, Richard Helsper, who began working on the question. After a review of SDCL 12-22-3 and conversations with the Superintendent, Attorney Helsper became counsel for Kurtenbach and Johnson to initiate the election contest for the School Board. Any one of the School Board members could have done the same and the School Board could have paid the School- Board’s attorney to represent them. It clearly appears that Attorney Helsper was the School Board’s agent in causing Kurten-bach and Johnson to bring the election contest for the School Board.

[¶ 35.] In my view, SDCL 13-5-1 empowers the School Board “to sue and be sued, contract and be contracted with,” and SDCL 13-8-39 permits them to “employ any necessary people.” The School Board may do so expressly and directly, or as here, impliedly and indirectly.

[¶ 36.] The School Board is the elected representative of residents of the School District and has an obligation to defend its decision to opt out of spending limitations and can “employ any necessary personnel” to do so. See SDCL 13-8-39.

[¶ 37.] We should reverse on Issue 1 because the payment or ratification of attorney fees to Attorney Helsper was legal, even though indirect. We should also reverse Issues 2 and 3, in part for the reasons stated in the majority opinion. Finally, we need not reach Issue 4 because the taxpayers would not be the successful party-

[¶ 38.] KONENKAMP, Justice, joins this dissent.

      . SDCL 10-13-36 provides:
      The governing body of a taxing district may exceed the limit pursuant to § 10-13-35 through the imposition of an excess tax levy. The governing body of a taxing district may impose an excess tax levy with an affirmative two-thirds vote of the governing body on or before July fifteenth of the year prior to the year the taxes are payable. On any excess tax levy approved after July 1, 2002, the governing body of the taxing district shall specify in the resolution the year or number of years excess tax levy will be applied.
      The requirements for an announcement made pursuant to this section are as follows:
      (1) The decision of the governing body to originally impose or subsequently increase an excess tax levy shall be published within ten days of the decision;
      (2) Publication shall be made at least twice in the legal newspaper designated by the governing body pursuant to law, with no fewer than five days between publication dates, before the opt out takes effect;
      (3) The announcement shall be at least three newspaper columns in width and four inches in length or at least one-sixth of a page in size, whichever size is greater;
      (4) The announcement shall be headed with the following statement in a typeface no less than eighteen point type: "ATTENTION TAXPAYERS: NOTICE OF PROPERTY TAX INCREASE OF $(fill in amount).” The remainder of the announcement shall consist of a reproduction of the "Resolution for Opt Out,” in-eluding the amount that property taxes will be increased annually by the proposed opt out and a statement of the right to refer the decision of the board to a vote of the people as provided in this section. The secretary of revenue and regulation, in rules promulgated pursuant to chapter 1-26, shall prescribe a uniform form to be used by the taxing district for notification of taxpayers as required by this section.
      However, the requirements of subdivisions (3) and (4) shall be waived if:
      (A) The opt out is for less than fifteen thousand dollars; or
      (B) A copy of the resolution for opt out is mailed to every property taxpayer in the local governmental unit, by first class mail or bulk mail, within twenty days of the decision to opt out; and
      (C) A copy of the resolution for opt out is printed in each official newspaper in the local governmental unit’s boundaries.
      For the purposes of subsections (A), (B), and (C), the first publication is not deemed to have occurred until three days after the mailing is sent or the resolution is delivered to the official newspaper.
      The opt out decision may be referred to a vote of the people upon a petition signed by at least five percent of the registered voters in the taxing district and filed with the respective governing body within twenty days of the first publication of the decision. The referendum election shall be held on or before October first preceding the year the taxes are payable. The taxing districts may not exceed the levy limits provided in chapter 10-12 except for the provisions in § 10-12-36.

      . We have rephrased the Board’s issues. To the extent that some of their technical arguments are omitted from this opinion, we find those arguments either without merit or not affecting the outcome of this appeal.

      . A board of education is the type of subordinate governmental agency that is subject to statutory limitations on its power and authority. Sunnywood Common Sch. Dist. No. 46 of Minnehaha County v. County Bd. of Educ. of Minnehaha County, 81 S.D. 110, 118, 131 N.W.2d 105, 110 (S.D.1964).

      . SDCL 13-8-39 provides:

        .See generally Agar Sch. Dist. # 58-1 Bd. of Educ., Agar, SD v. McGee, 527 N.W.2d 282 (SD 1995).

      . The Board also argues that even though the initial decision to pay Helsper’s fees was made by the superintendent without action by the Board, the employment decision was "ratified” by the Board when it subsequently voted to pay the private citizens' fees at two school board meetings. However, ratification of a contract presupposes that the Board had the authority to make the contract in the first place. As we noted in Stroh v. Town of Java, 463 N.W.2d 923, 925 (S.D.1990), a governmental subdivision cannot indirectly ratify a contract if the governmental subdivision did not have the authority to make the contract directly. So also, in Stockwell v. City of Sioux Falls, 68 S.D. 157, 159, 299 N.W. 453, 454 (1941), we noted that a governmental subdivision may authorize by ratification, but only where the underlying act is within the general corporate powers of the governmental subdivision. Here, the Board never elected to assert its interest in Brookings I and therefore, it had no underlying authority to employ Hel-sper to represent the private interests of citizens in that litigation. Moreover, the minutes of official board action do not reflect Board ratification of a decision to employ counsel. Rather, the Board minutes simply reflect a Board decision to pay the private citizen's legal fees together with all of the regular bills submitted for consideration at those meetings. Therefore the Board's ratification argument fails.

      . SDCL 21-31-3 provides:
      The writ of certiorari may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified.
      SDCL 21-31-6 provides:
      The writ of certiorari must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court.

      . SDCL 21-31-7 provides:
      If the return of the writ of certiorari be defective the court may order a further return to be made. When a full return has been made the court must hear the parties, or such of them as may attend for that purpose, and may thereupon, give judgment either affirming or annulling or modifying the proceedings below.

      . SDCL 15-17-45 provides:
      A circuit court, in the event of a recovery by plaintiff, may award a reasonable sum to reimburse the plaintiff for expenses, including attorneys' fees, in an action brought by a taxpayer on behalf of himself and other taxpayers similarly situated, to recover into the treasury of the state, school district, city, county or other government entity, funds wrongfully expended, misappropriated or misapplied by a governing body or public official.
      SDCL 15-17-46 provides:
      The plaintiff in an action referred to in § 15-17-45 shall acquire a lien for the amount awarded by the court against any judgment that may be recovered in the action. Satisfaction of the lien shall be made from the proceeds collected on the judgment and may not be claimed against the governmental entity.


author: MEIERHENRY, Justice

text:
    2003 SD 100
    Neil E. COLLINS and Sharon K. Collins, Plaintiffs and Appellants, v. James BARKER, Defendant and Appellee.
    No. 22524.
    Supreme Court of South Dakota.
    Considered on Briefs March 24, 2003.
    Decided Aug. 13, 2003.

      Kenneth E. Barker, John W. Burke of Barker, Wilson, Reynolds & Burke, Belle Fourche, South Dakota, Attorneys for plaintiffs and appellants.
    Gregory J. Erlandson of Bangs, MeCul-len, Butler, Foye <& Simmons, Rapid City, South Dakota, Attorneys for defendant and appellee.
   MEIERHENRY, Justice

[¶ 1.] Neil E. Collins and Sharon K. Collins (Collins) brought an action against James Barker (Barker) claiming that weeds from his adjacent land blew onto their property causing damage to their fences, water supply and tree belt. Collins’ claim was based on theories of negligence, nuisance and trespass. The trial court ruled in favor of Barker. Collins appeal. We reverse.

Facts

[¶2.] Collins own a 160-acre farm in Butte County, South Dakota. The farm is surrounded on all sides by Barker’s property. The Collins reside on the property and raise horses for commercial purposes. Since their purchase of the property in 1989, they made numerous improvements to the land by landscaping, repairing buildings, building fences, and completing a water delivery system.

[¶ 3.] Barker, an absentee landlord, lived in California until 1993 when he moved to a residence between Spearfish and Belle Fourche, South Dakota. Barker usually checked the land twice a year leaving the land maintenance and care to the tenant who rented the land. Barker placed a portion of the land in the Conservation Reserve Program (CRP). The portion in CRP was directly up-wind from the Collins’ property. In 1992 and again in 1998 weeds traveled from Barker’s land to the Collins’ property.

[¶ 4.] In 1992, the weeds blew onto Collins’ property in such large quantities that they completely filled the tree rows and fences. The weeds also accumulated on the dugout and dams from which Collins got their water supply. The decay and fermentation of the weeds rendered the water unfit for livestock or domestic use. As a result of the water contamination, Collins had to haul water for all their needs.

[¶ 5.] In 1998, a second weed infestation again filled up Collins’ tree rows, fences, dams and dugout. Barker indicated he did nothing to control the weeds prior to 1998 but believed he had complied with the CRP requirements. Barker sprayed for weeds in the spring of 1998 but was unsuccessful in curbing the growth. Collins complained about Barker’s large weed infestation to the federal agency administering the CRP program. In October of 1998, the agency notified Barker by letter that his CRP acres “were badly infested with weeds which [were] blowing into the fences and ponds to the east.” The agency advised him that he was responsible for controlling the weeds under the CRP contract and regulations. The agency also required him to take care of the weeds that already had blown onto Collins’ property.

[¶ 6.] After receiving the letter, Barker and his cousin removed, stacked and compacted the weeds which had accumulated along a portion of Collins’ fence. Before Barker finished, he was forced to stop because of strong winds. Barker did nothing further with the stacked weeds until months later. Collins claimed most of the weeds blew back onto their property.

[¶ 7.] Collins also contacted the Butte County Weed and Pest Control Board whose function is to identify noxious weeds growing in the county and enforce their eradication. The weed board supervisor identified all of the weeds as kochia. Koc-hia was not classified as a noxious weed on the state or county list of noxious weeds.

[¶ 8.] Collins brought an action for nuisance, trespass, and negligence against Barker. The matter was tried to the court. The trial court determined that a landowner has no duty to control non-noxious weeds. The trial court conclusions of law stated:

1. There is “no common-law duty on a property owner to destroy noxious weeds on his land which are the natural outgrowth of the soil.” (citation omitted)
2. South Dakota has established a statutory scheme (S.D.C.L. ch. 38-22) (“Weed Act”) which modified the common-law and establishes a duty on landowners to control certain designated “noxious” weeds.
3. South Dakota’s Weed Act governs Collins’ negligence, nuisance, and trespass claims. As such, weed cases are controlled by the noxious weed statutes and there is no “statutory or regulatory scheme or case law which requires a farmer to control” a weed that has not been “declared by legislative action to be noxious.” (citation omitted)
4. There is no authority imposing a general duty on farmers to control weeds, (citation omitted). However, once a farmer attempts to remedy a weed problem, he must use ordinary care and can be liable for an independent act of negligence if his methods are unreasonable.
5. A ruling in favor of Collins on any of their claims based upon non-noxious weeds would be an impermissible judicial expansion of the Weed Act.

The trial court in its findings of fact found that Barker had used reasonable efforts and exercised ordinary care in his efforts to control the weeds. The court ruled in favor of Barker on all claims. Collins appeals the nuisance claim raising the following issue on appeal:

Whether, under the facts of this case, Collins can maintain a claim against Barker based on a nuisance theory for damage to their water source and property caused by Barker’s actions and conduct concerning non-noxious weeds originating from his property.

STANDARD OF REVIEW

[¶ 9.] A trial court’s conclusions of law are reviewed de novo. Hofeldt v. Mehling, 2003 SD 25, ¶ 9, 658 N.W.2d 783, 786 (citations omitted). “The determination of whether a duty exists is a question of law for the court.” Gilbert v. United Nat. Bank, 436 N.W.2d 23, 27 (S.D.1989). Similarly, “the construction of a statute and its application to the case at hand presents a question of law....” Shevling v. Butte County Bd. of Com’rs, 1999 SD 88, ¶ 12, 596 N.W.2d 728, 730. “The existence of a duty and the scope of that duty are questions of law for a court to decide.” Garrett v. BankWest, Inc., 459 N.W.2d 833, 839 (S.D.1990) (citing Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985); Erickson v. Lavielle, 368 N.W.2d 624, 627 (S.D.1985)). Thus, we may review the trial court’s conclusion de novo.

DECISION

[¶ 10.] In determining whether a landowner has a duty to control non-noxious weeds, the trial court relied on the South Dakota Weed Act (SDCL 38-22). The trial court concluded that under common law, a landowner has no duty to control the natural spread of weeds from the landowner’s property to neighboring property. The trial court concluded that the weed act modified the common law by imposing a statutory duty which requires landowners to control noxious weeds growing on their land. Collins asserts a landowner has a duty to control non-noxious weeds, i.e. koc-hia and may be held liable under a common law and statutory nuisance theory. We agree.

[¶ 11.] The South Dakota Weed Act defines when weeds become a public nuisance. SDCL 38-22-16. Under the act, only noxious weeds constitute a public nuisance. The act requires the landowner to eradicate noxious weeds. If the landowner fails to do so, the county weed board may proceed at the landowner’s expense. SDCL 38-22-23.14. Nothing in the weed act forecloses Collins from bringing a private nuisance action for damages caused by a landowner’s failure to control non-noxious weeds.

[¶ 12.] In Johnson v. Drysdale, this Court considered whether a nuisance “includes consequences arising from the otherwise lawful use of property.” 66 S.D. 436, 285 N.W. 301, 302 (1939). Although this 1939 case dealt with the issue of whether a horse barn in the middle of a residential area could be considered a nuisance, the underlying principles are still the same and are based upon a rule of reason.

Through the operation of this rule of reason, not only is a balance maintained between the right to the enjoyment of property on the one hand and the right to use property on the other, ... It is in the field of unreasonable use that the law of nuisance is operative.

Id. at 304.

[¶ 13.] The North Dakota Supreme Court, in a case which dealt with the right to bring a private nuisance claim against a farmer for the spread of weeds onto neighboring land, held that “there is a duty to use ordinary care when attempting to control or remove weeds.” Kukowski v. Simonson Farm, Inc., 507 N.W.2d 68, 70 (N.D.1993). The court stated that the landowner’s duty of care in controlling weeds is “the care an ordinary, prudent, and careful person would use in similar circumstances.” Id. at 70. Further, the court noted: “Our decision does not create a new duty for farmers to control the spread of weeds. It recognizes farmers must exercise ordinary care when actively working the land.” Id. at 70 (citations omitted).

[¶ 14.] Although landowners may not be hable for the “natural” spread of weeds to their neighbor’s property at common law, the allegations against Barker go far beyond what would be considered a “natural” proliferation of weeds. Under the law of nuisance, landowners have a duty to exercise ordinary care. The duty of care is that which an ordinary, prudent, and careful landowner would use in similar circumstances taking into consideration generally accepted agricultural and management practices.

[¶ 15.] The duty to use ordinary care to prevent the spread of non-noxious weeds only applies to weeds that grow or spread for reasons other than the natural condition of the land. As the North Dakota Supreme Court recognized:

[A] nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.

Id. at 70. (further citations omitted). This rule is in accord with the general Restatement rule that “a possessor of land is not hable to persons outside the land for a nuisance resulting solely from a natural condition of the land.” Restatement (Second) of Torts § 840(1) (1979). The term “natural condition” of land, as it applies to weeds, means:

[A] condition that is not in any way the result of human activity. The term comprehends soil that has not been cultivated, graded or otherwise disturbed; ... weeds and other vegetation on land that has not been made artificially receptive to it by act of man;.... The term does not comprehend conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces. Thus ... vegetation that grows on land only because it has been plowed is not a natural condition although it has not been planted or cultivated by anyone.

Id., cmt. a.

[¶ 16.] Barker does have a duty to conduct his farming practice as it relates to weed control in a manner that does not create a nuisance. Consequently, a claim for nuisance may be brought under statutory or common law nuisance theories. A statutory claim for nuisance arises under SDCL 21-10-1. The statutory definition of nuisance is as follows:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes . with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property.

SDCL 21-10-1.

[¶ 17.] A common law theory of nuisance may also apply. The elements of a common law private nuisance are set out in the Restatement (Second) of Torts § 822 (1979) and recognized by this Court in Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, 557 N.W.2d 748. Conduct which gives rise to liability for a private nuisance under a common law theory is as follows:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Restatement (Second) of Torts § 822 (1979). The conduct making an actor liable “may consist of (a) an act; or (b) failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate ... the invasion of the private interest.” Restatement (Second) of Torts § 824 (1979). An actor’s invasion is considered “intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.” Restatement (Second) of Torts § 825 (1979).

[¶ 18.] We have concluded that the trial court erred in its conclusions of law (1) that a property owner has no common law or statutory duty to control non-noxious weeds and (2) a claim only arises once a farmer attempts to remedy a weed problem and fails to use ordinary care. The trial court had not considered Barker’s duty under a statutory or common law nuisance theory which contains a duty to prevent the invasion of another’s private interest in the use and enjoyment of land. Normally, the ultimate facts found by the trial court are the ultimate facts which correspond to the issues raised by the pleadings. The pleadings set forth the cause of action and the elements making up that cause of action. Bothell v. Hoellwarth, 10 S.D. 491, 74 N.W. 231, 232 (S.D.1898).

It requires a statement of the ultimate facts responsive to the issues arising upon the pleadings, — a finding upon each material issue of fact involved in the action. Simple as the rule seems to be, its application to particular cases frequently causes great perplexity. In many instances it is extremely difficult to determine what are “ultimate facts,” as distinguished from evidence, on the one hand, and conclusions of law, on the other. Usually, the court’s findings should substantially conform to the allegations of the pleadings, but they are not always stated with accuracy and precision. The court should determine what material ultimate facts are at issue, and make its findings thereon, guided by the same considerations which would control it in framing special interrogatories for a jury. Statements which would be sufficient in a special verdict are sufficient when made by the court.

McKenna v. Whittaker, 9 S.D. 442, 69 N.W. 587, 588 (1896) (internal citations omitted).

[¶ 19.] Had the trial court applied the correct law to plaintiffs’ nuisance claim, the court would have considered the evidence as it supported the elements of proof of a claim for nuisance. The trial court, however, rejected the nuisance claim finding that no duty existed. The trial court in its conclusions of law only recognized a legal claim based on the following theory as stated in the trial court’s conclusion of law number 6:

There is no authority imposing a general duty on farmers to control weeds, (citation omitted). However, once a farmer attempts to remedy a weed problem, he must use ordinary care and can be liable for an independent act of negligence if his methods are unreasonable.

The trial court’s ultimate facts would necessarily be in reference to the court’s theory of liability and would only have incorporated Barker’s conduct in attempting to remedy the weeds once they became a problem. Since the trial court did not consider the nuisance claim, it necessarily follows that the ultimate facts did not correspond to the elements of a nuisance claim.

[¶ 20.] We have stated the findings of fact must support conclusions of law. Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984) (citing Knodel v. Bd. of County Comrs., Etc., 269 N.W.2d 386, 390 (S.D.1978)) (citations omitted). We have also said that “failure to make certain findings requires reversal.” Jasper, 351 N.W.2d at 117. The findings of fact are probably not clearly erroneous as they relate to Barker’s 1998 efforts to control the weeds once they became a problem.

[¶ 21.] A claim of nuisance, as this Court has now defined, was not addressed by the trial court. Therefore, on remand the circuit court must determine whether the initial 1998 infestation of Collins’ land — as opposed to the duty to control the infestation once it developed— resulted from Barker’s farming, cultivation, or other activities under the foregoing rules. It should, however, be reiterated that this “decision does not create a new duty for farmers to control the spread of weeds. It [simply] recognizes farmers must exercise ordinary care when actively working the land.” Kukowski, 507 N.W.2d at 70.

[¶ 22.] We reverse and remand to allow Collins to proceed with their claim for nuisance as set forth in this opinion.

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

      . Kochia is an annual plant, reproducing by seed. It is a common drought-resistant weed growing in fields, rangeland, pastures, and disturbed sites. In the fall, stems often break from the root, tumbling with the wind to scatter large amounts of seed. The plant is one to seven feet in height with highly branched, light green stems. South Dakota Department of Agriculture, South Dakota Weeds 78 (rev. ed.2002).

      .The trial court made the following findings of fact:
      1. Barker made reasonable efforts and exercised ordinary care when he actively worked his land in an effort to control the non-noxious weeds on his lands.
      2. There is no "standard” method of controlling weeds and almost every weed management situation is different.
      3. Barker, in controlling his non-noxious weeds, relied upon and substantially complied with the directions of government officials. Although a significant amount of weeds traveled to Collins' property it was not due to any deviation by Barker from such direction.
      4.Barker’s weed control and land management practices were reasonable under the circumstances.

      .Where the ultimate conclusion can be arrived at only by applying a rule of law, the result is a "conclusion of law” and not a "finding of fact.” Weltz v. Bd. of Educ. of Scotland Sch. Dist., 329 N.W.2d 131, 134 n. 2 (S.D.1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 296 (S.D.1982). Whether the ultimate fact can be arrived at only by application of a rule of law depends upon whether it is reached by natural reasoning or by the application of fixed rules of law_ Jasper, 351 N.W.2d at 117.


author: LARSON, Justice.

text:
    GIBSON ELEVATOR, INC., Appellant, v. Lyle MOLYNEUX, Larry Molyneux, John Molyneux, and Alan Molyneux d/b/a Molyneux & Sons, Inc. and Lyle G. Molyneux & Sons, Inc., Appellees.
    No. 02-0612.
    Supreme Court of Iowa.
    Sept. 4, 2003.
    Greg A. Life of Life Law Office, Oska-loosa, and Steven W. Guiter of Johnston, Hicks, Guiter & Griffin, Knoxville, for appellant.
    Robert N. Downer of Meardon, Sueppel, Downer & Hayes, P.L.C., Iowa City, for appellees Lyle Molyneux, John Molyneux & Alan Molyneux d/b/a Molyneux & Sons, and Lyle G. Molyneux & Sons, Inc.
    Roger W. Sunleaf of McNeil & Sunleaf, Montezuma, for appellee Larry Molyneux.
   LARSON, Justice.

The plaintiff, Gibson Elevator, Inc., buys and sells farm-related products in Gibson, Iowa. The defendants and their corporation (collectively Molyneux) were customers who sold grain to the elevator and purchased grain, feed, and other farm-related products from it. The Molyneux account became delinquent, and the elevator filed suit to collect. Molyneux defended on several grounds, including violations of a statute regarding sales based on an elevator’s weighing products in excess of its scale’s certification (Iowa Code § 215.16 (2001)) and its failure to provide duplicate delivery tickets (Iowa Code § 212.2). These violations, Molyneux argues, render the Molyneux account void in its entirety, relying on Iowa Code section 189.30 (1999) (providing no action shall be maintained for sale made in violation of any agricultural statutes). See Smith Fertilizer & Grain Co. v. Wales, 450 N.W.2d 814, 816 (Iowa 1990) (fertilizer seller’s violation of statute voided action for collection).

The district court ruled that the elevator had violated both of these statutes, and under Iowa Code section 189.30, its claim against Molyneux was void. The court dismissed the elevator’s claim in its entirety, even those portions of the account that did not involve violations of either of the statutes. Because we conclude the court erred in finding violations of section 212.2 (delivery tickets) and its application of the sanctions of section 189.30, we reverse and remand.

I. Facts and Prior Proceedings.

Molyneux did not raise violations of sections 212.2 or 215.16 or the sanction of section 189.30 in its initial answer. However, approximately a month before trial, Molyneux amended its answer to add an affirmative defense, claiming that weights on some of the grain tickets established that the elevator was weighing in excess of its certified limit in violation of section 215.16. At trial Molyneux moved for dismissal on the ground that the elevator failed, pursuant to section 212.2, to leave duplicate sales tickets with Molyneux. The district court, relying on section 189.30, dismissed the elevator’s claim in its entirety, based on both the elevator’s failure to deliver copies of the sales tickets and using the scale beyond its certified capacity.

II. The Issues.

Iowa Code section 189.30 provides severe consequences for violation of agriculture-related statutes. See Smith Fertilizer, 450 N.W.2d at 816. Section 189.30 provides:

Contracts invalid.
No action shall be maintained in any of the courts of the state upon any contract or sale made in violation of or with the intent to violate any provision of this subtitle* by one who was knowingly a party thereto.

“Subtitle,” as used in section 189.30, refers to Iowa Code title V, subtitle 4: “Agriculture-Related Products And Activities,” and it includes chapters 189 to 215A, excluding certain chapters not relevant here. It includes both the sections claimed to have been violated by this plaintiff-sections 212.2 and 216.16.

Section 212.2 states:

Delivery tickets required.
No person shall deliver any bulk commodities, other than liquids, by vehicle unless otherwise provided for without each such delivery being accompanied by duplicate delivery tickets, on each of which shall be written in ink or other indelible substance the actual weight distinctly expressed in pounds or kilograms of the gross weight of the load, the tare of the delivery vehicle, and the net amount in weight of the commodity or, if the commodity is weighed by hopper scale or belt conveyor, the net weight of the commodity expressed in pounds or kilograms without expression of the tare of the delivery vehicle or the gross weight of the load. The delivery ticket shall display the names of the purchaser and the dealer from whom purchased.

Although a Code section was not cited specifically by the district court, it found that the scale had been used beyond its certified wéight. The relevant Code section is 215.16, which provides:

Weighing beyond capacity.
It shall be unlawful for any person, firm, or corporation to use such a scale for weighing commodities the gross weight of which is greater than the factory rated scale capacity. The capacity of the scale shall be stamped by the manufacturer on each weigh beam or dial. The capacity of the scale shall be posted so as to be visible to the public.

Even assuming it had violated section 215.16, the elevator contends the trial court erred in using section 189.30 as a bar to recovery because that section was not raised as an affirmative defense. It relies in part on Iowa Rule of Civil Procedure 1.419 (formerly rule 86), which provides:

Defenses to be specially pleaded. Any defense that a contract or writing sued on is void or voidable, or was delivered in escrow, or which alleges any matter in justification, excuse, release or discharge, or which admits the facts of the adverse pleading but seeks to avoid their legal effect, must be specially pleaded.

Molyneux contends it raised the issue of voidness under section 189.30 by stating this in its amended answer:

For further answer, ... Defendant denies the following entries on [the attachment to the petition] ... for the reason that said entries affirmatively establish weights in excess of the weights for which Plaintiffs scale has been licensed under the laws of the state of Iowa.

This amendment requested that the petition be dismissed. It did not cite section 189.30 (voidness of claim based on prohibited acts), but we have held citation to Code sections is not required if the gist of the claim may be determined. See Davis v. Crook, 261 N.W.2d 500, 505 (Iowa 1978). We hold the issue of voidness. under section 189.30, based on the excess-weight violation, was at least minimally raised by the defendant.

The issue of the plaintiffs failure to leave duplicate tickets under section 212.2, however, is another matter. Molyneux did not raise this issue prior to trial in any pleading or amended pleading. It first raised it in a motion to dismiss at the close of the plaintiffs evidence. The defendant’s reliance on section 212.2 as a basis for voiding the plaintiffs claims is an affirmative defense under rule 1.419 and therefore must be “specially pleaded.” We have said that a motion attacking the sufficiency of an opponent’s case does not qualify as a special pleading. See Bond v. Cedar Rapids Tel. Co., 518 N.W.2d 352, 355 (Iowa 1994) (motion for directed verdict or motion for judgment notwithstanding the verdict insufficient to raise issue).

Molyneux argues that, even if it failed to raise the delivery-ticket issue in a pleading, the issue was properly before the court because it was tried by consent.

When a party introduces evidence without objection on an issue not raised by the pleadings, the court considers the matter tried by consent and properly in the case. Consent will not be found, however, where the evidence was also admissible on a different issue that was raised by the pleadings. That is because a party cannot be expected to object to evidence on the basis that it goes to an issue not raised in the pleadings when the evidence is otherwise admissible on an issue properly raised. Additionally, when evidence is relevant to an issue properly in the case, its introduction would not signal to the opposing party that a new issue is being tried.

Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996) (citations omitted).

The evidence concerning the plaintiffs failure to furnish delivery tickets was relevant on the issue of whether the defendant had received the goods, and in what quantities. These were all disputed issues in the case. The plaintiffs failure to object to this delivery-ticket evidence, we believe, cannot reasonably be interpreted as its consent to try the issue of a section 189.30 bar to recovery as to the entire account. We conclude the delivery-ticket issue was not tried by consent. Because it was not pled, it has been waived.

III. Disposition.

The plaintiffs last point challenges the breadth of the district court’s remedy, which voided the plaintiffs entire claim— even as to those items that did not involve scale weights or delivery tickets. Some of the items sold were bagged feed (sold by the bag and not by scale weight), as well as veterinary supplies and other products. Some of the products had been picked up by Molyneux, and some had been weighed on scales other than Gibson’s.

Section 189.30 prohibits recovery for “any sale made in violation of’ statute. It does not void an entire account simply because sales that were made in violation of a statute are a part of the account. Under the district court’s ruling, the entire account was voided, and this was error. We therefore reverse and remand for a new hearing on the record already made to determine the amount to which the plaintiff is entitled after deduction of claims based on any illegal scale weights. Because the delivery-ticket issue has been waived, the court shall not consider it. The plaintiff, of course, has the burden of proof on its claim. As a part of that claim, the plaintiff must prove the defendant received the products. The defendant has the burden to prove its affirmative defense that the elevator violated section 215.16 by weighing in excess of its certification.

REVERSED AND REMANDED.


text:
    Michael O’MALIA and Mary O’Malia, Appellees, v. REGENCY BUILDERS, INC., Appellant.
    No. 02-0247.
    Supreme Court of Iowa.
    Sept. 4, 2003.

      Thomas G. Fisher, Jr. of Whitfield & Eddy, P.L.C., Des Moines, for appellant.
    Thomas J. Levis and Matthew S. Brick of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, for appellees.
   LARSON, Justice.

Michael and Mary O’Malia sued Regency Builders, Inc. for attorney fees incurred by the plaintiffs in enforcing the terms of a home purchase agreement with Regency. The district court and the court of appeals ordered Regency to pay the fees, and we affirm.

The parties stipulated to the following facts. The O’Malias signed a purchase agreement with Regency to buy a Regency-built home in West Des Moines. Paragraph 6C of the agreement provided:

New construction shall have the warranties implied by law, specifically made by suppliers of materials/appliances, or specifically tendered by the contractor.

On June 19, 1992, Regency delivered to the O’Malias a separate written warranty certificate by Homeowners Warranty Corporation, providing express warranties on the home. The sale was closed on June 26,1992.

After the closing, significant defects in the floor were discovered. A structural engineer recommended that a foundation be installed under part of the home for additional support. The O’Malias asked Regency to make the repairs, but Regency declined, advising the O’Malias their remedy was to file a claim with Homeowners Warranty.

The O’Malias learned that Homeowners Warranty was in receivership, and if Homeowners accepted the O’Malias’ claim, it would pay only sixty percent of the loss. The O’Malias sued Regency on May 1, 2000, for breach of contract, breach of warranty, and negligence in the construction of the home.

Homeowners Warranty paid the O’Mali-as $6975 on the warranty claim (presumably only sixty percent of the cost of repairs, based on the stipulation). In April 2001 Regency and the O’Malias agreed to continue the case until January 2002 to allow Regency to make the repairs to the satisfaction of the plaintiffs’ structural engineer. The repairs were approved, and the O’Malias paid Regency the amount they had received from Homeowners. The only issue then remaining concerned the O’Malias’ claim for attorney fees.

According to the stipulation, the O’Mali-as have incurred a total of $11,558.43 in attorney fees. The parties stipulated that fees of $10,605.93 were fair and reasonable up to the point the repairs were approved. The remainder was incurred by the O’Ma-lias after the date of approval. The district court awarded the O’Malias the full amount of fees, based on a provision of the purchase agreement.

Section 14 of the agreement provided:

If the SELLERS fail to fulfill this Agreement they will pay the BROKER the commission in full. The BUYERS shall have right to have all payments returned, and/or to proceed in any action at law or in equity, and the SELLERS agree to pay costs and reasonable attorney fees and a receiver may be appointed....

Regency argues that this attorney-fee provision is limited to a recovery under the purchase agreement, but here the recovery was obtained under the separate Homeowners’ warranty, which had no attorney-fees provision. We disagree. Only part of the plaintiffs’ satisfaction (apparently sixty percent) was provided under the Homeowners’ warranty. The balance was provided by Regency in kind, by completing the work. In any event, the O’Malias’ success in getting the property repaired was the direct result of their filing of this suit to enforce the contract.

We agree with the district court and the court of appeals that the attorney-fee provision under the purchase agreement is applicable and the fees claimed by the plaintiffs of $11,558.43 are fair and reasonable. In addition, the O’Malias have requested a recovery of their fees for this appeal, and we agree. We remand to the district court to rule on the issue of attorney fees on appeal and to enter an order accordingly.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED; CASE REMANDED.