author: KAPSNER, Justice. MARING, Justice,

text:
    2004 ND 14
    Barb MOCK, Plaintiff and Appellee v. Daniel MOCK, Defendant and Appellant.
    No. 20030115.
    Supreme Court of North Dakota.
    Jan. 20, 2004.

      Gary H. Lee, Olson, Burns, Lee, Minot, ND, for plaintiff and appellee.
    Suzanne M. Schweigert, Smith, Bakke, Oppegard, Porsborg, Wolf, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Daniel Mock appeals from a district court order denying his motion to amend a child custody order. Daniel Mock argues he established a prima facie case under N.D.C.C. § 14-09-06.6. We reverse and remand, concluding the district court erred in determining Daniel Mock failed to establish a prima facie case enti-fling him to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4).

[¶ 2] Daniel Mock and Barb Mock were divorced in August 2000. The divorce judgment, which was based upon the parties’ stipulation, provided for joint custody of the parties’ minor child. The child lives with his mother, and his father exercises liberal visitation.

[¶ 3] On December 31, 2002, Daniel Mock served a Motion for Change of Custody, requesting he receive physical and legal custody of the parties’ child. In his affidavit, Daniel Mock made several allegations as to Barb Mock’s level of care for the child, and that Barb Mock’s recent enlistment in the Air Force and move from South Dakota to Minot, North Dakota, warranted a change of custody. Daniel Mock alleged the child was suffering from medical problems; had a learning disorder resulting from abuse received from his mother; received inadequate daycare supervision; and was left by the child’s mother in a home frequented by a registered sex offender.

[¶ 4] The district court concluded that Daniel Mock’s affidavit failed to establish a prima facie case justifying modification and denied his motion without an eviden-tiary hearing. The district court ruled it would not consider evidence of behavior that took place prior to the initial stipulation. Daniel Mock filed this appeal.

I.

[¶ 5] A party seeking modification is entitled to an evidentiary hearing if the party establishes a prima facie- case by alleging in supporting affidavits, sufficient facts, which, if uncontradicted, would support a custody modification in favor of that party. Volz v. Peterson, 2003 ND 139, ¶ 7, 667 N.W.2d 637 (citing Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256). The procedure for resolving a motion to modify custody is set forth in N.D.C.C. § 14-09-06.6(4):

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

Under this provision, the district court must set a date for an evidentiary hearing only if the moving party presents a prima facie case. In O’Neill v. O’Neill, 2000 ND 200, ¶ 3, 619 N.W.2d 855 (citing Helbling v. Helbling, 541 N.W.2d 443, 445-46 (N.D.1995)), this Court described a prima facie case: “The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case.”

[¶ 6] This Court outlined the requirements to establish a prima facie case in O’Neill, at ¶ 5 (citations omitted):

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontra-dicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

[¶ 7] A material change in circumstance that establishes a prima facie case may include important new facts unknown at the time of the initial custody decree. See Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). An environment that endangers the child’s physical or emotional health is considered a material change in circumstance. Lanners, at ¶ 7. Relocation of a parent may constitute a material change in circumstance. Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924. “Improvements in a non-eustodial parent’s situation accompanied by a general decline in the condition of the children with the custodial parent over the same period may constitute a significant change in circumstances.” Lanners, at ¶ 7 (citing Kelly v. Kelly, 2002 ND 37, ¶ 20, 640 N.W.2d 38).

[¶ 8] The affidavits presented by Daniel Mock, if the allegations are ultimately proven, establish that Barb Mock has placed the parties’ child in situations where his health and welfare could be in jeopardy. Daniel Mock presented affidavits to the district court, containing allegations that, if found to be true, would establish a prima facie case under N.D.C.C. § 14-09-06.6(4). The affidavit dated December 30, 2002, stated:

Barb has failed to provide a stable and emotionally healthy environment for [the child]. It is not uncommon for [the child] to wake up and not know who will be with him, who will take him to his daycare or who will pick him up at the end of the day due to Barb’s shift work as a nurse and her second jobs. Although Barb has the financial means to provide for [the child], she fails to see that [the child] eats properly or gets enough rest. As a result, [the child] has a history of illness that results in the need for medical intervention. He has been to the doctor over twenty times in the past eighteen months. In November, 2002, [the child] was treated for scabies, presumed to have been contracted from an unclean sleeping environment while in Barb’s care.

The affidavit dated February 4, 2003, stated:

Barb chose to leave [the child] with her sister, Bonnie, whose son was convicted on charges of child pornography, drugs, and theft. Barb left [the child] at Bonnie’s house for three days prior to my getting custody of him, but now she claims that once they live in Minot this young man will no longer pose a danger to [the child’s] safety. Clearly, Barb has allowed [the child’s] safety to be compromised by leaving him in the care of Bonnie, knowing that her son has had numerous problems with the law.

[¶ 9] Allegations showing potential endangerment to a child’s physical or mental health constitute a “significant change of circumstances which will raise a prima facie case for a modification of custody and entitlement to an evidentiary hearing.” Volz v. Peterson, 2003 ND 139, ¶ 10, 667 N.W.2d 637 (citing O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256). Allegations of an unusually high rate of unexplained illness, or exposure to a registered sex offender would show potential harm to a child, sufficient to establish a prima facie case.

[¶ 10] The party seeking modification of custody bears the burden of establishing a prima facie case and ultimately has the burden of proof at the evidentiary hearing. N.D.C.C. § 14-09-06.6(8). Under N.D.C.C. § 14-09-06.6(4), the court determines whether a party has established a prima facie case by accepting the truth of the moving party’s allegations and may not weigh conflicting allegations. Accepting Daniel Mock’s allegations as true, the district court erred when it did not grant an evidentiary hearing because his allegations establish a prima facie case for change of custody.

II.

[¶ 11] The district court misapplied the law when it failed to consider pre-divorce conduct. Daniel Mock included several allegations in his affidavits regarding Barb Mock’s pre-divorce conduct. In its order the district court stated it would not consider allegations of fact which occurred prior to the parties’ stipulation in a request for modification. Daniel Mock argues the district court erred when it did not consider pre-divorce conduct in its determination of whether there was a material change in circumstance sufficient to hold an evidentiary hearing. We agree.

[¶ 12] This Court has held that facts unknown at the time of the initial custody decree may constitute a material change in circumstance. Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). The applicable statute provides:

6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties.

N.D.C.C. § 14-09-06.6(6)(a).

[¶ 13] Pre-divorce conduct can be relevant in a custody matter when the divorce was stipulated and the trial court was unaware of the facts at the time of the stipulation. The district court did not premise the refusal to consider pre-divorce conduct on the court’s ■prior knowledge of the facts. Accordingly, the district court erred when it refused to consider such facts.

[¶ 14] We reverse and remand for further proceedings.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, J., ZANE ANDERSON, District Judge, concur.

[¶ 16] The Honorable ZANE ANDERSON, District Judge, sitting in place of SANDSTROM, J., disqualified.

MARING, Justice,

dissenting.

[¶ 17] I, respectfully, dissent because Daniel has not established in his affidavit sufficient facts to support a change of custody entitling him to an evidentiary hearing.

[¶ 18] Even if taken as true, Daniel’s affidavit establishes only that the mother left the child with her sister for three days and that the sister has a son who has been convicted of child pornography, drugs, and theft. There are no allegations that the sister’s son was ever at the home during the three days the child was there or that the child was ever in contact with the son at any time. The trial court must fill in this fact to establish a prima facie case.

[¶ 19] It is pure speculation whether the son ever presented potential harm to the child. In addition, Daniel admits that all the information he has is “second hand from [Barb’s] family members.” These second hand allegations are insufficient to support his claim that the child is in serious danger. None of Daniel’s allegations are supported by firsthand knowledge. Further, the mother has since moved from South Dakota to Minot, North Dakota.

[¶ 20] I am of the opinion that affidavits which support a motion for a change of custody must be based on personal knowledge, must be based on facts which would be admissible in evidence, and must show the affiant’s competency to testify.

[¶ 21] When bringing a motion for summary judgment under Rule 56, N.D.R.Civ.P., supporting affidavits must be made on personal knowledge:

(e) Form of Affidavits-Further Testimony-Defense Required. Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.

N.D.R.Civ.P. 56(e) (emphasis added). In the context of summary judgment in other civil cases, our Court has not allowed an affiant to vary from these provisions. See, e.g., In re Estate of Stanton, 472 N.W.2d 741 (N.D.1991) (stating, in a will contest, affidavits opposing summary judgment must be based on personal knowledge and hearsay statements are excluded except where admissible under an exception); Stout v. Fisher Indus., Inc., 1999 ND 218, 603 N.W.2d 52 (stating, in a breach of employment contract case, a party resisting summary judgment must present competent admissible evidence); Wishnatsky v. Bergquist, 550 N.W.2d 394 (N.D.1996) (stating, in a 42 U.S.C. § 1983 action, this Court may agree with appellant that an affidavit by the chief of police with no personal knowledge may not be proper, but interrogatories did support summary judgment); Swenson v. N. Crop Ins., Inc., 498 N.W.2d 174 (N.D.1993) (stating, in an employment dispute, affidavits may be supplemented with other documents, but must be based on personal knowledge, facts admissible, and show the affiant is competent to testify).

[¶ 22] The majority also relies on affidavit allegations concerning the child being frequently sick and making frequent doctor visits over a eighteen-month period of time. The trial judge considered these allegations minor concerns, and I would agree. The mother is a registered nurse. This is a six-year-old child, who is at an age, i.e., kindergarten or first grade, when he is exposed to a lot of other children and susceptible to ear infections, colds, etc. Such allegations are not sufficient to establish a material change in circumstances necessitating a change of custody in the best interests of the child. The change of circumstances must be material and significant, not trivial or minor.

[¶ 23] Finally, with regard to facts that occurred before the judgment was entered, the mere fact that the parties entered into a stipulation does not mean that the facts were unknown to the court. The statute requires that the facts which form the basis for a material change in circumstances of the child be unknown to the trial court at the time of the prior order. N.D.C.C. § l<U09-06.6(6)(a). Daniel never alleged in his affidavit that the facts were unknown to the court at the time of the prior order. The burden is on him to establish the prima facie case, and he failed to do so.

[¶ 24] Daniel relied on Barb’s enlistment in the Air Forcé to support a change of circumstances for modification of custody. He clearly had a concern that their child would be moved far away from him. However, at the time of the submission of this matter to the trial court, it was undisputed that Barb would be living in Minot and stationed at the Minot Air Force Base. Daniel never alleged any other material change in circumstances.

[¶ 25] After a review of other jurisdictions’ statutes on modification of custody, I have concluded North Dakota’s statute, which places a burden on the movant to establish a prima facie case, is unique. See 4-25 MB Child Custody and Visitation § 25.03 (2003). North Dakota follows the motion practice-affidavit practice procedure. This is the most severe restriction placed on modification of child custody in the United States. Id. § 25.02. The purpose of affidavit practice is to “discourage contests over- temporary custody and prevent repeated and insubstantial motions for modifications.” Id. (citation omitted).

[¶ 26] The National Conference of Commissioners on Uniform State Laws first promulgated the Uniform Marriage and Divorce Act on August 6, 1970. Uniform Marriage and Divorce Act § 410, 9A U.L.A. 2 (Supp.2003). Minnesota adopted substantially Parts III and IV of the Act, effective March 15,1974. Id. at 1,10. See also Minn.Stat. §§ 518.002 to 518.66 (2002).

[¶ 27] ■ The Uniform Marriage and Divorce Act establishes a procedure for seeking modification of a custody decree by a motion supported with affidavits.

A party seeking a temporary custody order or modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

Uniform Marriage and Divorce Act § 410, 9A U.L.A. 538 (Supp.2003). The Comment to Section 410 of the Uniform Marriage and Divorce Act sets forth the purpose for affidavit practice:

This section establishes a procedure for seeking temporary custody or a modification of a custody decree by motion supported with affidavits. The procedure is designed to result in denial of the motion without a hearing unless the court finds that the affidavits establish adequate cause for holding a hearing. The procedure will thus tend to discourage contests over temporary custody and prevent repeated or insubstantial motions for modification.

Id. at 539.

[¶ 28] The Minnesota statute on affidavit procedure for modification states:

A party seeking a temporary custody order or modification of custody order shall submit together with moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of the affidavit, to other parties to the proceeding, who may file opposing affidavits.

Minn.Stat. § 518.185 (2002). Therefore, in Minnesota, a party seeking modification of child custody must submit an affidavit asserting facts to support the requested modification. Id. Minnesota case law requires that the affidavits establish a prima facie case to obtain an evidentiary hearing. A party moving for custody modification must establish four elements:

(1) a change in the circumstances of the child or custodian;
(2) that a modification would serve the best interests of the child;
(3) that the child’s present environment endangers her physical or emotional health or emotional development; and
(4)that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

Griese v. Kamp, 666 N.W.2d 404, 407 (Minn.Ct.App.2003) (quoting Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.Ct.App.1997)). To determine whether the moving party has established a prima facie case for custody modification, the district court must accept the facts in the moving party’s affidavit as true. Griese, at 407. But if the moving party’s affidavit “does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing.” In re Weber, 653 N.W.2d 804, 809 (Minn.Ct.App.2002).

[¶ 29] The trial court must also disregard any directly contrary statement in the nonmoving party’s submissions and may only use those statements to “explain the circumstances surrounding the accusations.” Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn.Ct.App.1997). “[A] prima facie case simply means one that prevails in the absence of evidence invalidating it.” Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn.2000). The question of whether to grant an evidentiary hearing rests in the discretion of the trial court. Geibe, at 777-78.

[¶ 30] It must be noted that the Uniform Marriage and Divorce Act and the Minnesota statute establishing affidavit procedure do not require that the affidavits establish a prima facie case. Uniform Marriage and Divorce Act § 410, 9A U.L.A. 538 (Supp.2003); Minn.Stat. § 518.185 (2002). In Minnesota, this requirement has been developed through case law. Nice Petersen v. Nice Petersen, 310 N.W.2d 471 (Minn.1981); see Robert E. Oliphant, Children in the Law Issue: Contributors Redefining a Statute Out of Existence: Minnesota’s View of When A Custody Modification Hearing Can Be Held, 26 Wm. Mitchell L.Rev. 711, 728 (2000).

[II31] The North Dakota Legislature, however, enacted N.D.C.C. § 14-09-06.6 with the requirement that the affidavits establish a prima facie case before an evi-dentiary hearing is to be granted. 1997 N.D. Sess. Laws ch. 149, § 1. The legislative history for N.D.C.C. § 14-09-06.6 is sparse, and it is indiscernible if the language of our statute came in part from the Uniform Marriage and Divorce Act and in part from Minnesota case law. Knowing, however, that we have looked often to Minnesota case law for guidance in the family law area, and finding no other state that uses a prima facie case for entitlement to an evidentiary hearing, it seems logical that our current statute was in part based on Minnesota case law.

[¶ 32] One thing clear from the legislative history of N.D.C.C. § 14-09-06.6 is that our Legislature recognized custodial changes are highly disruptive to children and that there must be a high bar for a noncustodial parent to modify custody. See Kelly v. Kelly, 2002 ND 37, ¶¶ 45, 48, 640 N.W.2d 38 (Maring, J., concurring in result) (setting forth that the legislative intent of N.D.C.C. § 14-09-06.6 is to make custody determinations as permanent as possible and to curtail repeat “painful, disruptive and destabilizing” custody battles). In this regard, our law embodies the purpose of §§ 409 and 410 of the Uniform Marriage and Divorce Act because it requires an affidavit procedure before a party is entitled to an evidentiary hearing on custody modification.

[¶ 33] Blacks Law Dictionary defines a prima facie case as: “1. The establishment of a legally required rebuttable presumption. 2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor,” Black’s Laiv Dictionary 1209 (7th ed.1999). Our Court has stated that to support a prima facie case, a party must present evidence, strong enough, if uncontradicted, to support a finding in the party’s favor. Helbling v. Helbling, 541 N.W.2d 443, 445 (N.D.1995) (emphasis added); Lawrence v. Delkamp, 2003 ND 53, ¶ 8, 658 N.W.2d 758 (emphasis added).

[¶ 34] In light of how easily a good lawyer can draft an affidavit to meet this standard, I believe we must require that the affidavit contain first hand knowledge; specificity and detail; facts that support a finding of a material and continuing change in the child’s circumstances; and when endangerment is alleged, facts showing a “significant degree of danger” for endangerment. Geibe, 571 N.W.2d at 778. See also Robert E. Oliphant, Children in the Law Issue: Contributors Redefining a Statute Out of Existence: Minnesota’s Vieiv of When A Custody Modification Hearing Can Be Held, 26 Wm. Mitchell L.Rev. 711 (2000) (pointing out that the prima facie burden is so low that a lawyer with minimal drafting ability will be able to persuade a court to grant a hearing, and concluding the prima facie burden is inconsistent with the purpose of the Minnesota statute and the Uniform Marriage and Divorce Act). For us to require less is to fail to adhere to the legislative purpose of N.D.C.C. § 14-09-06.6. See Kelly, 2002 ND 37, 640 N.W.2d 38 (Maring, J., concurring in result). I would encourage the Legislature to revisit our statute and the prima facie burden established therein.

[¶ 35] Daniel must show that a material change in circumstances endangers his child’s physical or emotional health or development to be entitled to an evidentiary hearing on his motion. The trial court made detailed written findings indicating the reasons Daniel has not established sufficient facts for a prima facie case. The trial court did not abuse its discretion when it denied Daniel an evidentiary hearing, and I would affirm the trial court’s decision.

[¶ 36] Mary Muehlen Maring.

      . Allegations of harm which prove to be unfounded subject the parent making the allegations to court costs and attorney fees. N.D.C.C. § 14-09-06.5; Sweeney v. Sweeney, 2002 ND 206, ¶ 18, 654 N.W.2d 407.

      . The dissent would impose the evidentiary standards used in assessing motions for summary judgments upon the affidavits required under N.D.C.C. § 14-09-06.6. See ¶¶ 19-21, 34. However, evidentiary standards must be higher in deciding a summary judgment motion because summary judgment determines the merits of the action and the party in whose favor judgment is entered must be "entitled to a judgment as a matter of law.” N.D.R.Civ.P. 56(c). In contrast, the affidavits here are used only to determine whether the parties will have a hearing on the merits of the motion. Custody motions involve evidence about the lives of children, sometimes very young children. A strict application of Rule 56 standards will require affidavits from the children or eliminate reference to hearsay statements that the children have made to the parents. Neither result may be very desirable when trying to assess whether a hearing on the merits should occur. Requiring all allegations in the supporting affidavits to be based on firsthand knowledge makes the preliminary phase, deciding only whether to have a hearing, very cumbersome. Daniel Mock's supporting affidavits appropriately delineated what information was based on hearsay and what was based on firsthand knowledge. Any incentive to include allegations in the supporting affidavits which cannot be substantiated at a hearing should be diminished by the likelihood that costs and attorney fees may be imposed as a sanction for such inclusion. N.D.C.C. § 14-09-06.5.

      . The courts in Washington require that the affidavits establish a prima facie showing of "adequate cause” before a party is entitled to an evidentiary hearing. See In re the Marriage of Flynn, 94 Wash.App. 185, 972 P.2d 500, 505 (1999). Adequate cause, however, "requires something more than prima facie allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change.” In re the Marriage of Roorda, 25 Wash.App. 849, 611 P.2d 794, 796 (1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2004 ND 17
    In the Matter of APPLICATION FOR TRANSFER TO INCAPACITATED STATUS OF Debra K. EDWARDON, a Person Admitted to the Bar of the State of North Dakota.
    No. 20030331.
    Supreme Court of North Dakota.
    Jan. 20, 2004.
   PER CURIAM.

[¶ 1] Debra K. Edwardson was served a Summons and Petition for Discipline by publication on May 24, May 31, and June 7, 2003.

[¶ 2] The Petition asserts that Debra K. Edwardson was admitted to practice law in the courts of North Dakota on September 22, 1995. Edwardson’s license to practice law was suspended on July 11, 2002, and she is not currently licensed.

[¶ 3] The Petition asserts that Edward-son represented Randy Ballard through the trial and appeal of a criminal matter. See State v. Ballard, 2001 ND 161, 639 N.W.2d 706. Subsequently, Tom Slorby was appointed to represent Ballard in a post-conviction relief matter. Slorby made several requests to Edwardson for Ballard’s file; however, Edwardson did not respond to Slorby’s requests.

[¶ 4] The Petition further asserts that Edwardson violated N.D.R. Prof. Conduct 1.16(e), Declining or Terminating Representation, which provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, including surrendering papers and property to which the client is entitled, N.D.R. Prof. Conduct 8.4(e) and N.D.R. Lawyer Discipl. 1.2A(8), regarding engaging in conduct prejudicial to the administration of justice, and N.D.R. Lawyer Discipl. 3.1D(3) which requires a lawyer to make a written response to a disciplinary complaint.

[¶ 5] On November 12, 2003, the Hearing Panel filed its Report. The Hearing Panel concluded that a violation of the rules as alleged in the Petition has occurred. However, the Hearing Panel further concluded that there is concern about Edwardson’s ability and capacity to practice law. The Hearing Panel recommended that Edwardson be transferred to disability inactive status until the Court considers a petition for transfer to active status.

[¶ 6] The Report of the Hearing Panel was referred to the Court under N.D.R. Lawyer Discipl. 5.1. The Court considered the matter, and

[¶ 7] ORDERED, the Report of the Hearing Panel is accepted, and Debra K. Edwardson is transferred to disability inactive status until further order.

[¶ 8] FURTHER ORDERED, that formal proceedings be initiated as to whether Debra K. Edwardson should be transferred to incapacitated status.

[¶ 9] FURTHER ORDERED, Debra K. Edwardson comply with N.D.R. Lawyer Discipl. 6.3(F).

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


author:
ENG, Circuit Judge.
      GILBERTSON, Chief Justice ZINTER, Justice

text:
    2003 SD 149
    U.S. BANK NATIONAL ASSOCIATION, f/k/a First Bank of South Dakota, N.A., successor in interest by merger to Western Bank, Plaintiff and Appellee, v. Michael L. SCOTT and Linda L. Scott, Defendants and Appellants.
    No. 22498.
    Supreme Court of South Dakota.
    Argued March 24, 2003.
    Decided Dec. 23, 2003.

      James E. Moore and Daniel J. Harmel-ink of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Gale Fisher, Sioux Falls, South Dakota, Attorney for defendants and appellants.
   ENG, Circuit Judge.

[¶ 1.] U.S. Bank National Association (Bank) alleged that on August 21, 1985, Bank’s predecessor in interest, Western Bank, loaned Michael L. Scott and Linda L. Scott (Scotts) $200,000 as represented by a promissory note (note) in that principal amount. The note was subsequently modified through three allonges. Bank contends that when the note matured Scotts owed $109,948.79, plus interest. As an affirmative defense Scotts asserted that the note was paid in full. Neither the Bank nor Scotts had complete records of payments made. As a result, a determining factor below was which party bore the burden of establishing the balance due on the note. Bank moved for summary judgment and the trial court granted summary judgment after determining Scotts had not met their burden of establishing that genuine issues of material fact concerning payment remain for trial. Scotts appeal from the judgment.

FACTS AND PROCEDURE

[¶ 2.] On August 21, 1985, Bank issued a commercial loan to Scotts in the principal amount of $200,000 to finance Scotts’ opening and operation of a Mexican style restaurant in Sioux Falls, El Pollo Asado. As consideration for the loan Scotts delivered a promissory note to Bank in the principal amount of $200,000. The terms of the note required monthly payments of $2,950 beginning on November 21,1985.

[¶ 8.] Two months later Scotts requested an additional $20,000 loan to cover cost overruns for improvements made to the restaurant facility. Bank extended the additional amount and the parties executed an allonge for attachment to the note dated October 31, 1985. The allonge increased the principal amount of the note to $220,000 with monthly payments of $3,240 and the payments were to commence on November 21, 1985. The Small Business Administration (SBA) also agreed to guaranty ninety percent of Scotts’ loan.

[¶ 4.] From the outset Scotts struggled to operate El Pollo Asado at a profit. In the first year of operation Scotts missed two loan payments — -June and July 1986. To remedy a default under the terms of the note caused by these missed payments Scotts and Bank entered into an extension agreement on August 11, 1986. That extension agreement deferred the payments due in June and July 1986 and re-set the maturity date of the. note to August 21, 1995.

[¶ 5.] In either May or early June 1987, Scotts liquidated several pieces of excess restaurant' equipment for a sum of $38,800 and applied the proceeds to the outstanding principal and interest due on the note. The only documentation of this $38,800 payment by Bank or Scotts is a letter from Bank to SBA dated June 18, 1987, which states the $38,800 payment brought the loan “current to date for principal and interest.” Thereafter, Scotts missed two additional payments in June and July 1987. Bank and Scotts entered into a second allonge for attachment to note on July 20, 1987, which deferred payment on the June and July 1987 installments and lowered the interest rate on the note.

[¶ 6.] Scotts ultimately closed the restaurant in June 1988. Shortly thereafter, Scotts submitted an offer in compromise to Bank and SBA in which they proposed new repayment terms on the note. The offer acknowledged that the remaining principle balance was $185,000 as of September 16, 1988, and proposed a lump-sum payment of $125,000 in full satisfaction of this balance. Bank and SBA declined the offer.

[¶ 7.] In October 1988, Scotts again approached Bank concerning repayment of the note and requested Bank lower the interest rate. Bank agreed and the parties entered into a third allonge for attachment to note. The third allonge decreased the interest rate and lowered the monthly payment to $2,270 effective on October 15, 1988.

[¶ 8.] The note ultimately matured on August 21, 1995, with an unpaid balance of $109,948.79 according to Bank’s records. Bank notified Scotts of this outstanding balance. On September 12, 1995, Scotts met with Bank to discuss ways in which they could repay the outstanding debt. Subsequently, Mike Scott wrote a letter to Bank stating:

After my meeting with you on Tuesday September 12, 1995, I went to my local bank in Yankton and discussed with them borrowing the money to pay off your bank. They were not interested in making a loan on a business that was not in operation.
I have no way of coming up with $110,000 to pay off the loan. Equipment that is 10 years old will in no way cover this loan.

[¶ 9.] The letter also requested that Bank extend the maturity date of the note until 2005 in order to enable Scotts to pay the remaining $110,000 due.

[¶ 10.] It appearing to Bank Scotts might be unable to make repayment in full, on November 30,1995, Bank asked SBA to pay off the guaranteed portion. However, SBA indicated a reluctance to do so because Bank’s records of payments on the note were incomplete. In December 1997, SBA terminated its guaranty on the note due to the failure of Bank and Scotts to come to an agreement regarding the outstanding balance.

[¶ 11.] On November 16, 1998, Bank commenced the present action to collect on the note by service of a summons and complaint. In their answer, Scotts did not deny the validity or the authenticity of the signatures on the note but, instead, contended that the note was paid in full.

[¶ 12.] Because of this asserted defense Bank requested a number of documents from Scotts concerning payment on the note. By October 2000 Scotts failed to produce the requested documents and Bank filed a motion to compel. Apparently, Scotts still failed to produce many of these documents. As a result, on January 25, 2001, the trial court entered an order prohibiting Scotts from introducing at trial any documents responsive to any of Bank’s requests for production of documents which were not produced on or before November 30, 2000.

[¶ 13.] In April 2002, Bank moved for summary judgment. Scotts responded with the affidavit of Michael Scott. In his affidavit, Scott claimed the note had been paid in full and offered the amortization schedule prepared by Kyle Repp, the Scotts’ accountant, in support of this contention. Scotts then asked Repp to formulate an amortization schedule showing the note had been paid in full. This amortization schedule was based on assorted tax returns, but was not supported by any bank statements or cancelled checks showing payments that had been made. The circuit court determined Scotts had the burden of demonstrating payment on the note as a matter of law and Scotts failed to present admissible evidence of payment beyond those payments already acknowledged by Bank. Therefore, the circuit court granted summary judgment to Bank. Scotts appeal.

STANDARD OF REVIEW

[¶ 14.] The standard under which we review summary judgment is well established:

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. On the other hand, the party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.

Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459.

[¶ 15.] This Court reviews the evidentiary rulings of the trial court under an abuse of discretion standard. “Eviden-tiary rulings made by a trial court are presumed to be correct and are reversed only if there is an abuse of discretion.” In re Dokken, 2000 SD 9, ¶ 39, 604 N.W.2d 487, 498.

ANALYSIS

ISSUE ONE

[¶ 16.] Whether Article 3 of the Uniform Commercial Code and the burden shifting framework of SDCL 57A-3-308 govern this case.

[¶ 17.] Since the note is a negotiable instrument, Bank’s action to collect is governed by SDCL 57A-3-308. That statute provides in relevant part:

a) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings....
b) If the validity of signatures is admitted or proved and there is compliance with subsection (a), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under § 57A-3-301, unless the defendant proves a defense or claim in recoupment. ...

[¶ 18.] The burden shifting framework subsequently adopted by the legislature in SDCL 57A-3-308 was addressed by this Court in Frank Stinson Chevrolet, Inc. v. Connelly, 356 N.W.2d 480, 482-83 (S.D.1984). Therein, the Court stated:

Proof of the instrument of indebtedness in the hands of the party seeking payment creates a presumption of indebtedness and places the burden of proving payment on the party seeking to rely on payment.

Id. (citing Bensinger v. West, 255 S.W.2d 29 (Ky.Ct.App.1953); Guerin v. Cassidy, 38 N.J.Super. 454, 119 A.2d 780 (1955); Mann v. Whitely, 36 N.M. 1, 6 P.2d 468 (1931); Naylor v. Gutteridge, 430 S.W.2d 726 (Tex.Civ.App.1968)).

[¶ 19.] SDCL 57A-3-308 creates a three part burden shifting framework applicable to actions to collect on an instrument. First, the plaintiff must make a prima facie showing that it is entitled to payment on the instrument. If such a showing is made, the burden shifts to the defendant to establish a defense to the plaintiffs claim such as fraud, lack of consideration, payment, etc. Finally, if a defense is established, the plaintiff must then prove that it is a holder in due course entitled to overcome the defense. See 6 Hawkland & Lawrence UCC Service, [Rev] § 3-308:3; see also Hovendick v. Presidential Financial Corp., 230 Ga.App. 502, 497 S.E.2d 269, 272-73 (1998).

[¶ 20.] In the instant case, Bank has made its prima facie showing that it is entitled to payment on the instrument. Bank made this prima facie showing by setting forth in its complaint that Scotts had failed to pay all of the indebtedness owed to Bank and filing the note plus the three allonges for attachment as well as the extension agreement. In its original complaint, filed November 17, 1998, Bank asserted that Scotts remained indebted to Bank in the principal amount of $109,948.79, plus interest in the amount of $38,208.70 as of November 4, 1998, with interest accruing thereafter at the rate of $31.63 per day. Bank is not seeking to recover the face value of the note and attachments. Instead, Bank recognizes that Scotts are entitled to certain credited amounts for payments made. When a defendant is entitled to credits on the amount owing, a plaintiff must act with honesty of purpose to set forth the amount of debt actually remaining on the note, rather than taking unconscionable advantage of the defendant by seeking to recover the face value of the note.

[¶ 21.] “When the signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” Strickland v. Coleman, 824 S.W.2d 188, 192 (Tex.App.1991); Cadle Co. v. Bankston & Lobingier, 868 S.W.2d 918, 921 (Tex.App.1994). (emphasis added). As a result, the burden of proof shifted to Scotts to prove the affirmative defense of payment. Failure on the part of Scotts to plead and prove payment would entitle Bank to recover the amount set forth in its pleadings. Here, Bank produced the note and attachments and Scotts did not deny the validity of the documents or their signatures on the documents. Therefore, Bank is entitled to recover unless Scotts establish genuine issues of material fact concerning payment.

ISSUE TWO

[¶ 22.] Whether Scotts met their burden of establishing a genuine issue of material fact concerning payment.

[¶ 23.] The moving party will be entitled to judgment as a matter of law when the nonmoving party has failed to “make a sufficient showing for an essential element of [their] case with respect to which [they] have the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The defense of payment is an essential element of the Scotts’ case. Scotts can avoid summary judgment if they can prove that payment was made and that a genuine issue of material fact remained for trial. Scotts have asserted the affirmative defense of payment in three ways. First, they set forth the affirmative defense of payment as a general allegation in their answer. In addressing a similar situation, the court in Rea v. Sunbelt Sav., 822 5.W.2d 370, 373 (Tex.App.Dallas 1991), held that such general allegations of payment are insufficient to overcome a summary judgment motion. The court noted:

Rea’s plea of payment in general language that does not specify the nature of the alleged payments, if any, or the several items thereof, is a pure conclusion. (citation omitted). The plea should have specified what credits and offsets Rea relied on in asserting payment.

Rea, 822 S.W.2d at 373. Therefore, though preserving the defense, the general allegation of payment as set forth in Scotts’ answer was insufficient to meet the burden of establishing that a genuine issue of material fact remained for trial.

[¶ 24.] Scotts’ second assertion of payment was made in Michael Scott’s affidavit opposing summary judgment. However, this affidavit fails to set forth specific facts of payment and merely recites con-clusory allegations of payment. Under SDCL 15 — 6—56(e) the opposing party must be diligent in resisting a motion for summary judgment, and mere allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment. Hughes-Johnson Co., Inc. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972). Scott’s affidavit is simply insufficient to establish the affirmative defense of payment.

[¶ 25.] Finally, Scotts submitted an amortization schedule prepared by their accountant, Repp. However, there is a dispute concerning whether this amortization schedule was admissible evidence. Assuming the amortization schedule is admissible then it could establish both the affirmative defense of payment and that a genuine issue exists for trial. We therefore address the admissibility of that amortization schedule.

A. Whether the amortization schedide is admissible as a summary of lost or destroyed documents pursuant to SDCL 19-18-L

[¶ 26.] Repp created the amortization schedule from income tax returns that purportedly no longer exist. We therefore address whether a summary of nonexistent documents is admissible when created from documents that no longer exist. The trial court stated in its order that:

Both parties argue that Hotovec v. Howe, 79 S.D. 337, 111 N.W.2d 748 (1961) gives them the right to submit summary evidence. Hotovec does allow summaries, but the underlying evidence of the summary must be available for inspection. The rule is stated in Vol. IV, Wigmore on Evidence, 3rd ed § 1230, p 434 as follows:
Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements-as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank ledger it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper.
Most Courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available.

Wigmore on Evidence, supra at 434 (quoting Hotovec v. Howe, 79 S.D. 337, 340, 111 N.W.2d 748, 749-750 (1961)).

[¶ 27.] These requirements are reflected in SDCL 19-18-6 which provides:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

[¶ 28.] The Repp amortization schedule is defective for two reasons. First, the amortization was not created for the convenience of the court because there were voluminous writings; rather, the amortization was created because the writings were unavailable. Second, pursuant to SDCL 19-18-6, the original documents used in creating the summary must be made available to the other party. Because the documents were purportedly not readily available we turn to SDCL 19-18-4 which addresses admissibility when the documents are unavailable:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) No original can be obtained by any available judicial process or procedure.

[¶ 29.] Pursuant to SDCL 19-18-4 Scotts, as proponents of the secondary evidence, have the burden of establishing loss or destruction of an original. Sellmayer Packing Co. v. Commissioner of Internal Revenue, 146 F.2d 707, 710 (4th Cir.1944). Furthermore, the proponent may be required to demonstrate some degree of diligence in the search for an allegedly lost or destroyed original in order to meet this burden. Therefore, the proponent of the evidence must show that a reasonable and diligent search has been made for the original without success. Sylvania Elec. Products, Inc. v. Flanagan, 352 F.2d 1005, 1008 (1st Cir.1965). This was not established in the record below.

[¶ 30.] The record reveals that after the trial court granted Bank’s summary judgment motion Scotts came forward with several of the original documents that would have helped in preparation of a summary. This demonstrates that Scotts’ documents were not lost or destroyed but, rather, Scotts were not diligent in their efforts to discover the documents. Therefore, Scotts have failed to meet their burden of proving loss or destruction of the original documents and the amortization is not admissible as a summary.

B. Whether Scotts established a foundation for their amortization so as to make it admissible evidence.

[¶ 31.] Scotts had a duty to establish an evidentiary foundation for the summary. The admission of a summary under FedREvid 1006 [SDCL 19-18-6] requires “a proper foundation as to the admissibility of the material that is summarized and ... [a showing] that the summary is accurate; however, the decision to admit or exclude the summary rests in the district court’s sound discretion.” Needham v. White Laboratories, Inc., 639 F.2d 394, 403 (7th Cir.1981) (cert. denied) 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 237 (1981); U.S. v. Driver, 798 F.2d 248, 252-253 (7th Cir.1986). Scotts have not made a showing as to the admissibility of the underlying documents. Without a proper evidentiary foundation the trial court properly excluded this evidence.

C. Whether the amortization is admissible as a summary pursuant to SDCL 19-18-6.

[¶ 32.] Regardless of the trial court’s refusal to admit this amortization because the underlying documents were unavailable, the fact remains that this amortization was not a summary and, therefore, was inadmissible unless it qualified as another type of admissible evidence.

[¶ 33.] The amortization was not a summary of documents but rather a conclusion Repp reached based on his calculations and assumptions from the Scotts’ income tax returns. “Since only ‘writings, recordings, or photographs’ may be the subject of a FedREvid Rule 1006 summary, such a summary cannot properly incorporate a witness’ personal knowledge as the basis for any of the matters summarized.” (emphasis added) (citing 5 Weinstein and Berger, Weinstein’s Evidence, 1006-8 to 1006-9 (1984); White Industries, Inc. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1070 (W.D.Mo.1985)). Repp’s personal opinions, presumptions, and unfounded conclusions are not admissible under SDCL 19-18-6 because they do more than summarize the writings. They go beyond the scope of SDCL 19 — 18— 6 and state the opinion of Repp. In order to be admissible under SDCL 19-18-6, summary evidence must “accurately reflect the underlying documents.” 6 Weinstein and Berger, Weinstein’s Federal Evidence, § 1006.07[1] (Joseph M. McLaughlin ed, 2d ed 1998); Needham, 639 F.2d at 403.

D. Whether the amortization is admissible as an expert opinion.

[¶ 34.] Finally, the amortization might be admissible if it qualifies as an expert opinion. SDCL 19-15-2 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Scotts have absolutely failed to prove that the Repp amortization is expert opinion, therefore, the amortization is not admissible as an expert opinion.

[¶ 35.] Scotts have altogether failed to meet their burden. They have neither set forth an allegation of loss or destruction of the original documents nor have they shown any degree of diligence in the search for the original documents. Without such a showing, Scotts cannot rely on the exception for lost or destroyed documents. Scotts have also failed to establish any other basis for the admissibility of the amortization schedule.

[¶ 36.] As a result, the trial court did not abuse its discretion in making its evi-dentiary ruling that the amortization schedule was inadmissible. The trial court’s evidentiary ruling is affirmed.

ISSUE THREE

[¶ 37.] Whether Scotts met their burden of establishing that a genuine issue of material fact remains for trial.

[¶ 38.] Once a movant for summary judgment has properly supported its motion, the nonmovant “must set forth specific facts showing that there is a genuine issue for trial.” SDCL 15-6-56(e). Proving the affirmative defense of payment serves as its most fundamental purpose to offset the debt owed. However, such a showing will not necessarily result in a genuine issue remaining for trial. SDCL 15-6-56(e) requires:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (emphasis added).

[¶ 39.] Pursuant to SDCL 15-6-56(e) Scotts may not rely on mere conclusory statements to meet their burden of proving that a genuine issue remains for trial. This Court has held that summary judgment is proper when the party opposing provides only conclusory statements and fails to present specific facts showing that a genuine issue exists for trial. Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876; SDCL 15-6-56(e). The nonmoving party may not rely on mere denials or allegations in its pleadings but must designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (U.S. Dist.Col.1986); Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 258 (C.A.8 Mo.1996). Scotts failed to demonstrate that this amortization schedule is anything other than a conclusory statement. As a result, their affirmative defense of payment was unsupported by any specific facts below to defeat summary judgment.

CONCLUSION

[¶ 40.] The burden rests with the Bank to make a prima facie showing of entitlement to payment on the instrument. Bank met its burden by establishing:

1) that it is the holder of the instru'ment;
2) the validity of Scotts’ signatures; and,
3) that it acted with honesty of purpose in setting forth the amount of debt actually remaining on the note.

Bank was entitled to summary judgment unless Scotts made a showing that a genuine issue of material fact remained for trial. Scotts had the burden to establish any genuine issues of material fact supporting their affirmative defense of payment. They did not meet that burden and as a result we find that summary judgment was properly granted.

APPELLATE ATTORNEY FEES

[¶ 41.] Bank filed a motion for appellate attorney fees pursuant to SDCL 15-17-38 and SDCL 54-3-13. The Bank “may recover reasonable attorney’s fees in the case of default of payment if it is provided for in the note, bond, mortgage or other evidence of debt.” SDCL 54-3-13. Bank’s note does provide for the awarding of attorney’s fees but, because of the unique nature of this case, the Court declines to award attorney’s fees as the statute is permissive and not mandatory.

[¶ 42.] For the foregoing reasons, we affirm the circuit court’s grant of summary judgment.

[¶ 43.] KONENKAMPand MEIERHENRY, Justices, concur.

[¶44.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.

[¶ 45.] ENG, Circuit Judge, for SABERS, Justice, disqualified.

GILBERTSON, Chief Justice

(dissenting).

[¶ 46.] I respectfully dissent for three main reasons: the Bank did not meet its burden of showing the absence of material fact; the Scotts’ response to the Bank’s motion for summary judgment was sufficient; and the Court’s detailed evidentiary analysis is unnecessary.

[¶ 47.] The controversy before the Court presents a classic example of a situation in which summary judgment is improper. As the Court correctly recites, in reviewing grants or denials of motions for summary judgment “[w]e will affirm only when there are no genuine issues of material fact and ... [a]ll reasonable inferences drawn from the facts must be viewed in favor of the non-moving party.” Mueller v. Cedar Shore Resort, Inc., 2002 SD 38, ¶ 10, 643 N.W.2d 56, 61 (citation omitted). In this case, the basic question is factual: what is the balance due on the promissory note? The Scotts’ contend that they have made sufficient payments to discharge their obligation on the note, and as we have previously noted “[s]ummary judgment is also improper where defendant’s defenses involve questions of fact.” Limpert v. Bail, 447 N.W.2d 48, 50 (S.D.1989).

[¶48.] In large part, the Court’s decision rests upon its analysis of which party bore the burden of establishing the amount due on the note. After concluding that SDCL 57A-3-308 shifted the burden of proof to the Scotts’, the Court holds that the Scott’s have failed to carry this burden. The presumption under SDCL 57A-3-308, however, is a trial presumption. Here, we are dealing with a summary judgment proceeding. Thus, the Bank as the moving party bore the burden of “clearly showing] an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.” Mueller, 2002 SD 38, ¶ 10, 643 N.W.2d 56; See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility ... [to] demonstrate the absence of a genuine issue of material fact.”).

[¶ 49.] In support of its motion for summary judgment, the Bank offered the promissory note along with three allonges and the extension agreement. Notwithstanding the burden shifting framework of SDCL 57A-3-308, the Bank’s offer of proof simply does not establish the absence of material fact. As the Court recognizes, the Scotts’ do not deny the validity of the note but, instead, dispute the amount owing on the note. Although at trial SDCL 57A-3-308 would require the Scotts’ to prove the affirmative defense of payment, during the summary judgment stage, the burden rests squarely on the Bank to show that no factual issues regarding payment exist. Therefore, at the summary judgment hearing, the Bank had the burden to present at least some evidence detailing payment on the note, and, given the fact the Bank admitted it did not have complete records concerning payment, the Bank clearly cannot carry this burden.

[¶ 50.] I acknowledge that defendants do not bear the primary burden on summary judgment but that they are required to “be diligent in resisting the motion, and mere allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.” Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459 (citations omitted). Thus, the Scotts’ could not rely on mere conclusory statements nor could they rest solely on allegations in their pleadings. SDCL 15 — 6—56(e); Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

[¶ 51.] Here, the Scotts’ response was sufficient to resist the Bank’s motion for summary judgment. In addition to Michael Scott’s affidavit disputing the amount due on the note, the Scotts’ relied on the deposition of Kyle Repp, a Certified Public Accountant. In his deposition, Repp testified he prepared an amortization schedule in June 1996, and he believed the loan in question had been repaid in full. Although the Scotts’ clearly could not rely upon their pleadings alone, Michael Scott’s affidavit, taken in concert with Repp’s professional opinion in his deposition, sufficiently supports the Scotts’ defense of payment. Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (“In sum, those resisting summary judgment must show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.”). While it is true that the Scotts’ assertions regarding the amount owing on the note may have been inconsistent, “[sjummary judgment is not a substitute for trial; a belief that the non-moving party will not prevail at trial is not an appropriate basis for granting the motion....” St. Onge Livestock Company, Ltd., v. Curtis, 2002 SD 102, ¶ 25, 650 N.W.2d 537, 544 (citations omitted).

[¶ 52.] Finally, the Court unnecessarily delves into a detailed evidentiary analysis of the amortization schedule prepared by Repp. This analysis is solely occasioned by the Court’s mistaken conclusion that the Scott’s bore the primary burden on the summary judgment proceeding because of the SDCL 57A-3-308 framework.. As noted above, this statute does not relieve the Bank of its burden on summary judgment to prove the absence of material fact. Because the Bank has not met this burden, any detailed analysis of the Scotts’ evidence is misplaced.

ZINTER, Justice

(dissenting).

[¶ 53.] I join the dissent of Chief Justice Gilbertson. I also write specially to emphasize the material disputes of fact that exist in this case and to express my belief that the Court has misinterpreted and incorrectly applied SDCL 19-18-6 (Fed R Evid 1006) governing summaries.

Material Issues of Disputed Fact

[¶ 54.] One need not read more than the opening passage of the Bank’s own brief to resolve this appeal. In that passage, the Bank unequivocally demonstrates the existence of material issues of disputed fact on Scotts’ affirmative defense of payment. The Bank’s Statement of the Facts expressly concedes the point stating that:

This case involves a dispute over the amount of principal due on a promissory note delivered to the Bank by the Scotts in August of 1985. The Bank contended that at maturity the Scotts owed $109,948.79 plus interest on the note, while the Scotts asserted that the note was paid in full. This seemingly straightforward matter is complicated because neither the Scotts nor the Bank have complete records of payments made on the note.

Considering this statement alone, we should reverse the summary judgment. Never before has this Court permitted summary judgment in such circumstances: especially not when the trial court had to make credibility determinations about disputed factual assumptions underlying each side’s payment records (described by both parties as amortization schedules).

[¶ 55.] The trial court concluded that Bank was entitled to summary judgment because it found that the Scotts’ amortization contained “obvious glaring errors.” On the other hand, the trial court apparently found the Bank’s amortization credible despite missing records and alleged errors. This Court compounds the problem by further finding that “[i]t was reasonable for the trial court to rely on the Bank’s balance.... ” See supra note 7 (emphasis added). In my view, this type of fact finding, expressly finding the reasonableness of disputed evidence, has no place in summary judgment proceedings.

[¶ 56.] The Court, therefore, attempts to distinguish our precedent prohibiting fact finding in summary judgment proceedings by noting that this case involves payment, which is an affirmative defense. However, the Court’s error is illustrated by Wright, Miller and Kane’s discussion of summary judgment in cases involving defenses. That treatise recognizes that even though a motion for summary judgment may be used to test the sufficiency of a defendant’s defense:

A [plaintiff] is entitled to summary judgment only when no genuine issue of material fact exists, the papers on the motion demonstrate the right to relief, and every one of the defenses asserted legally are insufficient. Since a single valid defense may defeat recovery, however, [plaintiffs] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.

10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2734 (3d ed 1998) (emphasis added). Accordingly, if a fact issue existed on the payment defense, summary judgment should have been denied, and the trial court’s resolution of the payment dispute should have been determined at a trial. Simply stated, the Scotts’ ultimate trial burden of persuasion under SDCL 57A-3-308 is irrelevant. It is irrelevant because the only question on the motion for summary judgment is whether any material dispute of fact exists on the payment defense.

[¶ 57.] Additionally, even if a fact resolution of the payment dispute were permitted in summary judgment proceedings, the Bank’s own showing does not affirmatively demonstrate its entitlement to relief. It does not because the Bank’s own amortization schedule is subject to the same infirmities the Court uses to invalidate the Scotts’ amortization schedule. Specifically, this Court disallows consideration of Scotts’ amortization because of their inability to produce the records used to construct their schedule. However, Bank concedes that it also lost underlying documentation supporting the outstanding principal claimed on its schedule. Indeed, in its Statement of Material Facts filed in support of its motion, the Bank expressly concedes that “[a]pparently, the records of any payments that had been made prior to the execution of the Third Allonge in October of 1988 bad been destroyed when Western Bank merged into First Bank in the late 1980s.”

[¶ 58.] Moreover, the Bank’s other supporting submissions demonstrate that its claim to $109,948.79 in principal is inconsistent and uncertain. The Bank’s claim is inconsistent because it is based upon two affidavits of Michael J. Porcello, a Bank Vice President. However, the claims made in those affidavits are inconsistent. In his first affidavit, Porcello claimed entitlement to $109,948.79. However, in his second affidavit, he attached a Bank amortization schedule, purportedly prepared from Bank records, claiming $111,258.61. Nevertheless, the trial court found for the Bank in the amount of $109,948.79.

[¶ 59.] The Bank also concedes that there is record evidence that its claim is uncertain. The Bank admitted that “[t]he SBA was reluctant to pay on its guaranty because the Bank was missing certain records relating to the Note.” On July 17, 1996, the SBA notified the Bank that it planned to “delay any purchase until an agreement is reached as to the amount owing on th[e] account that can be legally proved.” However, “[t]he SBA ultimately declined to honor its guaranty on the Note, in part because of the wide variance between the Bank’s and the Scotts’ amortization schedules.” The SBA terminated its guaranty entirely in December, 1997, “due to the Bank’s and the Scotts’ failure to come to an agreement regarding the Note’s outstanding balance.”

[¶ 60.] These deficiencies in the Bank’s own showing more than adequately demonstrate that the Bank failed to establish the absence of disputed issues of material fact and its right to $109,948.79 plus interest. The inconsistencies and uncertainties in the Bank’s own records certainly refute this Court’s appellate finding that “[t]he note ultimately matured on August 21, 1995, with an unpaid balance of $109,948.79 according to Bank’s records.” See swpra ¶ 8 (emphasis added).

[¶ 61.] It must finally be noted that the deficiencies in the Bank’s own showing are not the only evidence raising disputes of material fact. The Scotts raised other alleged errors in the Bank’s amortization schedule, including: (1) an alleged failure to give proper credit for a $38,000 equipment sale; (2) an alleged failure to credit any portion of the 1989 payments to principal reduction; and, (3) a Bank letter indicating the loan was current. Although the Bank has submitted “explanations” for these points, the Bank’s explanations and the Scotts’ assertions should both be resolved by a fact finder rather than by concluding that they raise no dispute of fact.

Summaries

[¶ 62.] I also dissent because I disagree with the Court’s evidentiary analysis of summaries. The summary at issue was Scotts’ amortization schedule, which was prepared by their certified public accountant, Kyle Repp. Although the Court correctly observes that this schedule could establish the defense of payment and create a dispute of material fact, see supra ¶ 25, the court incorrectly excludes the schedule from consideration. It does so because the Court concludes that it is a “summary” that is inadmissible under SDCL 19-18-6, Fed R Evid 1006. The Court concludes it inadmissible because the documents from which the “summary” was created no longer exist. The Court reasons that: (1) Scotts failed to establish their burden of proving the loss or destruction of records supporting such “secondary evidence,” and (2) Scotts failed to establish a foundation for it. See supra ¶¶ 26-31.

[¶ 63.] I dissent from the Court’s analysis because the amortization was not a summary; i.e. secondary evidence of the underlying documents. On the contrary, the Court concedes that “this amortization was not a summary” within the meaning of Rule 1006. See supra ¶¶ 32-33.

[¶ 64.] Summaries are admissible under Rule 1006 because “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” SDCL 19-18-6 (Rule 1006) (emphasis added). However, the Scotts did not offer their amortization schedule to prove the contents of the underlying records used to arrive at the amortization. The amortization was simply used to illustrate Repp’s reconstruction of the payments made in his deposition. Moreover, Repp’s amortization was the same kind of opinion that the Bank submitted through its amortization (which was also constructed despite lost or destroyed records).

[¶ 65.] These types of expert opinions are not covered by Rule 1006. “[N]ot all expert testimony that is seemingly summary in form falls within the parameters of Rule 1006. Opinion evidence, even if based upon review of voluminous data, remains opinion evidence ... and it need not satisfy Rule 1006.” 2 Gregory P. Joseph Stephen A. Salzburg, Evidence in America: The Federal Rules In the States, ch 70, 3 (1987). Therefore, the Court incorrectly analyzes the admissibility of Repp’s opinion under Rule 1006. Because the Scotts’ amortization was not offered as a summary (secondary evidence) of the underlying records, and because it was simply an opinion of the Scotts’ certified public accountant, it was not excluded from consideration by Rule 1006.

Opinion Evidence

[¶ 66.] The Court finally errors by concluding that Repp’s deposition testimony fails to qualify for consideration as expert opinion under SDCL 19-15-2 (Fed R Evid 702). First, the court’s conclusion is not supported by any analysis. See supra 34. More importantly, SDCL 19-15-3 (Fed R Evid 703) only requires that such expert opinions be based upon “facts or data ... perceived or made known [to the expert] at or before the hearing.” Moreover, if the underlying records are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Id.

[¶ 67.] Here, the Scott’s certified public accountant of over twenty years constructed the amortization from the Scotts’ year-end bank records, income tax returns and IRS 1099s. Significantly, Bank does not, nor could it claim that accountants do not reasonably and customarily rely upon such records for such purposes. Under those circumstances, Scotts’ amortization was just as usable for summary judgment purposes as the Bank’s amortization. Both amortizations were opinion evidence based upon each party’s different factual assumptions. The difference in factual assumptions clearly raised a disputed issue of material fact concerning the calculation of principal remaining due on the note.

[¶ 68.] For these reasons, summary judgment was incorrectly entered. The disputes concerning the amount of principal due on the note should be determined at a trial.

[¶ 69.] GILBERTSON, Chief Justice, joins Justice Zinter’s dissent.

      . The extension agreement recited the note’s balance at $214,336.27 as of August 11, 1986.

      . About this time Scotts made changes to their restaurant in an attempt to stimulate business by altering their menu and changing the name of their establishment to Fajitas.

      . On July 31, 2002, Scotts filed a motion for relief from judgment with the circuit court. In support of that motion Michael Scott submitted a second affidavit. This affidavit, notably in marked contrast to the first, admitted that the note had not been paid in full as previously asserted and claimed that newly discovered evidence indicated that a balance of $65,523.12 was due on the note. The circuit court denied Scotts’ motion for relief from the judgment. Scotts have not appealed from this ruling.

      . SDCL 57A-3-301 states that a person entitled to enforce an instrument includes the holder of the instrument. Therefore, Bank, as the holder of the instrument, is entitled to enforce the note.

      . In fact, such honesty of purpose is consistent with SDCL 15-6-11(a), which provides in part:
      The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion and exhibits or attachments thereto, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is wairanted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, embarrass another party or person, or to cause unnecessary delay or needless increase in the cost of litigation, (emphasis added).
      Therefore, in reciting the amount owed on a note it is the duty of the party certifying the pleadings to set forth only such amount as is well grounded in fact and warranted by existing law. When the amount due is less than the face value on the note a plaintiff is required to set forth in the pleadings the actual amount due on the note.

      . We note that prior to SBA's refusal to pay the note Scotts admitted liability on the remaining balance on two previous occasions. First, on September 16, 1988, Scotts submitted to Bank an offer in compromise in which Scotts admitted a remaining balance of $185,000 on the loan. At that time Scotts offered Bank $125,000 in full settlement of the loan but Bank refused the offer. Second, on September 14, 1995, a letter was written by Scotts in which they admitted a loan balance of $110,000.

      .Bank submitted an amortization schedule showing the balance due on the note but unlike Scott' amortization schedule, Bank’s amortization schedule was admissible. Bank’s amortization schedule was admissible because although the underlying documents were unavailable Bank proved that those documents were destroyed. As a result, the trial court could rely on Bank's amortization schedule to establish Bank's prima facie case. It was reasonable for the trial court to rely on Bank's balance due because Scotts had admitted to the balance due on at least two occasions and these admissions supported the amortization schedule set forth by Bank.

      . The only attempt Scotts made to establish a foundation was filing the deposition of Repp. However, the deposition did not establish the admissibility of the underlying documents.

      . The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. SDCL 19-18-6.

      . Had this been a summary then it would have contained a summarization of the information contained in the tax returns rather than a conclusory assertion that because the tax returns contained certain figures, payments had necessarily been made on presumptive dates and in presumptive amounts.

      . The South Dakota equivalent of FedREvid Rule 1006.

      . The Bank's predecessor in interest apparently destroyed most of the documents detailing the payment history of the note.

      . The Scotts initially claimed they had paid the promissory note in full. After the summary judgment hearing, the Scotts filed a motion for relief from judgment and attempted to come forward with new evidence showing they actually owed $65,523.12 on the note.

      . I also disagree with some portions of that analysis; however, because I believe the analysis is unwarranted, I decline to address this issue.

      . Repp testified at his deposition that the underlying tax records were destroyed pursuant to his accounting office's old records policy-

      . Although Repp did not have current access to all of the underlying records, neither did the Bank.


author:
GILBERTSON, Chief Justice.
      ZINTER, Justice

text:
    2003 SD 148
    PRUDENTIAL KAHLER REALTORS, Plaintiff and Appellant, v. James A. SCHMITENDORF and Dorothy C. Schmitendorf, Defendants and Appellees.
    No. 22672.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Dec. 23, 2003.

      Jon J. Lafleur of LaFleur, LaFleur & LaFleur, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Jody H. Speck, Rapid City, South Dakota, Attorney for defendants and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] James and Dorothy Schmitendorf (Schmitendorfs) entered into an exclusive listing agreement with Prudential Kahler Realtors (Kahler) for the sale of a printing business known as the Type Emporium. In the listing agreement, the Schmiten-dorfs agreed to pay Kahler a nine percent sales commission if the business was sold to any buyer to whom Kahler had shown the property. The listing agreement also contained a “tail” that obligated the Schmi-tendorfs to pay the commission if the property was sold within 360 days following the expiration of the agreement to anyone who was shown the property during the time-frame of the listing agreement. After the agreement expired, the Schmitendorfs sold the property to Michael Mitzel (Mitzel). Kahler then attempted to collect a commission for the sale, but the Schmitendorfs refused to pay on the grounds Kahler had not shown the property to Mitzel. Following a trial, the court agreed Kahler had not shown the property to Mitzel according to the meaning of the listing agreement and denied Kahler’s claim for a commission. Because we believe this finding is not clearly erroneous, we affirm the trial court.

FACTS AND PROCEDURE

[¶ 2.] On August 15, 1998, the Schmi-tendorfs entered into an exclusive listing agreement with Kahler for the commercial property known as the Type Emporium. The agreement provided for a nine percent sales commission in the event the property was sold to anyone Kahler had shown the property. The listing agreement also contained a 360-day “tail” that obligated the Schmitendorfs to pay the commission if the property was sold within 360 days following the expiration of the agreement to anyone who was shown the property during the timeframe of the listing agreement. The agreement expired on August 14,1999.

[¶ 3.] On September 18, 1998, Joseph Graziano (Graziano) directed his realtor to gather information from Kahler concerning the Type Emporium. The Schmiten-dorfs and Kahler disagree as to whether Graziano was actually fronting for Mitzel at this time, although it is clear Mitzel at least reviewed some relevant financial documents. Five days later on September 23, 1998, Graziano put forward an offer to purchase the Type Emporium for $200,000. On September 25, 1998, the Schmitendorfs made a counter-offer for $249,900. Shortly thereafter, Graziano indicated he was only willing to pay $225,000 for the business. Because neither side would compromise any further, the sale to Graziano was never consummated.

[¶ 4.] On August 3,1999, the Schmiten-dorfs indicated they did not wish to renew the listing agreement with Kahler and asked for a complete list of those parties with whom Kahler had made contact during the listing period. Kahler responded by sending a partial list of contacts but indicated it would not be possible to put together a complete list because of the enormous amount of people he had made contact with during the listing period. This partial list included Graziano’s realtor, but did not include Graziano or Mitzel.

[¶ 5.] On October 15, 1999, the Schmi-tendorfs sold the Type Emporium to Mit-zel for $240,000. Mitzel obtained a loan from Graziano in order to pay the $50,000 down payment for the business. Shortly after the sale, Kahler contacted the Schmi-tendorfs seeking to collect a commission pursuant to the 360-day “tail” provision in the listing agreement. When the Schmi-tendorfs refused to pay the commission, Kahler sued the Schmitendorfs for nine percent of the sale price. After a trial before the court, the circuit court denied Kahler’s claim on the grounds Kahler had not shown the property to Mitzel within the meaning of the listing agreement. In addition, the trial court held the 360-day “tail” to be invalid as an unreasonable restraint on the alienation of property and found Kahler to be equitably estopped from claiming a commission because he failed to include Mitzel on the list of people to whom he had shown the property. Kahler appeals and raises three issues for our review:

1. Whether the trial court’s finding that Mitzel was not shown the property is clearly erroneous.
2. Whether the 360-day provision found in paragraph six of the listing agreement is invalid as an impermissible restraint on the alienation of land.
3. Whether the doctrine of equitable estoppel prevented Kahler from claiming a real estate commission when he failed to
include Mitzel on the list of people shown the property.

STANDARD OF REVIEW

[¶ 6.] We employ the clearly erroneous standard in reviewing a trial court’s findings of fact. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204). Under this standard, “[c]lear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id. (quoting Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d at 204). We presume the trial court’s findings of fact are correct “and we defer to those findings unless the evidence clearly preponderates against them.” Id. We review conclusions of law de novo. Id.

[¶ 7.] The construction of a contract is a question of law reviewed under the de novo standard. Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 10, 604 N.W.2d 289, 292 (citing Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588). As we recognized in Kimball “[i]n determining the proper interpretation of a contract, a court is to seek to ascertain and give effect to the intention of the parties.” Id., ¶ 14 (additional citations omitted).

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court’s finding that Mitzel was not shown the property is clearly erroneous.

[¶ 9.] The trial court denied Kahler’s claim because it concluded Kahler had not shown the property to Mitzel within the meaning of the listing agreement. Kahler contends this finding is clearly erroneous and urges a more expansive interpretation of the word “shown.” Although we are not required to read a contract in favor of a trial court’s resolution, we believe the trial court employed the correct interpretation of “shown” under the circumstances. Id., ¶ 10 (recognizing “this court can read a contract itself without a presumption in favor of the trial court’s determination.”).

[¶ 10.] Kahler asserts the Type Emporium was “shown” to Mitzel in September 1999, when Mitzel reviewed certain written materials including the financials provided by Graziano’s realtor. The Schmitendorfs, however, assert Mitzel’s review of the documents does not amount to a “showing” of the Type Emporium. In cases such as this one where the parties to a contract cannot agree on the interpretation of a word in the contract, this Court will apply the “plain and ordinary meaning” of the disputed term. Opperman v. Heritage Mutual Insurance Co., 1997 SD 85, ¶ 14, 566 N.W.2d 487, 490 (citing Economic Aero Club, Inc. v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995) (additional citations omitted)). The most common meaning of the word shown is “to cause or allow to be seen; display.” AMERICAN HERITAGE COLLEGE DICTIONARY 1262 (3d ed.1997). With this simple definition in mind, we decline to accept Kahler’s expansive reading of “shown” and agree with the trial court that Mitzel’s review of documents relating to the Type Emporium did not equal a showing of the commercial property under the listing agreement.

[¶ 11.] The record also strongly suggests the trial court was not clearly erroneous in finding Kahler did not show the property to Mitzel. It is undisputed that Kahler never personally spoke with Mitzel, nor did he ever physically take Mitzel to inspect the business. At trial, Mitzel testified Graziano was not fronting him during Graziano’s negotiations with the Schmitendorfs for the Type Emporium. In addition, although Kahler included Graziano’s realtor on the list of contacts he provided the Schmitendorfs, Mitzel was not on the list. Under these circumstances, Kahler was not entitled to a commission for the sale of the Type Emporium, and we affirm the trial court.

[¶ 12.] 2. Whether the 360-day provision found in paragraph six of the listing agreement is invalid as an impermissible restraint on the alienation of land.

and

[¶ 13.] 3. Whether the doctrine of equitable estoppel prevented Kahler from claiming a real estate commission when he failed to include Mit-zel on the list of people shown the property.

[¶ 14.] Because of our holding under Issue One that the trial court was not clearly erroneous in finding Kahler did not show the property to Mitzel, we decline to address Issues Two and Three.

[¶ 15.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 16.] ZINTER, Justice, concurs in result.

ZINTER, Justice

(concurring in result).

[¶ 17.] I agree with the Court that, as a matter of fact, Kahler did not “show” the property to Mitzel. I concur in result only because I do not agree that the definition of the word “show,” as used in these listing agreements, always requires an on-site physical display of the property before a commission is earned. See supra ¶¶ 10-11 (defining show as “to cause or allow to be seen; display,” and noting that Kahler never “physically” took Mitzel to inspect the business). In my view, there are circumstances under which a buyer could be shown a property without a physical on-site inspection. Indeed, in today’s technological era, brokers show and sell property without a buyer’s on-site physical inspection. It may be that a broker’s production of the relevant financials, appraisals, building inspections, and visual reproductions are sufficient to sell property without a physical on-site display. I would not, therefore, hold as a matter of law that such listing agreements also require an on-site physical display of the property before it is deemed shown.

       Provision 6 of the Exclusive Listing Agreement provided:
      COMMISSION: If a purchaser is procured for the property by the Broker, by any other cooperating broker, by the seller, or by any other person at the price and upon the terms stated above, or at any other price or upon any other terms accepted by the Seller during the term of this Agreement or if exchanged or optioned during the term of this contract and said option is exercised, or if within, 360 days after the expiration of this agreement, the property is sold to any person to whom the property was showit the seller agrees to pay a commission of 9% of the sales price plus required sales taxes and applicable transaction fees, unless the property is listed with another cooperating broker at the time of such sale. (Emphasis added).